MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 01 2018, 9:34 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
W. Brian Burnette Crystal G. Rowe
Applegate Fifer Pulliam LLC Richard T. Mullineaux
Jeffersonville, Indiana Whitney E. Wood
Kightlinger & Gray, LLP
New Albany, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Saegesser Engineering, Inc., August 1, 2018
Appellant-Plaintiff, Court of Appeals Case No.
72A01-1711-PL-2660
v. Appeal from the Scott Circuit
Court
Terry Amick, The Honorable James B. Hancock,
Appellee-Defendant. Special Judge
Trial Court Cause No.
72C01-1508-PL-120
Barnes, Senior Judge.
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Case Summary
[1] Saegesser Engineering, Inc. (“Saegesser”) appeals the trial court’s grant of
summary judgment to Terry Amick. We affirm.
Issue
[2] Saegesser raises several issues. We address one dispositive issue, which we
restate as whether Amick was entitled to summary judgment pursuant to the
Indiana Tort Claims Act.
Facts
[3] Saegesser is an engineering company that has provided professional engineering
services to the City of Scottsburg, including engineering services related to the
construction of a walking trail known as the Moonglo Trail and the expansion
of Moonglo Road to be a uniform width. Bill Graham served as Scottsburg’s
mayor during the relevant time, and Amick was an elected member of the City
Council. Amick was also a commissioner of the Scottsburg Redevelopment
Commission. Such redevelopment commissions are statutorily authorized by
Indiana Code Section 36-7-14-3. Three of the five commissioners for the
Redevelopment Commission are appointed by the mayor, and two are
appointed by the City Council. See Ind. Code § 36-7-14-6.1. Amick was
appointed by the City Council. During this time, Amick was also running for
mayor against Graham.
[4] During a public Redevelopment Commission meeting on July 2, 2015,
Saegesser asked for permission to begin work on Moonglo Road from Highway
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31 to Wilson Road. Commissioners Karen Gricius and Amick raised an issue
with the amount of funds that had been paid to Saegesser. Amick “stated that
he believed there had been a misappropriation of funds on the Trail Project.”
Appellant’s App. Vol. II p. 238. Amick also raised an issue regarding the
placement of pavement on Hampton Oaks property. Amick “stated that he
would ask the City Council to investigate spending on the Trail and would file
suit, if necessary, to stop funding on the Moonglo Road Project.” Id.
[5] At a July 6, 2015 City Council meeting, Amick apologized for using the phrase
“misappropriation of funds” during the Redevelopment Commission meeting
and said that “overspending” would have been a better term. Id. at 242. He
asked the City Council to conduct an investigation regarding expenses for the
Trail. Amick’s motion passed the City Council unanimously.
[6] On August 6, 2015, the Redevelopment Commission met again. Amendments
were made to the minutes of the July 2nd meeting to add the following
statements. Amick stated “that he definitely believes that Saegesser
Engineering is responsible for a misappropriation of funds with regard to the
Moonglo Trail project” and that Saegesser “has not provided proper oversight
on how funds were spent.” Id. at 245. Commissioner Bill Hoagland asked
Amick “if he wanted to withdraw his statement that Saegesser Engineering had
misappropriated City funds,” and Amick “reiterated his belief that there had
been a misappropriation of funds which had been misspent.” Id. Amick stated
that the City Council would investigate, that he would contact the City Council
attorney to stop additional work on Moonglo Road, that he would contact the
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City Council attorney about suing Saegesser, and that he would not approve
Saegesser’s invoice. Amick also claimed that Saegesser “stole a part of Kristen
Hall’s property” and asked “if it was Saegesser Engineering or Mayor Graham
that made a mistake on the Trilogy property.” Id.
[7] On August 13, 2015, Saegesser filed a complaint against Amick. Saegesser
alleged that Amick’s statements were “made with the intent to attribute the
crimes of theft . . . and conversion . . . to Saegesser Engineering” and that the
statements were “known by him to be false, and were made without
justification or cause, and maliciously for the purpose of disparaging
[Saegesser’s] professional reputation and subjecting [Saegesser] to criminal
prosecution.” Id. at 11. Saegesser requested an award of damages against
Amick.
[8] Amick filed a motion for summary judgment. He argued that Saegesser’s
claims were barred by the Indiana Tort Claims Act because he was acting
within the scope of his employment with the City of Scottsburg at the time of
the statements and was entitled to immunity. Amick argued that the claim
should have been asserted against the City and that Saegesser failed to comply
with the notice requirements of the ITCA. Amick also argued that he was
entitled to summary judgment on the defamation claim based on absolute
immunity, qualified immunity, lack of actual malice, and lack of defamatory
imputation.
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[9] Saegesser filed a response to the motion for summary judgment and argued that
Amick was not acting within the scope of his duties as a member of the
Redevelopment Commission when he made the statements. Saegesser also
argued that it complied with the ITCA notice requirements by filing the
complaint against Amick in a timely manner. Finally, Saegesser also argued
that Amick was not entitled to absolute immunity or qualified immunity and
that there were genuine issues regarding the elements of the defamation claim.
[10] On October 19, 2017, the trial court granted Amick’s motion for summary
judgment. Saegesser now appeals.
Analysis
[11] Saegesser challenges the trial court’s grant of summary judgment to Amick.
Summary judgment is appropriate only when the moving party shows there are
no genuine issues of material fact for trial and the moving party is entitled to
judgment as a matter of law. Schoettmer v. Wright, 992 N.E.2d 702, 705 (Ind.
2013); see also Ind. Trial Rule 56(C). Once that showing is made, the burden
shifts to the non-moving party to rebut. Schoettmer, 992 N.E.2d at 705-06.
When ruling on the motion, the trial court construes all evidence and resolves
all doubts in favor of the non-moving party. Id. at 706. We review the trial
court’s grant of summary judgment de novo, and we take “care to ensure that
no party is denied his day in court.” Id.
[12] The Indiana Tort Claims Act (“ITCA”) provides that a government employee
may not be named as a party to a civil suit where he acted “within the scope of
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[his] employment.” Ind. Code § 34-13-3-5(a). The ITCA “provides substantial
immunity for conduct within the scope of the employees’ employment.”
Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450, 452 (Ind. 2000).
A lawsuit filed against an employee personally must allege that
an act or omission of the employee that causes a loss is:
(1) criminal;
(2) clearly outside the scope of the employee’s employment;
(3) malicious;
(4) willful and wanton; or
(5) calculated to benefit the employee personally.
The complaint must contain a reasonable factual basis supporting
the allegations.
I.C. § 34-13-3-5(c).
[13] Here, Saegesser argues that its complaint against Amick was proper because
Amick was not acting within the scope of his employment as a member of the
Redevelopment Commission. Amick, relying on Celebration Fireworks, argues
that the complaint was properly dismissed. In Celebration Fireworks, the
Plymouth Fire Chief, Wayne Smith, conducted an inspection at a building that
Celebration Fireworks was leasing. Smith told the lessor that “[t]hese people
do not pay their bills,” “[g]et your money in advance,” and “[t]hese people are
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gypsies.” Celebration Fireworks, 727 N.E.2d at 451. During the visit, Smith also
said that “a firewall would have to be constructed to separate the fireworks sale
area from the rest of the motorcycle shop.” Id. Celebration Fireworks filed a
complaint against Smith, and the trial court granted Smith’s motion for
summary judgment. The trial court concluded that the statements were made
within the scope of Smith’s employment and that the tort claim notice against
the City of Plymouth was not timely filed.
[14] On appeal, the “threshold question” was whether Smith was acting within the
scope of his employment when he made the statements. Id. at 453. Our
supreme court noted:
The Restatement of Agency provides some general guidance for
assessing the type of conduct that is within the scope of
employment: “To be within the scope of the employment,
conduct must be of the same general nature as that authorized, or
incidental to the conduct authorized.” Restatement (Second)
Agency § 229 (1958).
The Restatement stresses that “[t]o be incidental, however, [an
act] must be one which is subordinate to or pertinent to an act
which the servant is employed to perform.” Restatement
(Second) Agency § 229 cmt. b (1958). Even tortious acts may fall
within the scope of employment. In Kemezy v. Peters, 622 N.E.2d
1296 (Ind. 1993), we said an employee’s tortious act may fall
within the scope of his employment “if his purpose was, to an
appreciable extent, to further his employer’s business.” Kemezy,
622 N.E.2d at 1298 (quoting Stropes v. Heritage House Childrens
Ctr., 547 N.E.2d 244, 247 (Ind. 1989)).
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The U.S. Supreme Court recently noted that this doctrine “has
traditionally defined the ‘scope of employment’ as including
conduct ‘of the kind [a servant] is employed to perform,’
occurring ‘substantially within the authorized time and space
limits,’ and ‘actuated, at least in part, by a purpose to serve the
master,’ but as excluding an intentional use of force
‘unexpectable by the master.’” Faragher v. City of Boca Raton, 524
U.S. 775, 793, 118 S. Ct. 2275, 141 L.Ed.2d 662 (1998) (quoting
Restatement (Second) Agency § 228(1)).
Id. Our supreme court concluded that Smith “[p]lainly” was “on public time,
performing a function that was central to the position he held.” Id. Smith’s
statements were “incidental to an activity that was part of the chief’s duty,
inspecting business premises.” Id. at 454. The court noted:
If employees were easily declared outside the scope of the act for
things they say during the otherwise ordinary course of their
employment, the threat to “their independent judgment
necessary to carry out their duties,” [Indiana Dept. of Correction v.
Stagg, 556 N.E.2d 1338, 1343 (Ind. Ct. App. 1990), trans. denied],
would be greater. Moreover, claimants would more often find
themselves limited to recovery against the private assets of
employees rather than those of governments.
Id. Consequently, the court affirmed summary judgment to Smith.
[15] Here, Amick’s statements regarding Saegesser were made during a public
meeting of the Redevelopment Commission of which Amick was a member.
The statements concerned funds spent on two projects—Moonglo Trail and
Moonglo Road—and other problems with those projects. The comments were
clearly pertinent to Amick’s position on the Redevelopment Commission.
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Saegesser argues Celebration Fireworks is distinguishable because Amick’s
comments were made “to advance his own interests in running for mayor by
sullying [Saegesser’s] reputation to discredit Mayor Graham, his election
opponent.” Appellant’s Br. p. 26. Regardless of Amick’s unspoken alleged
motives in making the statements, the topics of the statements were still
relevant to and related to his duties as a member of the Redevelopment
Commission. Saegesser also argues that the fire chief’s comments were made
“in a private setting” while the comments here were made in a public meeting
of the Redevelopment Commission. Id. at 27. This fact seems to further show
that the statements were within the scope of Amick’s employment. Finally,
Saegesser argues that Celebration Fireworks is distinguishable because “Amick
publicly alleged a crime had been committed.” Id. at 28. Saegesser does not
clarify in its appellant’s brief the crime alleged to have been committed, and
regardless, “[e]ven criminal acts may be considered as being within the scope of
employment if ‘the criminal acts originated in activities so closely associated
with the employment relationship as to fall within its scope.’” Bushong v.
Williamson, 790 N.E.2d 467, 473 (Ind. 2003) (quoting Stropes, 547 N.E.2d at
247). We conclude that Amick’s statements were closely associated with his
employment relationship and fall within the scope of his employment. Based
on Celebration Fireworks, we conclude that Amick was acting within the scope of
his employment.
[16] Next, Saegesser argues that, even if Amick was acting with the scope of his
employment, it timely filed notice pursuant to the ITCA. Indiana Code Section
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34-13-3-8(a) provides that a claim against a political subdivision is barred unless
notice is filed with the “governing body of that political subdivision” and “the
Indiana political subdivision risk management commission” within one
hundred eighty days after the loss occurs. “Where a plaintiff elects to sue a
governmental employee in his or her individual capacity, ‘notice is required
only if the act or omission causing the plaintiff’s loss is within the scope of the
defendant’s employment.’” Chang v. Purdue Univ., 985 N.E.2d 35, 51 (Ind. Ct.
App. 2013) (quoting Bienz v. Bloom, 674 N.E.2d 998, 1004 (Ind. Ct. App. 1996),
trans. denied), trans. denied. Because Amick’s conduct was undertaken as part of
his employment, Saegesser was required to comply with the notice
requirements of the ITCA. See Chang, 985 N.E.2d at 51-52. Saegesser argues
that the filing of his complaint complied with the notice requirements, but we
rejected this same argument in Kantz v. Elkhart Cty. Highway Dep’t, 701 N.E.2d
608, 616 (Ind. Ct. App. 1998), trans. denied. “[T]he legislature intended for the
notice of claim and the complaint to be two separate documents and that the
complaint could only be filed after denial of the claim by the governmental
entity.” Kantz, 701 N.E.2d at 616. A complaint “alone [cannot] satisfy the
notice provisions of the ITCA.” Id. Saegesser’s complaint against Amick does
not satisfy the requirement that it provide notice to the governing body of the
political subdivision and the Indiana political subdivision risk management
commission.
[17] We do not condone the sort of ad hominem attack seen here. However,
because Amick was acting within the scope of his employment and Saegesser
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failed to comply with the notice requirements of the ITCA, we conclude that
the trial court properly granted summary judgment to Amick. See also Bushong,
790 N.E.2d at 474 (holding that the trial court properly granted summary
judgment to an employee sued in his individual capacity).
Conclusion
[18] The trial court properly granted summary judgment to Amick on Saegesser’s
complaint. We affirm.
[19] Affirmed.
Vaidik, C.J., and Pyle, J., concur.
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