Court of Appeals of Indiana | Memorandum Decision 19A-PL-2249 | September 3, 2020 Page 1 of 27

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Curtis T. Hill, Jr.

Attorney General of Indiana

Benjamin M.L. Jones

Deputy Attorney General

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Stephen R. Snyder

Randall L. Morgan

Snyder Morgan Federoff & 

Kuchmay LLP

Syracuse, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Indiana Department of 

Natural Resources,

Appellant-Defendant,

v.

Webster Lake Conservation 

Association, Inc.,

Appellee-Plaintiff,

September 3, 2020

Court of Appeals Case No.

19A-PL-2249

Appeal from the Kosciusko Circuit 

Court

The Honorable Michael W. Reed, 

Judge

Trial Court Cause No.

43C01-1902-PL-11

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PL-2249 | September 3, 2020 Page 2 of 27

Case Summary and Issue

[1] In 1996, Webster Lake Conservation Association, Inc. (the “Association”),

owner of a water control facility that was built to maintain the lake level of 

Webster Lake—an Indiana public freshwater lake—entered into an agreement 

with the Indiana Department of Natural Resources (“DNR”) for the general 

maintenance, reconstruction, and repair of the water control facility located on 

the lake. A dispute arose between the parties as to DNR’s responsibility for the 

reconstruction and repair of the water control facility, which led to the 

Association filing a complaint against DNR. The complaint sought a

declaratory judgment as to the rights and obligations of DNR under the 

agreement. Following a hearing and additional briefing on the matter, the trial 

court entered a declaratory judgment in favor of the Association, finding that 

the agreement was a valid and binding agreement between the parties. DNR 

now appeals, arguing that the trial court erred in entering declaratory judgment 

in favor of the Association. Concluding the trial court did not err, we affirm.

Facts and Procedural History

[2] Webster Lake is a public freshwater lake located in Kosciusko County. The 

legal lake level for Webster Lake was established in the 1950s. The 

Association, a corporation that was organized in 1950, is made up of the 

individuals living around the lake and owns the water control facility that dams

the lake (the “Dam”). The Dam is controlled by a gated outlet structure which 

requires periodic operation of the gates to maintain the lake at its legally 
Court of Appeals of Indiana | Memorandum Decision 19A-PL-2249 | September 3, 2020 Page 3 of 27

established level. The Dam is nearly 200 years old and likely originated as a 

grist mill.

[3] On April 11, 1996, DNR entered into an agreement (the “1996 Agreement”) 

with the Association. John Simpson, then director of the Division of Water for 

DNR, executed the 1996 Agreement on behalf of the DNR.

1 The 1996 

Agreement provides, in relevant part, as follows:

THEREFORE, it is mutually agreed that: 

1. The Association has the responsibility for the general 

maintenance of the outlet control structure to maintain, as near as 

possible, the legally established level of Webster Lake. The 

responsibility for reconstruction or repair of the outlet control structure 

shall remain with the Department of Natural Resources, State of 

Indiana. 

2. The Association has the sole responsibility of 

maintaining Webster Lake as near as possible to the legally 

established average normal level in compliance with the 

Department’s direction and guidance by: 

a. Opening and closing the gates of the primary 

(eastern) control structure only according to the 

immediate conditions to maintain the level of the 

lake at [the legally established level]. 

b. Keeping, at all times, the secondary (western) 

control structure closed, chained and locked, to be 

1 A similar agreement was executed in 1993, but that agreement is not at issue in this proceeding. 
Court of Appeals of Indiana | Memorandum Decision 19A-PL-2249 | September 3, 2020 Page 4 of 27

used as an operable structure only during an 

emergency and with prior authorization from the 

Department. Keys for the lock will be provided to

the operator of the structure and the Division of 

Water, Department of Natural Resources.

c. Opening and closing the gate of the secondary 

(western) control structure, with prior authorization 

from the Department, at least once annually to keep 

the structure’s gate from seizing. 

d. Keeping on file with the Department at all times 

a current roster of the names, addresses and phone 

numbers of the designated operator and at least two 

alternate operators. 

Appellant’s Appendix, Volume 2 at 11 (emphasis added).

[4] On October 30, 2009, DNR performed a visual inspection of the Dam. In its 

inspection report, the DNR rated parts of the Dam as being in “good” or 

“acceptable” condition, while other parts were rated “deficient[.]” Id. at 82-84. 

The overall condition of the Dam was found to be “Conditionally Poor[,]” and

DNR recommended that the Association’s “professional engineer, experienced 

in dam design and construction,” evaluate the condition of the Dam and “direct 

repairs/replacement as needed.” Id. at 84.2 DNR further recommended that

the Dam “be brought up to current dam design standards.” Id.

2

It is unclear from the record who, if anyone, served as the Association’s professional engineer.
Court of Appeals of Indiana | Memorandum Decision 19A-PL-2249 | September 3, 2020 Page 5 of 27

[5] In 2011 and 2012, DNR performed extensive rehabilitation work on the Dam—

for example, DNR rebuilt portions of spillway3retaining walls, demolished a 

deteriorated fish ladder, and replaced portions of the catwalk and gates.4In 

2013, DNR “completed a $420,000 repair project to the control structure 

spillway features” of the Dam.

5

Id. at 121.

[6] On October 12, 2017, DNR performed another visual inspection of the Dam

and issued its inspection report on March 21, 2018. While parts of the Dam 

were rated as being in “acceptable” condition, many parts were found to be in 

“deficient” or “poor” condition. Id. at 69-72. For example: 

• The crest of the Dam, which had two homes built “in/on [the 

D]am[,]” was in “poor” condition. Id. at 69. 

• The downstream slope of the Dam was found to be deficient 

because there appeared to be a few crayfish or crawdad 

burrows that “if interconnected, could present a problem in a 

high water seepage situation.” Id. at 70. 

3 A “spillway” is “a passage for surplus water to run over or around an obstruction (such as a dam)[.]” 

MERRIAM-WEBSTER.COM, http://www.merriam-webster.com/dictionary/spillway

[https://perma.cc/H87U-R527].

4

It is unclear from the record whether the Association asked DNR to perform the repairs or DNR undertook

the repairs based upon the findings of the 2009 inspection report.

5

It is unclear from the record when DNR began these repairs. 
Court of Appeals of Indiana | Memorandum Decision 19A-PL-2249 | September 3, 2020 Page 6 of 27

• The principal and auxiliary spillways were found to be 

deficient due to deterioration and inadequate freeboard6

between the lake and the top of the Dam. 

[7] DNR recommended the following to improve the safety of the Dam:

• Clear trees and/or brush from the entire Dam and within 

twenty-five feet of all concrete structures. 

• Employ an experienced engineer to (among other things) 

prepare plans and specifications for an adequate spillway 

“[f]or overtopping protection” and “evaluate the need for 

current dam design standards and recommended repairs.” 

• Develop a maintenance plan to address “voids under the 

primary spillway” and the “erosion and deterioration at the 

end of the primary spillway apron” within the next two years. 

• Develop studies and plans to address the inadequate spillway 

system, and, “[a]t a minimum,” remove the two homes built 

into the embankment between the spillways.

Id. at 71. 

6

“Freeboard” is defined as “[t]he distance between [the] normal water level and the top of a structure or 

mass that rises out of the water, such as a buoy, dam, or ice floe.” THE FREE DICTIONARY.COM,

http://www.thefreedictionary.com/freeboard [https://perma.cc/3526-BTZ5].
Court of Appeals of Indiana | Memorandum Decision 19A-PL-2249 | September 3, 2020 Page 7 of 27

[8] DNR also recommended reclassifying the Dam from a “significant hazard” 

dam to a “high hazard” dam.7Id. at 72. DNR made this recommendation 

based on modeling tools and emergency planning exercises that showed that 

“multiple residential and business structures [were] at high risk” in the event of 

a “catastrophic breach of the [D]am.” Id.

[9] Regarding whether previously recommended maintenance, repairs, and 

upgrades to the Dam had been performed, DNR checked both the “yes” and 

“no” boxes in the 2017 inspection report and then provided the following: 

The 2011-2012 project did not address all of the

recommendations from the previous visual inspection. Part of

the “all” would include removal of the 2 homes between the east 

and west spillways. The embankment is the responsibility of the 

Webster Lake Association. However, many items were 

addressed with the recent rehab.

Id. at 72 (emphasis added).

[10] On August 27, 2018, the Association, by counsel, sent a letter to DNR 

demanding that DNR undertake the repairs identified in the 2017 inspection 

report in accordance with the 1996 Agreement. Specifically, the Association 

wrote: 

7 A “significant hazard” dam is one that “the failure of which may damage isolated homes and highways, or 

cause the temporary interruption of public utility services.” Appellant’s App., Vol. 2 at 74. A “high hazard”

dam is one that “the failure of which may cause the loss of life and serious damage to homes, industrial and 

commercial buildings, public utilities, major highways, or railroads.” Id.; Ind. Code § 14-27-7.5-8(b)(1). 
Court of Appeals of Indiana | Memorandum Decision 19A-PL-2249 | September 3, 2020 Page 8 of 27

It appears that a dispute has arisen in regard to the parties’

obligations under the 1996 Agreement. The [Dam] is in need of 

significant repair and the DNR appears reluctant to perform its 

obligations. In light of the significant issues with the structure 

and the need for immediate attention, I have been directed by the 

Association to contact you to obtain a position statement from 

[DNR]. If a prompt response indicating that [DNR] will 

undertake necessary repairs is not received, I have been directed 

by the Association to file the enclosed complaint against [DNR]

asking the Court to enforce the 1996 Agreement.

Id. at 120. On September 5, DNR sent a response letter to the Association’s 

counsel rejecting the Association’s demand and denying any obligation “to 

address or fund the resolution or rehabilitation” of the Dam. Id. at 121. The 

letter provides in relevant part:

DNR has strived to work in cooperation with the . . . Association 

for the operation and maintenance of the lake outlet works, and 

committed substantial staff time to assist the Association in

recruiting and training operators, as well as facilitating 

emergency response planning activities. In fact, DNR staff were 

participating with the Association in emergency response 

training, on August 27th, 2018—the day you drafted and sent 

your letter.

The [1996 A]greement is operationally focused and contains no 

project commitments or obligations owing to DNR. In addition, 

DNR is not obligated by the [1996 A]greement to address or fund 

the resolution or rehabilitation of dam safety deficiencies that 

develop as this non-State owned dam structure deteriorates with age.

Id.
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[11] On February 7, 2019, the Association filed a complaint against DNR, seeking a 

declaratory judgment regarding the obligations of DNR under the 1996 

Agreement and requiring DNR “to undertake reconstruction and repair” of the 

Dam. Id. at 10. On March 1, DNR filed a motion to dismiss. After a hearing 

on the matter, the trial court directed the Association to amend its complaint. 

On April 1, the Association filed its amended complaint. 

[12] On May 13, DNR filed its answer to the amended complaint, raising the 

following affirmative defenses:

15. The Amended Complaint fails to state an actionable claim for 

relief under the Indiana Constitution.

16. The state agency is immune from liability under the terms of 

Indiana Code subsections 34-13-3-3(1), (2), (7) (11) and (21).

17. Further, [the Association] in this case has failed to show any 

action on their part to mitigate the need for any repairs.

18. Plaintiff failed to join parties necessary for a just adjudication.

19. Relief sought in this Amended Complaint is not appropriate 

for a declaratory judgment.

Id. at 125. DNR separately filed an Indiana Trial Rule 12(C) motion for 

judgment on the pleadings. On May 28, the Association filed a motion for 

judgment on the pleadings and a separate response to DNR’s Trial Rule 12(C) 

motion, seeking a declaratory judgment. 
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[13] A hearing on the cross-motions for judgment on the pleadings was held on July 

18, 2019, during which the trial court heard arguments on the issues the parties 

raised in their respective motions and responses, as well as new arguments

raised by DNR concerning whether the 1996 Agreement was a valid contract. 

DNR specifically argued that the 1996 Agreement lacked consideration and the 

DNR representative who executed the agreement lacked the authority to do so. 

The trial court noted that DNR did not raise these arguments in its motion for 

judgment on the pleadings but allowed DNR to continue presenting the 

arguments at the hearing. The Association maintained that the only issue 

before the court was whether a valid contract existed between the parties and 

asked the trial court for a declaratory judgment that the 1996 Agreement was 

valid.

[14] At the conclusion of the hearing, the trial court directed the parties to file postargument briefs addressing all of the arguments raised at the hearing. On 

August 27, the trial court issued its final order, which reads in relevant part:

The [Association] argued for declaratory judgment at the 

hearing held July 18, 2019, indicating the only issue for the Court 

pending under the Amended Complaint is the validity of the 

[1996 Agreement] as a contract. The Court having considered 

the argument of counsel, having reviewed the Post-Argument 

Briefs, having reviewed the Court’s file, and being duly advised 

in the premises, NOW FINDS that declaratory judgment should 

be entered in favor of the [Association]. 

IT IS, THEREFORE, ORDERED AND DECLARED 

that the [1996] Agreement between [the Association] and [DNR]

. . . is a valid and binding agreement/contract.
Court of Appeals of Indiana | Memorandum Decision 19A-PL-2249 | September 3, 2020 Page 11 of 27

Appealed Order at 1-2. DNR now appeals.

Discussion and Decision

I. Standard of Review

[15] DNR contends that the trial court erred by entering declaratory judgment in 

favor of the Association. Pursuant to the Indiana Uniform Declaratory 

Judgment Act (the “Act”), declaratory judgments have the “force and effect of a 

final judgment[,]” Ind. Code § 34-14-1-1, and are therefore reviewed in the 

same manner as other judgments. Because the proceedings before the trial 

court in this case were based on pleadings and briefs (that is, no evidentiary 

hearing was held), a de novo standard of review applies. See Title Servs., LLC v.

Womacks, 848 N.E.2d 1151, 1154 (Ind. Ct. App. 2006) (applying de novo 

standard of review where trial court ruled based on a paper record). In applying 

the standard, the trial court’s order should be affirmed on any legal theory the 

evidence of record supports. See GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 

2001).

II. Declaratory Judgment

[16] Declaratory judgments are governed by the Act, which in relevant part 

provides: 

Any person . . . whose rights, status, or other legal relations are 

affected by a statute, municipal ordinance, contract, or franchise, 

may have determined any question of construction or validity 

arising under the instrument, statute, ordinance, contract, or 
Court of Appeals of Indiana | Memorandum Decision 19A-PL-2249 | September 3, 2020 Page 12 of 27

franchise and obtain a declaration of rights, status, or other legal 

relations thereunder.

Ind. Code § 34-14-1-2. The Act is remedial, and its purpose is to “settle and to 

afford relief from uncertainty and insecurity with respect to rights, status and 

other legal relations; and is to be liberally construed and administered.” Ind. 

Code § 34-14-1-12. Thus, the purpose of a declaratory judgment action is to 

quiet and stabilize legal relations and thereby provide a remedy in a case or 

controversy when there is still an opportunity for peaceable judicial settlement. 

Volkswagenwerk, A.G. v. Watson, 181 Ind. App. 155, 159, 390 N.E.2d 1082, 

1084-85 (1979). 

[17] When considering the appropriateness of declaratory judgment, the test to be 

applied is: (1) whether the issuance of a declaratory judgment will effectively 

solve the problem, (2) whether it will serve a useful purpose, and (3) whether or 

not another remedy is more effective or efficient. Dible v. City of Lafayette, 713 

N.E.2d 269, 272 (Ind. 1999). “The determinative factor is whether the 

declaratory action will result in a just and more expeditious and economical 

determination of the entire controversy.” Id. (quoting Volkswagenwerk,

A.G., 181 Ind. App. at 160, 390 N.E.2d at 1085). The use of a declaratory 

judgment is discretionary with the trial court and is usually unnecessary where 

a full and adequate remedy is already provided by another form of 

action. Id. However, pursuant to Indiana Trial Rule 57, ‘“[t]he existence of 

another adequate remedy does not preclude a judgment for declaratory relief in 

cases where it is appropriate.’” Id. (quoting Ind. Trial Rule 57). 
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[18] DNR contends that the trial court’s declaratory judgment in favor of the 

Association, determining that the 1996 Agreement is a valid contract, should be 

reversed for a number of reasons. First, DNR claims that the 1996 Agreement 

is not a valid contract because: (1) it was not supported by consideration, and 

(2) the director of the DNR’s Division of Water, the signor of the 1996 

Agreement, lacked authority to act on behalf of DNR. DNR also asserts that 

assuming the 1996 Agreement is a valid contract, DNR terminated the contract 

in 2018 when it denied any obligation to perform under the contract. We

address each of DNR’s arguments in turn. 

III. Validity of the 1996 Agreement 

A. Lack of Consideration

[19] DNR claims that the 1996 Agreement is invalid because it lacks consideration. 

The Association correctly points out that failure of consideration must be 

specifically pled as an affirmative defense under Indiana Trial Rule 8(C).8 The 

Association states, and DNR does not refute, that DNR did not raise the 

8

Indiana Trial Rule 8(C) reads in relevant part: “Affirmative defenses. A responsive pleading shall set forth 

affirmatively and carry the burden of proving: accord and satisfaction, arbitration and award, discharge in 

bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, 

payment, release, res judicata, statute of frauds, statute of limitations, waiver, lack of jurisdiction over the 

subject-matter, lack of jurisdiction over the person, improper venue, insufficiency of process or service of 

process, the same action pending in another state court of this state, and any other matter constituting an 

avoidance, matter of abatement, or affirmative defense. A party required to affirmatively plead any matters

. . . shall have the burden of proving such matters. . . .” (Emphasis added.)
Court of Appeals of Indiana | Memorandum Decision 19A-PL-2249 | September 3, 2020 Page 14 of 27

affirmative defense of lack of consideration in its answer to the Association’s

amended complaint. 

1. Waiver of Affirmative Defense

[20] Generally, an affirmative defense must be submitted in a responsive pleading at 

the earliest possible opportunity. Ind. Trial Rule 8(C); see City of South Bend v.

Dollahan, 918 N.E.2d 343, 349 (Ind. Ct. App. 2009) (observing that Trial Rule

8(C) “provides that a party seeking to raise an affirmative defense must 

specifically plead said defense in its responsive pleading”), trans. denied. “While 

[T.R.] 8(C) appears to impose an absolute duty to raise an affirmative defense 

in a responsive pleading, Indiana courts have modified the mandatory nature of 

the rule by interpreting it in conjunction with [T.R.] 15(B)[.]” Elkhart Cty. Farm

Bureau Co-op. Ass’n, Inc. v. Hochstetler, 418 N.E.2d 280, 282 (Ind. Ct. App. 1981). 

Trial Rule 15(B) provides: “When issues not raised by the pleadings are tried 

by express or implied consent of the parties, they shall be treated in all respects 

as if they had been raised in the pleadings.” 

Either party may timely demand strict adherence to the 

predetermined route (pleadings) or, if deviation is permitted, the 

time necessary to prepare to meet the new issue. But when the 

trial has ended without objection as to the course it took, the 

evidence then controls.

Hochstetler, 418 N.E.2d at 282 (quoting Indianapolis Transit Sys., Inc. v. Williams,

148 Ind. App. 649, 658, 269 N.E.2d 543, 550 (1971)). 
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[21] While our courts have not expressly extended this modification to declaratory 

judgments, later decisions of this court have extended this to matters raised on 

summary judgment, and have identified the critical issue to be “‘not whether 

the defendant could have raised his affirmative defense earlier,’ but ‘whether the 

defendant’s failure to raise the affirmative defense earlier prejudiced the 

plaintiff.’” Dollahan, 918 N.E.2d at 350 (quoting Borne by Borne v. Nw. Allen Cty.

Sch. Corp., 532 N.E.2d 1196, 1199 (Ind. Ct. App. 1989), trans. denied.) “[A]

plaintiff must affirmatively show prejudice to his case before [a belatedly 

raised affirmative defense] can be rejected.” Id. (allowing city to assert 

governmental immunity defense first raised in its motion for summary 

judgment). We now examine whether the Association was prejudiced by DNR 

belatedly raising the lack of consideration defense.

[22] DNR raised the affirmative defense of lack of consideration for the first time at 

the hearing held on July 18, 2019, where the trial court heard arguments on the 

parties’ pleadings. The Association did not object when DNR raised the lack of 

consideration defense. Nevertheless, the trial court recognized that DNR was 

raising the defense for the first time; and, at the conclusion of the hearing,

directed the parties to file post-argument briefs, thereby affording the 

Association a full and fair opportunity to address the defense. Furthermore, the 

Association has not shown how it was prejudiced by DNR’s failure to 

affirmatively raise the defense in its answer to the Association’s amended 

complaint. We, therefore, decline to find that DNR has waived the lack of 
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consideration issue. We now decide whether the 1996 Agreement was 

supported by consideration.

2. Consideration

[23] As stated above, the 1996 Agreement provides that the Association

• “has the responsibility for the general maintenance of the 

outlet control structure to maintain, as near as possible, the 

legally established level of Webster Lake[;]”

• is required to operate the gates of the primary control 

structure so as to maintain the lake level of Webster Lake;

• must keep the secondary control structure closed, chained,

and locked except in an emergency and with prior 

authorization from DNR; 

• must provide the keys to the lock to DNR;

• is required to at least once annually and with the prior 

authorization from the DNR, open and close the gates of the 

secondary control structure to keep the gates from seizing;

• must keep on file with DNR “at all times a current roster of 

the names, addresses and phone numbers” of the designated 

operator of the Dam “and at least two alternate operators.” 

Appellant’s App., Vol. 2 at 11. DNR has “[t]he responsibility for 

reconstruction or repair of the [Dam].” Id. 
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[24] DNR argues that the 1996 Agreement was not valid because of lack of 

consideration. According to DNR, the 1996 Agreement “[i]s not supported by 

consideration because the Association only agreed to do what it was already 

obligated to do by law.” Brief of Appellant at 12. In support of its argument, 

DNR turns our attention to the statutes governing the regulation of dams. 

DNR notes that under Indiana Code section 14-27-7.5-7, the Association, as the 

owner of the Dam, is required to “maintain and keep the structure in the state 

of repair and operating condition” required by “[t]he exercise of prudence[,]”

“[d]ue regard for life and property[,]” and “[t]he application of sound and 

accepted technical principles.” Indiana Code section 14-27-7.5-14 provides in 

relevant part that “[t]he owner of a structure shall . . . (3) Furnish upon request 

the plans, specifications, operating and maintenance data, or other information 

that is pertinent to the structure.” Under Indiana Code section 14-27-7.5-

8(a)(1)-(2), DNR has “jurisdiction and supervision over the maintenance and 

repair of structures in, on, or along the rivers, streams, and lakes of Indiana” 

and “shall exercise care to see that the structures are maintained in a good and 

sufficient state of repair and operating condition[.]” 

[25] Thus, DNR maintains that under the 1996 Agreement, the Association merely 

promised to perform pre-existing obligations. Because the Association owned 

the Dam, and “was already under a legal obligation to maintain and operate” 

the Dam and provide information as to who would operate the Dam, the 

Association’s “promise to perform its pre-existing legal obligation was not valid 

consideration [and] the 1996 Agreement was merely an unenforceable 
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gratuitous act by DNR.” Br. of Appellant at 13-14 (citation and internal 

quotations omitted). We disagree.

[26] The concept of consideration evolved from the law of contracts. Monarch

Beverage Co., Inc. v. Ind. Dep’t of State Revenue, 589 N.E.2d 1209, 1212 (Ind. Tax 

Ct. 1992). And in order to have a legally binding contract there must be 

generally an offer, acceptance, and consideration. Id. “To constitute 

consideration, there must be a benefit accruing to the promisor or a detriment to 

the promisee.” Paint Shuttle, Inc. v. Cont’l Cas. Co., 733 N.E.2d 513, 523 (Ind.

Ct. App. 2000) (quoting A & S Corp. v. Midwest Commerce Banking Co., 525 

N.E.2d 1290, 1292 (Ind. Ct. App. 1988)), trans. denied. A benefit is a legal right 

given to the promisor to which the promisor would not otherwise be entitled. 

DiMizio v. Romo, 756 N.E.2d 1018, 1023 (Ind. Ct. App. 2001), trans. denied. A 

detriment on the other hand is a legal right the promisee has forborne. Id. “The 

doing of an act by one at the request of another which may be a detrimental 

inconvenience, however slight, to the party doing it or may be a benefit, 

however slight, to the party at whose request it is performed, is legal 

consideration for a promise by such requesting party.” Harrison–Floyd Farm

Bureau Co-op. Ass’n v. Reed, 546 N.E.2d 855, 857 (Ind. Ct. App. 1989). In the 

end, “consideration—no matter what its form—consists of a bargained-for 

exchange.” Horseshoe Hammond. LLC v. Ind. Dep’t of State Revenue, 865 N.E.2d

725, 729 (Ind. Tax Ct. 2007), trans. denied. The adequacy of the consideration is 

not relevant. See Harrison–Floyd Farm Bureau Co-op., 546 N.E.2d at 857.
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[27] “[I]t is fundamental that a contract is unenforceable if it fails to obligate the 

parties to do anything[.]” Licocci v. Cardinal Assocs., Inc., 445 N.E.2d 556, 559 

(Ind. 1983). Long ago, our supreme court established that a promise to do what 

one “is already bound to do by law or by contract” is insufficient consideration. 

Ritenour v. Mathews, 42 Ind. 7, 14 (1873). 

[28] Under the 1996 Agreement, the Association not only agreed to maintain the 

Dam and maintain Webster Lake at its legal level, but agreed to do so in a very 

specific manner, that is, by opening and closing the primary gate, keeping the 

secondary gate locked (except for opening the gate once each year with prior

authorization from DNR), and providing the keys to the lock to DNR. The 

Association also agreed to provide to DNR, “at all times[,]” contact 

information for the designated and the alternate operators of the Dam. 

Appellant’s App., Vol. 2 at 11. In exchange, DNR agreed to reconstruct or 

repair the Dam. However slight the inconvenience or benefit, viewing the 1996 

Agreement as a whole, we cannot say that the Association was not subjected to 

a detrimental inconvenience or that DNR did not receive a benefit of the 

bargain. Thus, the 1996 Agreement was not invalid on the basis of lack of 

consideration.

B. Authority to Execute the Agreement

[29] Next, DNR contends that the 1996 Agreement is not valid because the director 

of DNR’s Division of Water (“Director Simpson”) did not have the authority to 

execute the agreement on behalf of DNR. The Association counters that 

DNR’s argument is waived because DNR (1) failed to affirmatively plead lack 
Court of Appeals of Indiana | Memorandum Decision 19A-PL-2249 | September 3, 2020 Page 20 of 27

of authority as a defense in its answer to the Association’s amended complaint

as required by Indiana Trial Rule 8(C); and (2) failed to properly deny the 

execution of the agreement pursuant to Indiana Trial Rule 9.2. We conclude 

that DNR’s argument is not waived under either Trial Rule but find that the 

trial court properly presumed the execution of the agreement. 

1. Waiver of Affirmative Defense

[30] DNR seeks to invalidate the 1996 Agreement on the ground that Director 

Simpson lacked the authority to execute the agreement. As such, it seeks to 

avoid the agreement. A matter of avoidance must be specifically pled as an 

affirmative defense under Indiana Trial Rule 8(C). The Association asserts that 

DNR has waived the defense for failure to plead it affirmatively under Trial 

Rule 8(C). DNR maintains, however, that the defense is not waived because 

the Association has failed to show that it was prejudiced by the belated pleading 

of the defense. We agree with DNR.

[31] As with the affirmative defense of lack of consideration, the trial court 

recognized that the lack of authority defense was not pled in DNR’s answer to 

the Association’s amended complaint but, nevertheless, allowed DNR to raise 

the argument at the hearing and then directed the parties to file post-argument

briefs. The Association had the opportunity to respond to the defense and, 

thus, was not prejudiced by the late pleading of the defense. The lack of 

authority argument is not waived under Trial Rule 8(C).
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2. Waiver Under Indiana Trial Rule 9.2

[32] Indiana Trial Rule 9.2 governs the pleading and proof of written instruments. It 

provides in relevant part: 

(A) When Instrument or Copy, or an Affidavit of Debt Shall 

be Filed. When any pleading allowed by these rules is founded 

on a written instrument, the original, or a copy thereof, shall be 

included in or filed with the pleading. Such instrument, whether 

copied in the pleadings or not, shall be taken as part of the 

record. . . .

(B) Proof of Execution of Instruments Filed with Pleadings. 

When a pleading is founded on a written instrument and the 

instrument or a copy thereof is included in or filed with the 

pleading, execution of such instrument, indorsement, or assignment 

shall be deemed to be established and the instrument, if otherwise 

admissible, shall be deemed admitted into evidence in the action 

without proving its execution unless execution be denied under oath 

in the responsive pleading or by an affidavit filed therewith. . . .

(C) Oath or Affidavit of Denial of Execution Must be Made 

Upon Personal Knowledge. An oath or affidavit denying 

execution as required and made under subdivision (B) of this rule 

shall be made upon the personal knowledge of the person making 

it, and, if general in form (Rule 11(B)), shall be deemed to be 

made upon such personal knowledge.

(D) Burden of Proving Execution. The ultimate burden of 

proving the execution of a written instrument is upon the party 

claiming its validity, but execution is presumed. “Presumed” means 

that the trier of fact must find the existence of the fact presumed unless 

and until evidence is introduced which would support a finding of its 

nonexistence.
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* * *

(F) Effect of Non-Compliance–Amendments. Noncompliance with the provisions of this rule requiring a written 

instrument . . . to be included with the pleading may be raised by 

the first responsive pleading or prior motion of a party. The 

court, in its sound discretion, may order compliance, the reasons 

for non-compliance to be added to the pleadings, or allow the 

action to continue without further pleading. Amendments to correct

the omission of a required written instrument, an assignment or 

indorsement thereof, [or] the omission of a denial of the execution of a 

written instrument as permitted or required by this rule, . . . shall 

be governed by Rule 15[.]

* * *

(H) “Execution” of a Written Instrument. “Execution” of a 

written instrument includes the following requirements:

(1) That a signature was made with express, implied or 

apparent authority and was not forged; . . . .

T.R. 9.2(A)-(H). Indiana Trial Rule 15 provides in relevant part: “When issues 

not raised by the pleadings are tried by express or implied consent of the parties, 

they shall be treated in all respects as if they had been raised in the pleadings.”

T.R. 15(B).

[33] Trial Rule 9.2(B) permits the execution of written instruments, which are the 

foundation of a pleading but which may be used as evidence in the pleader’s 

case, to be established and challenged at the pleading stage of a lawsuit. Master

Copy & Reprod. Ctr., Inc. v. Copyrite, Inc., 750 N.E.2d 824, 829 (Ind. Ct. App. 
Court of Appeals of Indiana | Memorandum Decision 19A-PL-2249 | September 3, 2020 Page 23 of 27

2001), trans. denied. The rule does not conclusively establish the genuineness of 

a signature. See Moehlenkamp v. Shatz, 396 N.E.2d 433, 438 (Ind. Ct. App.

1979). Rather, the purpose of the provision is to eliminate the technicalities of 

formally introducing into evidence matters that are not disputed by either party.

Master Copy & Reprod. Ctr., Inc., 750 N.E.2d at 830. While execution of a 

written instrument is presumed, the ultimate burden of proving execution is 

upon the party claiming its validity. T.R. 9.2(D). “‘Presumed’ means that the 

trier of fact must find the existence of the fact presumed unless and until 

evidence is introduced which would support a finding of its nonexistence.” Id.

[34] Here, the Association’s amended complaint is founded on a written instrument, 

and the Association complied with Trial Rule 9.2(A) by filing a copy of the 

1996 Agreement with its amended complaint. See Mechanics Laundry & Supply,

Inc. v. Wilder Oil Co., Inc., 596 N.E.2d 248, 253 (Ind. Ct. App. 1992), trans.

denied. Having done so, the agreement became a part of the record, and 

execution of the agreement was deemed established pursuant to Trial Rule

9.2(B). See id. Unless DNR denied execution of the 1996 Agreement under 

oath in a responsive pleading or by affidavit filed therewith, the agreement was 

deemed established without proving its execution. See id. Pursuant to Trial 

Rule 9.2(D), the trial court “must have presumed execution unless and until 

[DNR] introduced evidence supporting a finding otherwise.” See id. However, 

DNR did not follow the pleading procedures set forth in Trial Rule 9.2(B), and 

its answer to the Association’s amended complaint did not include a denial of 
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execution within the meaning of the rule. Thus, DNR’s execution of the 

agreement was deemed “established.” See T.R. 9.2(B).

[35] We note that DNR’s failure to comply with the procedures under Trial Rule

9.2(B) would not have precluded the trial court from allowing DNR to present 

evidence that Director Simpson lacked the authority to execute the 1996 

Agreement. See, e.g., Master Copy & Reprod. Ctr., Inc., 750 N.E.2d at 831

(Appellant’s failure to comply with Trial Rule 9.2(B) procedures did not 

preclude trial court from allowing Appellant to present evidence at trial that the 

altered agreement was a unilateral alteration). Absent a denial of execution 

under oath as described in Trial Rule 9.2(B), execution of the 1996 Agreement

was simply presumed, and the agreement was deemed established without 

proof of execution by the Association. This presumption could still have been

refuted by any evidence that DNR might have presented. See id. However, 

DNR presented no evidence to refute the presumption. 

[36] Based on the foregoing, we decline to find that this issue is waived under 

Indiana Trial Rule 9.2. However, we conclude that we need not address 

whether Director Simpson had the authority to execute the 1996 Agreement 

because execution of the agreement was deemed established. The trial court 

properly presumed the agreement was deemed established, and the agreement is 

not invalid on the basis of lack of authority to execute the agreement.
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IV. Termination of the 1996 Agreement

[37] Finally, DNR contends that assuming the 1996 Agreement is a valid contract, 

the trial court still erred when it declared the agreement a valid and binding 

agreement. DNR maintains that the agreement required continuous 

performance without a time limit and, thus, could be terminated at will by 

either party. According to DNR, it exercised its right to terminate the 

agreement in 2018 when it sent its letter to the Association disclaiming any 

responsibility to perform under the agreement and because it did so, the 

agreement could not be declared valid and binding. The Association maintains 

that the agreement remains in effect and binding upon the parties. 

[38] It is ordinary law that a contract containing no specific termination date is 

terminable at will and that where the parties fix no time for the performance or 

discharge of obligations created by the contract, they are assumed to have had 

in mind a reasonable time. City of East Chicago, Ind. v. East Chicago Second

Century, Inc., 908 N.E.2d 611, 623 (Ind. 2009); House of Crane Inc. v. H. Fendrich,

Inc., 146 Ind. App. 478, 482, 256 N.E.2d 578, 579 (1970). Here, however, we 

cannot say that the period of time from April 1996 to present is not a reasonable 

period of time for an agreement concerning the maintenance, reconstruction, 

and repair of a dam.

[39] Furthermore, we note that a party to an at-will contract cannot avoid its liability 

to the other party, once that party has performed, simply by terminating the 

contract. See Wright Mfg. Corp. v. Scott, 172 Ind. App. 154, 161, 360 N.E.2d 2, 7
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(1977) (finding that under an agreement, Appellee was entitled to a 5% 

commission on orders he secured for Appellant before he was terminated by 

Appellant because “[Appellee], before he was terminated . . . , obtained from 

various customers blank purchase orders [that ran] through the [following]

year[]”). Without deciding whether the Association performed as obligated 

under the agreement or DNR had an accrued liability under the agreement, we 

conclude that DNR did not terminate the agreement. The letter that DNR sent 

to the Association stated that “DNR is not obligated by the [1996 A]greement 

to address or fund the resolution or rehabilitation of dam safety deficiencies that 

develop as this non-State owned dam structure deteriorates with age.” Appellant’s 

App., Vol. 2 at 121. The letter challenged DNR’s obligation under the 

agreement but did not express DNR’s desire to terminate the agreement. The 

trial court did not err in declaring the 1996 Agreement a valid and binding 

agreement. 

Conclusion

[40] We conclude that DNR’s arguments regarding the validity of the 1996 

Agreement were not waived under either Indiana Trial Rules 8(C) or 9.2. The 

trial court properly determined that the agreement was supported by 

consideration, and properly presumed the agreement was deemed established. 

And, the agreement was not terminated by DNR. Thus, the trial court did not 

err in entering declaratory judgment in favor of the Association, declaring the 

1996 Agreement to be a valid and binding agreement. 
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[41] Affirmed.

May, J., and Vaidik, J., concur.