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.




Court of Appeals of Indiana | Memorandum Decision 72A01-1711-PL-2660 | August 1, 2018              Page 1 of 11
                                             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
      Court of Appeals of Indiana | Memorandum Decision 72A01-1711-PL-2660 | August 1, 2018   Page 2 of 11
      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

      Court of Appeals of Indiana | Memorandum Decision 72A01-1711-PL-2660 | August 1, 2018   Page 3 of 11
      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.




      Court of Appeals of Indiana | Memorandum Decision 72A01-1711-PL-2660 | August 1, 2018   Page 4 of 11
[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

       Court of Appeals of Indiana | Memorandum Decision 72A01-1711-PL-2660 | August 1, 2018   Page 5 of 11
       [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

       Court of Appeals of Indiana | Memorandum Decision 72A01-1711-PL-2660 | August 1, 2018   Page 6 of 11
       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)).




       Court of Appeals of Indiana | Memorandum Decision 72A01-1711-PL-2660 | August 1, 2018   Page 7 of 11
               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.

       Court of Appeals of Indiana | Memorandum Decision 72A01-1711-PL-2660 | August 1, 2018   Page 8 of 11
       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


       Court of Appeals of Indiana | Memorandum Decision 72A01-1711-PL-2660 | August 1, 2018   Page 9 of 11
       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

       Court of Appeals of Indiana | Memorandum Decision 72A01-1711-PL-2660 | August 1, 2018   Page 10 of 11
       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.




       Court of Appeals of Indiana | Memorandum Decision 72A01-1711-PL-2660 | August 1, 2018   Page 11 of 11
