Indiana Commissioner of Labor ex rel. Wendell H. Estelle v. CVS Indiana, LLC (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 29 2018, 9:22 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher K. Starkey Emily L. Connor
Shelbyville, Indiana Brian L. Mosby
Littler Mendelson, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Indiana Commissioner of Labor March 29, 2018
ex rel. Wendell H. Estelle, Court of Appeals Case No.
Appellant-Plaintiff, 49A05-1711-PL-2585
Appeal from the Marion Superior
v. Court
The Honorable Thomas J. Carroll,
CVS Indiana, LLC, Judge
Appellee-Defendant. Trial Court Cause No.
49D06-1704-PL-15605
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-PL-2585 | March 29, 2018 Page 1 of 3
Statement of the Case
[1] Wendell Estelle1 appeals the trial court’s order denying his motion to correct
error following the court’s dismissal of Estelle’s complaint for damages. Estelle
raises a single issue for our review, namely, whether the trial court abused its
discretion when it denied his motion to correct error. We affirm.
Facts and Procedural History
[2] On April 19, 2017, Estelle, a former employee of CVS Indiana, LLC (“CVS”),
filed a complaint alleging that CVS “failed to pay” him wages in contravention
of Indiana Code Section 22-2-9-4. Appellant’s App. Vol. II at 6. On June 30,
CVS filed a motion to dismiss the complaint and to compel arbitration. Estelle
did not respond to the motion to dismiss, and on July 21, the trial court granted
CVS’s motion. On August 21, Estelle filed a motion to correct error, which the
trial court denied following a hearing. This appeal ensued.
Discussion and Decision
[3] Estelle appeals the trial court’s denial of his motion to correct error. We review
the grant or denial of a Trial Rule 59 motion to correct error under an abuse of
discretion standard. Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265,
1
The record is unclear whether the Indiana Commissioner of Labor brought the underlying action on behalf
of Estelle, but the CCS names Estelle as the sole plaintiff. In addition, CVS Indiana, LLC, alleges that
Estelle “never completed the necessary statutory prerequisites to bring this action under the Indiana Wage
Claims Statute in the name of the Commissioner of Labor.” Appellee’s Br. at 8. Estelle does not dispute that
assertion. In any event, our resolution of this appeal does not depend on whether Estelle or the
Commissioner of Labor is the proper party.
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-PL-2585 | March 29, 2018 Page 2 of 3
1270 (Ind. 2008). On appeal, we will not find an abuse of discretion unless the
trial court’s decision is clearly against the logic and effect of the facts and
circumstances before it or is contrary to law. Miller v. Moore, 696 N.E.2d 888,
889 (Ind. Ct. App. 1998).
[4] We do not reach the merits of Estelle’s appeal. First, as CVS notes, Estelle did
not make any argument in opposition to CVS’s motion to dismiss, so Estelle
raised arguments for the first time in his motion to correct error. Second,
Estelle does not state on appeal what his arguments to the trial court were in
support of his motion to correct error, he has not provided us with a copy of his
motion in his appendix, and he has not provided us with a copy of the
transcript of the hearing on his motion. Thus, we have no way to know
whether he made the same arguments to the trial court in support of his motion
that he raises on appeal. It is well settled that a party may not raise an issue for
the first time in a motion to correct error or on appeal. Troxel v. Troxel, 737
N.E.2d 745, 752 (Ind. 2000). Estelle has waived our review of the trial court’s
denial of his motion to correct error.
[5] Affirmed.
Robb, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-PL-2585 | March 29, 2018 Page 3 of 3