Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 1 of 23

ATTORNEY FOR APPELLANT

Robert Owen Vegeler

Fort Wayne, Indiana

ATTORNEY FOR APPELLEE

Ronald E. Weldy

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

DeGood Dimensional Concepts,

Inc., 

Appellant-Defendant, Cross-Appellee,

v.

John D. Wilder,

Appellee-Plaintiff, Cross-Appellant.

November 12, 2019

Court of Appeals Case No.

19A-PL-141

Appeal from the Kosciusko Circuit 

Court

The Honorable Michael W. Reed, 

Judge

Trial Court Cause No.

43C01-1103-PL-27

Altice, Judge.

Case Summary

[1] DeGood Dimensional Concepts, Inc. (DeGood), appeals the trial court’s judgment

in favor of its former employee, John D. Wilder, for unpaid sales commissions and 

attorney’s fees. Wilder cross-appeals, claiming that the trial court erred in not 

awarding him amounts for unpaid wages, additional commissions, liquidated 

damages, attorney’s fees, and pre-judgment interest and costs. 
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[2] We affirm in part, reverse in part, and remand with instructions.

Facts & Procedural History

[3] DeGood is a corporation in North Webster that manufactures and sells small 

orthopedic medical devices. The corporation is operated by Scott DeGood and his 

wife, Mary. Wilder had worked in sales and marketing with various businesses

over the years, including other medical device companies. 

[4] At some point, Wilder approached the DeGoods about working for them in the 

sales division. After some negotiation, Wilder drafted an employment agreement 

(First Agreement) in December 2008. This contract provided that Wilder would 

earn an annual base salary of $50,000 to be paid on a bi-weekly basis with ten days 

of paid vacation the first year, fifteen days the second year, and twenty days every 

year thereafter.

[5] Wilder would also be paid a two percent commission on sales of pre-existing 

product sales from $1 million to $2 million, along with a two percent commission 

on sales of new products up to $2 million. This payment schedule was attached to 

the First Agreement. Wilder was to work exclusively for DeGood from his 

residence at least forty hours per week, plus travel as required. The First 

Agreement further provided that Wilder would report to the plant in North 

Webster for a minimum of six hours every two to three weeks. Wilder was 

obligated to copy DeGood on emails, abide by the rules set forth in the employee 

handbook that Wilder received and acknowledged, report all sales activities and 
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provide those records to DeGood, and maintain a call log. In the event of 

termination or resignation, a one-month notice was required and full compensation 

was to be paid during that period. Both parties signed the First Agreement, and 

Wilder was to commence employment on December 15, 2008. However, the 

parties subsequently agreed to a January 1, 2009 start date. The date was again 

mutually changed to January 15. 

[6] DeGood sustained a substantial decline in product sales during the last half of 

2009. As a result, all of its employees’ hours were reduced for a six-month period. 

Additionally, both parties agreed that Wilder’s salary would be reduced by 25% 

from July 20, 2009, through March 12, 2010. 

[7] On August 1, 2010, the parties entered into a second employment agreement

(Second Agreement) that provided for a $5000 increase in Wilder’s salary. This 

contract was designed, among other things, to clarify some of the terms and rules 

that Wilder had not been following under the First Agreement. The Second 

Agreement also provided that termination/resignation notice was to be three 

months, and “all forms of compensation [were to be included] during this period.” 

Appellant’s Appendix Vol. II at 111-12.

[8] The DeGoods conducted periodic performance reviews throughout Wilder’s 

employment, including one on September 8, 2010, that culminated in an overall 

negative review of Wilder’s work performance. All reviews had detailed Wilder’s 

numerous violations of known and stated rules that were set forth in the employee 

handbook, including the prohibition against working for other companies, taking 
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extended breaks, and working many less hours than what had been agreed upon. 

More specifically, Wilder had been incommunicative with the DeGoods for several 

months after commencing employment, and he did not meet with any customers

from January 15, 2009, until April 2009. Wilder only made two trips to the plant 

during the first six months of 2009, failed to send sales reports, or copy DeGood on 

emails. Mary told Wilder at the September 8 meeting that he would be terminated 

in three months if his performance did not improve. The DeGoods and Wilder 

acknowledged and signed each review.

[9] On September 13, 2010, Wilder emailed Mary, stating, “I will assume that on 

9/8/2010, I received my 90 day notice for termination. If this is the case, how 

would you like to proceed?” Exhibits Vol. IV at 1. Mary’s email response that 

same day provided: 

It was just as we presented it to you, as a Formal Warning (not 

termination) from your employer that your job is in jeopardy, 

why it is in jeopardy, and what our expectations as your 

employer are in moving forward to resolve any and all the 

problems discussed. We DID NOT give you a termination 

notice, and also stated that was NOT our intentions [sic] during 

the meeting as well. We did state that we wanted to work this 

out with you and hopefully have you working with the company 

for years to come.

Id. (Emphases in original). The response went on to state that

[b]ecause you have ignored numerous previous verbal warnings 

and e-mails, a written warning was presented to you that you 

now are on probation for 3 months, and will show us in those 3 

months that you are willing to perform your job following the 
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guidelines in the report that was given to you, and also discussed 

thoroughly during the meeting. 

Id. at 6. The following day, Wilder emailed Mary again, stating, “No 

Termination notice regarding our agreement dated 2010. Your intention is not

to terminate our agreement. Purpose for your summary & our discussions 

(“Employee Performance Review”) was to clarify areas of improvement & to 

make sure employer expectations were clear.” Id. at 6.

[10]On December 6, 2010, Wilder emailed Mary explaining that he would be out for a 

half day because his back was “giving [him] trouble.” Id. at 135. Later that 

afternoon, Mary responded as follows: “The amount of work that you have 

missed in the last couple of weeks on top of all the previous problems that have 

been addressed regarding your absenteeism is completely out of control and I must 

present a final warning that it [sic] not going to be continued to be [sic] tolerated!” 

Id. (Emphasis added).

[11]Another Performance Notification (Notification), bearing a handwritten notation 

that Wilder’s employment with DeGood was being terminated, was issued to 

Wilder on January 5, 2011. The Notification detailed numerous policy violations 

that Wilder had committed throughout the course of his employment. Three prior 

formal written warnings were documented in the Notification, which stated that 

“[t]he employee has ‘Willfully Neglected’ the position of the Sales VP and terms 

stated in his employment contract, along with the disregard of previously stated 

warnings and the below performance notifications that the employee already has 

received to date.” Appellant’s Appendix Vol. II at 133. The Notification stated that 
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Wilder had continued to bring in company reps not associated with DeGood after

he was told to cease such behavior. DeGood also asserted that Wilder had 

misused the company telephone and used the business’s ATM card for 

unauthorized personal situations. 

[12]DeGood observed in the Notification that “John Wilder was formally put on a 3 

month PROBATION and was given notification in writing regarding the probation 

with all issues outlined on 9/8/10 which the employee acknowledged and signed 

and was given copies.” Id. DeGood also made it clear in the Notification that 

[Wilder] was notified with a detailed summary, that he was in 

bre[ach] of his employment contract and that the employee owed 

the company monies from being overpaid for hours that the 

employee had not worked and that the amount owed to company 

would be zeroed out and any new compensation for commissions 

would start over at the end of the 3 month probation with the 

understanding the employee needed to make a serious dedicated effort in 

resolving all the problems that were noted.

The needed effort needed by the employee was not achieved 

during this 3 month Probation. . . . 

Id. (Emphasis added).

[13]Wilder filed a complaint against DeGood on March 14, 2011, for unpaid salary,

commissions, vacation and sick time, and bonuses. DeGood counterclaimed for 

damages and injunctive relief. DeGood claimed, inter alia, that it had acted in 

good faith in not paying Wilder a portion of the commissions, and that it could not 

be held liable for unpaid wages, attorney’s fees, court costs, or liquidated damages. 
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DeGood also alleged that Wilder had committed civil theft because he had taken 

excessive unauthorized time off and had not worked the minimum forty-hour week 

required under the First and Second Agreements. 

[14]Following a bench trial on August 22, 2018, the trial court entered its judgment, 

finding that Wilder failed to prove that DeGood had committed material breaches 

of either Agreement, inasmuch as both parties had agreed to modify the 

Agreements in light of their conduct during the course of Wilder’s employment. It 

determined that Wilder failed to show that he had not been paid his full salary 

during the employment period. The trial court also found that Wilder had made a 

valid claim for unpaid commissions under the First Agreement in accordance with 

the Wage Claim Statute1 for $9287.48. However, the trial court denied Wilder’s 

request for liquidated damages under the Wage Claim Statute in light of the 

parties’ modifications of both Agreements, their bona fide disputes throughout the 

course of the employment period, and the lack of evidence that DeGood had acted 

in bad faith in withholding the commissions. The trial court also ordered DeGood 

to pay the costs of the action and Wilder’s attorney’s fees in the amount of $15,250

pursuant to the Wage Claim Statute. With regard to DeGood’s counterclaims, the 

trial court determined that DeGood failed to prove that it had overpaid Wilder’s 

salary and that it was not entitled to damages against Wilder on its claim that 

Wilder had stolen any wages. In the end, the trial court entered judgment for 

1 Ind. Code § 22-2-5-1.
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Wilder in the amount of $24,537.48, together with statutory interest. 2

 However, 

the final judgment stated that court costs were assessed against Wilder.

[15]DeGood appeals, claiming that the judgment must be set aside because it: 1) never 

agreed to modify the Agreements and that Wilder was the first to breach both 

Agreements; 2) cannot be liable for damages under the Wage Claim Statute 

because Wilder did not follow the proper procedures in pursuing his claims against 

it; 3) has established that commissions are not wages within the meaning of I.C. §

22-2-5-2; 4) is not liable for liquidated damages because it did not act in bad faith in 

withholding those commissions or alleged unpaid salary amounts; 5) established 

the evidence was insufficient to support the commission award; and 6) was entitled 

to attorney’s fees and damages against Wilder for civil theft because Wilder’s 

conduct throughout the course of his employment constituted “theft of labor.” 

Appellant’s Brief at 33. 

[16]Wilder cross-appeals, claiming that he is entitled to: 1) amounts for underpaid and 

unpaid wages; 2) liquidated damages under the Wage Claim Statute; and 3) prejudgment interest and costs. 

Discussion and Decision

2 The trial court amended its final order and judgment on December 19, 2018 (Amended Final Order), 

stating that a letter from the Office of the Attorney General had authorized Wilder’s counsel to pursue wage 

claims against DeGood under I.C. § 22-2-9-2. The amended order also noted that the Wage Claim Statute 

provides for the payment of reasonable attorney’s fees and costs and recovery of twice the amount of the 

unpaid wages as liquidated damages if the employer failed to act in good faith in the nonpayment of wages. 
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I. Standard of Review

[17]On appeal, the findings and conclusions made by the trial court are to be liberally 

construed to support the judgment. In re Paternity of J.A.C., 734 N.E. 2d 1057, 1059 

(Ind. Ct. App. 2000). They will not be overturned unless they are clearly 

erroneous. Lucero v. Lutheran Univ. Ass’n, 621 N.E.2d 660, 664 (Ind. Ct. App. 

1993). Findings are clearly erroneous only when the record contains no facts to 

support them either directly or by inference. Jones v. Von Hollow Ass’n, Inc., 103 

N.E.3d 667, 671 (Ind. Ct. App. 2018). A judgment is clearly erroneous if it applies 

the wrong legal standard to properly found facts. Id. In determining whether the 

findings or judgment are clearly erroneous, we do not reweigh the evidence and 

consider only the evidence favorable to the judgment and all reasonable inferences 

flowing therefrom. Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind. 1999). We evaluate 

questions of law de novo and owe no deference to a trial court’s determination of 

such questions. Jones, 103 N.E.3d at 671. 

[18]As for Wilder’s cross-appeal, we note that he is appealing from a negative 

judgment. A judgment entered against a party who bore the burden of proof at 

trial is a negative judgment. Stoffel v. JPMorgan Chase Bank, 3 N.E.3d 548, 552 

(Ind. Ct. App. 2014). On appeal, we will not reverse a negative judgment unless it 

is contrary to law. Id. To determine whether a judgment is contrary to law, we 

consider the evidence in the light most favorable to the cross-appellee, together 

with all the reasonable inferences to be drawn therefrom. Id. at 553. A party 

appealing from a negative judgment must show that the evidence points unerringly 
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to a conclusion different than that reached by the trial court. Smith v. Dermatology 

Assoc., 977 N.E.2d 1, 4 (Ind. Ct. App. 2012).

II. DeGood’s Claims

A. Modification and Enforcement of the Agreements

[19]DeGood argues that the trial court erred in finding that it had modified either 

Agreement. DeGood maintains that there was a lack of evidence of any 

modification and that it never acquiesced in, or waived, any of the Agreements’ 

material terms. DeGood asserts that, “at best, it tolerated Wilder’s noncompliance” with the Agreements. Reply Brief of Appellant/Cross-Appellee at 15.

Therefore, DeGood contends that because there was no modification, and Wilder 

was the first to breach the Agreements by failing to follow their express terms, 

Wilder was precluded from enforcing the Agreements. 

[20]DeGood correctly posits that the first party to breach a contract may not enforce its 

terms. Steve Silveus Ins., Inc. v. Goshert, 873 N.E.2d 165, 182 (Ind. Ct. App. 2007). 

However, the evidence at trial showed that both parties consented to a 

modification of the employment contracts, inasmuch as they agreed to Wilder’s 

start date that differed from that stated in the First Agreement. Indeed, while the 

First Agreement provided that Wilder was to commence employment on 

December 15, 2008, both DeGood and Wilder subsequently agreed to a different 

start date of January 1, 2009. Wilder then sought to arrive at the plant on January 

2, but that date did not materialize. Thereafter, Wilder suffered a back injury in an 

automobile accident on January 15 and sought ongoing medical treatment that 
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resulted in an agreed-upon modified work schedule. The evidence further 

established that the parties agreed to a reduction in Wilder’s salary from the latter 

part of July 2009 through March 12, 2010. In light of this evidence, we cannot say 

that the trial court’s finding of an agreed modification was clearly erroneous. 

Thus, neither party was precluded from enforcing the terms of the Agreements 

against the other, and DeGood’s contention that Wilder was foreclosed from 

initiating a cause of action against it fails. 

B. Commissions Owed

1. Wilder’s Alleged Failure to Follow Proper Procedure Under the Wage Claim 

Statute

[21]It appears that DeGood is claiming that the judgment must be reversed because 

Wilder failed to follow the procedures outlined in the Wage Claim Statute. As a 

result, DeGood maintains that Wilder was barred from recovering costs, attorney’s 

fees, or liquidated damages for which the Wage Claim Statute provides in certain 

circumstances. 

[22]In resolving this issue, we initially observe that the Wage Claim Statute provides: 

(a) Every . . . corporation . . . doing business in Indiana, shall pay 

each employee at least semimonthly or biweekly, if requested, the 

amount due the employee. The payment shall be made in lawful 

money of the United States. . . . Any contract in violation of this 

subsection is void.

(b) Payment shall be made for all wages earned to a date not 

more than ten (10) business days prior to the date of payment. . . 
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I.C. § 22-2-5-1. A companion statute, I.C. § 22-2-5-2, defines the damages that 

are recoverable when proceeding under the Wage Claim Statute: 

Every such person, firm, corporation, limited liability company, 

or association who shall fail to make payment of wages to any 

such employee as provided in section 1 of this chapter shall be 

liable to the employee for the amount of unpaid wages, and the 

amount may be recovered in any court having jurisdiction of a 

suit to recover the amount due to the employee. The court shall 

order as costs in the case a reasonable fee for the plaintiff’s 

attorney and court costs. In addition, if the court in any such suit 

determines that the . . . corporation that failed to pay the employee as 

provided in section 1 of this chapter was not acting in good faith, the 

court shall order, as liquidated damages for the failure to pay wages, that 

the employee be paid an amount equal to two (2) times the amount of 

wages due the employee.

(Emphasis added). Furthermore, I.C. § 22-2-9-4(b) sets forth the procedures 

that a claimant must follow to recover the damages under the Wage Claim 

Statute:

The commissioner of labor may refer claims for wages under this 

chapter to the attorney general, and the attorney general may 

initiate civil actions on behalf of the claimant or may refer the claim 

to any attorney admitted to the practice of law in Indiana. The 

provisions of IC 22-2-5-2 apply to civil actions initiated under this 

subsection by the attorney general or his designee.

(Emphasis supplied).

[23]Contrary to DeGood’s assertions, the trial court specifically determined in its 

Amended Final Order and Judgment (Amended Order) that Wilder had complied 
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with the procedures set forth in I.C. 22-2-9-4(b) in pursuing his claims. The trial 

court also pointed out that this declaration in the Amended Order had no effect 

upon the substance of the original judgment. Thus, DeGood’s claim that Wilder 

failed to follow the proper procedures under the Wage Claim Statute fails.

2. “Commissions” vs. “Wages”

[24]DeGood argues for the first time on appeal that Wilder is barred from recovering 

any unpaid commissions because “commissions” are not “wages” within the 

meaning of the Wage Claim Statute. Time and again, this court has held that a 

party may not raise an issue on appeal if it was not raised at the trial court level. 

KOA Properties, LLC v. Matheison, 984 N.E.2d 1255, 1258 (Ind. Ct. App. 2013). 

The record reflects that DeGood not only failed to argue at the trial court level that 

commissions do not qualify as wages under the Wage Claim Statute, but it also 

conceded as much. Specifically, DeGood commented in its trial brief that 

‘“commissions’ are ‘wages’ under I.C. § 22-2-5, but only if pursued through I.C. § 

22-2-9.” Appellant’s App. at 36, 38. Thus, DeGood is foreclosed from raising this 

issue for our review. 

3. Sufficiency of the Evidence—Unpaid Commissions

[25]As for DeGood’s alternative contention that the evidence did not support the

commission award, we choose to follow the same standard that is employed when 

reviewing a damage award. That is, when reviewing a claim that an award of 

damages is inadequate, we will neither reweigh evidence, nor judge the credibility

of the witnesses. Palmer v. Comprehensive Neurologic Servs., P.C., 864 N.E.2d 1093, 
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1103 (Ind. Ct. App. 2007), trans. denied. We consider only the evidence favorable 

to the award. Id. Additionally, we must not reverse a damage award so long as 

the damages fall within the scope of the evidence. Manzo v. Estep, 689 N.E.2d 474, 

475 (Ind. Ct. App. 1997). The finder of fact is in the best position to assess 

damages. Palmer, 864 N.E.2d at 1103. 

[26]Here, it was established at trial that DeGood had both pre-existing product sales 

and new product sales during 2009 and 2010. The total combined sales during 

these two years amounted to $2,126,724.67. As discussed above, DeGood agreed 

to pay Wilder two percent on pre-existing product sales from $1 million to $2 

million, and two percent on new product sales up to $2 million. However, a 

dispute existed as to what Wilder had actually earned in sales commissions, as well 

as what DeGood had actually paid him. Both parties agree that it is not readily 

apparent as to how the trial court calculated the amount due and arrived at the 

figure of $9287.48 in commissions that it ordered DeGood to pay. That said, 

Wilder acknowledges—and we agree—that the unpaid commission award was 

within the scope of the evidence presented at trial. Thus, we decline to disturb that 

judgment. See id. (holding that the jury’s award of damages was proper when the 

amount of the judgment fell within the parameters of the evidence presented at 

trial). 

4. Alleged Bad Faith

[27]DeGood also claims that Wilder cannot recover liquidated damages under the 

Wage Claim Statute for the unpaid commissions because it was not established 
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that DeGood acted in bad faith by failing to pay these amounts. As discussed 

above, I.C. § 22-2-5-2 provides for an award of twice the amount of wages due, as 

liquidated damages, if it is determined that the employer had not acted in good 

faith in failing to pay the amount due the employee. 

[28]Here, there is no showing that DeGood’s withholding of the amounts that were 

due amounted to bad faith in light of the parties’ conduct that existed throughout 

Wilder’s employment period, including the modifications to the Agreements, and 

the good faith disputes that existed as to what was actually owed. Moreover, there 

is no showing that the trial court ordered DeGood to pay any amount over and 

above the commissions that were actually owed, i.e. no liquidated damages, with 

the exception of attorney’s fees that are authorized under I.C. § 22-2-5-2. In short, 

DeGood cannot be heard to complain about an improper award of liquidated 

damages under the Wage Claim Statute when the trial court did not award such 

damages. 

C. Liability For Alleged Theft

[29]DeGood next claims that the trial court erred in not ordering Wilder to pay its 

attorney’s fees and damages for civil theft under Ind. Code § 34-24-3-1, the Crime 

Victims Relief Act, on its counterclaim because the evidence established that 

Wilder did not work the required forty hours per week under either Agreement. 
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Thus, DeGood maintains that Wilder’s conduct amounted to fraud and “theft of 

labor.” 

[30]It is undisputed that Wilder was a salaried employee. Thus, DeGood was required 

to pay Wilder his salary for each bi-weekly pay period that he worked for DeGood, 

regardless of the number of days and hours that Wilder actually worked in any 

particular week. I.C. § 22-2-5-1; 29 C.F.R. § 541.602 (providing that an employer 

must pay an employee his or her “full salary for any week in which the employee 

performs any work without regard to the number of days or hours worked. . . .”); 

see also Design Indus. v. Cassano, 776 N.E.2d 398, 401 (Ind. Ct. App. 2002) 

(observing that salary is defined as fixed compensation paid regularly for services). 

Thus, the trial court properly determined that Wilder had not committed theft of 

his wages, and DeGood is not entitled to damages under the Crime Victims Relief 

Act. 

III. Wilder’s Cross-Appeal

A. Notice of Termination

[31]On cross-appeal, Wilder argues that the trial court should have found that DeGood 

failed to afford him the three-month notice of termination pursuant to the 

requirements of the Second Agreement. Wilder asserts that he was terminated 

from employment on January 5, 2011, without proper notice and that DeGood is 

obligated to pay him an additional $32,300 in salary and commissions, plus 

liquidated damages. 
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[32]At trial, Mary testified as follows: 

Q: [I]s it your position that DeGood did give Mr. Wilder 3 

months’ notice of its intention to terminate the contract?

A: We did. With the condition that he could keep his job. He 

was told this is our 3-month notice, if you do this. If you do not do this, 

then you are done at the end of this time period. He had a window of 

opportunity to keep his job and he did not do it. He did not meet 

the requirements of what was stipulated in his performance 

review at his, at his notice, his 3-month notice, he did not 

perform what he was told so that he could potentially keep his 

job. He was told if you do not meet these requirements then your 

job is terminated. At the, at the end of the three months.

Appellant’s Reply Appendix Vol III, at 3. 

[33]The evidence established that Wilder was given specific and mandatory

performance requirements at the September 8, 2010 meeting. Unless Wilder

satisfied those requirements over the next three months, his employment with 

DeGood would be terminated. Wilder failed to meet those requirements, as was 

detailed in the Notification, and he was terminated. Wilder acknowledged that he 

had been provided the required notice when he emailed DeGood stating, “If there 

is no room for discussion then I cannot accept any of the calculations or 

conclusions offered and presented to me and I will assume that on 9/8/2010 I received 

my 90-day notice for termination.” Appellant’s Reply Appendix at 8 (emphasis added). 

[34]Notwithstanding this evidence, Wilder directs us to Mary’s email of September 13, 

2010, where she stated that no termination notice had been provided to him at the 
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performance review meeting on September 8. Although Mary stated that she 

wanted to work with Wilder and that it was not DeGood’s intention that Wilder 

would be terminated at the end of three months, she made it clear that Wilder was 

required to demonstrate improved performance during that period, or his 

employment would be terminated. Moreover, Wilder signed and acknowledged 

the review that set forth the requirements and conditions that pertained to the 

probationary period. Mary’s emails to Wilder and her testimony at trial, coupled 

with Wilder’s assumption that he had, in fact, received a ninety-day notice for 

termination on September 8, belies his claim on appeal that DeGood did not 

provide him with the required notice under the Second Agreement. 

[35]Finally, even if there was some merit to the assertion that Mary’s testimony at trial 

might have contradicted what she had posited in the emails and performance 

reviews, such evidence goes to her credibility. This court has long held that the 

credibility of witnesses and the weight to be afforded their testimony is a question 

for the trier of fact. City of Gary v. Gause, 317 N.E.2d 887, 891 (1974). And the trial 

court, as the factfinder, could believe all, none, or any portion of Mary’s testimony. 

In other words, even if Mary had provided testimony that could be construed as 

inconsistent with her prior statements or emails, it is apparent that the trial court 

chose to believe Mary’s testimony that the required notice was provided, in spite of 

any alleged prior inconsistent statements that she might have made. Such alleged 

contradictory statements do not render her testimony inconsequential or worthless. 

See id. at 891 (recognizing that although witnesses had made inconsistent 
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statements to police officers prior to Fire Department Board proceedings, the 

inconsistent statements went only to the weight of their testimony). 

[36]In short, we will not substitute our judgment for that of the trial court that found 

Mary’s trial testimony credible. Therefore, when applying our negative judgment 

standard of appellate review, which we do here because Wilder bore the burden of 

proof on this issue at trial and did not prevail, it was not clearly erroneous for the 

trial court to infer from the evidence presented that Wilder was afforded the 

required ninety-day notice of termination. Thus, Wilder’s claim that he is entitled 

to an additional $32,300 in unpaid wages and commissions fails.

B. Unpaid/Underpaid Salary

[37]In a somewhat related issue, Wilder asserts on cross-appeal that the trial court 

erred in denying his claim for unpaid salary amounts that were allegedly owed to 

him. Wilder asserts that the evidence established that he was entitled to an 

additional award of $22,236.33 in unpaid wages because DeGood had only paid 

him a portion of his salary.

[38] Under the First Agreement, Wilder was to be paid an annual salary of $50,000, 

with bi-weekly payments. The effective period commenced on January 1, 2009 

and ended on July 31, 2010. Additionally, the parties agreed that Wilder’s salary 

was to be cut by twenty-five percent from July 20, 2009 to March 12, 2010. 

[39]The gross amount paid to Wilder through July 31, 2010, was $69,165. See 

Appellant’s Reply Appendix at 9-60. What Wilder earned under the First Agreement
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for forty-one pay periods was $77,884. Id. However, as discussed above, the 

parties agreed that Wilder’s salary would be reduced by twenty-five percent for 

twenty-five pay periods. After subtracting this percentage—or $9615—Wilder 

should have been paid $68,269. See id. Wilder, therefore, was paid an overage of 

$896, which was likely because DeGood reimbursed him for out-of-pocket 

expenses on occasion. 

[40]Under the Second Agreement, Wilder’s annual base salary was increased to 

$55,000. See Appellant’s Reply Appendix at 9-60. His bi-weekly payment was $2115, 

that commenced on August 1, 2010, and extended through January 6, 2011. The 

gross amount that Wilder received from DeGood during this period was $17,821. 

DeGood acknowledges that it paid Wilder $3329 less than what it owed, based on 

the September 8, 2010 employment performance review, when DeGood informed 

Wilder that it was strictly enforcing the forty-hour per week requirement. Thus, 

DeGood calculated the time that Wilder had not worked and reduced Wilder’s 

salary accordingly. 

[41]Notwithstanding DeGood’s decision, Wilder remained a salaried employee and 

was entitled to his agreed-upon compensation set forth in the Second Agreement. 

See I.C. § 22-2-5-1 and -2. However, we do not agree with Wilder’s contention 

that the trial court was obligated to find that DeGood acted in bad faith when it

withheld a portion of the amounts that were due under the Second Agreement, 

particularly when considering Wilder’s course of conduct throughout his 

employment, the mutually agreed-upon modifications of the agreements, and the 

bona fide disputes that occurred between the parties. Similarly, we reject Wilder’s 
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 21 of 23

assertion that “DeGood only paid Mr. Wilder when and what [it] felt like paying 

him.” Reply Brief of Cross-Appellant at 14. Hence, we remand this case to the trial 

court with instructions that it enter an additional award of $3329 to Wilder for 

unpaid wages, and to calculate a reasonable amount of attorney’s fees related to 

this particular claim in accordance with the Wage Claim Statute. We, however, 

decline to order DeGood to pay liquidated damages, inasmuch as the evidence 

failed to establish that DeGood’s withholding of these wages amounted to bad 

faith under the Wage Claim Statute. 

C. Remaining Damages—Pre-Judgment Interest and Costs

[42]Wilder argues that the trial court erred in not awarding him pre-judgment interest 

on the commissions that DeGood had failed to pay. Wilder also asserts that he is 

entitled to pre-judgment interest on any additional damages that are awarded in 

this appeal.

[43]It is well-settled that an award of prejudgment interest in a breach of contract 

action is warranted if the amount of the claim rests upon a simple calculation and 

the terms of the agreement make such a claim ascertainable. Song v. Iatarola, 76 

N.E.3d 936, 939 (Ind. Ct. App. 2017). Prejudgment interest is awarded to fully 

compensate an injured party for the lost use of money. Fackler v. Powell, 923 

N.E.2d 973, 977 (Ind. Ct. App. 2010). Put another way, “prejudgment interest is 

recoverable not as interest but as additional damages to accomplish full 

compensation.” Crawford Cty. Cmty. Sch. Corp. v. Enlow, 734 N.E.2d 685, 692 (Ind. 

Ct. App. 2000), trans. denied. The test for determining whether an award of 
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 22 of 23

prejudgment interest is appropriate is whether the damages are complete and may 

be ascertained as of a particular time. Song, 76 N.E.3d at 939 (Ind. Ct. App. 2017). 

The amount is computed from the time the principal amount was demanded or 

due and is allowable at the permissible statutory rate when no contractual 

provision specifies the interest rate. Id. Importantly, for purposes of our review, an 

award of prejudgment interest is generally not considered a matter of discretion. Id. 

The current interest rate is eight percent when there is no contract by the parties 

specifying a different interest rate. Ind. Code § 24-4.6-1-101. 

[44]Here, Wilder’s claims for unpaid commissions and salary were ascertainable 

pursuant to the Agreements and were due and owing on a certain day in the past. 

Thus, Wilder is entitled to pre-judgment interest on these amounts which, on 

remand, is to be calculated at the statutory rate.

[45]Finally, we note that the trial court assessed costs against Wilder. Ind. Code § 34-

52-1-1 provides: “In all civil actions, the party recovering judgment shall recover 

costs, except in those cases in which a different provision is made by law.” 

Because Wilder has substantially prevailed in this appeal, he is entitled to recover 

costs of the action. Moreover, the damages provision under the Wage Claim 

Statute provides for the assessment of those costs. I.C. § 22-2-5-2. Thus, we 

instruct the trial court to calculate the costs of this matter on remand and to enter 

an order against DeGood for that amount.

Conclusion
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 23 of 23

[46]In light of our disposition of the issues discussed above, we affirm in part, reverse 

in part, and remand this cause to the trial court with instructions that it amend the 

order to include an additional award for Wilder in the amount of $3329 in unpaid 

wages. We further instruct the trial court to calculate the costs of this matter, the 

amount of prejudgment interest that is owed, determine the additional award of 

reasonable attorney’s fees to which Wilder is entitled, and enter an order 

accordingly. In all other respects, the trial court’s judgment is affirmed. 

Brown, J. and Tavitas, J., concur.