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FOR PUBLICATION
ATTORNEYS FOR APPELLANT: SCOTT CRAIG TRACI M. LAWSON Cox Zwerner Gambill & Sullivan Terre Haute, Indiana ATTORNEY FOR APPELLEE: KEITH L. JOHNSON Terre Haute, Indiana

FILED
Apr 30 2008, 10:30 am
of the supreme court, court of appeals and tax court

CLERK

IN THE COURT OF APPEALS OF INDIANA
CITY OF CLINTON, INDIANA, Appellant-Defendant, vs. TODD GOLDNER, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 83A01-0708-CV-358

APPEAL FROM THE VERMILLION CIRCUIT COURT The Honorable Matthew L. Headley, Special Judge Cause No. 83C01-0608-PL-18

April 30, 2008

OPINION - FOR PUBLICATION

SHARPNACK, Judge

The City of Clinton appeals the trial court's grant of summary judgment to Todd Goldner. The City raises three issues, which we revise and restate as: I. Whether the trial court erred by granting Goldner's motion for summary judgment; and Whether the trial court abused its discretion by awarding Goldner liquidated damages and attorney fees pursuant to the Wage Payment Statute.

II.

We affirm in part, reverse in part, and remand. The relevant facts follow. On December 16, 2003, Goldner began working as a probationary patrolman with the Clinton Police Department. After one year of

employment, Goldman became a patrolman first class. On September 27, 2005, charges of battery and domestic battery were filed against Goldner. Clinton Chief of Police Bruce Stewart informed Goldner that he was being placed on restricted duty effective immediately as a result of the pending criminal charges. At that time there were two vacant dispatcher positions within the Clinton Police Department, and Goldner's primary responsibility while on restricted duty was to cover these vacant positions. While working as a dispatcher, Goldner continued to receive pay and benefits as a first class patrolman. On October 7, 2005, Goldner requested a leave from duty due to personal issues. Specifically, Goldner's request for a leave of absence stated: As of October 7, 2005, First Class Patrolman J.T. Goldner request [sic] a leave from duty due to the resent [sic] personal issues that have developed. At this time said Officer is asking for a [sic] approved leave, due to mental stress that will keep myself from doing the job to the best of 2

my knowledge. I am thankful the city has supported me in this matter and will return in full job duties at the ending of this matter. Appellant's Appendix at 9. Clinton Mayor Ron Shepard approved the leave and

authorized Goldner to use all of his remaining sick time while on leave. On October 24, 2005, Goldner notified the City that he was prepared to return to active duty. During the period that Goldner was on leave, the two vacant dispatching positions were filled. On October 31, 2005, Goldner requested an executive session with the Board of Public Works and Safety to discuss his employment status. The Board of Public Works met in executive session with Goldner, the Mayor, and the Chief of Police. On

November 3, 2005, Mayor Shepard sent Goldner a letter, which stated, in part: "Your present request dated October 24, 2005, will be granted as soon as work becomes available. . . . Your return to work will be granted as a shift becomes available in dispatch or as patrolman if and when you are cleared of all criminal charges held against you." Id. at 12, 38. On March 24, 2006, the criminal charges were dismissed. Goldner contacted Chief Stewart a few days after the order formally dismissing the criminal charges and requested that he be returned to his job as a patrolman. On April 12, 2006, Goldner returned to his job as a patrolman. On August 22, 2006, Goldner filed a complaint against the City alleging that the Mayor "unilaterally and wrongfully decided to extend [Goldner]'s leave of absence for an indefinite period of time and thereby depriving [Goldner] of his source of livelihood." Id.

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at 8.

The complaint alleged that Goldner had lost wages, sick days, holiday pay,

insurance benefits, and clothing allowances as a result of the City's actions. On February 26, 2007, Goldner filed a motion for partial summary judgment. Goldner argued that he was entitled to pay and benefits from October 24, 2005, to April 12, 2006. Specifically, Goldner argued that he had a constitutionally protected interest in his salary and benefits, which could only be affected by a decision of the Board of Public Works and Safety. Goldner also argued that the Wage Payment Statute applied and required the award of treble damages, costs, and attorney fees. On April 25, 2007, the City filed a motion for summary judgment. The City argued that Goldner could not recover for back wages or benefits because he was on a voluntary leave and the vacant jobs that Goldner had been covering were filled during his leave of absence. The City also argued that the Wage Payment Statute did not apply because Goldner had not earned any wages. After a hearing on the motions, the trial court granted Goldner's motion for summary judgment without findings. The trial court then held a hearing on damages. The trial court awarded Goldner $45,358.11 in damages. I. The first issue is whether the trial court erred by granting Goldner's motion for summary judgment. Our standard of review for a trial court's grant of a motion for summary judgment is well settled. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter 4

of law.

Ind. Trial Rule 56(c); Mangold ex rel. Mangold v. Ind. Dep't of Natural Res.,

756 N.E.2d 970, 973 (Ind. 2001). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. We must carefully review a decision on summary judgment to ensure that a party was not improperly denied its day in court. Id. at 974. We will affirm a summary judgment if it is sustainable under any theory or basis found in the evidence designated to the trial court. Westfield Companies v. Knapp, 804 N.E.2d 1270, 1273 (Ind. Ct. App. 2004), reh'g denied, trans. denied. In Goldner's motion for summary judgment, he argued that the City failed to follow Ind. Code

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