Streckfus v. Gardenside Terrace Co-op., Inc., 10S01-8702-CV-244

• Decision Date: 25 February 1987
• Docket Number: No. 10S01-8702-CV-244,10S01-8702-CV-244
• Citation: 504 N.E.2d 273
• Parties: Dixie B. STRECKFUS, Appellant (Plaintiff Below), v. GARDENSIDE TERRACE COOPERATIVE, INC., and Triangle Associates, Inc., Appellee (Defendants Below).
• Court: Indiana Supreme Court

Page 273

504 N.E.2d 273

Dixie B. STRECKFUS, Appellant (Plaintiff Below), v. GARDENSIDE TERRACE COOPERATIVE, INC., and Triangle Associates, Inc., Appellee (Defendants Below).

No. 10S01-8702-CV-244.

Supreme Court of Indiana.

Feb. 25, 1987.

William C. Moyer, Steven A. Gustafson, Lorch Moyer Gesenhues & Bitzegaio, New Albany, for appellant.

Sandra L. Heeke, Fox & Smith, Jeffersonville, for appellee.

ON CIVIL PETITION TO TRANSFER

DICKSON, Justice.

Plaintiff-petitioner Dixie B. Streckfus seeks review of an adverse decision from our Court of Appeals, First District, affirming a summary judgment entered in favor of defendant-respondents Gardenside Terrace Cooperative, Inc., ("Gardenside"), and Triangle Associates, Inc., ("Triangle"). See, Streckfus v. Gardenside Terrace Co-op, Inc. (1985), Ind.App., 481 N.E.2d 423.

Gardenside was the owner of a housing development consisting of approximately 230 units. Pursuant to agreement, Triangle functioned as Gardenside's agent in managing the development, including the hiring and discharging of employees on Gardenside's behalf. Plaintiff was hired by Triangle as Resident Manager of the housing development. The terms and conditions of plaintiff's employment were contained in a written agreement ("Employment Agreement") which provided in relevant part as follows:

This Agreement, made and entered into this 29th day of October, 1979, by and between Triangle Associates, Inc., as managing agent for [Gardenside], has employed Mrs. Dixie Streckfus.

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I understand I am being hired by Triangle Associates, Inc., for employment with Gardenside Terrace. Triangle Associates has the sole control over my employment as per the management contract between Triangle Associates, Inc., and Gardenside Terrace. Gardenside Terrace is my employer and I am paid out of the funds of Gardenside Terrace.

Despite the reference in the Employment Agreement to a "management contract," the record does not contain a copy of any such agreement in effect at the time the Employment Agreement was executed. It is clear, however, that in August, 1980, Gardenside and Triangle entered into a Housing Management Agreement ("Management Agreement") which dictated their relationship for the period relevant to this case. This Management Agreement provided in relevant part as follows:

The hiring and discharging of the Resident Manager ... will be subject to the Owner's [Gardenside's] approval. If the Resident Manager ... should have to be discharged for cause, the Agent [Triangle] will suspend said employee without pay, notify the board of directors [of Gardenside] of such suspension, and request that the board approve discharge of that employee within 48 hours of such notice. Upon proper proof that an employee is providing unsatisfactory service, the Board will not unreasonably withhold approval of such termination. [emphasis added]

Attached to the Management Agreement, and incorporated by reference therein, was a document entitled "Management Plan" which contained more detailed policies and procedures by which the parties agreed to abide. Among the provisions of the Management Plan were the following:

I(C) The Agent is responsible for the day-to-day operations of the property. This would include ... the hiring and firing of all employees.... The Agent may make any decision which is consistent with the policies of the Owner and within the scope of sound management practices.

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II(D)(4) If an employee is terminated, the supervisor will explain to the employees the reasons for termination. If the terminated employee has pertinent information relating to his dismissal, then he may appeal the termination of the Board of Directors within three (3) days from date of termination. The Board of Directors and an officer of Triangle Associates will meet with the employee and the final decision will be made by the reviewing parties whether or not to reinstate the terminated employee with the exception of the Resident Manager and maintenance superintendent.

II(D)(5) The dismissal or termination of the Maintenance Superintendent or Resident Manager shall be done with the prior approval of the Board of Directors in most cases. Sufficient reason for termination must be supplied to the Board for their review and decision. These reasons will be outlined in written warnings that have been delivered to the employee (copies of which will be supplied to the Board of Directors) and will allow sufficient time to correct their actions before asking for termination. There will be a maximum of three (3) written warnings prior to a request to the Board of Directors.

In the case of an immediate dismissal by Triangle Associates, Inc. for cause of either of these employees, the Board of Directors of Gardenside Terrace Cooperative, Inc. must review such action within the time specified in the management agreement, and as outlined in Section 4 above.

The employee shall be suspended without pay pending the Board's decision. [emphasis added]

In October, 1981, the property manager for Triangle, citing plaintiff's inability to get along with her co-workers and her lack of leadership skills, submitted a recommendation to...