Bryan Alexander, Karl Cameron, William Love, Charlie Lovins, Kevin McMurray and Matt Oelker, on behalf of themselves and all others similarly situated v. Linkmeyer Development II, LLC

FILED
Feb 08 2019, 9:23 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
Eric S. Pavlack Thomas W. Vander Luitgaren
Colin E. Flora Matthew S. Schoettmer
Pavlack Law, LLC Van Valer Law Firm, LLP
Indianapolis, Indiana Greenwood, Indiana
Fred Schultz
Greene & Schultz
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bryan Alexander, Karl Cameron, February 8, 2019
William Love, Charlie Lovins, Court of Appeals Case No.
Kevin McMurray and Matt 18A-PL-311
Oelker, on behalf of themselves and all Appeal from the Dearborn Circuit
others similarly situated, Court
Appellants/Cross Appellees-Plaintiffs, The Honorable James D.
Humphrey, Judge
v.
Trial Court Cause No.
Linkmeyer Development II, LLC, 15C01-1307-PL-49
Steven Linkmeyer, and Brian
Bischoff,
Appellees/Cross Appellants -Defendants,
Robb, Judge.
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 1 of 37
Case Summary and Issues
[1] This case comes before this court as an interlocutory appeal from the parties’
respective cross-motions for summary judgment. Specifically, a class of
laborers (“the Class”) formerly employed by Linkmeyer Development II, LLC,
and its members Steve Linkmeyer and Brian Bischoff (collectively, “the
Defendants”), appeal the trial court’s denial of their motion for summary
judgment and the granting, in part, of the Defendants’ motion for summary
judgment. The Defendants appeal the remaining issues for which their motion
for summary judgment was denied. The parties now present several issues for
our review which we consolidate and restate as two: (1) whether the trial court
erred in denying the parties’ motions for summary judgment on the issue of
breach of contract, and (2) whether the trial court erred in denying the
Defendants’ motion for summary judgment regarding the Indiana Wage
Payment Statutes. Concluding the trial court did not err, we affirm.
Facts and Procedural History
[2] Around June of 2009, Steve Linkmeyer approached the City of Lawrenceburg
requesting a $3,000,000 loan to facilitate a development project on behalf of his
company, Linkmeyer Development. On November 30, 2009, Linkmeyer,
along with another member of Linkmeyer Development, Brian Bishoff, signed
a document entitled “Development Agreement Between the City of
Lawrenceburg, Indiana, and Linkmeyer Development II, LLC” (“the
Development Agreement”). Appellants’ Appendix, Volume II at 103. The
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City of Lawrenceburg’s city manager, Tom Steidel, and mayor, William
Cunningham, also signed the contract.
[3] The Development Agreement involved three properties: the Ellis property, the
Walters property, and the Tanners Creek property. According to its terms, the
City of Lawrenceburg would provide a $3,000,000 line of credit to Linkmeyer
Development in return for the excavation and filling of the properties.
Linkmeyer Development was required to purchase the Ellis property and the
Walters property. The Lawrenceburg Redevelopment Commission would then
convey the Tanners Creek property to Linkmeyer Development, some 21.5
acres of land which ran adjacent to Tanners Creek Drive, free of charge. Dirt
was to be moved from the Ellis property to both the Walters property and the
Tanners Creek property in order for the properties to be elevated out of the
flood plain. In so doing, all three previously-undevelopable properties would
become developable. Linkmeyer Development also agreed to petition the City
of Lawrenceburg for the annexation of the Ellis property at the completion of
the project.
[4] The loan itself was to be paid in three installments, with the first $1,000,000 to
be paid at the completion of the work on the east side of Tanners Creek, the
second $1,000,000 to be paid at the completion of the project, and the third
$1,000,000 to be paid when the Ellis property was successfully annexed. The
$3,000,000 was loaned for a maximum of five years with an annual interest rate
of 2%. Steidel prepared the Development Agreement using a form document
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 3 of 37
that he generally used in connection with loans made by the City of
Lawrenceburg.
[5] Under “Section II” entitled “Responsibilities of the Developer” the
Development Agreement stated:
The Developer must begin the project on or before August l, 2009
and complete the project by October 1, 2010. Developer shall
comply with all appropriate codes, laws and ordinances including
the payment of prevailing wages for labor as required by the State
of Indiana and the City of Lawrenceburg. The Developer shall
provide a final set of engineering plans and a final project
construction cost estimate that shall be attached to, and become a
part of, this agreement.
***
The Developer(s) and their spouses must agree to sign personal
guarantees for the amount borrowed as well as provide first
mortgages for both the Ellis Properties and any city owned land
that is conveyed to the Developer as part of this agreement. In,
addition, they must agree to sign any other documents that may
be appropriate to ensure that the City investment is secure.
Appellants’ App., Vol. II at 46-47.1
[6] Consistent with the Development Agreement, the parties executed several
additional documents, including a Promissory Note and a Mortgage in favor of
1
An Addendum to the Development Agreement was executed on November 30, 2009 “[e]xtending the time
line to complete the project to October 1, 2014.” Id. at 52.
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 4 of 37
the City of Lawrenceburg on the Tanners Creek and Ellis properties.
Additionally, Bischoff, Linkmeyer, and both of their spouses, executed a
personal guaranty. The guaranty stated:
ln consideration of the extension of credit by The City of
Lawrenceburg, Indiana . . . (“Lender”) to Linkmeyer
Development . . . (“Debtor”) and other good and valuable
consideration, the receipt of which is acknowledged [by] the
undersigned, jointly and severally if more than one, hereby
guarantee to Lender the prompt performance and payment of all
indebtedness, interest, principal, liabilities and obligations of
Debtor to Lender pursuant to Debtor’s Note . . . in the principal
amount of $3,000.000.00, Mortgage of Real Property
(“Mortgage”); and Development Agreement (“Development
Agreement”) . . . . This is a Guaranty of payment and
performance, including all collection efforts. Without limiting
the foregoing, the undersigned, absolutely, irrevocably and
unconditionally indemnifies and saves Lender harmless from and
against all liabilities, suits, proceedings, actions, claims,
assertions, charges, demands, delays, injuries, expenses
(including reasonable attorney fees and disbursements) which are
incurred by Lender as a result of any allegation determination or
that the Obligations involve a fraudulent conveyance, transfer or
obligation under federal or state law.
Id. at 116.
[7] At the completion of the project, Linkmeyer Development made the first few
payments on the loan but eventually defaulted. On July 3, 2013, the six
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 5 of 37
individuals now composing the Class,2 filed a complaint in Dearborn County
Circuit Court alleging that a Lawrenceburg City Ordinance was incorporated
by the Development Agreement and that the ordinance required the payment of
prevailing wages. Entitled “Contractors Required to Pay Prevailing Wages,”
Lawrenceburg Code Section 33.02 provides:
On any construction project approved by the Lawrenceburg
Development Corporation and financed in whole or in part by
proceeds from sale of economic development bonds, grants or
approved by or financed through any city agency, board,
committee or commission, pursuant to an Investment Incentive
Program, contractors retained to complete the project shall be
required to pay the employed on the project wages equal to the
prevailing wage customarily paid to each class of worker engaged
in similar work in Lawrenceburg and surrounding areas.
(‘94 Code, § 33.02) (Ord. 1-1986, passed 4-7-86).
Pursuant thereto, the Class brought the following claims:
Count I: Breach of Contract
Count II: Violation of the Indiana Common Construction
Wage Act
Count III: Violations of Indiana Wage Statutes
2
The trial court certified the Class on December 26, 2014.
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 6 of 37
Count IV: Request for Declaratory Relief
Count V: (Pleaded in the Alternative) Unjust
Enrichment/Quantum Meruit
Appellants’ App., Vol. II at 37-41. The Defendants answered, arguing that
neither the Development Agreement nor Section 33.02 required the payment of
prevailing wages.
[8] During a telephonic pre-trial conference on May 15, 2017, the trial court agreed
with the parties’ joint request that liability be addressed by way of cross-motions
for summary judgment, rather than a bench trial. On June 5, the Class filed its
motion for partial summary judgment along with a brief and designation of
evidence in support thereof, requesting summary judgment in its favor on
Count I: Breach of Contract. See id. at 71-96. On July 13, the Defendants filed
their reply in opposition to the Class’s motion for partial summary judgment
and their cross-motion for summary judgment, requesting that the trial court
deny the Class’s partial motion for summary judgment and grant the
Defendants’ summary judgment as to all claims. The Class then filed a
combined reply and response and the Defendants filed a reply.
[9] On September 12, the trial court held a hearing on the parties’ respective
motions for summary judgment and took the matter under advisement. Soon
thereafter, the trial court issued an order denying the Class’s motion for partial
summary judgment and granting the Defendants’ cross-motion for summary
judgment in part and denying in part. The order provided:
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The Court hereby denies [the Class’s] Motion for Summary
Judgement [sic] as to Count I — Breach of Contract and Count
III — Violations of Indiana Wage Statutes. The Court grants
Defendant’s [sic] Motion for Summary Judgment as to the Count
V - Unjust Enrichment/Quantum Meruit. In all other respects,
Defendant’s [sic] Cross Motion for Summary Judgment is
denied.
Appealed Order at 1-2.3
[10] Agreeing this matter was suited for summary disposition, the parties jointly
sought and obtained certification for interlocutory appeal from the trial court
and we granted the parties’ joint interlocutory appeal request on March 16,
2018.4
Discussion and Decision
I. Motion to Strike
[11] Before preceding to the merits of this appeal, we must first address the Class’s
motion to strike portions of the Defendants’ Reply Brief. Indiana Appellate
Rule 42 provides:
Upon motion made by a party within the time to respond to a
document, or if there is no response permitted, within thirty (30)
3
Our review of the record reveals the Class only moved for partial summary judgment as to Count I: Breach
of Contract. See Appellants’ App., Vol. II at 71-96.
4
The trial court’s grant of summary judgment in favor of the Defendants on Count V: Unjust
Enrichment/Quantum Meruit is uncontested on appeal.
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 8 of 37
days after the service of the document upon it, or at any time
upon the court’s own motion, the court may order stricken from
any document any redundant, immaterial, impertinent,
scandalous, or other inappropriate matter.
[12] The Class begins by asking that we strike four portions of the Reply Brief in
which the Defendants assert that the Class raised a new argument “that
prevailing-wage statutes are remedial and are to be construed liberally.”
Appellants/Cross-Appellees’ Motion to Strike Portions of Appellees/Cross-
Appellants’ Reply Brief at 1. This argument centers around the following
paragraphs in the Class’s reply brief on appeal:
In construing Section 33.02, it is important to recognize that “[a]
prevailing-wage statute is remedial in nature and should be
applied liberally to carry out its purpose. Exceptions to
prevailing-wage statutes must be narrowly construed.” 51B
C.J.S. § 1331 (2010). Further, the purpose of prevailing-wage
laws is to “safeguard workers’ efficiency and general well-being
and to protect them as well as their employers from the effects of
serious and unfair competition resulting from wage levels
detrimental to efficiency and well-being.” 64 AM. JUR. 2d
Public Works and Contracts § 214 (footnote omitted).
***
Should any doubt remain, it should be resolved in favor of the
Class as “[a] prevailing-wage statute is remedial in nature and
should be applied liberally to carry out its purpose.” 51B C.J.S. §
1331. And the purpose of prevailing-wage laws is to “safeguard
workers’ efficiency and general well-being and to protect them as
well as their employers from the effects of serious and unfair
competition resulting from wage levels detrimental to efficiency
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 9 of 37
and well-being.” 64 AM. JUR. 2d Public Works and Contracts §
214 (footnote omitted).
Appellants’ Reply and Cross-Appellees’ Br. at 29-30, 35-36.
[13] The Class argues that it raised this argument in its reply brief on summary
judgment. Indeed, our review of the record reveals that the Class presented the
first of the two paragraphs verbatim and the second paragraph is merely a
derivative thereof. See Appellants’ App., Vol. III at 144-45; Spudich v. Northern
Ind. Public Serv. Co., 745 N.E.2d 281, 285-87 (Ind. Ct. App. 2001) (holding new
arguments can be raised in a reply brief on summary judgment), trans. denied.
In response, the Defendants concede that the Class made such an argument in
its reply brief on summary judgment but nevertheless maintain:
When the Class mentioned 51B C.J.S. § 1331 in their summary
judgment reply brief, they cited to it as a general standard of
review when interpreting a prevailing wage ordinance in general.
On the other hand, in their final appellate submission, they cited
to it twice and argued it for the first time relative to their argument
on the application of the Investment Incentive Plan.
Response in Opposition to Appellants/Cross-Appellees’ Motion to Strike
Portions of Appellees/Cross-Appellants’ Reply Br. at 2, ¶ 4.
[14] As the Defendants now acknowledge, the Class presented 51B C.J.S. § 1331 as
a “general standard of review when interpreting a prevailing wage ordinance in
general.” Id. It is entirely consistent then, and well within the perimeters of
their previously raised argument, for the Class to apply this general standard to
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a specific issue within the ordinance—such as the application of the investment
incentive plan. That being said, we also recognize the nuance of the
Defendants’ argument, however inartfully presented. Because the Defendants
presented a good faith argument and never expressly alleged that the Class’s
argument was waived, we decline to strike the relevant portions of the
Appellees/Cross-Appellants’ Reply Brief.
[15] Next, the Class asks that we strike several of the Defendants’ statements
regarding the Class’s construction of Section 33.02 of the Code of
Lawrenceburg. Specifically, the Class takes issue with the following paragraphs
of the Defendants’ argument:
[The Class] included words and punctuation in their diagram of
§33.02 during the summary judgment proceedings which were
not present in the ordinance. In doing so, they advanced an
argument that completely defeated their construction of §33.02 as
the proper one because it would result in the payment of
prevailing wages on “all” construction projects approved by the
city. When confronted with the erroneously broad interpretation
of §33.02, they then claimed they erred in their diagram of §33.02
and shifted to another argument.
***
The Class dissected §33.02 differently than it did in their
summary judgment papers thereby acknowledging that they
overstated the application of §33.02. They included words and
punctuation in their diagram of §33.02 during the summary
judgment proceedings which were not present in the ordinance.
In doing so, they advanced an argument that completely defeated
their construction of §33.02 as the proper one because it would
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result in the payment of prevailing wages on “all” construction
projects approved by the city. When confronted with the
erroneously broad interpretation of §33.02, they then claimed
they erred in their diagram of §33.02 and shifted once again to
another argument. They argued for the first time in the [sic] their
Reply Brief that §33.02 is remedial in nature and should be
interpreted in a manner that results in the payment of prevailing
wages.
Appellees/Cross-Appellants’ Reply Br. at 6, 14-15.
[16] During summary judgment proceedings, the Defendants pointed out that the
Class, in its brief in support of partial summary judgment, had incorrectly
included a comma in quoting Section 33.02. See Appellants’ App., Vol. III at
26. The Class, in their summary judgment reply brief, responded that it “was a
typographical error, unnecessary to interpretation.” Id. at 147. Now, in its
motion to strike, the Class highlights its admission of its mistake and contends
that it is “patently false to claim, as [the Defendants] now do, that the Class
‘included words and punctuation in their diagram of § 33.02 during the
summary judgment proceedings which were not present in the ordinance.’”
Appellants/Cross-Appellees’ Motion to Strike Portions of Appellees/Cross-
Appellants’ Reply Br. at 8.
[17] Although the Class immediately acknowledged that it had incorrectly included
a comma in Section 33.02, it did, in fact, add punctuation. And, to the extent
that the Defendants argued the Class “included words” to Section 33.02, when
viewed in the greater context of their argument on appeal, it becomes evident
that Defendants do not allege that the Class literally added words to the
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ordinance. Rather, the thrust of the Defendants’ argument, as discussed further
below, is that in order to arrive at the Class’s desired interpretation of the
ordinance, words must be figuratively added to the text. Thus, once again, we
conclude the Defendants presented a good faith argument and we decline to
strike the relevant portions of their Appellees/Cross-Appellants’ Reply Brief.
II. Summary Judgment
[18] The Class bought five claims against the Defendants: Count I: Breach of
Contract; Count II: Violation of the Indiana Common Construction Wage Act;
Count III: Violation of the Indiana Wage Statutes; Count IV: Request for
Declaratory Relief; and Count V: (pleaded in the alternative) Unjust
Enrichment/Quantum Meruit. Thereafter, the Class filed a motion for partial
summary judgment on Count I: Breach of Contract and the Defendants filed a
cross-motion for summary judgment as to all claims. The trial court denied the
Class’s motion for partial summary judgment, granted the Defendants’ cross-
motion for summary judgment as to Count V: Unjust Enrichment/Quantum
Meruit,5 and denied the Defendants’ cross-motion for summary judgment in all
other respects.6 On appeal, both the Class and the Defendants argue the trial
court erred in denying their respective motions for summary judgment as to
Count I: Breach of Contract. Additionally, the Defendants argue the trial court
5
Again, the trial court’s grant of summary judgment in favor of the Defendants on Count V: Unjust
Enrichment/Quantum Meruit is uncontested on appeal.
6
Neither party puts forth specific argument regarding Count II: Violation of the Indiana Common
Construction Wage Act.
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erred in denying their cross-motion for summary judgment as to Count III:
Violation of Indiana Wage Statutes.
A. Standard of Review
[19] Summary judgment is a tool which allows a trial court to dispose of cases where
only legal issues exist. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The
moving party has the initial burden to show the absence of any genuine issue of
material fact as to a determinative issue. Id. An issue is “genuine” if a trier of
fact is required to resolve the truth of the matter; a fact is “material” if its
resolution affects the outcome of the case. Id. As opposed to the federal
standard which permits the moving party to merely show the party carrying the
burden of proof lacks evidence on a necessary element, Indiana law requires the
moving party to “affirmatively negate an opponent’s claim.” Id. (quotation
omitted). The burden then shifts to the non-moving party to come forward with
contrary evidence showing an issue to be determined by the trier of fact. Id.Although this contrary evidence may consist of as little as a non-movant’s
designation of a self-serving affidavit, summary judgment may not be defeated
by an affidavit which creates only an issue of law—the non-movant must
establish that material facts are in dispute. AM Gen. LLC v. Armour, 46 N.E.3d
436, 441-42 (Ind. 2015).
[20] We review a summary judgment order with the same standard applied by the
trial court. City of Lawrence Util. Serv. Bd. v. Curry, 68 N.E.3d 581, 585 (Ind.
2017). Summary judgment is appropriate only when “the designated
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evidentiary matter shows that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” Ind.
Trial Rule 56(C). As our supreme court has cautioned, however, summary
judgment is a “blunt instrument” by which the non-prevailing party is
prevented from resolving its case at trial and therefore we must carefully “assess
the trial court’s decision to ensure [a party] was not improperly denied [their]
day in court.” Hughley, 15 N.E.3d at 1003-04 (citations omitted). “Indiana
consciously errs on the side of letting marginal cases proceed to trial on the
merits, rather than risk short-circuiting meritorious claims.” Id. at 1004. And,
notably, cross-motions for summary judgment do not affect our standard of
review. We simply “constru[e] the facts most favorably to the nonmoving party
in each instance.” Young v. City of Franklin, 494 N.E.2d 316, 317 (Ind. 1986).
“[E]ven if the facts are undisputed, summary judgment is inappropriate where
the evidence reveals a good faith dispute as to the inferences to be drawn from
those facts.” Boczar v. Reuben, 742 N.E.2d 1010, 1017 (Ind. Ct. App. 2001).
[21] At the heart of this appeal is the interpretation and construction of a contract,
which presents questions of law. John M. Abbott, LLC v. Lake City Bank, 14
N.E.3d 53, 56 (Ind. Ct. App. 2014). As such, cases involving contract
interpretation are particularly suitable for summary judgment. Id. And because
the interpretation of a contract presents a question of law, it is reviewed de
novo. Jenkins v. S. Bend Cmty. Sch. Corp., 982 N.E.2d 343, 347 (Ind. Ct. App.
2013), trans. denied. When summary judgment is granted based on the
construction of a written contract, the trial court has either determined that the
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contract is not ambiguous or uncertain, or that any contract ambiguity can be
resolved without the aid of a factual determination. Cmty. Anesthesia & Pain
Treatment, L.L.C. v. St. Mary Med. Ctr., Inc., 26 N.E.3d 70, 77 (Ind. Ct. App.
2015), trans. denied.
[22] We review the contract as a whole, attempting to ascertain the parties’ intent
and making every attempt to construe the language of the contract “so as not to
render any words, phrases, or terms ineffective or meaningless.” Four Seasons
Mfg., Inc. v. 1001 Coliseum, LLC, 870 N.E.2d 494, 501 (Ind. Ct. App. 2007). We
assign a contract’s clear and unambiguous terms their plain and ordinary
meaning. Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d 249, 251 (Ind. 2005).
When the terms of a contract are ambiguous or uncertain, however, and its
interpretation requires extrinsic evidence, its construction is left to the
factfinder. Johnson v. Johnson, 920 N.E.2d 253, 256 (Ind. 2010). A contract is
ambiguous if reasonable people would disagree as to the meaning of its terms,
Beam v. Wausau Ins. Co., 765 N.E.2d 524, 528 (Ind. 2002), and we construe any
ambiguity against the drafter, MPACT Constr. Grp., LLC v. Superior Concrete
Constructors, Inc., 802 N.E.2d 901, 910 (Ind. 2004).
B. The Class’s Appeal: Breach of Contract
[23] First, the Class argues there is no genuine issue of material fact as to their claim
of breach of contract because the Defendants breached the Development
Agreement by failing to pay prevailing wages. Specifically, the Class argues
they were a third-party beneficiary to the contract and that even if they were
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not, Section 33.02 provides an “implicit private right of action.” Appellants’
Br. at 26. In turn, the Defendants argue the Class was never intended as a
third-party beneficiary and that Section 33.02 is inapplicable to the facts
presented.
[24] “The elements of a breach of contract action are the existence of a contract, the
defendant’s breach thereof, and damages.” Gared Holdings, LLC v. Best Bolt
Prods., Inc., 991 N.E.2d 1005, 1012 (Ind. Ct. App. 2013) (quotation marks and
citation omitted), trans. denied. It is undisputed by the parties that the
Development Agreement constitutes a contract, that it is authentic, and that
Linkmeyer Development is a party to it.
1. Third-Party Beneficiary
[25] We turn first to consideration of whether the Class constitutes a third-party
beneficiary of the contract. As we explained in Flaherty & Collins, Inc. v. BBR-
Vision I, L.P.,
Generally, only those who are parties to a contract, or those in
privity with a party, have the right to recover under a contract.
However, an entity that is not a party to the contract may enforce
the provisions of the contract by demonstrating that it is a third-
party beneficiary thereto. A third-party beneficiary contract is
one in which the promisor has a legal interest in performance in
favor of the third party and in which the performance of the
terms of the contract between two parties must necessarily result
in a direct benefit to a third party which was so intended by the
parties. A third party must show that it will derive more than an
incidental benefit from the performance of the promisor.
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 17 of 37
In order to enforce a contract by virtue of being a third-party
beneficiary, an entity must show (1) a clear intent by the actual
parties to the contract to benefit the third party; (2) a duty
imposed on one of the contracting parties in favor of the third
party; and (3) performance of the contract terms is necessary to
render the third party a direct benefit intended by the parties to
the contract. Among these three factors, the intent of the
contracting parties to benefit the third-party is controlling.
990 N.E.2d 958, 971 (Ind. Ct. App. 2013) (quotations and citations omitted),
trans. denied.
[26] The Class argues there is no need to analyze each factor because, “[i]t is
generally recognized that employees of public contractors may sue as third-
party beneficiaries for wages on a contract between the contractor and the
public.” Appellants’ Br. at 25 (quoting Ind. State Bldg. & Constr. Trades Council v.
Warsaw Cmty. Sch. Corp., 493 N.E.2d 800, 805 (Ind. Ct. App. 1986)). Besides
the fact that the City of Lawrenceburg was a party to the Development
Agreement, however, the Class has not brought forth an argument that
Linkmeyer Development was a public contractor. Regardless, the facts
presented here would likely not support such an argument. See Ind. Code § 4-
13.6 et seq.
[27] The primary issue here, then, is whether the City of Lawrenceburg and
Linkmeyer Development intended the Development Agreement to benefit the
Class. See Barth Elec. Co. v. Traylor Bros., 553 N.E.2d 504, 506 (Ind. Ct. App.
1990) (noting that the controlling issue is whether it was the intent of the parties
to a contract to benefit a third party). We begin, as always, with the plain
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 18 of 37
language of the contract, ensuring that we read the language in context and,
“whenever possible, construing it so as to render each word, phrase, and term
meaningful, unambiguous, and harmonious with the whole.” Citimortgage, Inc.
v. Barabas, 975 N.E.2d 805, 813 (Ind. 2012). The relevant language of the
Development Agreement states: “[Linkmeyer Development] shall comply with
all appropriate codes, laws and ordinances including the payment of prevailing
wages for labor as required by the State of Indiana and the City of
Lawrenceburg.” Appellants’ App., Vol. II at 46 (emphasis added).
[28] The Defendants argue this is “merely boilerplate language,” and “[n]either
[Linkmeyer Development] nor the City of Lawrenceburg ever intended
[Linkmeyer Development’s] project to require the payment of prevailing
wages[.]” Appellees/Cross-Appellants’ Br. at 18. In support thereof, the
Defendants designated several affidavits, including that of Mayor Cunningham,
who stated:
Linkmeyer Development II, LLC’s project, as proposed by Steve
Linkmeyer to the Economic Development Committee and as
described in the Development Agreement, constituted a private
development project and, as a private development project, no
prevailing wages were required to be paid for Linkmeyer
Development II, LLC’s project.
Appellants’ App., Vol. III at 55, ¶ 9.
[29] It is axiomatic, however, that where a contract’s language is unambiguous,
“this court may not look to extrinsic evidence to expand, vary, or explain the
instrument but must determine the parties’ intent from the four corners of the
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instrument.”7 Celadon Trucking Servs., Inc. v. Wilmoth, 70 N.E.3d 833, 839 (Ind.
Ct. App. 2017), trans. denied. And, despite the Defendants’ apparent argument
to the contrary, “merely boilerplate language” still carries legal effect. See
Nixdorf Comput., Inc. v. Jet Forwarding, Inc., 579 F.2d 1175, 1179 (9th Cir. 1978)
(“‘Boilerplate’ is, notwithstanding its reputation, language.”). Moreover, unless
a contract provides otherwise, it is implied that the parties intend to comply
with all applicable statutes and city ordinances in effect at the time of the
contract. See, e.g., Homer v. Burman, 743 N.E.2d 1144, 1147 (Ind. Ct. App.
2001).
[30] The Development Agreement unambiguously required that Linkmeyer
Development “shall comply with all appropriate codes, laws and ordinances
including the payment of prevailing wages for labor as required by the State of
Indiana and the City of Lawrenceburg.” Appellants’ App., Vol. II at 46
(emphasis added). Therefore, if any such code, law, or ordinance, so required,
the parties displayed “a clear intent . . . to benefit the third party[,]” Flaherty &
7
As Judge Learned Hand famously explained over a century ago:
A contract has, strictly speaking, nothing to do with the personal, or individual, intent of the
parties. A contract is an obligation attached by the mere force of law to certain acts of the
parties, usually words, which ordinarily accompany and represent a known intent. If, however,
it were proved by twenty bishops that either party, when he used the words, intended something
else than the usual meaning which the law imposes upon them, he would still be held, unless
there were some mutual mistake, or something else of the sort.
Hotchkiss v. Nat'l City Bank, 200 F. 287, 293 (S.D.N.Y. 1911), aff'd 201 F. 664 (2d Cir.), aff'd 231 U.S. 50(1913).
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 20 of 37
Collins, Inc., 990 N.E.2d at 971, and the Class has standing to sue under the
Development Agreement.
2. Section 33.02
[31] Next then, we turn to the question of whether any such code, law, or ordinance
required the payment of prevailing wages for labor. It is uncontested that no
state law required the payment of prevailing wages. Rather, the source of the
parties’ disagreement is an ordinance, namely Code of Lawrenceburg Section
33.02.
[32] Before proceeding to the text of the ordinance, we note that we apply the same
principles as those used for the construction of state statutes. 600 Land, Inc. v.
Metro. Bd. of Zoning Appeals of Marion Cty., 889 N.E.2d 305, 309 (Ind. 2008).
The first step in statutory interpretation is determining if the
legislature has spoken clearly and unambiguously on the point in
question. If a statute is clear and unambiguous on its face, no
room exists for judicial construction. However, if a statute
contains ambiguity that allows for more than one interpretation,
it opens itself up to judicial construction to effect the legislative
intent.
If possible, every word must be given effect and meaning, and no
part should be held to be meaningless if it can be reconciled with
the rest of the ordinance. We are not at liberty to construe a
facially unambiguous statute. However, if ambiguity exists, it is
then open to construction to effect the intent of the legislature.
Where ambiguity exists, to help determine the framers’ intent, we
must consider the statute in its entirety, and we must construe the
ambiguity to be consistent with the entirety of the enactment. It
is of the utmost importance to consider the ambiguous section
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 21 of 37
within the scope of the entire Act, as that allows us to better
understand the reasons and policies underlying the Act.
We should also remember a cardinal rule of statutory
construction, which is to ascertain the intent of the drafter. We
can ascertain intent by giving effect to the ordinary and plain
meaning of the language used.
Siwinski v. Town of Ogden Dunes, 949 N.E.2d 825, 828-29 (Ind. 2011) (citations
and quotations omitted).
[33] Entitled “Contractors Required to Pay Prevailing Wages,” Code of
Lawrenceburg Section 33.02 provides:
On any construction project approved by the Lawrenceburg
Development Corporation and financed in whole or in part by
proceeds from sale of economic development bonds, grants or
approved by or financed through any city agency, board,
committee or commission, pursuant to an Investment Incentive
Program, contractors retained to complete the project shall be
required to pay the employed on the project wages equal to the
prevailing wage customarily paid to each class of worker engaged
in similar work in Lawrenceburg and surrounding areas.
(‘94 Code, § 33.02) (Ord. 1-1986, passed 4-7-86)
(Emphasis added.)
[34] The parties’ competing interpretations of Section 33.02 center around the
ordinance’s use of the adverbial clause, “approved by the Lawrenceburg
Development Corporation[,]” the conjunction “or,” and the lack of a serial,
sometimes called Oxford, comma preceding the “or”—as emphasized above.
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 22 of 37
[35] The Defendants argue that for the ordinance to apply, the construction project
must be approved by the Lawrenceburg Development Corporation and the
construction project must be “financed in whole or in part by proceeds from
sale of economic development [1] bonds, [2] grants or [3] approved by or
financed through any city agency, board, committee or commission . . . .”
Appellees/Cross-Appellants’ Br. at 21 (emphasis added). Specifically, the
Defendants contend:
In a simpler form, the ordinance applies to any construction
project:
(1) approved by the Lawrenceburg Development Corporation,
and
(2) financed in whole or in part by
a. proceeds from sale of economic development bonds,
b. grants
c. or approved by or financed through any city agency,
board, committee or commission, pursuant to an
Investment Incentive Program.
Id.
[36] Astutely observing that Section 33.02 is “hardly a model of legislative clarity,”
the Class suggests the ordinance should be interpreted as follows:
On any construction project
[A] approved by the Lawrenceburg Development Corporation
and financed in whole or in part by
[1] proceeds from sale of economic development bonds,
[2] grants or
[B] approved by or financed through any
[1] city agency,
[2] board,
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 23 of 37
[3] committee, or
[4] commission,
pursuant to an Investment Incentive Program
contractors retained to complete the project shall be required to
pay the employed on the project wages equal to the prevailing
wage customarily paid to each class of worker engaged in similar
work in Lawrenceburg and surrounding areas.
Appellants’ Br. at 30. Viewing the ordinance as a whole, we agree with the
Class.
[37] First, Section 33.02 begins with a specific source of approval, “approved by the
Lawrenceburg Development Corporation[,]” and two specific forms of
financing, “financed in whole or in part by proceeds from sale of economic
development bonds, grants[.]” But the ordinance then shifts to provide for
separate, more general sources of approval and financing, requiring simply that
the project be “approved or financed through any city agency, board, committee
or commission, pursuant to an Investment Incentive Program . . . .” (Emphasis
added.) This discrepancy suggests that what followed “or” was not simply
another item on a list to which the adverbial clause “approval by the
Lawrenceburg Development Corporation” equally applied, but rather an
alternative to the clause where approval or financing can come from “any city
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 24 of 37
agency, board, committee or commission,” as long as that approval or
financing was made pursuant to “an Investment Incentive Program.”8
[38] Secondly, this interpretation of Section 33.02 is more consistent with the text of
Section 33.01. As our supreme court has instructed, “[s]tatutes relating to the
same general subject matter are in pari materia [on the same subject] and
should be construed together so as to produce a harmonious statutory scheme.”
Klotz v. Hoyt, 900 N.E.2d 1, 5 (Ind. 2009) (quotations omitted). Entitled
“Employment Standards,” Section 33.01 provides:
On any construction project approved by the Lawrenceburg
Development Corporation financed in whole or in part by
proceeds from sale of Economic Development Bonds or
approved by or financed through any city agency, board,
committee, or commission, pursuant to an investment incentive
program, the Economic Development Commission or the
Community and Lawrenceburg Development Corporation shall
recommend that the contractor set as a goal the employment of
at least 50% of the worker hours on a craft-by-craft basis, to be
performed by bona fide residents of the city or Dearborn County,
and the employment of at least 10% minorities on a craft-by-craft
basis.
(‘94 Code, § 33.01) (Ord. 1-1986, passed 4-7-86)
8
Under this interpretation, “[o]n any construction project” remains as a series-qualifier, carrying forward to
apply to each of the two clauses of the series. See Antonin Scalia & Bryan Garner, Reading Law: The
Interpretation of Legal Texts § 19 (2012) (“Series-Qualifier Canon: When there is a straightforward, parallel
construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally
applies to the entire series.”).
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 25 of 37
[39] Although Section 33.01 reads “approved by the Lawrenceburg Development
Corporation financed in whole or in part by proceeds from sale of Economic
Development Bonds or approved by or financed through any city [entity][,]”
Section 33.02 reads, “approved by the Lawrenceburg Development
Corporation and financed in whole or in part by proceeds from sale of
Economic Development bonds, grants or approved by or financed through any
city [entity][.]” (Emphasis added.) Without “and” or the addition of
“grants[,]” Section 33.01 clearly applies to two different scenarios: (A)
approval by the Lawrenceburg Development Corporation accompanied by
financing from the sale of Economic Development Bonds or (B) approval or
financing through a city entity. These sections clearly serve a similar purpose as
Section 33.01 sets forth goals to hire local and minority labor while Section
33.02 requires the payment of prevailing wages to labor. Reading the ordinance
as a whole, therefore, we can find no reason why Section 33.01 would make
approval of the Lawrenceburg Development Corporation optional while
Section 33.02 would make such approval mandatory. See Adams v. State, 960
N.E.2d 793, 798 (Ind. 2012) (noting “we read the statute as a whole, avoiding
excessive reliance on a strict, literal meaning or the selective reading of
individual words.”).
[40] This interpretation also preserves the existence of the ordinance because the
Lawrenceburg Development Corporation was dissolved on February 12, 1990.
See Eddy v. McGinnis, 523 N.E.2d 737, 738 (Ind. 1988) (noting “[i]f there are
two possible interpretations of the statute, and by one interpretation the statute
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 26 of 37
would be invalid but by the other valid, the Court should adopt the
interpretation which will uphold the statute”); Antonin Scalia & Bryan Garner,
Reading Law: The Interpretation of Legal Texts § 5 (2012) (Presumption of
Validity: “An interpretation that validates outweighs one that invalidates (ut res
magis valeat quam pereat)”). If approval by the Lawrenceburg Development
Corporation was a sine qua non to Section 33.02’s application, as the
Defendants contend, the Section 33.02 would have been a nullity since 1990.
The City of Lawrenceburg recodified its ordinances in 1994 and an additional
fifteen years passed between recodification and the signing of the Development
Agreement in 2009. In the absence of the ordinance’s repeal in the interim, we
find additional cause to interpret the ordinance so as to preserve its validity.
[41] For all of these reasons, we read Section 33.02 to provide two, separate
prerequisites for its application. That is to say, Section 33.02 requires the
payment of prevailing wages on any construction project “[A] approved by the
Lawrenceburg Development Corporation and financed in whole or in part by
proceeds from sale of economic development bonds, grants or [B] financed
through any city agency, board, committee or commission, pursuant to an
Investment Incentive Program[.]” (Emphasis added.)
[42] Consistent therewith, the Class “proceeds under the second half of Section
33.02, subsection [B] as diagramed.” Appellants’ Br. at 30. The next
requirement for Section 33.02’s application then, is that the project must have
been “approved by or financed through any city agency, board, committee or
commission . . . .” The face of the Development Agreement states the contract
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 27 of 37
was made “pursuant to Order Resolution dated July __, 2009, which was duly
passed by the Lawrenceburg City Council[.]” Appellants’ App., Vol II at 103.
Furthermore, the project was financed by a $3,000,000 loan from the City of
Lawrenceburg. These facts clearly establish that the project was both approved
by and financed through the city.9
[43] Finally, Section 33.02 required that the construction project was approved or
financed by the city “pursuant to an Investment Incentive Program[.]”
Although the capitalization of “Investment Incentive Program” indicates a
defined term carrying special meaning, the Code of Lawrenceburg does not
provide a corresponding definition. See, e.g., Schane v. Int’l Bhd. of Teamsters
Union Local No. 710 Pension Fund Pension Plan, 760 F.3d 585, 588 (7th Cir. 2014)
(noting that a “term [was] capitalized as if it were a specially defined term, [but]
it is not listed in the definitions section of the plan.”). And the term
“Investment Incentive Program” appears only one other time in the Code of
Lawrenceburg and is left uncapitalized in Section 33.01. Supra, ¶ 38 (“pursuant
to an investment incentive program”).
9
The Defendants further argue that the Class’s interpretation would “create an absurdly broad application,
requiring the payment of prevailing wages on the construction and remodeling of residential homes [because]
the Building Code of Lawrenceburg [requires] the Building Commissioner . . . must approve the project and
issue permits to the contractor or homeowner.” Appellees/Cross-Appellants’ Br. at 22. This argument,
however, fails to consider the final prerequisite for the ordinance’s application: that the construction project
must have been approved or financed by a city agency “pursuant to an Investment Incentive Program[.]”
Therefore, simply because the construction or remodeling of residential homes requires the approval of the
building commissioner, Section 33.02 would not require the payment of prevailing wages.
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 28 of 37
[44] Undefined words in a statute or ordinance are given their plain, ordinary, and
usual meaning. 600 Land, Inc., 889 N.E.2d at 309. “In determining the plain
and ordinary meaning of a term, courts may use English language dictionaries
as well as consider the relationship with other words and phrases.” Id. The
terms “investment incentives” are broadly defined as:
inducements offered by the government or local authorities to
encourage capital investment by the private sector either
generally or in a specific area. Government inducements may
take the form of capital grants towards the cost of equipment or
tax reliefs on any profits earned. Local authority inducements
usually take the form of reductions or exemptions from local
taxes and organizing the local infrastructure for the convenience
of potential investors. The rationale for such incentives depends
primarily upon the government’s objectives. It may want to
increase economic growth and reduce unemployment, in which
case investment through the multiplier effect will help, or it may
want to give certain assisted areas additional help in tackling
local problems of unemployment or urban renewal.
Collins Dictionary of Economics (4th ed. 2005) (emphasis and parentheticals
omitted).
[45] In the absence of a specific definition of an investment initiative program, the
Class argues the “sweetheart loan” of $3,000,000 and the “gratuitous transfer of
21.5 acres” from the City of Lawrenceburg to Linkmeyer Development was
intended to be an “investment incentive.” Appellants’ Br. at 40. Although we
agree that such generous terms could be fairly characterized as an investment
incentive, Section 33.02 includes additional requirements that the construction
project be approved or financed by the city “pursuant to an Investment Incentive
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 29 of 37
Program[.]” (Emphasis added.) Black’s Law Dictionary defines “pursuant to”
as “[i]n compliance with; in accordance with; under” or “[a]s authorized by.”
(10th ed. 2014). The word “program” in this context is commonly defined as
“a plan or system under which action may be taken toward a goal.” Merriam-
Webster Online Dictionary, http://www.merriam-
webster.com/dictionary/program (last visited January 4, 2019). Therefore,
read as a whole, we conclude Section 33.02 required more than simply an
investment incentive that benefited the area. The City of Lawrenceburg must
have approved or financed the construction project pursuant to a specific
investment incentive program. One such investment incentive program in place
at the time of the Development Agreement can be found in Indiana Code
section 5-28-24-2. The statute provides:
The [Indiana Economic Development] corporation shall
establish policies to carry out an investment incentive program.
The purpose of the program is to provide grants and loans to
counties and municipalities that will, in turn, be loaned to certain
new or expanding businesses for construction or for the purchase
of real or personal property.
[46] At this juncture, the Class has yet to designate evidence that the Development
Agreement was approved or financed pursuant to Indiana Code section 5-28-24-
2 or any other investment incentive program. The only evidence in the record
is Mayor Cunningham’s affidavit that he was:
. . . unaware of any project approved or financed by a City
agency, board, committee or commission pursuant to any
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 30 of 37
“Investment Incentive Program” while I served as Mayor or as
Council Member.
Appellants’ App., Vol. III at 55, ¶ 12. The record further reflects that Mayor
Cunningham was a signatory of the Development Agreement on behalf of the
City of Lawrenceburg and he played a key role in its inception and subsequent
approval. His testimony, therefore, is probative of whether the project was
approved or financed pursuant to an investment incentive program.
[47] Although Mayor Cunningham’s affidavit did not “affirmatively negate” the
Class’s claim and thus it did not satisfy the Defendants’ burden on their own
motion for summary judgment, see Hughley, 15 N.E.3d at 1003, it was sufficient
to demonstrate the existence of a genuine issue of material fact. See id.
Accordingly, we conclude the trial court correctly denied both parties’ motions
for summary judgment regarding breach of contract.10
C. The Defendants’ Cross-Appeal: Indiana Wage
Claims/Wage Payment Statutes
[48] In addition to the breach of contract claim, the Class alleged the Defendants
violated the Wage Payment Statute, Ind. Code § 22-2-5, et seq., and the Wage
Claims Statute, Ind. Code 22-2-9, et. seq., by failing to pay prevailing wages and
10
Because we conclude genuine issues of material fact remain regarding whether Section 33.02 applies to the
Development Agreement, we need not address the Class’s remaining arguments which are inextricably tied
thereto. These arguments include whether Section 33.02 provides a private right of action and whether
Bishoff and Linkmeyer are subject to personal liability. See D.H. by A.M.J. v. Whipple, 103 N.E.2d 3d 1119,
1134 n. 4 (Ind. Ct. App. 2018), trans. denied.
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 31 of 37
by failing to pay those wages in a timely manner. The Defendants’ motion for
summary judgment on this issue was denied by the trial court. The Defendants
appeal that decision.
[49] In St. Vincent Hosp. & Health Care Ctr., Inc. v. Steele, 766 N.E.2d 699 (Ind. 2002),
the plaintiff, a doctor employed by St. Vincent Hospital, filed a complaint
alleging breach of contract for failure to pay the full amount of compensation
due under the terms of their agreement and for violation of the Wage Payment
Statute. In determining whether the Wage Payment Statute or the Wage
Claims Statute applied to Steele’s claim, our supreme court explained:
Although both the Wage Claims Statute and the Wage Payment
Statute set forth two different procedural frameworks for wage
disputes, each statute applies to different categories of claimants.
The Wage Claims Statute references employees who have been
separated from work by their employer and employees whose
work has been suspended as a result of an industrial dispute. I.C.
§ 22-2-9-2(a), (b). By contrast, the Wage Payment Statute
references current employees and those who have voluntarily left
employment, either permanently or temporarily. I.C. § 22-2-5-
1(b).
Id. at 704; see also J Squared, Inc. v. Herndon, 822 N.E.2d 633, 640 n. 4 (Ind. Ct.
App. 2005) (“There is some confusion among the parties whether the Wage
Claims Statute or the Wage Payment Statute applies. The former applies where
. . . an employee is fired, and the latter applies where an employee quits.”). The
court in Steele ultimately concluded, “Because Dr. Steele was a current
employee of St. Vincent at the time of the wage dispute, he proceeded correctly
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 32 of 37
under the Wage Payment Statute.” Id. Later, in Hollis v. Defender Sec. Co., 941
N.E.2d 536, 540 (Ind. Ct. App. 2011), trans. denied, a panel of this court held
“that an employee’s status at the time he or she files the claim is the relevant
inquiry in determining whether to proceed under the Wage Payment Statute or
the Wage Claims Statute.”
[50] A key distinction between the Wage Payment Statute and the Wage Claims
Statute is that the Wage Claims Statute requires the exhaustion of
administrative remedies before the filing of a complaint with a trial court, Hollis,
941 N.E.2d at 538, while the Wage Payment Statute does not, Walczak v. Labor
Works-Ft. Wayne LLC, 983 N.E.2d 1146, 1154 (Ind. 2013). On appeal, the
Defendants argue that because the Class failed to exhaust their administrative
remedies before filing their complaint, the Defendants are therefore entitled to
summary judgment. However, the Defendants fail to argue—and the record is
entirely absent of evidence—that the employees composing the Class were
involuntarily separated from their employment. Therefore, we conclude the
Defendants failed to establish they were entitled to summary judgment on this
issue and the trial court did not err in denying such motion accordingly. 11
11
As with the other remaining claims, whether the Defendants violated the Wage Payment Statute, Ind.
Code § 22-2-5-0.3, et seq., is premised upon whether Section 33.02 applies to the Development Agreement.
Therefore, because factual issues preclude summary judgment, we must similarly decline to address this
issue.
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 33 of 37
Conclusion
[51] For the reasons set forth above, we decline to strike portions of the Defendants’
Reply Brief and we conclude the trial court properly denied the parties’
respective motions for summary judgment. Accordingly, we affirm and remand
for further proceedings.
[52] Affirmed.
May, J., concurs.
Baker, J., concurs in part and dissents in part with opinion.
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 34 of 37
IN THE
COURT OF APPEALS OF INDIANA
Bryan Alexander, Karl Court of Appeals Case No.
Cameron, William Love, Charlie 18A-PL-311
Lovins, Kevin McMurray and
Matt Oelker, on behalf of
themselves and all others similarly
situated,
Appellants/Cross Appellees-Plaintiffs,
v.
Linkmeyer Development II,
LLC, Steven Linkmeyer, and
Brian Bischoff,
Appellees/Cross Appellants-Defendants,
Baker, Judge, concurring in part and dissenting in part.
[1] Regarding the Class’s breach of contract claim, I concur with the majority that
the Class constitutes a third-party beneficiary of the contract. But I part ways
with the majority’s conclusion that a genuine issue of material fact exists as to
whether the Class is entitled to the payment of prevailing wages. I believe that,
as a matter of law, the Class is entitled to its claim and that the only genuine
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 35 of 37
issues of material fact that exist are whether the Class did the work to qualify
for the prevailing wage and if so, what the prevailing wage was.
[2] The Development Agreement states that “Developer shall comply with all
appropriate codes, laws and ordinances including the payment of prevailing
wages for labor as required by the State of Indiana and the City of
Lawrenceburg.” Appellants’ App. Vol. II p. 46. The City of Lawrenceburg’s
ordinance requires the payment of prevailing wages to those employed on any
construction project financed by a city agency or similar entity pursuant to an
investment incentive program. See § 33.02.
[3] Under the facts presented here—especially the fact that, under the Development
Agreement, the City of Lawrenceburg extended a three-million-dollar line of
credit with a two percent annual interest rate to Linkmeyer Development in
return for work done on certain properties—there can be no dispute that the
City of Lawrenceburg financed the construction. But the parties split hairs over
the meaning of the phrase “Investment Incentive Program” found in section
33.02. And while the majority finds the parties’ dispute over this phrase raises a
genuine issue of material fact, I do not.
[4] The parties contest how this phrase should be interpreted. A question of
statutory interpretation is a matter of law. Nash v. State, 881 N.E.2d 1060, 1063
(Ind. Ct. App. 2008). And summary judgment should be granted when the
moving party deserved judgment as a matter of law. Goodwin v. Yeakle’s Sports
Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 36 of 37
[5] Neither party offered evidence of a formal “Investment Incentive Program” in
the City of Lawrenceburg. Thus, I can only conclude that Section 33.02 refers
generally to investment incentive programs that benefit the area, not to any one
specific or official program. And, simply put, the Development Agreement
acted as an investment incentive program for the City of Lawrenceburg.
Specifically, the City of Lawrenceburg incentivized this development—the
investment—by agreeing to finance it. The Defendants then performed work
that benefitted the City of Lawrenceburg. If that does not constitute an
investment incentive, I do not know what does.
[6] Therefore, I would find that the Class is entitled as a matter of law to the
payment of the prevailing wage, and that the only issues of material fact are
whether the Class did the work to qualify for the prevailing wage and if so,
what the prevailing wage was.
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