Darrick Scott and Paul A. Watson v. City of Terre Haute

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before FILED
any court except for the purpose of Mar 06 2012, 8:40 am
establishing the defense of res judicata,
collateral estoppel, or the law of the CLERK
of the supreme court,
case. court of appeals and
tax court

ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES:

ERIC A. FREY WILLIAM W. DRUMMY
Frey Law Firm HOLLY A. REEDY
Terre Haute, Indiana Wilkinson, Goeller, Modesitt,
Wilkinson & Drummy, LLP
Terre Haute, Indiana

IN THE
COURT OF APPEALS OF INDIANA

DARRICK SCOTT and PAUL A. WATSON, )
)
Appellants-Plaintiffs, )
)
vs. ) No. 84A01-1108-PL-337
)
CITY OF TERRE HAUTE, et al., )
)
Appellees-Defendants. )

APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable Robert E. Springer, Special Judge
Cause No. 84D02-0712-PL-12953

MARCH 6, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BARTEAU, Senior Judge
 STATEMENT OF THE CASE

Darrick Scott and Paul A. Watson appeal the trial court’s grant of summary

judgment in favor of the City of Terre Haute, Kevin Burke, James Utz, William Lower,

Jeff Perry, Thomas Roberts, Danielle Merkle, Robert Murray, and the Terre Haute Fire

Department Merit Commission (collectively, “the City”). We affirm.

ISSUES

Scott and Watson raise two issues, which we consolidate and restate as: whether

the trial court erred by granting the City’s motion for summary judgment. In addition,

the City raises several cross-appeal issues, which we restate as:

I. Whether Scott and Watson have standing to pursue this lawsuit.

II. Whether this Court should disregard as untimely documents Scott and
Watson filed in opposition to the City’s motion for summary judgment.1

FACTS AND PROCEDURAL HISTORY

At all times relevant to this case, Scott and Watson were employed by the City’s

fire department. In 2002, the City adopted an ordinance establishing a Fire Department

Merit Commission (“the Commission”) and a merit system to govern promotions and

demotions in the fire department. The ordinance provided that the chief of the fire

department has the authority to appoint firefighters to temporary executive assistant

positions, including that of “battalion chief,” to assist the chief in carrying out his or her

executive duties. Appellants’ App. p. 42.

1
The City also argues that Scott and Watson have waived their arguments on appeal by failing to include
appropriate citations to the record in their Appellants’ Brief, in violation of Indiana Appellate Rule
46(A)(8). We determine that the Appellants’ Brief adequately complies with Rule 46(A)(8) and decline
to address the matter further.
2
 On December 16, 2003, the Commission approved Scott and Watson’s promotions

to the rank of “merit captain.” Id. at 172-74. Firefighters who had been promoted to the

rank of captain prior to the implementation of the merit system retained that rank, but

Scott and Watson were the only merit captains in the fire department from 2003 through

most of 2007.

In 2004, the City amended the merit system ordinance as follows, in relevant part:

The Chief shall have general charge of the daily operations of the
department and may, with the approval of the Executive and funding by the
fiscal body, appoint any number of executive assistants who shall hold the
temporary rank and title of ASSISTANT CHIEF and/or BATTALION
CHIEF, TRAINING CHIEF, CHIEF MECHANIC, SAFETY DIRECTOR
AND EMS/HAZMAT COORDINATOR, as the Chief deems necessary to
allow for the efficient discharge of executive duties. The Chief shall select
“BATTALION CHIEFS” from among those holding the permanent merit
rank of no lower than Captain in the department and meeting the standards
determined by the Fire Merit Commission which shall be established and
enforced no later than June 30, 2006. All executive assistants shall be
temporary, and each executive assistant shall retain their former rank,
unless promoted in accordance with this personnel system.

Id. at 22 (capitalizations, strikethrough indicating deletion, and underline indicating

addition, in original). The record does not indicate whether the Commission enacted the

standards required by the ordinance for the position of battalion chief.

After Scott and Watson were promoted to merit captains, the fire chief did not

appoint them to serve as battalion chiefs. Instead, on October 22, 2007, the City’s Board

of Public Works and Safety appointed ten other firefighters to the “permanent rank of

Battalion Chief.” Id. at 27. Nine of the ten appointments were retroactively effective,

some taking effect as of January 1, 2004. None of the appointed firefighters were merit

captains.

3
 On December 20, 2007, Scott and Watson filed a civil complaint, alleging that the

City’s October 22, 2007 appointments of the ten firefighters to the position of battalion

chief were illegal and circumvented the merit system. Scott and Watson asserted that as

merit captains, they were the only persons qualified to hold the position of battalion chief

and should have been appointed to those posts. Consequently, Scott and Watson asked

the trial court to invalidate the October 22, 2007 appointments, declare Scott and Watson

to be battalion chiefs as of January 1, 2004, and award them all appropriate back pay.

On February 25, 2008, the Board of Public Works and Safety rescinded its ten

battalion chief appointments. On June 26, 2008, the City filed a motion for summary

judgment. The trial court instructed Scott and Watson to respond on or before August 15,

2008. Meanwhile, the parties attempted to mediate their dispute but were unsuccessful.

On June 15, 2011, Scott and Watson filed a motion for partial summary judgment as to

liability and a response in opposition to the City’s motion for summary judgment. The

City filed a response to Scott and Watson’s motion for partial summary judgment.

On July 11, 2011, the trial court granted the City’s motion for summary judgment

without holding a hearing. This appeal followed.

DISCUSSION AND DECISION

I. STANDING

The City contends that Scott and Watson lack standing to challenge the City’s

appointment of battalion chiefs. Scott and Watson respond that they have been harmed

because they are the only qualified candidates for the position of battalion chief but have

been illegally overlooked because the City did not follow its merit system rules.

4
 The judicial doctrine of standing focuses on whether the complaining party is the

proper party to invoke the court’s power. Founds. of E. Chicago, Inc. v. City of E.

Chicago, 927 N.E.2d 900, 903 (Ind. 2010), clarified on reh’g, 933 N.E.2d 874 (2010).

The question of whether a party has standing is generally one of law, not fact. Knox

Cnty. Council v. Sievers, 895 N.E.2d 1263, 1268 (Ind. Ct. App. 2008). It is generally

insufficient that a plaintiff merely has a general interest common to all members of the

public. Founds. of E. Chicago, 927 N.E.2d at 903. Standing requires that a party have a

personal stake in the outcome of the lawsuit and must show that he or she has sustained

or was in immediate danger of sustaining some direct injury as a result of the conduct at

issue. Id.

In this case, Scott and Watson alleged that, pursuant to the Fire Department’s

merit system, they were the only firefighters eligible to serve as battalion chiefs, but the

City, through its officials and boards, illegally disregarded their qualifications and

appointed unqualified persons to serve as battalion chiefs. Scott and Watson further

alleged that they have suffered lost wages as a result of being illegally passed over for the

position. We conclude that Scott and Watson have a stake in the outcome of the lawsuit

and have alleged direct injury. Consequently, they have standing to bring this suit.

II. UNTIMELY RESPONSE TO SUMMARY JUDGMENT MOTION

The City next contends that this Court should disregard Scott and Watson’s brief

in opposition to the City’s motion for summary judgment, designation of evidence, and

reply brief in opposition to the City’s supplemental designation of evidence because those

documents were untimely filed. Scott and Watson respond that the trial court granted

5
them an extension of time to respond to the City’s summary judgment motion, and that as

a result, their summary judgment documents were timely filed and are appropriate for

consideration on appeal.2

Indiana Trial Rule 56(C) provides, “An adverse party shall have thirty (30) days

after service of the motion to serve a response and any opposing affidavits.” In addition,

a trial court “may alter any time limit set forth in this rule upon motion made within the

applicable time limit.” Ind. Trial Rule 56(I). A trial court may exercise discretion and

alter time limits under Trial Rule 56(I) only if the nonmoving party has responded or

sought an extension within thirty days from the date the moving party filed for summary

judgment. Desai v. Croy, 805 N.E.2d 844, 850 (Ind. Ct. App. 2004), trans. denied.

Furthermore, where a nonmoving party fails to respond to a motion for summary

judgment within thirty days by either (1) filing affidavits showing issues of material fact,

(2) filing his or her own affidavit under Rule 56(F) indicating why the facts necessary to

justify opposition are unavailable, or (3) requesting an extension of time in which to file

his or her response under 56(I), the trial court lacks discretion to permit that party to

thereafter file a response. Id.

In this case, the City filed its motion for summary judgment on June 26, 2008. On

June 30, 2008, the trial court sua sponte extended Scott and Watson’s deadline by

ordering them to file a response on or before August 15, 2008. Scott and Watson did not

file a response or a motion for extension of time before that deadline elapsed. Instead,
2
Based on the record before us, we are unable to determine whether the trial court reviewed Scott and
Watson’s brief in opposition to the City’s motion for summary judgment, designation of evidence, and
reply brief in opposition to the City’s supplemental designation of evidence. It is also unclear whether the
trial court reviewed Scott and Watson’s motion for partial summary judgment.
6
Scott and Watson filed their response, and a motion for partial summary judgment, on

June 15, 2011, almost three years after the response deadline had expired. Thus, their

summary judgment documents were untimely filed.

Scott and Watson assert that the trial judge had recused himself from the case the

day after setting the August 15, 2008 deadline, so there would have been no judge to

consider a response or a motion for extension. This assertion is unavailing because

Indiana Trial Rule 56(I) requires only that a request for an extension be filed prior to the

deadline, not that the request be ruled upon before the deadline. Scott and Watson further

argue that the parties were mediating the case during the three-year gap, and it would

have been unreasonable to continue to litigate the matter while the parties pursued

settlement. We reject this argument because Scott and Watson could have filed a motion

for extension of time, or a motion to stay summary judgment proceedings, prior to the

August 15, 2008 deadline. Finally, Scott and Watson contend that a special judge

accepted jurisdiction over the matter in 2011 and granted them an extension of time to

file their summary judgment materials. Indiana Trial Rule 56(I) provides that a trial court

may alter the summary judgment deadline only if a party requests an extension prior to

the summary judgment deadline, so their contention is without merit.

That Scott and Watson’s response and designation of evidence were attached to a

motion for partial summary judgment is of no consequence. Although Indiana Trial Rule

56(A) allows a claimant to move for summary judgment “after the expiration of twenty

[20] days from the commencement of the action or after service of a motion for summary

judgment by the adverse party,” Scott and Watson may not bypass established rules of

7
trial procedure by including their own motion for summary judgment with their response.

“Doing so would render meaningless Trial Rule 56(C)’s time limit of thirty days and

allow litigants to respond to summary judgment motions at their leisure so long as they

also included their own motion.” Life v. F.C. Tucker Co., Inc., 948 N.E.2d 346, 351 (Ind.

Ct. App. 2011).

We conclude that Scott and Watson’s documents filed in response to the City’s

motion for summary judgment were untimely filed and that the trial court lacked the

discretion to consider them. See Desai, 805 N.E.2d at 850 (determining that the trial

court erred by allowing a party to belatedly file affidavits in response to a motion for

summary judgment). Consequently, we shall not consider those documents in our review

of the trial court’s grant of summary judgment to the City.

III. GRANT OF SUMMARY JUDGMENT TO THE CITY

We review an appeal from summary judgment de novo. Neu v. Gibson, 928

N.E.2d 556, 559 (Ind. 2010). Summary judgment is proper when there is no genuine

issue of material fact, and the moving party is entitled to judgment as a matter of law.

Ind. Trial Rule 56(C). We view the pleadings and designated materials in the light most

favorable to the nonmovant. Friedline v. Shelby Ins. Co., 774 N.E.2d 37, 39 (Ind. 2002).

The moving party bears the burden of making a prima facie showing that there are no

genuine issues of material fact and that the movant is entitled to judgment as a matter of

law. Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind. 2009).

Once the movant satisfies the burden, the burden then shifts to the nonmoving party to

designate and produce evidence of facts showing the existence of a genuine issue of

8
material fact. Id. The party appealing the grant of summary judgment has the burden of

persuading this Court that the trial court’s ruling was improper. Uniontown Retail No.

36, LLC v. Bd. of Comm’rs of Jackson Cnty., 950 N.E.2d 332, 337 (Ind. Ct. App. 2011),

trans. denied.

Here, Scott and Watson asserted a claim for declaratory relief, asking the trial

court to: (1) void the Board of Public Works and Safety’s October 22, 2007 appointment

of ten firefighters to the position of battalion chief; and (2) order the City “to promote the

plaintiffs, retroactively to January 1, 2004 as Battalion Chiefs.” Appellants’ App. p. 18.

The Board of Public Works and Safety rescinded the ten appointments on February 25,

2008. Thus, the first aspect of their claim is moot. We must determine whether there is a

dispute of material fact as to Scott and Watson’s demand to be appointed as battalion

chiefs.

To resolve Scott and Watson’s claim, we must interpret and apply the governing

ordinance. This Court uses the same methodology to interpret ordinances as it does to

interpret statutes. Siwinski v. Town of Ogden Dunes, 949 N.E.2d 825, 828 (Ind. 2011).

The first step in statutory interpretation is determining if the promulgating authority has

spoken clearly and unambiguously on the point in question. Id. If a statute is clear and

unambiguous on its face, no room exists for judicial construction. Id.

Here, the ordinance governing the selection of battalion chiefs, as amended in

2004, provides that the chief of the fire department may appoint executive assistants,

including battalion chiefs, “to allow for the efficient discharge of executive duties.”

Appellants’ App. p. 22. All executive assistant posts are “temporary.” Id. Subject to the

9
approval of the “Executive,” the chief may select any firefighter to serve as battalion

chief so long as the selected individual holds the rank of no lower than captain and meets

the Commission’s standards.3 Id.

It is clear from the plain language of the ordinance that the position of battalion

chief is not subject to the merit system of promotion and demotion. Instead, the post is

temporary, and a battalion chief assists the chief in carrying out executive duties. The

chief selects battalion chiefs at his or her discretion, subject only to the approval of the

Executive. Thus, a firefighter has no right under the ordinance to be appointed to serve

as a battalion chief, even if he or she meets the requirements of the position, because the

appointment is discretionary.

Scott and Watson do not allege that the City’s failure to appoint them to serve as

battalion chiefs violated their rights under any provision of the federal or state

constitutions or violated any federal or state statute. Instead, they simply argue that the

City is obligated to appoint them as battalion chiefs due to their merit ranks, their

training, and their experience. Given that there is no right under the merit system to be

appointed battalion chief, and Scott and Watson do not allege that they have been

discriminated against by any fire chief or other city official, they are not entitled to be

appointed as battalion chiefs as a matter of law. See Kaser v. Barker, 811 N.E.2d 930,

932-33 (Ind. Ct. App. 2004) (affirming the grant of summary judgment against a police

3
Scott and Watson point out that under the previous version of the ordinance, only captains with merit
rank were qualified to serve as battalion chiefs, and that they were the only merit captains during the time
period relevant to this case. However, it is undisputed that the 2004 amendment deleted the merit rank
requirement. Scott and Watson fail to explain why the previous version of the ordinance, rather than the
version that took effect in 2004, should apply here.
10
officer who was passed over for promotion to lieutenant because promotion was not

mandatory under the terms of the governing merit ordinance), trans. denied.

Scott and Watson argue that the Board of Public Works and Safety’s decision to

rescind the ten appointments of other firefighters to the position of battalion chief is a

binding admission of liability. This argument is not supported by precedent. An attorney

can make an admission to a trial court that is binding upon his or her client. Hockett v.

Breunig, 526 N.E.2d 995, 998 (Ind. Ct. App. 1988). A statement which contains

ambiguities or doubt is not to be regarded as a binding admission. See Maldonado v.

Gill, 502 N.E.2d 1371, 1372 (Ind. Ct. App. 1987), trans. denied. Here, the Board of

Public Works and Safety rescinded the appointments during the normal course of

business, not during a court proceeding. Furthermore, the Board, not its attorney,

rescinded the appointments. Finally, the Board did not admit that the appointments were

in any way erroneous. Therefore, the Board’s action does not constitute an admission of

liability.

Scott and Watson’s claim for declaratory relief must fail, and the trial court did not

err by granting summary judgment to the City.4

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court.

Affirmed.

ROBB, C.J., and MAY, J., concur.
4
Scott and Watson also assert a claim for unpaid back wages. That claim is contingent upon their request
for declaratory relief. Because we have determined that the trial court properly granted summary
judgment on their request for declaratory judgment, their claim for unpaid back wages also fails to
survive summary judgment.
11