Cox v. Town of Rome City

• Decision Date: 26 February 2002
• Docket Number: No. 57A04-0109-CV-395.,57A04-0109-CV-395.
• Citation: 764 N.E.2d 242
• Parties: Tony COX, Appellant-Plaintiff, v. TOWN OF ROME CITY, Appellee-Defendant.
• Court: Indiana Appellate Court

764 N.E.2d 242

Tony COX, Appellant-Plaintiff, v. TOWN OF ROME CITY, Appellee-Defendant.

No. 57A04-0109-CV-395.

Court of Appeals of Indiana.

February 26, 2002.

Chris K. Starkey, Zionsville, IN, Attorney for Appellant.

Karen Tallian, Eberhard & Gastineau, Portage, IN, Attorney for Appellee.

OPINION

SULLIVAN, Judge.

Tony Cox appeals the trial court's grant of summary judgment in favor of the Town of Rome City ("Rome City"). He presents several issues for our review, which we renumber and restate as:

(1) whether his demand for relief is properly controlled by an employment contract or by statutory authority;

(2) whether the trial court erred in denying his request for relief from a 1995 suspension;

(3) whether the trial court erred in denying his claim for unpaid wages, penalties, and attorney's fees; and (4) whether the trial court erred in denying his claim for continuation of health insurance.

We affirm in part and reverse in part.

From a review of the designated evidence contained in the appendices,¹ it appears that Cox served as Town Marshal of Rome City for several years. At least for a portion of the time of his employment, Cox and Rome City entered into a "Town Marshal Employment Agreement" which controlled the compensation, duties, and disciplinary procedures involved in Cox's service as Town Marshal. During his employment, Cox was disciplined at least three times for various violations, ranging from failure to attend meetings to improper use of a police vehicle. From March 9 through 11, 1998, Cox attended training at the Indiana Law Enforcement Academy. He rode to and from the Academy with officers from the Albion police department in an Albion squad car. From March 23 through 25, 1998, he attended a second training session at the Academy. Following both of these trips, he submitted a mileage claim form to Clara Crozier, Town Clerk-Treasurer, in which he claimed that he had driven to the Academy. It was the understanding of Ms. Crozier that Cox also did not drive to the second training session, but that he once again rode with someone else.

The Town Council took disciplinary action against Cox for falsifying the mileage claim forms, and he was suspended with pay April 13, 1998. A hearing was held on May 6, 1998, in which Cox was to be given the opportunity to be heard regarding his suspension. However, neither Cox nor his attorney attended the hearing. At that hearing, the Town Council voted in favor of accepting an Agreement to Terminate Employment which the Town Council stated that Cox agreed to before the meeting so long as certain conditions were met. The Town Council's decision allowed Cox to keep his insurance until his wife delivered their baby. Cox's final paycheck, which was for his remaining pay through May 6 minus a deduction for June insurance, was mailed to Cox after a Town Council meeting on August 27, 1998, in which the Town Council took final action regarding Cox. A check was also printed for Cox's vacation pay on October 13, 1998, and was mailed to him at that time.

Cox filed his complaint, with six counts, seeking damages on September 16, 1998. Rome City moved for summary judgment upon all six counts, and Cox filed a cross motion for summary judgment upon Counts I, II, and III. The trial court granted summary judgment in favor of Rome City.

When reviewing a grant or denial of a motion for summary judgment, we stand in the shoes of the trial court. Arnold v. F.J. Hab, Inc., 745 N.E.2d 912, 914-15 (Ind.Ct. App.2001). Summary judgment is appropriate "if 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); Arnold, 745 N.E.2d at 915. A genuine issue of material fact exists when there is a dispute, or when undisputed facts are capable of supporting conflicting inferences, about an issue which would dispose of the litigation. Indiana Heart Assocs., P.C. v. Bahamonde, 714 N.E.2d 309, 311 (Ind.Ct. App.1999),trans. denied. Once the moving party demonstrates, prima facie, that there is no genuine issue of material fact as to any determinative issue, the non-moving party must come forward with contrary evidence. Sullivan v. City of Evansville, 728 N.E.2d 182, 187 (Ind.Ct.App. 2000). Upon appeal, we do not weigh the evidence, but rather we consider the facts in the light most favorable to the non-moving party. Arnold, 745 N.E.2d at 915. We may sustain the judgment upon any theory supported by the designated evidence. Id. "Cross motions for summary judgment do not alter our standard of review." Sullivan, 728 N.E.2d at 187.

I Controlling Law

Cox asserts that his claim for relief is properly controlled by the employment contract entered into between himself and Rome City. If so, his action would fall under general contract law, and he could pursue an award for breach of contract against Rome City for not following the bargained for disciplinary procedure. Rome City responds that the trial court had no jurisdiction over Cox's claims because he did not first avail himself of the mandatory statutory remedies under Indiana Code § 36-8-3-4 (Burns Code Ed. Repl.1995).

The primary purpose in contract construction is to ascertain and give effect to the mutual intent of the parties. Ecorp, Inc. v. Rooksby, 746 N.E.2d 128, 131 (Ind. Ct.App.2001). Upon review of a written contract, the language used in the contract determines the intent of the parties at the time the contract was written. Hollars v. Randall, 554 N.E.2d 1177, 1179 (Ind.Ct. App.1990). The words in the contract are to be given their common and ordinary meaning. Id.

In the Town Marshal Employment Agreement, the language used by the parties in the section concerning disciplinary actions reads, "Improper use of police vehicles and conduct unbecoming an officer shall, be subject to Indiana laws for termination of Town Marshals or police officers...." Appellant's App. at 13 (emphasis supplied). The subsequent section in the contract discusses termination, and lists six grounds upon which the contract shall be immediately terminated. Included in that list are, "[i]f the employer and employee mutually agree in writing to termination," and "[i]nsubordination, misconduct, disloyalty or for such acts committed by Employee which may be detrimental to the Employer as provided by the laws of Indiana." Id. at 14.

While Cox is correct that the employment contract was valid and controlled the disciplinary actions to be taken by the Town Council, his assertion that all actions are taken outside of any statutory requirements is misplaced. The section of the contract dealing with disciplinary actions specifically states that it is "subject to Indiana laws for termination of Town Marshals." Id. at 13. The logical interpretation is that the parties intended that the procedure for any disciplinary action taken would be subject to Indiana Code § 36-5-7-3 (Burns Code Ed. Repl.2000) and I.C. § 36-8-3-4, the appropriate statutory law regarding the disciplining of town marshals who have served more than six months and have completed minimum basic training requirements.² Therefore, the statutory requirements of I.C. § 36-5-7-3 apply to this case.

Indiana Code § 36-5-7-3 requires that before a town marshal who has served more than six months may be terminated or suspended, the legislative body overseeing the marshal must conduct disciplinary procedures according to I.C. § 36-8-3-4. At the employee's request, a safety board is required to conduct a hearing. I.C. § 36-8-3-4(c). If a decision is rendered which results in suspension of more than five days or dismissal, the employee may appeal the decision to the circuit or superior court of the county. I.C. § 36-8-3-4(e). However, the appeal must be made within thirty days. I.C. § 36-8-3-4(f).

In its Answer to the Complaint, Rome City challenged the jurisdiction of the trial court to hear this case both for lack of subject matter jurisdiction and for Cox's failure to file his complaint within the time limit specified by statute. In essence, when it raised the defense of failure to file within the statutory time limit, Rome City claimed that the trial court did not have jurisdiction of the particular case.

As a matter of law, the failure to follow statutory procedures for perfecting appeals results in a jurisdictional defect which precludes judicial review of an administrative adjudication. Foor v. Town of Hebron, 742 N.E.2d 545, 549 (Ind.Ct.App. 2001). Subject matter jurisdiction is the power of the court to hear a class of cases and is derived from the constitution or statute. Id. at 548; Farley v. Farley, 157 Ind.App. 385, 395, 300 N.E.2d 375, 382 (1973), trans. denied. Jurisdiction of the particular case is the power of the court to hear a specific case within the class of cases over which the court has subject matter jurisdiction. Foor, 742 N.E.2d at 548.

It is undisputed that the Town Council held a hearing on May 6, 1998, in which Cox had the opportunity to defend his actions and to call witnesses. However, neither Cox nor his attorney attended the hearing and the Town Council took action against Cox. It is also undisputed that Cox did not seek redress in the courts within thirty days as was mandated by I.C. § 36-8-3-4(f). Instead, Cox filed his complaint on September 16, 1998, more than three months after the statutory deadline. Because Cox failed to file his claim for review by the trial court within the statutory period of thirty days following the decision of the Town Council, to the extent that Cox is challenging the termination of his employment with Rome City, the trial court lacked jurisdiction of the particular case. Therefore, summary judgment was appropriate for Rome City on any claim challenging his employment termination.

However, I.C. § 36-8-3-4, insofar as pertinent, applies only to the action terminating Cox's employment; it does not...