City of Gary v. McCrady, 45A04-0508-CV-485.

• Decision Date: 26 July 2006
• Docket Number: No. 45A04-0508-CV-485.,45A04-0508-CV-485.
• Citation: 851 N.E.2d 359
• Parties: CITY OF GARY, A Municipal Corporation and the Gary Common Council Members-Kyle Allen, Mary Brown, Alex A. Cherry, Charles Hughes, Marilyn Krusas, Roy N. Pratt, Jerome Prince, Carolyn D. Rogers and Robert White, in their Official Capacities as Members of the Gary Common Council, Appellants-Defendants. v. Robert McCRADY, Appellee-Plaintiff.
• Court: Indiana Appellate Court

851 N.E.2d 359

CITY OF GARY, A Municipal Corporation and the Gary Common Council Members-Kyle Allen, Mary Brown, Alex A. Cherry, Charles Hughes, Marilyn Krusas, Roy N. Pratt, Jerome Prince, Carolyn D. Rogers and Robert White, in their Official Capacities as Members of the Gary Common Council, Appellants-Defendants. v.Robert McCRADY, Appellee-Plaintiff.

No. 45A04-0508-CV-485.

Court of Appeals of Indiana.

July 26, 2006.

COPYRIGHT MATERIAL OMITTED

Marc C. Laterzo, Gary, IN, Attorney for Appellants.

Clorius L. Lay, Gary, IN, Attorney for Appellee.

OPINION

HOFFMAN, Senior Judge.

Defendant-AppellantGary Common Council appeals the trial court's entry of partial summary judgment in favor of Plaintiff-AppelleeRobert McCrady.We reverse.

McCrady presents two issues, one of which we will address first due to its subject matter.Restated, that issue is:

I.Whether the Council's appeal should be dismissed for its failure to conform its brief to the Indiana Rules of Appellate Procedure.

The Gary Common Council(Council) presents three issues for our review, which we restate as:

II.Whether the trial court erred by denying the Council's motions to strike affidavits submitted by McCrady.

III.Whether the trial court erred by granting partial summary judgment in favor of McCrady.¹

The second of McCrady's two issues is:

IV.Whether McCrady is entitled to attorney fees.

In August 1997, McCrady was hired by the Gary Common Council(Council) as Legislative Administrator, which position was later designated as Chief of Operations.In January 2000, a newly elected Council took office and advertised that they were seeking applicants for the position of Chief of Operations.McCrady, as well as others, submitted their application and interviewed for the position, but the council was unable to decide on a candidate.The position was advertised again, and McCrady again submitted his application and was granted an interview.In August 2000, the Council held a regular meeting and the issue of filling the position of Chief of Operations was discussed.In the end, a council member made a motion to appoint a candidate other than McCrady to the position of Chief of Operations.The motion passed with five members voting in favor, three voting against, and one abstention.The president of the Council then sent a letter to McCrady informing him of his termination from the position of Chief of Operations.Alleging violations of the Open Door Law, McCrady filed suit against the City of Gary and the Gary Common Council.McCrady filed a motion for partial summary judgment, to which the Council responded with a cross motion, and the trial court granted partial summary judgment in favor of McCrady.This appeal ensued.

We first address the issue raised by McCrady concerning the Council's alleged lack of adherence to the Indiana Rules of Appellate Procedure.McCrady asks us to dismiss the Council's appeal, or, in the alternative, to strike from our consideration two sections of the Council's brief.In support of his argument, McCrady cites App. R. 46(A)(8)(a), which provides: "The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning.Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with Rule 22."McCrady claims that two sections of the Council's brief do not comply with App. R. 46(A)(8)(a) because they do not contain citations to authorities and statutes to support the Council's argument.

Both sections of the Council's brief to which McCrady refers contain discussion of whether the Council violated the Open Door Law during its meeting in August 2000 and with the President's letter to McCrady notifying him of his termination.The Council cites a case that states the purpose of the Open Door Law and cites the statutory provision that sets forth the Open Door Law.In addition, the Council includes a citation to the Appendix in its discussion.Both sections contain argument and reasoning in support of the Council's contention that the facts of the present case do not present a violation of the Open Door Law.We will not address arguments that are inappropriate, improperly expressed, or too poorly developed to be understood, Lasater v. Lasater,809 N.E.2d 380, 389(Ind.Ct.App.2004); however, that is not the situation in the present case.We find no error that would justify a dismissal of this appeal or striking of the relevant portions of the Council's brief.²

We turn now to the issues presented on appeal by the Council.First, the Council contends that the trial court erred by denying its motions to strike certain affidavits submitted by McCrady in support of his motion for partial summary judgment.

The decision to admit or exclude evidence lies within the sound discretion of the trial court.Strack and Van Til, Inc. v. Carter,803 N.E.2d 666, 670(Ind.Ct.App.2004).The trial court's determination is afforded great discretion on appeal.Id.To that end, we will not reverse the trial court's decision absent a showing of manifest abuse of discretion.Id.An abuse of discretion occurs when the trial court's decision is against the logic and effect of the facts and circumstances before it.Illiana Surgery & Medical Center, LLC. v. STG Funding, Inc.,824 N.E.2d 388, 399(Ind.Ct.App.2005).

Affidavits in support of or in opposition to a motion for summary judgment are governed by Indiana TrialRule 56(E), which provides, in relevant part: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."The requirements of T.R. 56(E) are mandatory; hence, a court considering a motion for summary judgment should disregard inadmissible information contained in supporting or opposing affidavits.Price v. Freeland,832 N.E.2d 1036, 1039(Ind.Ct.App.2005).Further, the party offering the affidavit into evidence bears the burden of establishing its admissibility.Duncan v. Duncan,764 N.E.2d 763, 766(Ind.Ct.App.2002), reh'g denied, trans. denied.

We begin with the affidavit of Public Access Counselor Anne M. O'Connor.McCrady designated this affidavit as evidence in support of his motion for partial summary judgment, and the Council moved the trial court to strike the affidavit from consideration.The trial court denied the Council's motion.

Statements made by O'Connor in her affidavit involve the investigation of the alleged violation of the Open Door Law in regard to McCrady's termination.Although it appears from her affidavit that she conducted some amount of investigation, the bulk of her affidavit is based upon the investigation and statements of the Office of CorporationCounsel for the City of Gary and the Law Department for the City of Gary.In addition, she relates information premised by phrases such as, "I agreed with Atty. Clorius L. Lay's [McCrady's counsel] conclusion that the Gary Common Council had violated Indiana Open Door Law by failing to take action to terminate Mr. McCrady in a public meeting" and "City Attorney Luci Horton of the Law Department for City of Gary informed me they agreed with my findings that the Gary Common Council did not properly terminate Mr. Robert McCrady . . . ."Affidavit of Public Access Counselor Anne M. O'Connor, Appellant's Appendixat 274.Clearly, O'Connor's affidavit was not made upon her personal knowledge of the information she sets forth in the affidavit as required by T.R. 56(E).See e.g., Duncan,764 N.E.2d at 767(court declined to consider information in affidavit because affidavit referred to affiant's conversations with people who informed her of certain facts and such testimony is inadmissible hearsay as it is based upon out-of-court statements of other individuals and not upon affiant's personal knowledge).Moreover, not only is O'Connor's affidavit not based upon her personal knowledge but also it contains improper conclusions of law and opinions as to the main issue of this case."Mere assertions in an affidavit of conclusions of law or opinions will not suffice."Dedelow v. Rudd Equipment Corp.,469 N.E.2d 1206, 1209(Ind.Ct.App.1984).

Further, McCrady claims that although O'Connor's affidavit contains information that is not based on her personal knowledge, it should not be struck because the information falls within the hearsay exception outlined in Evid. R. 803(8), which sets forth the "public records and reports" exception to the general prohibition against the admission of hearsay evidence found in Evidence Rule 802.We first note that McCrady did not raise this argument in the trial court.SeeTr.at 6-15.Generally, a party waives appellate review of an argument if that party did not present that argument before the trial court.Nance v. Miami Sand & Gravel, LLC,825 N.E.2d 826, 834(Ind.Ct.App.2005), trans. denied,841 N.E.2d 180.Thus, this argument is waived.

Waiver notwithstanding, O'Connor's affidavit should have been struck.Evid. R. 803(8) provides, in pertinent part: "Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or data compilations in any form, of a public office or agency, setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law.The following are not within this exception to the hearsay rule: ... and (d) factual findings resulting from special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case."The information contained in O'Connor's affidavit was a result of her investigation into the...