Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 1 of 37

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

I N T H E

COURT OF APPEALS OF INDIANA

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,

v.

Linkmeyer Development II, LLC, 

Steven Linkmeyer, and Brian 

Bischoff,

Appellees/Cross Appellants -Defendants,

February 8, 2019

Court of Appeals Case No.

18A-PL-311

Appeal from the Dearborn Circuit 

Court

The Honorable James D. 

Humphrey, Judge

Trial Court Cause No.

15C01-1307-PL-49

Robb, Judge.
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 2 of 37

Case Summary and Issues

[1] 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. 

Facts and Procedural History 

[2] 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 
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City of Lawrenceburg’s city manager, Tom Steidel, and mayor, William 

Cunningham, also signed the contract.

[3] 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.

[4] 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 
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 4 of 37

that he generally used in connection with loans made by the City of 

Lawrenceburg. 

[5] 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, this agreement.

* * * 

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.

Appellants’ App., Vol. II at 46-47.

1

[6] Consistent with the Development Agreement, the parties executed several 

additional documents, including a Promissory Note and a Mortgage in favor of 

 

1 An Addendum to the Development Agreement was executed on November 30, 2009 “[e]xtending the time 

line to complete the project to October 1, 2014.” Id. at 52. 
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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:

ln 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 law. 

Id. at 116. 

[7] 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 
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individuals now composing the Class,2filed 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 areas. 

(‘94 Code, § 33.02) (Ord. 1-1986, passed 4-7-86).

Pursuant thereto, the Class brought the following claims:

Count I: Breach of Contract

Count II: Violation of the Indiana Common Construction 

Wage Act

Count III: Violations of Indiana Wage Statutes 

 

2 The trial court certified the Class on December 26, 2014.
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Count IV: Request for Declaratory Relief

Count V: (Pleaded in the Alternative) Unjust 

Enrichment/Quantum Meruit 

Appellants’ 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. 

[8] 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. 

[9] 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:
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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.

Appealed Order at 1-2.3 

[10] 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, 

2018.4

Discussion and Decision 

I. Motion to Strike

[11] 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 provides:

Upon motion made by a party within the time to respond to a 

document, or if there is no response permitted, within thirty (30) 

 

3 Our review of the record reveals the Class only moved for partial summary judgment as to Count I: Breach 

of Contract. See Appellants’ App., Vol. II at 71-96. 

4 The trial court’s grant of summary judgment in favor of the Defendants on Count V: Unjust 

Enrichment/Quantum Meruit is uncontested on appeal. 
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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.

[12] 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/CrossAppellants’ 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 
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and well-being.” 64 AM. JUR. 2d Public Works and Contracts § 

214 (footnote omitted).

Appellants’ Reply and Cross-Appellees’ Br. at 29-30, 35-36.

[13] 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 maintain:

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. 

Response in Opposition to Appellants/Cross-Appellees’ Motion to Strike 

Portions of Appellees/Cross-Appellants’ Reply Br. at 2, ¶ 4. 

[14] 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 
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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’ Reply Brief. 

[15] 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 §33.02, they then claimed they erred in their diagram of §33.02 

and shifted to another argument. 

* * *

The Class dissected §33.02 differently than it did in their 

summary judgment papers thereby acknowledging that they 

overstated the application of §33.02. They 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 
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result in the payment of prevailing wages on “all” construction 

projects approved by the city. When confronted with the 

erroneously broad interpretation of §33.02, they then claimed 

they erred in their diagram of §33.02 and shifted once again to 

another argument. They argued for the first time in the [sic] their 

Reply Brief that §33.02 is remedial in nature and should be

interpreted in a manner that results in the payment of prevailing 

wages.

Appellees/Cross-Appellants’ Reply Br. at 6, 14-15.

[16] During summary judgment proceedings, the Defendants pointed out that the 

Class, in its brief in support of partial summary judgment, had incorrectly

included a comma in quoting Section 33.02. See Appellants’ App., Vol. III at 

26. The Class, in their summary judgment reply brief, responded that it “was a 

typographical error, unnecessary to interpretation.” Id. at 147. Now, in its 

motion to strike, the Class highlights its admission of its mistake and contends 

that it is “patently false to claim, as [the Defendants] now do, that the Class 

‘included words and punctuation in their diagram of § 33.02 during the 

summary judgment proceedings which were not present in the ordinance.’” 

Appellants/Cross-Appellees’ Motion to Strike Portions of Appellees/CrossAppellants’ Reply Br. at 8. 

[17] Although the Class immediately acknowledged that it had incorrectly included

a comma in Section 33.02, it did, in fact, add punctuation. And, to the extent 

that the Defendants argued the Class “included words” to Section 33.02, when 

viewed in the greater context of their argument on appeal, it becomes evident 

that Defendants do not allege that the Class literally added words to the 
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ordinance. Rather, the thrust of the Defendants’ argument, as discussed further 

below, is that in order to arrive at the Class’s desired interpretation of the 

ordinance, words must be figuratively added to the text. Thus, once again, we 

conclude the Defendants presented a good faith argument and we decline to 

strike the relevant portions of their Appellees/Cross-Appellants’ Reply Brief.

II. Summary Judgment 

[18] The Class bought five claims against the Defendants: Count I: Breach of 

Contract; Count II: Violation of the Indiana Common Construction Wage Act; 

Count III: Violation of the Indiana Wage Statutes; Count IV: Request for 

Declaratory Relief; and Count V: (pleaded in the alternative) Unjust 

Enrichment/Quantum Meruit. Thereafter, the Class filed a motion for partial 

summary judgment on Count I: Breach of Contract and the Defendants filed a 

cross-motion for summary judgment as to all claims. The trial court denied the 

Class’s motion for partial summary judgment, granted the Defendants’ crossmotion for summary judgment as to Count V: Unjust Enrichment/Quantum 

Meruit,

5 and denied the Defendants’ cross-motion for summary judgment in all 

other respects.6 On appeal, both the Class and the Defendants argue the trial 

court erred in denying their respective motions for summary judgment as to 

Count I: Breach of Contract. Additionally, the Defendants argue the trial court 

 

5 Again, the trial court’s grant of summary judgment in favor of the Defendants on Count V: Unjust 

Enrichment/Quantum Meruit is uncontested on appeal.

6 Neither party puts forth specific argument regarding Count II: Violation of the Indiana Common 

Construction Wage Act. 
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erred in denying their cross-motion for summary judgment as to Count III: 

Violation of Indiana Wage Statutes. 

A. Standard of Review

[19] Summary judgment is a tool which allows a trial court to dispose of cases where 

only legal issues exist. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The 

moving party has the initial burden to show the absence of any genuine issue of 

material fact as to a determinative issue. Id. An issue is “genuine” if a trier of 

fact is required to resolve the truth of the matter; a fact is “material” if its 

resolution affects the outcome of the case. Id. As opposed to the federal 

standard which permits the moving party to merely show the party carrying the 

burden of proof lacks evidence on a necessary element, Indiana law requires the 

moving party to “affirmatively negate an opponent’s claim.” Id. (quotation 

omitted). The burden then shifts to the non-moving party to come forward with 

contrary evidence showing an issue to be determined by the trier of fact. Id.

Although this contrary evidence may consist of as little as a non-movant’s 

designation of a self-serving affidavit, summary judgment may not be defeated 

by an affidavit which creates only an issue of law—the non-movant must 

establish that material facts are in dispute. AM Gen. LLC v. Armour, 46 N.E.3d 

436, 441-42 (Ind. 2015).

[20] We review a summary judgment order with the same standard applied by the 

trial court. City of Lawrence Util. Serv. Bd. v. Curry, 68 N.E.3d 581, 585 (Ind. 

2017). Summary judgment is appropriate only when “the designated 
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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). As our supreme court has cautioned, however, summary 

judgment is a “blunt instrument” by which the non-prevailing party is 

prevented from resolving its case at trial and therefore we must carefully “assess 

the trial court’s decision to ensure [a party] was not improperly denied [their] 

day in court.” Hughley, 15 N.E.3d at 1003-04 (citations omitted). “Indiana 

consciously errs on the side of letting marginal cases proceed to trial on the 

merits, rather than risk short-circuiting meritorious claims.” Id. at 1004. And, 

notably, cross-motions for summary judgment do not affect our standard of 

review. We simply “constru[e] the facts most favorably to the nonmoving party 

in each instance.” Young v. City of Franklin, 494 N.E.2d 316, 317 (Ind. 1986). 

“[E]ven if the facts are undisputed, summary judgment is inappropriate where 

the evidence reveals a good faith dispute as to the inferences to be drawn from 

those facts.” Boczar v. Reuben, 742 N.E.2d 1010, 1017 (Ind. Ct. App. 2001).

[21] At the heart of this appeal is the interpretation and construction of a contract, 

which presents questions of law. John M. Abbott, LLC v. Lake City Bank, 14 

N.E.3d 53, 56 (Ind. Ct. App. 2014). As such, cases involving contract 

interpretation are particularly suitable for summary judgment. Id. And because 

the interpretation of a contract presents a question of law, it is reviewed de 

novo. Jenkins v. S. Bend Cmty. Sch. Corp., 982 N.E.2d 343, 347 (Ind. Ct. App. 

2013), trans. denied. When summary judgment is granted based on the 

construction of a written contract, the trial court has either determined that the 
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contract is not ambiguous or uncertain, or that any contract ambiguity can be 

resolved without the aid of a factual determination. Cmty. Anesthesia & Pain 

Treatment, L.L.C. v. St. Mary Med. Ctr., Inc., 26 N.E.3d 70, 77 (Ind. Ct. App. 

2015), trans. denied. 

[22] We review the contract as a whole, attempting to ascertain the parties’ intent 

and making every attempt to construe the language of the contract “so as not to 

render any words, phrases, or terms ineffective or meaningless.” Four Seasons 

Mfg., Inc. v. 1001 Coliseum, LLC, 870 N.E.2d 494, 501 (Ind. Ct. App. 2007). We 

assign a contract’s clear and unambiguous terms their plain and ordinary 

meaning. Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d 249, 251 (Ind. 2005). 

When the terms of a contract are ambiguous or uncertain, however, and its 

interpretation requires extrinsic evidence, its construction is left to the 

factfinder. Johnson v. Johnson, 920 N.E.2d 253, 256 (Ind. 2010). A contract is 

ambiguous if reasonable people would disagree as to the meaning of its terms,

Beam v. Wausau Ins. Co., 765 N.E.2d 524, 528 (Ind. 2002), and we construe any 

ambiguity against the drafter, MPACT Constr. Grp., LLC v. Superior Concrete 

Constructors, Inc., 802 N.E.2d 901, 910 (Ind. 2004).

B. The Class’s Appeal: Breach of Contract

[23] First, the Class argues there is no genuine issue of material fact as to their claim 

of breach of contract because the Defendants breached the Development 

Agreement by failing to pay prevailing wages. Specifically, the Class argues 

they were a third-party beneficiary to the contract and that even if they were 
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not, Section 33.02 provides an “implicit private right of action.” Appellants’

Br. at 26. In turn, the Defendants argue the Class was never intended as a 

third-party beneficiary and that Section 33.02 is inapplicable to the facts 

presented.

[24] “The elements of a breach of contract action are the existence of a contract, the 

defendant’s breach thereof, and damages.” Gared Holdings, LLC v. Best Bolt 

Prods., Inc., 991 N.E.2d 1005, 1012 (Ind. Ct. App. 2013) (quotation marks and 

citation omitted), trans. denied. It is undisputed by the parties that the 

Development Agreement constitutes a contract, that it is authentic, and that 

Linkmeyer Development is a party to it. 

1. Third-Party Beneficiary

[25] We turn first to consideration of whether the Class constitutes a third-party 

beneficiary of the contract. As we explained in Flaherty & Collins, Inc. v. BBRVision I, L.P.,

Generally, only those who are parties to a contract, or those in

privity with a party, have the right to recover under a contract. 

However, an entity that is not a party to the contract may enforce 

the provisions of the contract by demonstrating that it is a thirdparty beneficiary thereto. A third-party beneficiary contract is 

one in which the promisor has a legal interest in performance in 

favor of the third party and in which the performance of the 

terms of the contract between two parties must necessarily result 

in a direct benefit to a third party which was so intended by the 

parties. A third party must show that it will derive more than an 

incidental benefit from the performance of the promisor.
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In order to enforce a contract by virtue of being a third-party 

beneficiary, an entity must show (1) a clear intent by the actual 

parties to the contract to benefit the third party; (2) a duty 

imposed on one of the contracting parties in favor of the third 

party; and (3) performance of the contract terms is necessary to 

render the third party a direct benefit intended by the parties to 

the contract. Among these three factors, the intent of the 

contracting parties to benefit the third-party is controlling.

990 N.E.2d 958, 971 (Ind. Ct. App. 2013) (quotations and citations omitted),

trans. denied. 

[26] The Class argues there is no need to analyze each factor because, “[i]t is 

generally recognized that employees of public contractors may sue as thirdparty beneficiaries for wages on a contract between the contractor and the 

public.” Appellants’ Br. at 25 (quoting Ind. State Bldg. & Constr. Trades Council v. 

Warsaw Cmty. Sch. Corp., 493 N.E.2d 800, 805 (Ind. Ct. App. 1986)). Besides 

the fact that the City of Lawrenceburg was a party to the Development 

Agreement, however, the Class has not brought forth an argument that 

Linkmeyer Development was a public contractor. Regardless, the facts 

presented here would likely not support such an argument. See Ind. Code § 4-

13.6 et seq. 

[27] The primary issue here, then, is whether the City of Lawrenceburg and 

Linkmeyer Development intended the Development Agreement to benefit the 

Class. See Barth Elec. Co. v. Traylor Bros., 553 N.E.2d 504, 506 (Ind. Ct. App.

1990) (noting that the controlling issue is whether it was the intent of the parties 

to a contract to benefit a third party). We begin, as always, with the plain 
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language of the contract, ensuring that we read the language in context and, 

“whenever possible, construing it so as to render each word, phrase, and term 

meaningful, unambiguous, and harmonious with the whole.” Citimortgage, Inc. 

v. Barabas, 975 N.E.2d 805, 813 (Ind. 2012). The relevant language of the 

Development Agreement states: “[Linkmeyer Development] 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.” Appellants’ App., Vol. II at 46 (emphasis added). 

[28] The Defendants argue this is “merely boilerplate language,” and “[n]either 

[Linkmeyer Development] nor the City of Lawrenceburg ever intended 

[Linkmeyer Development’s] project to require the payment of prevailing 

wages[.]” Appellees/Cross-Appellants’ Br. at 18. In support thereof, the 

Defendants designated several affidavits, including that of Mayor Cunningham,

who stated: 

Linkmeyer Development II, LLC’s project, as proposed by Steve 

Linkmeyer to the Economic Development Committee and as 

described in the Development Agreement, constituted a private 

development project and, as a private development project, no 

prevailing wages were required to be paid for Linkmeyer 

Development II, LLC’s project. 

Appellants’ App., Vol. III at 55, ¶ 9. 

[29] It is axiomatic, however, that where a contract’s language is unambiguous, 

“this court may not look to extrinsic evidence to expand, vary, or explain the 

instrument but must determine the parties’ intent from the four corners of the 
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instrument.”7 Celadon Trucking Servs., Inc. v. Wilmoth, 70 N.E.3d 833, 839 (Ind. 

Ct. App. 2017), trans. denied. And, despite the Defendants’ apparent argument 

to the contrary, “merely boilerplate language” still carries legal effect. See 

Nixdorf Comput., Inc. v. Jet Forwarding, Inc., 579 F.2d 1175, 1179 (9th Cir. 1978) 

(“‘Boilerplate’ is, notwithstanding its reputation, language.”). Moreover, unless 

a contract provides otherwise, it is implied that the parties intend to comply 

with all applicable statutes and city ordinances in effect at the time of the 

contract. See, e.g., Homer v. Burman, 743 N.E.2d 1144, 1147 (Ind. Ct. App. 

2001). 

[30] The Development Agreement unambiguously required that Linkmeyer 

Development “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.” Appellants’ App., Vol. II at 46 

(emphasis added). Therefore, if any such code, law, or ordinance, so required, 

the parties displayed “a clear intent . . . to benefit the third party[,]” Flaherty & 

 

7 As Judge Learned Hand famously explained over a century ago:

A contract has, strictly speaking, nothing to do with the personal, or individual, intent of the 

parties. A contract is an obligation attached by the mere force of law to certain acts of the 

parties, usually words, which ordinarily accompany and represent a known intent. If, however, 

it were proved by twenty bishops that either party, when he used the words, intended something

else than the usual meaning which the law imposes upon them, he would still be held, unless 

there were some mutual mistake, or something else of the sort.

Hotchkiss v. Nat'l City Bank, 200 F. 287, 293 (S.D.N.Y. 1911), aff'd 201 F. 664 (2d Cir.), aff'd 231 U.S. 50 

(1913).
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 21 of 37

Collins, Inc., 990 N.E.2d at 971, and the Class has standing to sue under the 

Development Agreement. 

2. Section 33.02

[31] Next then, we turn to the question of whether any such code, law, or ordinance 

required the payment of prevailing wages for labor. It is uncontested that no 

state law required the payment of prevailing wages. Rather, the source of the 

parties’ disagreement is an ordinance, namely Code of Lawrenceburg Section 

33.02. 

[32] Before proceeding to the text of the ordinance, we note that we apply the same 

principles as those used for the construction of state statutes. 600 Land, Inc. v. 

Metro. Bd. of Zoning Appeals of Marion Cty., 889 N.E.2d 305, 309 (Ind. 2008).

The first step in statutory interpretation is determining if the 

legislature has spoken clearly and unambiguously on the point in 

question. If a statute is clear and unambiguous on its face, no 

room exists for judicial construction. However, if a statute 

contains ambiguity that allows for more than one interpretation, 

it opens itself up to judicial construction to effect the legislative 

intent. 

If possible, every word must be given effect and meaning, and no 

part should be held to be meaningless if it can be reconciled with 

the rest of the ordinance. We are not at liberty to construe a 

facially unambiguous statute. However, if ambiguity exists, it is 

then open to construction to effect the intent of the legislature. 

Where ambiguity exists, to help determine the framers’ intent, we 

must consider the statute in its entirety, and we must construe the 

ambiguity to be consistent with the entirety of the enactment. It 

is of the utmost importance to consider the ambiguous section 
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 22 of 37

within the scope of the entire Act, as that allows us to better 

understand the reasons and policies underlying the Act. 

We should also remember a cardinal rule of statutory 

construction, which is to ascertain the intent of the drafter. We 

can ascertain intent by giving effect to the ordinary and plain 

meaning of the language used.

Siwinski v. Town of Ogden Dunes, 949 N.E.2d 825, 828-29 (Ind. 2011) (citations 

and quotations omitted). 

[33] Entitled “Contractors Required to Pay Prevailing Wages,” Code of 

Lawrenceburg 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 areas. 

(‘94 Code, § 33.02) (Ord. 1-1986, passed 4-7-86)

(Emphasis added.) 

[34] The parties’ competing interpretations of Section 33.02 center around the 

ordinance’s use of the adverbial clause, “approved by the Lawrenceburg 

Development Corporation[,]” the conjunction “or,” and the lack of a serial, 

sometimes called Oxford, comma preceding the “or”—as emphasized above. 
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 23 of 37

[35] The Defendants argue that for the ordinance to apply, the construction project 

must be approved by the Lawrenceburg Development Corporation and the 

construction project must be “financed in whole or in part by proceeds from 

sale of economic development [1] bonds, [2] grants or [3] approved by or 

financed through any city agency, board, committee or commission . . . .” 

Appellees/Cross-Appellants’ Br. at 21 (emphasis added). Specifically, the 

Defendants contend:

In a simpler form, the ordinance applies to any construction 

project: 

(1) approved by the Lawrenceburg Development Corporation, 

and

(2) financed in whole or in part by

a. proceeds from sale of economic development bonds, 

b. grants

c. or approved by or financed through any city agency, 

board, committee or commission, pursuant to an 

Investment Incentive Program.

Id.

[36] Astutely observing that Section 33.02 is “hardly a model of legislative clarity,” 

the Class suggests the ordinance should be interpreted as follows:

On any construction project

[A] approved by the Lawrenceburg Development Corporation 

and financed in whole or in part by

[1] proceeds from sale of economic development bonds,

[2] grants or

[B] approved by or financed through any

[1] city agency,

[2] board,
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 24 of 37

[3] committee, or

[4] 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 areas.

Appellants’ Br. at 30. Viewing the ordinance as a whole, we agree with the 

Class.

[37] First, Section 33.02 begins with a specific source of approval, “approved by the 

Lawrenceburg Development Corporation[,]” and two specific forms of 

financing, “financed in whole or in part by proceeds from sale of economic 

development bonds, grants[.]” But the ordinance then shifts to provide for 

separate, more general sources of approval and financing, requiring simply that 

the project be “approved or financed through any city agency, board, committee 

or commission, pursuant to an Investment Incentive Program . . . .” (Emphasis 

added.) This discrepancy suggests that what followed “or” was not simply 

another item on a list to which the adverbial clause “approval by the 

Lawrenceburg Development Corporation” equally applied, but rather an 

alternative to the clause where approval or financing can come from “any city 
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 25 of 37

agency, board, committee or commission,” as long as that approval or 

financing was made pursuant to “an Investment Incentive Program.”8 

[38] Secondly, this interpretation of Section 33.02 is more consistent with the text of 

Section 33.01. As our supreme court has instructed, “[s]tatutes relating to the 

same general subject matter are in pari materia [on the same subject] and 

should be construed together so as to produce a harmonious statutory scheme.” 

Klotz v. Hoyt, 900 N.E.2d 1, 5 (Ind. 2009) (quotations omitted). Entitled 

“Employment Standards,” Section 33.01 provides: 

On any construction project approved by the Lawrenceburg 

Development Corporation financed in whole or in part by 

proceeds from sale of Economic Development Bonds or 

approved by or financed through any city agency, board, 

committee, or commission, pursuant to an investment incentive 

program, the Economic Development Commission or the 

Community and Lawrenceburg Development Corporation shall 

recommend that the contractor set as a goal the employment of 

at least 50% of the worker hours on a craft-by-craft basis, to be 

performed by bona fide residents of the city or Dearborn County, 

and the employment of at least 10% minorities on a craft-by-craft 

basis.

(‘94 Code, § 33.01) (Ord. 1-1986, passed 4-7-86)

 

8 Under this interpretation, “[o]n any construction project” remains as a series-qualifier, carrying forward to 

apply to each of the two clauses of the series. See Antonin Scalia & Bryan Garner, Reading Law: The 

Interpretation of Legal Texts § 19 (2012) (“Series-Qualifier Canon: When there is a straightforward, parallel 

construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally 

applies to the entire series.”). 
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 26 of 37

[39] Although Section 33.01 reads “approved by the Lawrenceburg Development 

Corporation financed in whole or in part by proceeds from sale of Economic 

Development Bonds or approved by or financed through any city [entity][,]” 

Section 33.02 reads, “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 [entity][.]” (Emphasis added.) Without “and” or the addition of 

“grants[,]” Section 33.01 clearly applies to two different scenarios: (A) 

approval by the Lawrenceburg Development Corporation accompanied by 

financing from the sale of Economic Development Bonds or (B) approval or 

financing through a city entity. These sections clearly serve a similar purpose as 

Section 33.01 sets forth goals to hire local and minority labor while Section

33.02 requires the payment of prevailing wages to labor. Reading the ordinance 

as a whole, therefore, we can find no reason why Section 33.01 would make 

approval of the Lawrenceburg Development Corporation optional while 

Section 33.02 would make such approval mandatory. See Adams v. State, 960 

N.E.2d 793, 798 (Ind. 2012) (noting “we read the statute as a whole, avoiding 

excessive reliance on a strict, literal meaning or the selective reading of 

individual words.”). 

[40] This interpretation also preserves the existence of the ordinance because the 

Lawrenceburg Development Corporation was dissolved on February 12, 1990. 

See Eddy v. McGinnis, 523 N.E.2d 737, 738 (Ind. 1988) (noting “[i]f there are 

two possible interpretations of the statute, and by one interpretation the statute 
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 27 of 37

would be invalid but by the other valid, the Court should adopt the 

interpretation which will uphold the statute”); Antonin Scalia & Bryan Garner, 

Reading Law: The Interpretation of Legal Texts § 5 (2012) (Presumption of 

Validity: “An interpretation that validates outweighs one that invalidates (ut res 

magis valeat quam pereat)”). If approval by the Lawrenceburg Development 

Corporation was a sine qua non to Section 33.02’s application, as the 

Defendants contend, the Section 33.02 would have been a nullity since 1990. 

The City of Lawrenceburg recodified its ordinances in 1994 and an additional 

fifteen years passed between recodification and the signing of the Development 

Agreement in 2009. In the absence of the ordinance’s repeal in the interim, we 

find additional cause to interpret the ordinance so as to preserve its validity.

[41] For all of these reasons, we read Section 33.02 to provide two, separate 

prerequisites for its application. That is to say, Section 33.02 requires the 

payment of prevailing wages on any construction project “[A] approved by the 

Lawrenceburg Development Corporation and financed in whole or in part by 

proceeds from sale of economic development bonds, grants or [B] financed 

through any city agency, board, committee or commission, pursuant to an 

Investment Incentive Program[.]” (Emphasis added.) 

[42] Consistent therewith, the Class “proceeds under the second half of Section 

33.02, subsection [B] as diagramed.” Appellants’ Br. at 30. The next 

requirement for Section 33.02’s application then, is that the project must have 

been “approved by or financed through any city agency, board, committee or 

commission . . . .” The face of the Development Agreement states the contract 
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 28 of 37

was made “pursuant to Order Resolution dated July __, 2009, which was duly 

passed by the Lawrenceburg City Council[.]” Appellants’ App., Vol II at 103. 

Furthermore, the project was financed by a $3,000,000 loan from the City of 

Lawrenceburg. These facts clearly establish that the project was both approved 

by and financed through the city.

9

[43] Finally, Section 33.02 required that the construction project was approved or 

financed by the city “pursuant to an Investment Incentive Program[.]” 

Although the capitalization of “Investment Incentive Program” indicates a

defined term carrying special meaning, the Code of Lawrenceburg does not 

provide a corresponding definition. See, e.g., Schane v. Int’l Bhd. of Teamsters 

Union Local No. 710 Pension Fund Pension Plan, 760 F.3d 585, 588 (7th Cir. 2014) 

(noting that a “term [was] capitalized as if it were a specially defined term, [but] 

it is not listed in the definitions section of the plan.”). And the term 

“Investment Incentive Program” appears only one other time in the Code of 

Lawrenceburg and is left uncapitalized in Section 33.01. Supra, ¶ 38 (“pursuant 

to an investment incentive program”). 

 

9 The Defendants further argue that the Class’s interpretation would “create an absurdly broad application, 

requiring the payment of prevailing wages on the construction and remodeling of residential homes [because] 

the Building Code of Lawrenceburg [requires] the Building Commissioner . . . must approve the project and 

issue permits to the contractor or homeowner.” Appellees/Cross-Appellants’ Br. at 22. This argument, 

however, fails to consider the final prerequisite for the ordinance’s application: that the construction project 

must have been approved or financed by a city agency “pursuant to an Investment Incentive Program[.]” 

Therefore, simply because the construction or remodeling of residential homes requires the approval of the 

building commissioner, Section 33.02 would not require the payment of prevailing wages. 
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 29 of 37

[44] Undefined words in a statute or ordinance are given their plain, ordinary, and 

usual meaning. 600 Land, Inc., 889 N.E.2d at 309. “In determining the plain 

and ordinary meaning of a term, courts may use English language dictionaries 

as well as consider the relationship with other words and phrases.” Id. The 

terms “investment incentives” are broadly defined as:

inducements offered by the government or local authorities to 

encourage capital investment by the private sector either 

generally or in a specific area. Government inducements may 

take the form of capital grants towards the cost of equipment or 

tax reliefs on any profits earned. Local authority inducements 

usually take the form of reductions or exemptions from local 

taxes and organizing the local infrastructure for the convenience 

of potential investors. The rationale for such incentives depends 

primarily upon the government’s objectives. It may want to 

increase economic growth and reduce unemployment, in which 

case investment through the multiplier effect will help, or it may 

want to give certain assisted areas additional help in tackling 

local problems of unemployment or urban renewal.

Collins Dictionary of Economics (4th ed. 2005) (emphasis and parentheticals

omitted). 

[45] In the absence of a specific definition of an investment initiative program, the

Class argues the “sweetheart loan” of $3,000,000 and the “gratuitous transfer of 

21.5 acres” from the City of Lawrenceburg to Linkmeyer Development was 

intended to be an “investment incentive.” Appellants’ Br. at 40. Although we 

agree that such generous terms could be fairly characterized as an investment 

incentive, Section 33.02 includes additional requirements that the construction 

project be approved or financed by the city “pursuant to an Investment Incentive 
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 30 of 37

Program[.]” (Emphasis added.) Black’s Law Dictionary defines “pursuant to” 

as “[i]n compliance with; in accordance with; under” or “[a]s authorized by.” 

(10th ed. 2014). The word “program” in this context is commonly defined as 

“a plan or system under which action may be taken toward a goal.” MerriamWebster Online Dictionary, http://www.merriamwebster.com/dictionary/program (last visited January 4, 2019). Therefore, 

read as a whole, we conclude Section 33.02 required more than simply an 

investment incentive that benefited the area. The City of Lawrenceburg must 

have approved or financed the construction project pursuant to a specific 

investment incentive program. One such investment incentive program in place 

at the time of the Development Agreement can be found in Indiana Code 

section 5-28-24-2. The statute provides:

The [Indiana Economic Development] corporation shall 

establish policies to carry out an investment incentive program. 

The purpose of the program is to provide grants and loans to 

counties and municipalities that will, in turn, be loaned to certain 

new or expanding businesses for construction or for the purchase 

of real or personal property.

[46] At this juncture, the Class has yet to designate evidence that the Development 

Agreement was approved or financed pursuant to Indiana Code section 5-28-24-

2 or any other investment incentive program. The only evidence in the record 

is Mayor Cunningham’s affidavit that he was:

. . . unaware of any project approved or financed by a City 

agency, board, committee or commission pursuant to any 
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 31 of 37

“Investment Incentive Program” while I served as Mayor or as 

Council Member.

Appellants’ App., Vol. III at 55, ¶ 12. The record further reflects that Mayor 

Cunningham was a signatory of the Development Agreement on behalf of the 

City of Lawrenceburg and he played a key role in its inception and subsequent 

approval. His testimony, therefore, is probative of whether the project was 

approved or financed pursuant to an investment incentive program. 

[47] Although Mayor Cunningham’s affidavit did not “affirmatively negate” the 

Class’s claim and thus it did not satisfy the Defendants’ burden on their own 

motion for summary judgment, see Hughley, 15 N.E.3d at 1003, it was sufficient 

to demonstrate the existence of a genuine issue of material fact. See id. 

Accordingly, we conclude the trial court correctly denied both parties’ motions 

for summary judgment regarding breach of contract.10

C. The Defendants’ Cross-Appeal: Indiana Wage 

Claims/Wage Payment Statutes

[48] In addition to the breach of contract claim, the Class alleged the Defendants 

violated the Wage Payment Statute, Ind. Code § 22-2-5, et seq., and the Wage 

Claims Statute, Ind. Code 22-2-9, et. seq., by failing to pay prevailing wages and 

 

10 Because we conclude genuine issues of material fact remain regarding whether Section 33.02 applies to the 

Development Agreement, we need not address the Class’s remaining arguments which are inextricably tied 

thereto. These arguments include whether Section 33.02 provides a private right of action and whether 

Bishoff and Linkmeyer are subject to personal liability. See D.H. by A.M.J. v. Whipple, 103 N.E.2d 3d 1119, 

1134 n. 4 (Ind. Ct. App. 2018), trans. denied. 
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 32 of 37

by failing to pay those wages in a timely manner. The Defendants’ motion for 

summary judgment on this issue was denied by the trial court. The Defendants 

appeal that decision.

[49] In St. Vincent Hosp. & Health Care Ctr., Inc. v. Steele, 766 N.E.2d 699 (Ind. 2002), 

the plaintiff, a doctor employed by St. Vincent Hospital, filed a complaint 

alleging breach of contract for failure to pay the full amount of compensation 

due under the terms of their agreement and for violation of the Wage Payment 

Statute. In determining whether the Wage Payment Statute or the Wage 

Claims Statute applied to Steele’s claim, our supreme court explained:

Although both the Wage Claims Statute and the Wage Payment 

Statute set forth two different procedural frameworks for wage 

disputes, each statute applies to different categories of claimants. 

The Wage Claims Statute references employees who have been 

separated from work by their employer and employees whose 

work has been suspended as a result of an industrial dispute. I.C. 

§ 22-2-9-2(a), (b). By contrast, the Wage Payment Statute 

references current employees and those who have voluntarily left 

employment, either permanently or temporarily. I.C. § 22-2-5-

1(b).

Id. at 704; see also J Squared, Inc. v. Herndon, 822 N.E.2d 633, 640 n. 4 (Ind. Ct. 

App. 2005) (“There is some confusion among the parties whether the Wage 

Claims Statute or the Wage Payment Statute applies. The former applies where

. . . an employee is fired, and the latter applies where an employee quits.”). The 

court in Steele ultimately concluded, “Because Dr. Steele was a current 

employee of St. Vincent at the time of the wage dispute, he proceeded correctly 
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 33 of 37

under the Wage Payment Statute.” Id. Later, in Hollis v. Defender Sec. Co., 941 

N.E.2d 536, 540 (Ind. Ct. App. 2011), trans. denied, a panel of this court held 

“that an employee’s status at the time he or she files the claim is the relevant 

inquiry in determining whether to proceed under the Wage Payment Statute or 

the Wage Claims Statute.” 

[50] A key distinction between the Wage Payment Statute and the Wage Claims 

Statute is that the Wage Claims Statute requires the exhaustion of 

administrative remedies before the filing of a complaint with a trial court, Hollis, 

941 N.E.2d at 538, while the Wage Payment Statute does not, Walczak v. Labor 

Works-Ft. Wayne LLC, 983 N.E.2d 1146, 1154 (Ind. 2013). On appeal, the 

Defendants argue that because the Class failed to exhaust their administrative 

remedies before filing their complaint, the Defendants are therefore entitled to 

summary judgment. However, the Defendants fail to argue—and the record is 

entirely absent of evidence—that the employees composing the Class were 

involuntarily separated from their employment. Therefore, we conclude the 

Defendants failed to establish they were entitled to summary judgment on this 

issue and the trial court did not err in denying such motion accordingly.11

 

11 As with the other remaining claims, whether the Defendants violated the Wage Payment Statute, Ind. 

Code § 22-2-5-0.3, et seq., is premised upon whether Section 33.02 applies to the Development Agreement. 

Therefore, because factual issues preclude summary judgment, we must similarly decline to address this

issue. 
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 34 of 37

Conclusion

[51] For the reasons set forth above, we decline to strike portions of the Defendants’ 

Reply Brief and we conclude the trial court properly denied the parties’ 

respective motions for summary judgment. Accordingly, we affirm and remand 

for further proceedings.

[52] Affirmed. 

May, J., concurs.

Baker, J., concurs in part and dissents in part with opinion.
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 35 of 37

I N T H E

COURT OF APPEALS OF INDIANA

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,

v.

Linkmeyer Development II, 

LLC, Steven Linkmeyer, and 

Brian Bischoff,

Appellees/Cross Appellants-Defendants,

Court of Appeals Case No.

18A-PL-311

Baker, Judge, concurring in part and dissenting in part.

[1] Regarding the Class’s breach of contract claim, I concur with the majority that 

the Class constitutes a third-party beneficiary of the contract. But I part ways 

with the majority’s conclusion that a genuine issue of material fact exists as to 

whether the Class is entitled to the payment of prevailing wages. I believe that, 

as a matter of law, the Class is entitled to its claim and that the only genuine 
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 36 of 37

issues of material fact that exist are whether the Class did the work to qualify 

for the prevailing wage and if so, what the prevailing wage was.

[2] The Development Agreement states that “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.” Appellants’ App. Vol. II p. 46. The City of Lawrenceburg’s 

ordinance requires the payment of prevailing wages to those employed on any 

construction project financed by a city agency or similar entity pursuant to an 

investment incentive program. See § 33.02. 

[3] Under the facts presented here—especially the fact that, under the Development 

Agreement, the City of Lawrenceburg extended a three-million-dollar line of 

credit with a two percent annual interest rate to Linkmeyer Development in 

return for work done on certain properties—there can be no dispute that the 

City of Lawrenceburg financed the construction. But the parties split hairs over 

the meaning of the phrase “Investment Incentive Program” found in section 

33.02. And while the majority finds the parties’ dispute over this phrase raises a 

genuine issue of material fact, I do not.

[4] The parties contest how this phrase should be interpreted. A question of 

statutory interpretation is a matter of law. Nash v. State, 881 N.E.2d 1060, 1063 

(Ind. Ct. App. 2008). And summary judgment should be granted when the 

moving party deserved judgment as a matter of law. Goodwin v. Yeakle’s Sports 

Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).
Court of Appeals of Indiana | Opinion 18A-PL-311 | February 8, 2019 Page 37 of 37

[5] Neither party offered evidence of a formal “Investment Incentive Program” in 

the City of Lawrenceburg. Thus, I can only conclude that Section 33.02 refers 

generally to investment incentive programs that benefit the area, not to any one 

specific or official program. And, simply put, the Development Agreement 

acted as an investment incentive program for the City of Lawrenceburg. 

Specifically, the City of Lawrenceburg incentivized this development—the 

investment—by agreeing to finance it. The Defendants then performed work 

that benefitted the City of Lawrenceburg. If that does not constitute an 

investment incentive, I do not know what does. 

[6] Therefore, I would find that the Class is entitled as a matter of law to the 

payment of the prevailing wage, and that the only issues of material fact are 

whether the Class did the work to qualify for the prevailing wage and if so, 

what the prevailing wage was.