Bryan Alexander, Karl Cameron, William Love, Charlie Lovins, Kevin McMurray and Matt Oelker, on behalf of themselves and all others similarly situated, Appellants/Cross Appellees-Plaintiffs,
Linkmeyer Development II, LLC, Steven Linkmeyer, and Brian Bischoff, Appellees/Cross Appellants -Defendants,
from the Dearborn Circuit Court The Honorable James D.
Humphrey, Judge Trial Court Cause No. 15C01-1307-PL-49
ATTORNEYS FOR APPELLANTS Eric S. Pavlack Colin E. Flora
Pavlack Law, LLC Indianapolis, Indiana Fred Schultz Greene
& Schultz Bloomington, Indiana
ATTORNEYS FOR APPELLEES Thomas W.Vander Luitgaren Matthew S.
Schoettmer Van Valer Law Firm, LLP Greenwood, Indiana
Summary and Issues
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.
and Procedural History
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 City of Lawrenceburg's city manager, Tom Steidel, and
mayor, William Cunningham, also signed the contract.
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.
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 that he generally used in connection with loans made
by the City of Lawrenceburg.
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,
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.
App., Vol. II at 46-47.
Consistent with the Development Agreement, the parties
executed several additional documents, including a Promissory
Note and a Mortgage in favor of 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:
In 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
Id. at 116.
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 individuals now composing the Class,
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
('94 Code, § 33.02) (Ord. 1-1986, passed 4-7-86).
thereto, the Class brought the following claims:
Count I: Breach of Contract
Count II: Violation of the Indiana Common Construction Wage
Count III: Violations of Indiana Wage Statutes
Count IV: Request for Declaratory Relief
Count V: (Pleaded in the Alternative) Unjust
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.
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.
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:
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.
Order at 1-2.
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,
Motion to Strike
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
Upon motion made by a party within the time to respond to a
document, or if there is no response permitted, within thirty
(30) 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.
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 and well-being." 64 AM. JUR. 2d Public Works
and Contracts § 214 (footnote omitted).
Reply and Cross-Appellees' Br. at 29-30, 35-36.
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
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.
in Opposition to Appellants/Cross-Appellees' Motion to
Strike Portions of Appellees/Cross-Appellants' Reply Br.
at 2, ¶ 4.
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 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'
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 ...