Saegesser Engineering, Inc. v. Terry Amick (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 1, 2018
• Docket: 72A01-1711-PL-2660
• Status: Published

Opinion

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.

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