                                                                          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
