City of Lawrence Utilities Serv. Bd. v. Curry

• Decision Date: 08 February 2017
• Docket Number: No. 49S02-1609-CT-481,49S02-1609-CT-481
• Citation: 68 N.E.3d 581
• Parties: CITY OF LAWRENCE UTILITIES SERVICE BOARD, City of Lawrence, Indiana, and Mayor Dean Jessup, Individually and in His Official Capacity, Appellants (Defendants below), v. Carlton E. CURRY, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

68 N.E.3d 581

CITY OF LAWRENCE UTILITIES SERVICE BOARD, City of Lawrence, Indiana, and Mayor Dean Jessup, Individually and in His Official Capacity, Appellants (Defendants below),

v.Carlton E. CURRY, Appellee (Plaintiff below).

No. 49S02-1609-CT-481

Supreme Court of Indiana.

February 8, 2017

Attorneys for Appellants : James S. Stephenson, Rosemary L. Borek, Stephenson Morow & Semler, Indianapolis, Indiana.

Attorneys for Appellee : Mickey J. Lee, Maurice Wutscher LLP, George W. Pendygraft, George W. Pendygraft, P.C., Indianapolis, Indiana.

On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-1506-CT-699

Massa, Justice.

The City of Lawrence's newly-elected mayor terminated the City's utility superintendent, Carlton Curry, after their differences in policy became apparent. Curry sued, claiming he was wrongfully discharged under the utility superintendent statute, he is owed unpaid wages under the Wage Payment Statute, and the mayor tortiously interfered with his employment contract. The trial court granted summary judgment in favor of Curry on the wrongful discharge claim and in favor of the City on the Wage Payment Statute claim, but denied summary judgment on the tortious interference claim. We affirm the trial court in all respects.

Facts and Procedural History

After recommendation by then-Mayor Paul Ricketts, the City of Lawrence Utility Service Board ("USB") members voted unanimously in 2009 to appoint Carlton Curry as superintendent of Lawrence Utilities, the City's municipally owned water and sewer utility. Mayor Ricketts and Curry worked closely to manage the City's utilities and craft long-term policies and plans, including advocating for a wastewater treatment plant.

A little over two years later, Mayor Ricketts was defeated in the general election by Dean Jessup. Newly-elected Mayor Jessup and his transition team sent letters to department heads and Mayor Ricketts appointees inviting them to submit resumes and letters of interest, if they wished to be considered for retention. Among those sent correspondence was Curry, who submitted a letter and resume to Mayor Jessup and his team. Curry also personally communicated with Mayor Jessup and met with his transition team to give a presentation outlining his recommended strategic plans and initiatives.

Eventually, Mayor Jessup learned about the proposed wastewater treatment plant, but had concerns regarding the project's magnitude and cost. Mayor Jessup believed that Curry would attempt to convince him to commit to the project:

If he and I disagreed, I would have to spend time and effort directing him to follow my objectives and would have to listen to him try to convince me to follow a different path. In the case of the wastewater treatment plant, he was clearly committed to going forward, while I had concerns and wanted to look into other options.

Appellant's App. at 139. These feelings led Mayor Jessup to conclude that Curry "would attempt to force his views on [him] rather than follow [his] lead" and may have to be replaced. Appellant's App. at 139.

After Mayor Jessup took office, he asked for the resignations of all prior mayoral appointees. Some refused, some resigned and were reappointed, and others were replaced, including the three USB members appointed by Mayor Ricketts. Mayor Jessup and Curry worked together some during the first few weeks after Mayor Jessup took office. However, Mayor Jessup continued to feel that Curry was trying to persuade him to adopt Curry's own policies and initiatives. Mayor Jessup, conversely, wanted a superintendent who would advocate for the mayor's views and objectives and give balanced advice. Ultimately, he believed these differences would result in conflict between him and Curry and understandably decided to replace him. Mayor Jessup then instructed the chairman of his transition team to inform Curry that his services were no longer needed. Curry was informed personally and via letter that he was terminated.

Thereafter, Curry filed a complaint in Marion Superior Court against the City¹ on state and federal law grounds. The case was removed to federal court, which granted summary judgment in favor of the City on all of Curry's federal claims, and remanded the remaining state law claims to Marion Superior Court. Curry moved for summary judgment on his wrongful discharge claim, while the City cross-moved for summary judgment on all claims. After a hearing, the trial court granted Curry's motion as to wrongful discharge, granted the City's motion as to defamation and back pay under the Wage Payment Statute, Indiana Code chapter 22–2–5 (2007), and denied summary judgment as to intentional interference. The City also moved for summary judgment in favor of Mayor Jessup in his individual capacity, which the trial court granted. The trial court certified its order for interlocutory appeal.

In a divided, published opinion, our Court of Appeals affirmed summary judgment in favor of the City as to the Wage Payment Statute, reversed the denial of summary judgment for the City on the intentional inference claim, reversed the grant of summary judgment in favor of Curry on the wrongful discharge claim, and remanded with instructions to grant summary judgment in favor of the City. City of Lawrence Utils. Serv. Bd. v. Curry, 55 N.E.3d 895, 899–902 (Ind. Ct. App. 2016). Curry sought transfer, which we granted, thereby vacating the opinion of the Court of Appeals. City of Lawrence Utils. Serv. Bd. v. Curry, 59 N.E.3d 251 (Ind. 2016) (table); Ind. Appellate Rule 58(A).

Standard of Review

"When reviewing the grant or denial of a motion for summary judgment we stand in the shoes of the trial court." SCI Propane, LLC v. Frederick, 39 N.E.3d 675, 677 (Ind. 2015) (internal quotation omitted). Summary judgment is appropriate only when "the designated 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). When "the challenge to summary judgment raises questions of law, we review them de novo ." Rogers v. Martin, 63 N.E.3d 316, 320 (Ind. 2016) (citing Ballard v. Lewis, 8 N.E.3d 190, 193 (Ind. 2014) ). Issues of statutory construction are questions of law, which are particularly appropriate for summary resolution. Evansville Courier & Press v. Vanderburgh Cty. Health Dep't, 17 N.E.3d 922, 927–28 (Ind. 2014) (citations omitted).

Mayor Jessup Lacked Authority to Remove Curry as the Utility Service Board Superintendent.

Curry argues that under Indiana Code section 8–1.5–3–5(d) (2016), which states, "[t]he superintendent may be removed by the board for cause at any time after notice and a hearing," the mayor lacked the authority to unilaterally remove him from his position as superintendent, relying primarily on Morrison v. McMahon, which found that "the utility service board alone, not the mayor, has the specific power to discharge the superintendent." 475 N.E.2d 1174, 1181 (Ind. Ct. App. 1985), trans. denied. The City responds that the court's analysis in Morrison is merely dicta and not binding, and moreover when canons of statutory interpretation are correctly applied, Indiana Code section 8–1.5–3–5(d) gave Mayor Jessup the authority to terminate Curry.

When interpreting a statute, our first task is to give its words their clear and plain meaning, while considering the structure of the statute as a whole. ESPN, Inc. v. Univ. of Notre Dame Sec. Police Dep't, 62 N.E.3d 1192, 1195 (Ind. 2016) (citing West v. Office of Indiana Sec'y of State, 54 N.E.3d 349, 353 (Ind. 2016) ). "As we interpret the statute, we are mindful of both what it does say and what it does not say. To the extent there is an ambiguity, we determine and give effect to the intent of the legislature as best it can be ascertained." Id. at 1195–96 (internal citations and quotations omitted). We may not add new words to a statute which are not the expressed intent of the legislature. Kitchell v. Franklin, 997 N.E.2d 1020, 1026 (Ind. 2013) ; see also N.D.F. v. State, 775 N.E.2d 1085, 1088 (Ind. 2002) ("[W]e will not read into the statute that which is not the expressed intent of the legislature.").

While we agree that the statutory scheme relevant to Curry's termination is somewhat dense, it is neither inscrutable nor ambiguous. As to appointment powers, Indiana Code section 8–1.5–3–4(a)(3) provides that a utility service board may appoint a superintendent, "subject to" Indiana Code section 36–4–9–2 (2012). Section 36–4–9–2(a) then provides that the mayor shall appoint the department heads of certain departments "established under section 4 of this chapter." In relevant part, section 4 contains a list of specific departments a city may establish, and a catchall provision that allows the mayor to establish "any other department considered necessary." Ind. Code §§ 36–4–9–4(c)(1)–(7). Further, under Indiana Code section 36–4–9–2(a)(9), the mayor's "appointment of the head of the department is subject to the approval of any statutory board or commission established in the department, including and limited to: ... the utility service board, if a department of utilities is established." As to removal powers, in addition to Indiana Code section 8–1.5–3–5(d), which is expressly limited to "the board," Indiana Code section 36–4–11–2(d) (2012) grants the mayor the authority to "suspend or remove from office any officers, deputies, or other employees of the city appointed by the executive or a prior executive, by notifying them to that effect and sending a written statement of the reasons for the suspension or removal to the city legislative body." (emphasis added).

Turning to the instant matter, Curry was appointed as superintendent of Lawrence Utilities by the USB, and not by former Mayor Ricketts. This alone seems to remove Curry from the statutory process contained in Indiana Code chapters 36–4–9 and 36-4-11 because the mayor may remove the department head when he or she i...