Court of Appeals of Indiana | Opinion 22A-PL-3102 | July 7, 2023 Page 1 of 7

ATTORNEY FOR APPELLANT

Jason E. Salerno

Nashville, Indiana

ATTORNEY FOR APPELLEE

Rosemary L. Borek

Knight Hoppe Kurnik & Knight

Carmel, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

John Simpson and Monroe LLC,

Appellants-Plaintiffs,

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,

Appellees-Defendants

July 7, 2023

Court of Appeals Case No.

22A-PL-3102

Appeal from the Bartholomew 

Circuit Court

The Honorable Kelly S. Benjamin, 

Judge

Trial Court Cause No.

03C01-2209-PL-4330

Opinion by Judge Mathias 

Judges Vaidik and Pyle concur. 

Mathias, Judge.

[1] John Simpson and Monroe LLC (collectively “Simpson”) appeal the

Bartholomew Circuit Court’s dismissal of their complaint against the Brown 
Court of Appeals of Indiana | Opinion 22A-PL-3102 | July 7, 2023 Page 2 of 7

County Board of Commissioners and its members Chuck Braden, in his official 

capacity; Diana Biddle, in her official capacity; and Jerry Pittman, in his official 

capacity (collectively “the Board”). Simpson raises two issues for our review, 

which we consolidate and restate as a single issue: whether the trial court erred 

when it dismissed his complaint pursuant to Indiana Trial Rule 12(B)(6). We 

affirm.

Facts and Procedural History

[2] Simpson owns and operates a “site-work” contracting company. Appellant’s Br. 

at 6. Between 2014 and 2018, Simpson and the Board were engaged in 

“complex” and “bitter” litigation related to the Board’s denial of Simpson’s 

application for a septic contractor’s license. Id. That litigation ended in a 

settlement agreement.

[3] In April 2020, the Board “invited bids for a public works project” to construct a 

hiking trail. Appellant’s App. Vol. 2, p. 12. Simpson “prepared and submitted a 

responsive bid,” and his bid “was the lowest of the four bids received.” Id. The 

Board “rejected all bids for the expressed reason that they were ‘too 

expensive.’” Id. In April 2021, the Board again invited bids for the project but 

added a requirement that bidders be “INDOT certified.” Id. Simpson is not 

INDOT certified, but he submitted a bid for the project anyway. Simpson’s bid 

was the only bid, but the Board rejected it because of his lack of INDOT 

certification. The Board then invited additional bids and added a requirement 

that “bidders must be pre-qualified or certified by the Indiana Department of 
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Administration (IDOA).” Id. Simpson was neither pre-qualified nor certified by 

the IDOA. But he again submitted a bid and asserted that he was “exempt from 

the [IDOA] statutory requirement,” and his bid was the “lowest of three bids.”

Id. at 13. On September 1, the Board awarded the contract to another bidder.

[4] On May 4, 2022, Simpson filed a complaint against the Board alleging two 

counts: (1) “ill will” in rejecting his bids and (2) violation of the Indiana 

Antitrust Act. Id. at 12. Simpson sought damages, including punitive damages 

and attorney’s fees. The Board filed 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 the complaint “does not 

otherwise satisfy the requirements of a public lawsuit” under the Indiana Public 

Lawsuit Statute. Id. at 19-20. Following a hearing, the trial court found that 

Simpson had “failed to comply with the Public Law[suit] Statute” and granted 

the motion to dismiss.1 This appeal ensued.

Discussion and Decision

[5] Simpson contends that the trial court erred when it dismissed his complaint 

pursuant to Trial Rule 12(B)(6). As our Supreme Court has stated:

A motion to dismiss for failure to state a claim tests the legal 

sufficiency of the claim, not the facts supporting it. When ruling 

on a motion to dismiss, the court must view the pleadings in the 

light most favorable to the nonmoving party, with every 

1 The parties jointly moved the trial court to dismiss the antitrust count.
Court of Appeals of Indiana | Opinion 22A-PL-3102 | July 7, 2023 Page 4 of 7

reasonable inference construed in the non-movant’s favor. We 

review a trial court’s grant or denial of a Trial Rule 12(B)(6)

motion de novo. We will not affirm such a dismissal unless it is 

apparent that the facts alleged in the challenged pleading are 

incapable of supporting relief under any set of circumstances.

Thornton v. State, 43 N.E.3d 585, 587 (Ind. 2015) (internal quotation marks and 

citations omitted). We may affirm the trial court’s grant of a motion to dismiss 

if it is sustainable upon any theory. Sims v. Beamer, 757 N.E.2d 1021, 1024 (Ind. 

Ct. App. 2001).

[6] Simpson argues that the trial court erred when it found that his complaint is 

barred by the Public Lawsuit Act, Indiana Code sections 34-13-5-1 to -12 (“the 

Act”).

2 Simpson maintains that, contrary to the trial court’s findings, he did not 

bring his claim under the Act. Rather, he contends that his “claims seek to 

protect his private interest only, not public interests.” Appellant’s Br. at 9. He 

asserts that his complaint “states a claim for which relief may be granted under 

2 A public lawsuit is defined by Indiana Code Section 34-6-2-124(a) in relevant part as:

(1) any action in which the validity, location, wisdom, feasibility, extent, or character of 

construction, financing, or leasing of a public improvement by a municipal corporation is 

questioned directly or indirectly, including but not limited to suits for declaratory 

judgments or injunctions to declare invalid or to enjoin the construction, financing, or 

leasing; . . . .

Plaintiffs in a public lawsuit “may sue in their capacity either as citizens or taxpayers of the municipal 

corporation.” Ind. Code § 34-13-5-2(a).
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tort theory, as it alleges sufficient facts, conduct and damages sounding in 

tort.”3Id.

[7] Again, we may affirm the trial court on any theory supported by the record. 

Sims, 757 N.E.2d at 1024. 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. While the trial court did not address 

Simpson’s contention that his complaint states a claim for relief due to the 

Board’s alleged tortious conduct, dismissal was still warranted under that

theory. 

[8] The Board cites case law holding that unsuccessful bidders like Simpson cannot 

bring claims for damages outside of the Public Lawsuit Act. In particular, in 

Shook Heavy and Environmental Construction Group v. City of Kokomo, our Supreme 

Court considered a certified question from the United States District Court of 

the Southern District of Indiana and held that

an unsuccessful bidder does not have a cause of action under 

Indiana law for an injunction prohibiting a city from awarding a 

public contract to the selected bidder if the unsuccessful bidder’s 

legal theory is that the selected bidder is not the lowest 

3 Notably, Simpson admits that he cannot identify any specific tort that applies here. Rather, Simpson asserts 

that his complaint “describe[s] conduct sounding sufficiently in tort that it should survive under the standard 

of review applied to a T.R. 12(B)(6) dismissal.” Appellant’s Br. at 19. Simpson does not cite case law to 

support that assertion.
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responsible and responsive bidder as required [by since-repealed 

public purchasing laws].

632 N.E.2d 355, 357 (Ind. 1994). And we have interpreted Shook 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. See Hamrick’s Diesel Serv. & Trailer Repair, LLC v. 

City of Evansville ex rel. Bd. of Public Works, 935 N.E.2d 764, 769 (Ind. Ct. App. 

2010), trans. denied.

[9] In Shook, the Court stated that

Gariup[ v. Stern4] makes clear that a bidder spends considerable 

money, time, and effort in preparing a bid under competitive 

bidding statutes and is “pecuniarily damaged if illegal procedures 

are used to his disadvantage.” 254 Ind.[ 563,] 566, 261 N.E.2d 

[578,] 581 [(1970)]. While it might be argued that this court’s 

recognition of such damages implies the existence of a common 

law tort, we believe the damage of which Gariup speaks is a result 

of the governmental entity employing “fraud or other illegal 

procedures,” id., in awarding the contract. The unsuccessful 

bidder does have a cause of action in such circumstances under

[the Indiana Antitrust Act]. In the absence of a violation of [the 

Antitrust Act], the bidder has nothing more than “a unilateral 

expectation or abstract desire.” See Rice v. Scott County, 526 N.E.2d at 

1197. This conclusion is buttressed by considering its application 

4

In Gariup, the Indiana Supreme Court held that an unsuccessful bidder who sued a school board to enjoin 

the award of a public contract for construction of a new school building “did not have a cause of action under 

the public lawsuit statute” because he did not sue as “a citizen or taxpayer of the municipality.” Shook, 632 

N.E.2d at 359-60. As the Court noted in Shook, the Court in Gariup “dismissed the entire cause of action for 

failure to comply with the technical requirements of the Public Lawsuit Statute.” Id. at 360. That was the 

basis for the trial court’s dismissal of Simpson’s complaint here.
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in the case of a non-governmental entity seeking competitive bids 

on a project. Clearly an unsuccessful bidder has no common law 

cause of action against the party soliciting bids if another bidder 

is chosen. However, an unsuccessful bidder on a private project 

does have a cause of action under [the Antitrust Act] if fraud or 

collusion is alleged. In the absence of legislative direction, we see no 

reason why the common law rules in this regard should not be the same 

for bids on public and private projects.

632 N.E.2d at 360 n.7 (emphases added).

[10] Here, although Simpson originally stated a claim under the Antitrust Act, he 

agreed to dismiss that claim, and he does not raise that issue on appeal. And, 

again, we assume for the sake of argument that Simpson is correct that he made 

no 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. The trial court 

therefore did not err when it dismissed Simpson’s complaint.

[11] Affirmed.

Vaidik, J., and Pyle, J., concur.