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

Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 2 of 37
 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:

Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 7 of 37
 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

Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 10 of 37
 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

Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 11 of 37
 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

Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 12 of 37
 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.

Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 13 of 37
 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

Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 14 of 37
 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

Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 15 of 37
 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

Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 16 of 37
 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
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 19 of 37
 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.

Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 37 of 37