*1 1007 spent rich time incarcerated in the IDOC defendant] "when [the months later six warrant,3 County." County Id. The under the Marshall Died- to Marion was returned the defen- County court revoked entitled to a "full eredit" on Marion rich is not imposed previously probation, dant's error in the each offense. We find no him and awarded suspended sentence Superior Marshall Court's denial Died- after the spent incarcerated credit for time petition. rieh's sentencing. The served until warrant was judgment is affirmed. that decision Willoughby court affirmed the defendant's con- appeal, rejecting upon SHARPNACK, C.J., MATHIAS, J., have received credit that he should tention concur. viola- probation the notice of from the date the court stated tion was filed. While was entitled to credit
the defendant warrant, spent incarcerated under the
time transferred to the defendant was
because day on the the warrant County
Marion served, incar- defendant was not at the same multiple charges on
cerated EQUIPMENT, E & L RENTAL Thus, Willoughby court did not time. INC., Appellant-Defendant, the defendant to determine whether need "full eredit" on each sen- was entitled to tence. Gregory GIFFORD, Appellee-Plaintiff. discussed, we For the reasons No. 46A04-0008-CV-321. entitled to credit that Diedrich was hold for the only one of his sentences against Appeals of Indiana. Court question. While period of incarceration the record whether it is not clear from March credit toward Starke Diedrich received period of incarcera County offense for IDOC, not claim Diedrich does
tion Further, upon not. based that he did upon and his ar
Diedrich's reliance Muff "full credit" that he is entitled to gument offense, it is reasonable con
on each Therefore, regardless clude that he did.2 that Died- argued it could be
of whether event, (concluding time (Ind.Ct.App.1998) we that "the details of note sen- the result of orchestrating the service of consecutive a warrant was not served under courts is a matter of tences from different issued), the warrant was the offense for which prerogative for the administrative denied, Stephens, 735 N.E.2d at trans. State, Grayson following defen- of Correction." (noting that time served J., (Sullivan, (Ind.Ct.App.1992) burglary while incarcerated dant's arrest for Thus, dissenting). clear that Died- while it is properly charge, was allocat- an unrelated against one of the entitled to credit rich is burglary, the unrelated ed to sentence sentences, of Correction illustrate, spent time charge). As the cases calculation of ultimately responsible for the reasonably may a warrant incarcerated under jail date. time credit release Diedrich's offense or both. be to either allocated inquiry is whether appears that the critical it suggests that this issue 3. While the State mandatory consecutive sen- involves the case determining the time be resolved tences, only defendant one which limit the of the offense for which was the result served ques- period credit for the of incarceration sentenced, inquiry such an defendant was 130; jail Bischoff, Stephens, time 704 N.E.2d at not resolve the issue of alone does tion. N.E.2d at 284. Compare credit. Bischoff *2 September On IN, of Labor. missioner Evans, City, Michigan L. Jennifer LE & Labor sent Appellant. Attorney for response requesting initial letter weeks. OPINION within two Gifford's 25, 1997, president, E L's& September RILEY, Judge. (Loniewski), responded Richard Loniewski *3 THE CASE OF STATEMENT and indicated of Labor Department to the L Rental E & Appellant-Defendant, but pay to Gifford attempted had that he (E L), trial appeals the Inc. & Equipment, by check or cash. payment refused Gifford of the in favor rendered verdict court's Department also informed Loniewski (Gif- Plaintiff, Gregory Gifford Appellee pay willing to was that he of Labor still ford). 15, on October Subsequently, Gifford. a Labor sent 1997, instruc- and remand reverse We him that Gif- informing to Loniewski letter tions. Depart- claim to the assigned his ford had ISSUES must any payment and that of Labor ment letter This Department. to the be sent appeal, two on three issues L raises E & a sent Loniewski that unless also indicated restate dispositive find we of which Depart- to the wages for Gifford's check as follows: 1997, 29, legal by October ment of sub- court lacked the trial 1. Whether Accordingly, pursued. be would remedies be- this claim over jurisdiction ject matter a 21, 1997, sent Loniewski on October his adminis- exhaust failed to Gifford cause for of Labor check to remedies. trative return However, did not Gifford $314.18. in al- erred the trial Whether 2. Depart- forms receipt/release wage his on to recover lowing Gifford E & L's to receive in order of Labor ment his claim assigned he had claim when 22, 1998, De- check, January- check E & L's returned of Labor partment to Loniewski. HISTORY AND PROCEDURAL FACTS 2, 1997, this, Gifford on October Prior a E & L as employed was Gifford non-payment claims action a small filed 1997, pre- L 3, E & July mechanic. On L in and E & Loniewski against wages in paycheck awith Gifford sented re- Gifford Superior Court. LaPorte lunch hour his During amount $314.18. fees, attorney damages, treble quested cash his attempted to day Gifford that § 22-2- Ind.Code under and interest costs on; written it was at the bank paycheck 6, trial on June went matter This 5-2. there him that however, informed the bank Findings & issued 2000, trial court and the in E L's account funds was not sufficient 23, The trial on June Judgment returned check. Gifford cash the damages treble Gifford court awarded afternoon, the office informed work $942.54, fees attorney amount of good not check was secretary that the for court $500.00, and $35.00 amount her. Later check to returned costs. deposited afternoon, president L's E & appeal followed. This On checking account. L's in E & funds 7, 1997, July Monday, following AND DECISION DISCUSSION job. his quit to work returned Review Standard of filed a July did that Gifford we note Initially, La- Indiana with the appel- brief. When response file a not the Com- claim to this assigned bor awarding erred in not that Gifford we conclude Because action, attorney to Gifford. we fees person to proper concerning L's third issue reach E & need not brief, response However, lee fails to file a we need Gifford is not challenging the develop arguments. Santana v. rather, action of an administrative agency; Santana, 708 N.E.2d (Ind.Ct.App. his claim is against his employer former 1999). "However, this cireumstance in no non-payment wages, and is way relieves us of our obligation to decide brought § IC. 222-52. IC. applied the law as to the facts in the provides 22-2-5-2 as follows: record in order to determine whether re Every person, firm, corporation, required." versal is Blunt-Keene v. limited liability company, or association (Ind.Ct.App.1999). who shall fail to payment make wages Rather, apply we stringent less standard such employee provided as review which we reverse the shall, chapter section of this as liqui- trial court if appellant prima makes a damages failure, dated for such pay to showing of reversible error. Id. facie *4 employee for each day that the "Prima facie in this context is defined as amount due to him unpaid remains ten 'at first sight, appearance, on first or on (10%) percent of the amount due to him the face of it' an appellant Where is thereto, addition not exceeding double burden, unable to meet this we will af the due, amount of wages and said dam- firm." Id. (quoting Johnson County Rural ages may be recovered in any court E lec. Membership Burnell, Corp. v. jurisdiction having 989, of a suit 484 to recover N.E.2d (Ind.Ct.App.1985)). 991 the amount due employee, to such and in Subject Matter Jurisdiction any suit so brought to recover said wages or liquidated the damages L argues thereof, nonpayment both, subject did not jurisdic have the matter tion over this matter because shall tax Gifford failed and assess as costs in said case to exhaust his administrative remedies a plaintiff's reasonable fee for the attor- with the of Labor. ney or attorneys. Indiana, when the legislature provided has § a review of L.C. 22-2-5-2 clearly a statutory scheme with an exclusive ad plaintiff shows that a seeking damages for remedy, ministrative jurisdic courts lack nonpayment of wages under this statute tion to hear a matter until the administra may file in any court having jurisdiction. procedures tive have been exhausted or See Id. Consequently, plaintiff a bringing a request for relief has been denied. Medi claim § ILC. 22-2-5-2 is not re- cal Licensing Provisor, Bd. Indiana v. of quired to first any exhaust available ad- 814, 678 N.E.2d 817 (Ind.Ct.App.1997), prior ministrative remedies to filing suit. reh'g denied. In that regard, Ind.Code Therefore, we conclude that the trial court provides: 4-21.5-5-4 subject had jurisdiction matter over Gif- (a) person A petition judi- file a ford's claim. cial chapter review under this only after exhausting all administrative remedies Assignment to the Commissioner available within agency the whose action Labor of is being challenged any and within other E & L argues that assigned Gifford agency authorized to exercise adminis- his claim to the Commissioner of Labor trative review. and as a result Gifford was not the real (b) person A who: party in interest bring this action (1) fails to timely object to an order or trial court. agree. We timely petition for review of an order period within the prescribed by this arti- An assignment transfers a com cle; or plete present and right subject in a matter (2) article; is in default under this assignee. Ticor Title Ins. Co. of has waived person's right judicial Graham, v. 1332, California review under chapter. 1338 (Ind.Ct.App.1991). Assignments may
1011 longer prop a assignor is no assigned, focus as the party "'a new substitute action. right no sue and has right party er respect to relations'" legal 514, 368, Ind.App. 149 N.E.2d 83 Carl, 446 Burlison Ryan, See Essex assigned. determining Hoover, "In (1925) (Ind.Ct.App.1983). 89, Barger 374 90 N.E. made, (1889). 888, been 198, has 890 assignment 21 N.E. 120 Ind. agree A written intent. assigned one of Here, completely question must matter subject Labor,3 assigning ment to the Commissioner wage claim transfer intent to assignor's manifest entitled he was although clearly uncondition matter subject -the Commissioner recovered amounts v. Indiana Brown assignee." ally Labor was Labor, (Ind.Ct. 888, Bank, N.E.2d Nat. this action. proper omitted). (citations App.1985) whether a objection An based wage filed his July as in interest" "real plaintiff is Labor with the claim owner is not the plaintiff serts to the Commissioner his claim assigned Mut. Auto. Farm on. State the claim sued document Gifford Shuman, Ind.App. Ins. Co. v. filed with signed (1977). Trial Rule Ind. language: following contained 17(A) "Every action shall be that: requires *5 in party real name of the in the prosecuted ASSIGNMENT 17(A) However, pro also TR. interest." 22-2-9-5,2 I here to IC Pursuant be dismissed "No action shall that: vides Labor to the Commissioner by assign in prosecuted not that it is ground the in and to interest title and rights, my all in interest until party real of the the name processing claim for certified above the objection has been after time a reasonable ICof provisions the with in accordance to in interest party real allowed for 22-2-9-1, seq. et action, joined or substi to be or ratify the Gif- 71). (R. language demonstrates This Nonetheless, Id. in the action...." tuted clearly this claim assign intent to ford's in 12(B)(6), party the real when T.R. under unconditionally to and join ratify, or substitute does not interest Brown, at 894. See action action, for an remedy becomes issue the real than party other by a brought assignment, result of as a interest is dismissal. party in in interest party the real was not review, we of our standard light "A trial court. in the this action bring to presented L has & conclude who person ... is in interest party real in error showing of reversible prima sought to be right of the true owner facie is the in party the real that Gifford iswho person He or she is enforced. Blunt- See this action. interest Ham the action." fruits of to the entitled (Ind.Ct. N.E.2d v. Keene Brumley, 659 mes App.1999). fully is (Ind.1995). of action a cause After commissioner, are entitled provi- ment of assignment was made 2. This who, 22-2-9-5, and which states: of the commissioner services of LC. sions are which have claims judgment, hereby autho- of labor commissioner The the court. enforceable valid and wage claims of assignments of The to take rized join vari- power to have shall commissioner ($800.00), dollars eight hundred than less (1) claim or preferred one mechanics penalties, ous claimants rights of action suit, workers, lien, and, in one being join them without in case liens of and other (1) of action. cause technical rules by any of the bound assign- validity of such reference in the Record is no indication There authority ments; power have and shall made to assignment he rescinded the collection actions for prosecute who, matter. in this judg- in the persons Commissioner claims CéNCLUSION HIBLER, Donald Individually and as Consequently, based on the foregoing, Representative Class of a Class Com
we reverse the trial judgment, court's posed of All Current and Future Hold remand this matter to trial court with ers of Term Life Insurance Policies judgment instructions vacate its and to by Conseco, Issued Inc. or of Its dismiss this case. Life Subsidiaries, Insurance and Ad Reversed and remanded with instruc- ministered Pursuant to Conseco's tions. Policy Benefits, Home Office Proce dures, and Departments, Claims Ap DARDEN, J., concurs. pellant-Plaintiff, ROBB, J., dissents with opinion.
ROBB, Judge, dissenting. CONSECO, INC., Conseco Life Insur Company ance subsidiary and all Life I respectfully dissent. majority Companies Insurance Conseco, Inc. cites to the following provision of Trial Policy Benefits, Whose Premiums, Rule 17: "No action shall be dismissed on Jointly Administered, Claims are the ground that prosecuted it is not Appellees-Defendants. name of the real in interest until a reasonable objection time after has been allowed for the real in interest
ratify action, Kappes, Lewis joined or to be on behalf of itself substi- tuted in 17(A); similarly all situated, action." T.R. others op. see at Appellant-Plaintiff, The majority then relies on Trial 12(B)(6) Rule in concluding that *6 erred granting judgment to Gif- Fidelity National Life Insurance ford because Labor, the Commissioner of Company Conseco, Inc., et as interest, the real did not ratify, al., Appellees-Defendants. join substitute or Op. action. at 1031. However, the record does not reflect that No. 29A02-0002-CV-67. objected & L in the trial court to Gif- ford's Court of Appeals status as the interest, real of Indiana. nor that the Commissioner of Labor was March ever informed of the pending action that he could ratify choose to join such,
action. As I do not believe that a 12(B)(6)
Trial Rule dismissal is appropri-
ate in this Despite case. our standard of
review, and in light of Trial Rule it was
still E & obligation L's in the trial
make an objection status, to Gifford's
which it did not do. Its failure to do so
raises problem created Trial Rule
17 which precludes dismissal. According-
ly, I dissent from the reversal of the trial
court's judgment.