FILED
Jun 08 2016, 8:14 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Rosemary L. Borek Mickey J. Lee
Stephenson Morow & Semler Maurice Wutscher LLP
Indianapolis, Indiana Indianapolis, Indiana
George W. Pendygraft
George W. Pendygraft, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
City of Lawrence Utilities June 8, 2016
Service Board, City of Lawrence, Court of Appeals Case No.
Indiana, and Mayor Dean 49A02-1506-CT-699
Jessup, Individually and in His Appeal from the Marion Superior
Official Capacity, Court
Appellants-Defendants, The Honorable Timothy W.
Oakes, Judge
v. Trial Court Cause No.
49D02-1212-CT-48783
Carlton E. Curry,
Appellee-Plaintiff
Baker, Judge.
Court of Appeals of Indiana | Opinion 49A02-1506-CT-699 | June 8, 2016 Page 1 of 17
[1] An Indiana statute clearly provides that a utility service board may terminate a
superintendent for cause after providing an opportunity for a hearing. The
question with which we are confronted is whether this is the exclusive manner
in which a utility superintendent may be terminated. We find that it is not.
[2] The City of Lawrence (the City), the City of Lawrence Utilities Services Board
(the USB), and Mayor Dean Jessup (collectively, the Government) appeal the
trial court’s order, which granted summary judgment in favor of Carlton Curry
on Curry’s wrongful discharge claim and denied the Government’s summary
judgment motion on Curry’s claim for intentional interference with
employment relationship. Curry cross-appeals, arguing that the trial court
erroneously granted summary judgment in favor of the Government on his
claim under the Wage Payment Statute.
[3] We find as follows: (1) the mayor had authority to terminate Curry’s
employment; (2) as such, Curry has no right to prevail on an intentional
interference with employment relationship claim; and (3) Curry is not entitled
to recover under the Wage Payment Statute. We reverse the judgment of the
trial court with respect to the wrongful discharge and intentional interference
with employment relationship claims and remand with instructions to enter
summary judgment in the Government’s favor on those two counts. We affirm
the trial court’s order with respect to the Wage Payment Statute count.
Court of Appeals of Indiana | Opinion 49A02-1506-CT-699 | June 8, 2016 Page 2 of 17
Facts 1
[4] In May 2006, Lawrence voters passed a referendum authorizing the creation of
the USB, which placed utility management under municipal control. The City
Council then passed an ordinance creating the USB with an effective date of
January 1, 2008. The ordinance provides that the USB consists of five
members, three of whom are appointed by the mayor and two of whom are
appointed by the council. The ordinance does not discuss the utility head
position. At a March 12, 2008, USB meeting, the title of the utility head
position was changed from “director of utilities” to “director/superintendent.”2
Appellants’ App. p. 176, 190-92.
[5] The USB requires mayoral approval to issue bonds, incur debts, or raise rates.
Therefore, it is important for the mayor to be on board with USB’s major policy
initiatives. Utilities are financed through water and sewage usage fees and
utility employees are paid through the City, though the USB has a budget that
is separate from the City’s general fund.
[6] In 2009, then-Mayor of Lawrence Paul Ricketts approached Curry about
becoming USB superintendent, and Curry agreed to take the position. At the
August 12, 2009, USB meeting, Mayor Ricketts recommended Curry for the
position, and—with no discussion—board members voted unanimously in
1
We held oral argument in Indianapolis on April 27, 2016. We thank the attorneys for their able written and
oral presentations.
2
For simplicity’s sake, we will refer to the position throughout as “superintendent.”
Court of Appeals of Indiana | Opinion 49A02-1506-CT-699 | June 8, 2016 Page 3 of 17
favor of appointing Curry. During Curry’s tenure, he worked closely with
Mayor Ricketts regarding the direction of the USB and all major policy
initiatives. One USB initiative that both Curry and Mayor Ricketts advocated
for strongly was the construction of a wastewater treatment plant for Lawrence.
[7] In November 2011, Mayor Ricketts was defeated in the general election by
Dean Jessup. Mayor-elect Jessup’s transition team sent correspondence to all
department heads, including Curry, inviting them to submit a resume and letter
of interest if they wished to remain in their positions. Curry submitted a letter
of interest and resume, met with the transition team’s utility committee, and
gave a presentation. Curry also communicated directly with Mayor-elect
Jessup.
[8] Mayor-elect Jessup learned about the proposed wastewater treatment plant,
which would cost approximately $150 to $200 million. Mayor-elect Jessup had
concerns about the cost of the project and was not convinced that it was a good
plan. Curry advocated strongly for the project, and Mayor-elect Jessup believed
that if Curry was retained as USB superintendent, there would be frequent
conflict if the mayor decided to forego the wastewater treatment plant project.
Mayor-elect Jessup wanted a USB superintendent who would implement his
goals and objectives and give balanced advice rather than advance his own
point of view.
[9] When Mayor Jessup took office on January 1, 2012, he asked for the
resignations of all mayoral appointees on every city board. The three mayoral
Court of Appeals of Indiana | Opinion 49A02-1506-CT-699 | June 8, 2016 Page 4 of 17
appointments on the USB complied and were replaced with Mayor Jessup’s
appointees. Curry continued to advocate strongly for the wastewater treatment
plant. Mayor Jessup felt that he was being given a sales pitch, and his concerns
about his working relationship with Curry increased. Mayor Jessup decided to
replace Curry with John Solenberg. Curry was notified by letter and in person
on January 19, 2012, that his employment would end on January 20. Mayor
Jessup submitted a recommendation for Solenberg as the new USB
superintendent, and the USB approved Solenberg unanimously.
[10] On December 21, 2012, Curry filed a complaint against the Government,
asserting both federal and state law claims. The case was removed to federal
court; on March 3, 2014, the district court granted summary judgment in favor
of the Government on all of Curry’s federal claims and remanded the case to
state court for consideration of Curry’s remaining claims based in state law.
The remaining claims are as follows: Count I, Wrongful Discharge; Count III,
Defamation; Count IV, Intentional Interference with Employment
Relationship; and Count V, Wage Payment Statute Claim.
[11] On October 22, 2014, Curry filed a motion for partial summary judgment on
Count I, and on November 25, 2014, the Government filed a motion for
summary judgment on all counts. Following briefing and a hearing, on April 6,
2015, the trial court granted summary judgment in favor of Curry on Count I
(wrongful discharge), granted summary judgment in favor of the Government
on Counts III (defamation) and V (Wage Payment Statute), and denied
summary judgment on Count IV (intentional interference). The Government
Court of Appeals of Indiana | Opinion 49A02-1506-CT-699 | June 8, 2016 Page 5 of 17
now brings this interlocutory appeal of the trial court’s order with respect to the
wrongful discharge and intentional interference claims, and Curry cross-appeals
with respect to the Wage Payment Statute claim.
Discussion and Decision
I. Standard of Review
[12] Our standard of review on summary judgment is well established:
We review summary judgment de novo, applying the same
standard as the trial court: “Drawing all reasonable inferences in
favor of . . . the non-moving parties, summary judgment is
appropriate ‘if the designated evidentiary matter shows that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.’” Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
fact is ‘material’ if its resolution would affect the outcome of the
case, and an issue is ‘genuine’ if a trier of fact is required to
resolve the parties’ differing accounts of the truth, or if the
undisputed material facts support conflicting reasonable
inferences.” Id. (internal citations omitted).
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). We apply a de novo
standard of review to questions of statutory interpretation. E.g., State v. Int’l
Bus. Machs. Corp., 964 N.E.2d 206, 209 (Ind. 2012).
II. Government’s Appeal
[13] The Government argues that the trial court erred by granting summary
judgment in Curry’s favor on the wrongful discharge claim and by denying
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summary judgment on the intentional interference with employment
relationship claim.
A. Wrongful Discharge
[14] Curry’s wrongful discharge claim relies on Indiana Code section 8-1.5-3-5,
which applies to municipal utility superintendents. Section 5(d) provides that
“[t]he superintendent may be removed by the board for cause at any time after
notice and a hearing.” It is undisputed that Curry was not removed for cause
and did not receive notice or a hearing.
[15] We begin our analysis by focusing on the plain language of the statute. While
section 5(d) provides that the superintendent “may” be removed by the board
for cause, it does not say “may only” be removed in that fashion. It is well
established that we will not add something to a statute that the legislature has
omitted. E.g., Gresham v. State, 414 N.E.2d 313, 314-15 (Ind. 1980). The clear
implication of our General Assembly’s decision to omit the word “only” from
section 5(d) is that this method of employment termination is not the sole way
in which the superintendent may be terminated. Instead, the statute plainly
provides that if the USB intends to seek termination of the superintendent for
cause, the superintendent is entitled to notice and a hearing before the
termination is complete. The statute is silent as to termination without cause.
We infer from the legislature’s silence that the authority to terminate a
superintendent without cause is not vested solely in the USB; similarly, we infer
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that the superintendent is not entitled to notice or a hearing when he is
terminated without cause.
[16] This interpretation of section 5(d) has to be correct to avoid an absurd result. If
we were to find that a utility superintendent may only be terminated for cause,
then the position would essentially be a lifetime appointment akin to a federal
judge who retains her seat for life unless she commits an impeachable offense.
We do not believe that the General Assembly intended to vest such robust job
security in the position of utility superintendent.
[17] Furthermore, we agree with the Government that the political ramifications of
a lifetime utility superintendent would be untenable:
Jessup won the election, defeating Ricketts. The election of a
new mayor reflected a desire for a change of city leadership. To
implement that change, Jessup asked mayoral appointees on city
boards including the USB for their resignations which resulted in
three new mayoral appointees to that board. Forcing Jessup to
accept the utility head chosen by Ricketts would limit his ability
(and that of the newly constituted USB) to make changes without
having to contend with a superintendent who is politically hostile
or who does not share or even obstructs the policy objectives of
the new leaders.
Appellants’ Br. p. 13-14. We do not believe that the legislature intended that
newly elected mayors are required to retain the utility superintendent appointed
by their predecessors. It necessarily follows that the Mayor has the authority to
terminate the USB superintendent.
Court of Appeals of Indiana | Opinion 49A02-1506-CT-699 | June 8, 2016 Page 8 of 17
[18] In our view, one possible purpose of section 5(d) is to act as a check on the
mayor. If, for example, the mayor’s brother was serving as USB superintendent
and the mayor refused to fire his brother after the brother committed
malfeasance, the USB would have the ability to terminate the mayor’s brother
for cause. This check on the mayor, however, does not remove the mayor’s
authority to terminate the superintendent because, as noted above, the statute is
not worded as such.
[19] At oral argument, counsel for Curry suggested that the applicable Lawrence
ordinance requires a conclusion that the USB had sole authority to hire and fire
its superintendent. We disagree. The ordinance at issue provides, in relevant
part, that “[t]he Council now transfers exclusive control of the City’s
municipally-owned water utility and sewer utility from the Board of Public
Works and Safety to the Utility Board.” Lawrence Ordinance § 1-1-3-13(B). In
other words, this ordinance merely changes control of the utility to the USB
from the Board of Public Works and Safety. In no way does this ordinance
limit the mayor’s authority; in fact, it explicitly vests in the mayor the power to
appoint three of five members on the USB. The ordinance is silent as to the
superintendent. We do not find that this ordinance curtails the mayor’s
authority to terminate the USB superintendent.
[20] Even if we were to accept the argument that the mayor does not have the
authority to terminate the USB superintendent, our result would be the same.
The above analysis regarding section 5(d) still stands, meaning that even if the
USB has the sole authority to terminate its superintendent, it retains the right to
Court of Appeals of Indiana | Opinion 49A02-1506-CT-699 | June 8, 2016 Page 9 of 17
terminate the superintendent without cause. In this case, the USB did so by
implication. The Mayor took action by terminating Curry and nominating his
replacement; the USB acquiesced in that action by unanimously appointing the
Mayor’s suggested replacement. In other words, the USB exercised its
oversight. The mere fact that the USB did not explicitly terminate Curry’s
employment cannot be enough to support a wrongful discharge claim. It would
elevate form over substance to an untenable degree.
[21] We were able to find only two cases interpreting section 5(d), and do not find
that either case changes our analysis. In Morrison v. McMahon, 475 N.E.2d 1174
(Ind. Ct. App. 1985), the utility board both hired and fired the superintendent
pursuant to a former version of the statute. In response to the defendants’
arguments concerning the mayor’s authority to terminate the superintendent at
will, the Court noted that the mayor was not involved in the firing in that case,
so the statute was inapplicable. Id. at 1179-80. While the Morrison Court went
on to examine the language of section 5(d), its analysis is pure dicta given that it
held that the statute was inapplicable. And in Phillips v. City of Bloomington, this
Court held that section 5(d) did not apply to Phillips, whose title was “director
of utilities,” because he had administrative responsibilities for the utility
department beyond the statutory duties of a superintendent. 869 N.E.2d 1282,
1282-24 (Ind. Ct. App. 2007). Therefore, the Phillips holding does not apply to
the instant case, in which we find that section 5(d) applies.
[22] In the end, the plain language of the statute must prevail. The statute does not
state or imply that the exclusive method of termination is by the Board, for
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cause, with notice and a hearing. Here, the Mayor retained the right to
terminate Curry, but even if he did not, the USB exercised its oversight and
acceded to his recommendations. We believe that this course of events was
authorized by section 5(d) and do not believe that Curry has a claim for
wrongful discharge. Therefore, we reverse and remand with instructions to
enter summary judgment in favor of the Government on this count.
B. Intentional Interference
[23] Next, the Government argues that the trial court erred by denying its motion for
summary judgment on Curry’s claim for intentional interference with his
employment relationship. The trial court found that “[t]here exists a genuine
issue of material fact as to whether Defendants intentionally and without a
legitimate business purpose interfered with Curry’s employment relationship.”
Appellants’ App. p. 454.
[24] Any “intentional, unjustified interference with [an employment] contract by
third parties is actionable.” Bochnowski v. Peoples Fed. Sav. & Loan Ass’n, 571
N.E.2d 282, 285 (Ind. 1991). The claimant, in addition to demonstrating the
standard elements of the tort, must establish “that the defendant interferer acted
intentionally and without a legitimate business purpose.” Id.
[25] We have already found above either that (1) the Mayor had the authority to
terminate Curry; or (2) the Mayor did not have the authority to terminate
Curry, but the USB exercised its oversight and agreed with the Mayor’s
recommendation. If the Mayor had the authority to terminate Curry, then his
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decision to do so cannot have been tortious. And even if the Mayor did not
have authority to terminate Curry, he certainly had the authority to recommend
that the USB terminate Curry and appoint a different individual. Under no set
of circumstances or analyses could the Government’s actions in this case have
risen to a tortious level. Therefore, we reverse and remand with instructions to
enter summary judgment in the Government’s favor on this count.
III. Curry’s Cross-Appeal: Wage Payment Statute
[26] Curry cross-appeals, arguing that the trial court improperly granted summary
judgment in favor of the Government on his claim under the Wage Payment
Statute. The trial court held as follows: “While the Court did appreciate
listening to the unique interpretation of this statute by Plaintiff’s counsel, this
type of action is clearly not what the statute encompasses, nor does the Court
find that Plaintiff met any of the prerequisites for recovery under that statute.”
Appellants’ App. p. 454.
[27] In relevant part, the Wage Payment Statute provides as follows:
(a) Every person, firm, corporation . . . , doing business in
Indiana, shall pay each employee at least semimonthly or
biweekly, if requested, the amount due the employee. . . .
(b) Payment shall be made for all wages earned to a date not
more than ten (10) business days prior to the date of
payment. . . . However, if an employee voluntarily leaves
employment . . . , the employer shall not be required to
pay the employee an amount due the employee until the
Court of Appeals of Indiana | Opinion 49A02-1506-CT-699 | June 8, 2016 Page 12 of 17
next and usual regular day for payment of wages, as
established by the employer. . . .
Ind. Code § 22-2-5-1. Indiana Code section 22-2-5-2 provides that any
employer who fails to comply with the foregoing statute owes liquidated
damages to the employee totaling 10% of the amount due to the employee per
day it is unpaid.
[28] To support his argument, Curry must take the position that he has never been
effectively discharged from employment. According to Curry, his termination
was a nullity. In other words, he contends he has remained superintendent of
USB throughout all of these proceedings, and is owed wages and liquidated
damages for each day he has been unpaid since January 2012.
[29] We cannot support this unique interpretation of the Wage Payment Statute.
The purpose of the statute—to prevent employers from profiting from their
employees’ labor without timely payment—is plainly not implicated in this
case. Whether or not Curry was “effectively discharged,” it is undisputed that
he has not, in fact, been working since the termination. His employer has not
been profiting from his labor without timely payment. Indeed, were Curry to
recover under this statute, he would receive an undeserved windfall for work
that he has not performed. We agree with the trial court that summary
judgment in favor of the Government on this count is proper.
[30] The judgment of the trial court is affirmed in part, reversed in part, and
remanded with instructions to enter summary judgment in favor of the
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Government on Curry’s claims for wrongful discharge and intentional
interference.
May, J., concurs, and Brown, J., concurs in part and dissents in part with
separate opinion.
Court of Appeals of Indiana | Opinion 49A02-1506-CT-699 | June 8, 2016 Page 14 of 17
IN THE
COURT OF APPEALS OF INDIANA
City of Lawrence Utilities Court of Appeals Case No.
Service Board, City of Lawrence, 49A02-1506-CT-699
Indiana, and Mayor Dean
Jessup, Individually and in His
Official Capacity,
Appellants-Defendants,
v.
Carlton E. Curry,
Appellee-Plaintiff.
Brown, Judge, concurring in part and dissenting in part.
[31] I concur with the majority’s handling of Curry’s cross-appeal issue regarding his
claim under the Wage Payment Statute, but I respectfully dissent from the
majority’s conclusions to reverse the trial court’s decision to grant summary
judgment in favor of Curry regarding his wrongful discharge claim and to deny
the Government’s summary judgment claim on Curry’s intentional interference
with employment relationship claim.
Court of Appeals of Indiana | Opinion 49A02-1506-CT-699 | June 8, 2016 Page 15 of 17
[32] This Court has previously examined Ind. Code § 8-1.5-3-5(d) in Morrison v.
McMahon, 475 N.E.2d 1174 (Ind. Ct. App. 1985), reh’g denied, trans. denied. In
Morrison, the Court examined that statute, as well as its predecessors, and ruled
that “it is clear from the statutory history . . . existing essentially unchanged
from 1913 . . . that the utility service board alone, not the mayor, has the
specific power to discharge the superintendent.” 475 N.E.2d at 1181. It found
that “[t]he legislature intended that the mayor have the power to appoint the
superintendent, subject to the board’s approval . . . but the power to discharge
the superintendent is vested solely in the board,” and that Ind. Code § 8-1.5-3-5
“does not confer the power to terminate the superintendent on the mayor.” Id.
The Court concluded that “[t]hrough scrutiny of the repeated reenactments of
the language of Section 8-1-2-100,[3] it is clear the legislature never intended that
the mayor have plenary powers over the utilities. Such powers, i.e., the
supervision, compensation, and removal of the supervisor, were placed in the
board.” Id. I agree with the analysis in Morrison.
[33] To the extent the majority opines that this interpretation leads to an absurd
result in that the appointment of a utility superintendent “would essentially be a
lifetime appointment akin to a federal judge . . . unless she commits an
impeachable offense,” I disagree. Infra at 8. The Government makes a similar
claim in its brief, suggesting that “[f]orcing Jessup to accept the utility head
3
Ind. Code § 8-1-2-100 is the predecessor statute and was repealed on the same date that Ind. Code § 8-1.5-3-
1 et seq. became effective. Morrison, 475 N.E.2d at 1181.
Court of Appeals of Indiana | Opinion 49A02-1506-CT-699 | June 8, 2016 Page 16 of 17
chosen by Ricketts would limit his ability . . . to make changes without having
to contend with a superintendent who is politically hostile or who does not
share or even obstructs the policy objectives of the new leaders.” Appellants’
Brief at 14. However, I believe that in such a scenario, the USB would be able
to remove the superintendent for cause pursuant to Ind. Code § 8-1.5-3-5(d),
and that the majority interprets the “for cause” language in the statute too
narrowly, limiting its scope solely to impeachable offenses.
[34] The majority also opines that one possible purpose of Ind. Code § 8-1.5-3-5(d) is
to act as a check on the mayor. I am not persuaded by this interpretation,
particularly in recognition of the fact that, under Ind. Code § 8-1.5-3-3, the
mayor appoints a majority of the board members. The statutory scheme
contained in Chapter 3 can be interpreted as creating a board to assist the
mayor in implementing his or her agenda related to municipal utilities, and,
again, a politically hostile superintendent would, in my estimation, be grounds
for removal for cause. It also vests the authority to remove the superintendent
in the board.
[35] I also respectfully dissent from the majority’s decision to reverse the denial of
the Government’s motion for summary judgment on Curry’s claim for
intentional interference with his employment relationship because the
applicable economic realities test involves determinations of fact which are
inappropriate for summary judgment.
[36] I would affirm the trial court in all respects.
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