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A trial court ruled correctly when it granted the Brown County Board of Commissioners’ motion to dismiss a contractor’s complaint in a case centered around bidding for a hiking trail, the Court of Appeals of Indiana affirmed Friday.
According to court records, John Simpson owns and operates a “site-work” contracting company.
Between 2014 and 2018, Simpson and the Brown County Board of Commissioners were engaged in litigation related to the board’s denial of Simpson’s application for a septic contractor’s license. That litigation ended in a settlement agreement.
In 2020, the board invited bids for a public works project to construct a hiking trail. Simpson prepared and submitted a bid — the lowest of the four bids received.
The board rejected all bids because they were “too expensive.”
In April 2021, the board again invited bids for the project but added a requirement that bidders be certified by the Indiana Department of Transportation. Simpson’s bid was the only bid, but the board rejected it because Simpson lacked INDOT certification.
The board invited additional bids and added a requirement that “bidders must be pre-qualified or certified by the Indiana Department of Administration.”
Simpson was neither prequalified nor certified by IDOA. But he again submitted a bid and asserted that he was “exempt from the (IDOA) statutory requirement,” and that his bid was the “lowest of three bids.”
The board awarded the contract in September 2021 to another bidder.
In May 2022, Simpson filed a complaint against the board, alleging “ill will” in rejecting his bids and claiming the board violated the Indiana Antitrust Act. Simpson sought damages, including punitive damages and attorney fees.
The board responded by filing a motion to dismiss Simpson’s complaint under Trial Rule 12(B)(6). The board alleged that “Indiana law does not permit an antitrust action against a governmental entity” and that the complaint “does not otherwise satisfy the requirements of a public lawsuit” under the Indiana Public Lawsuit Statute.
The Bartholomew Circuit Court agreed with the board and found that Simpson had failed to comply with the statute. The court thus granted the board’s motion to dismiss.
Simpson appealed.
The appellate court affirmed, finding the trial court did not err in dismissing Simpson’s complaint.
Judge Paul Mathias wrote the opinion for the appellate court.
According to Mathias, Simpson argued that the trial court erred when it found his complaint was barred by the Public Lawsuit Act and maintained that, contrary to the trial court’s findings, he did not bring his claim under the act.
Simpson contended that his “claims seek to protect his private interest only, not public interests,” and argued that his complaint stated a claim for which relief may be granted under tort theory.
Mathias noted the appellate court may affirm the trial court on any theory supported by the record, citing Sims v. Beamer, 757 N.E. 2d 1021 (Ind. Ct. App. 2001).
“Doing so, we will assume for the sake of argument that the trial court erred when it dismissed Simpson’s complaint for not meeting the requirements of the Public Lawsuit Act. However, even under that assumption, we are obliged to affirm,” Mathias wrote.
According to Mathias, while the trial court did not address Simpson’s argument that his complaint stated a claim for relief due to the board’s alleged tortious conduct, dismissal was still warranted under that theory.
The COA cited Shook Heavy and Environmental Construction Group v. City of Kokomo, 632 N.E.2d 355, (Ind. 1994), which has been interpreted to “preclude ‘any cause of action’ by an unsuccessful bidder other than a claim under the Public Lawsuit Act or a claim that the governmental body used ‘illegal procedures’ in awarding a bid.”
Simpson agreed to dismiss a claim he originally brought under the Antitrust Act, Mathias wrote, and he didn’t raise that issue on appeal. Also, the appellate court assumed for the sake of argument that Simpson is correct that he did not make a claim under the Public Lawsuit Act.
“Because those are the only two theories upon which Simpson may seek damages, we agree with the Board that Simpson’s claim sounding in tort is barred as a matter of law,” Mathias wrote.
Judges Nancy Vaidik and Rudolph Pyle concurred.
The case is John Simpson and Monroe LLC v. Brown County Board of Commissioners; Chuck Braden, in his official capacity; Diana Biddle, in her official capacity; and Jerry Pittman, in his official capacity, 22A-PL-3102.
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