Gary Lee, Appellant-Plaintiff v. Little Calumet River Basin Development Commission, Appellee-Defendant (2026)

MEMORANDUM DECISION

Case Summary

[1] Gary Lee sued the Little Calumet River Basin Development Commission (the Commission), claiming: (1) the Commission violated Indiana's Open Door Law; (2) two Commission members are ineligible to serve on the Commission because they are government employees; and (3) the Commission did not have statutory authority to contract with Maya Energy, LLC. The trial court later granted the Commission's motion for judgment on the pleadings as to each claim. Lee appeals, alleging the court erred in granting judgment on the pleadings as to each of his claims. We affirm the court's judgment as to Lee's first two claims, and we dismiss the third issue as moot.

Facts and Procedural History

[2] The Indiana General Assembly established the Commission to “[p]romote the general health and welfare of citizens of Indiana” and to “[p]rovide for the creation, development, maintenance, administration, and operation of park, recreation, marina, flood control and other public works projects, including levees.” Ind. Code § 14-13-2-4(1)-(2) (2012). The Commission consists of members who are appointed by the governor. Ind. Code § 14-13-2-7 (2022). It operates in the geographic area extending one mile from the bank of the west arm of the Little Calumet River and Burns Waterway in Lake County and Porter County. Ind. Code § 14-13-2-6(a) (2012).

[3] Gary Lee resides within the watershed of the Little Calumet River and Burns Waterway in Lake County and pays an annual special assessment fee to the Commission pursuant to Indiana Code section 14-13-2-18.5(c). The Commission has an easement across Lee's property that is used to drain water runoff for flood control.

[4] In January 2017, the Commission contracted with Maya Energy, LLC, to lease thirty-five acres of public land for the development and operation of a solid waste processing facility (the Maya Contract). The parties agreed that the lease would begin in June 2017 and last for a period of fifty years with Maya Energy making annual payments to the Commission.

[5] The Commission held an executive session each month before its public meetings from December 2023 through July 2024. The Commission posted notices before each executive session indicating that the purpose of these sessions was “for the discussion of pending litigation[.]” App. Vol. II pp. 118-25 (formatting altered). The notices do not identify what pending litigation is to be discussed.

[6] Lee filed a formal complaint with the Public Access Counselor (PAC) on February 26, 2024, “regarding the Commission holding private meetings and other violations of the Indiana Open Door Law[.]” Id. at 80. The PAC responded and found that “[b]ased on the information and notices provided by the Commission and [its] Advisory Board, it appears as if the notices are in order.” Id. at 86.

[7] Lee then sued the Commission on August 1 and raised three claims. First, Lee alleged the Commission violated Indiana's Open Door Law (ODL), Indiana Code sections 5-14-1.5-1 to -8, by failing to provide sufficient notice for its executive sessions and by discussing and taking official action on public matters during these sessions. Second, Lee alleged two Commission members are ineligible for service because they are employees of a city, town, or county governmental unit in violation of Indiana Code section 14-13-2-7. Specifically, he asserted that members William Baker and Tom Wichlinski are municipal employees because they respectively serve as president of Munster's Plan Commission and as secretary of Griffith's Board of Zoning Appeals. Third, Lee alleged the Maya Contract is void because the Commission does not have statutory authority to lease public land for the development of a solid waste processing facility. Lee sought a declaratory judgment on all three claims, attorney fees, and civil penalties against the Commission.

[8] The Commission filed its answer on October 3, 2024, and filed an Indiana Trial Rule 12(C) motion for judgment on the pleadings on November 1. Lee filed an amended complaint on November 22, alleging additional facts establishing his standing to sue. On March 19, 2025, the trial court held a hearing on the Commission's Rule 12(C) motion. On June 18, the court granted the Commission's Rule 12(C) motion on all claims and issued written findings and conclusions. Lee now appeals. In October 2025, after this appeal was filed, the Commission and Maya Energy terminated the Maya Contract. Additional facts are provided as necessary.

Discussion and Decision

I. Standard of Review

[9] Lee challenges the trial court's entry of judgment on the pleadings. We review a trial court's ruling on a Rule 12(C) motion de novo. KS&E Sports v. Runnels, 72 N.E.3d 892, 898 (Ind. 2017).

A motion for judgment on the pleadings under Trial Rule 12(C) tests the sufficiency of a claim or defense presented in the pleadings and should be granted only where it is clear from the face of the complaint that under no circumstances could relief be granted. Because we base our ruling solely on the pleadings, we accept as true the material facts alleged in the complaint.

Id. (quotations and citations omitted). A court may also consider any facts of which judicial notice may be taken. Celadon Trucking Servs., Inc. v. Wilmoth, 70 N.E.3d 833, 840 (Ind. Ct. App. 2017), trans. denied. Where the trial court disposes of multiple claims, we review the viability of each claim presented. Bayer Corp. v. Leach, 147 N.E.3d 313, 316 (Ind. 2020). “For purposes of a Rule 12(C) motion, the pleadings consist of the complaint and answer, as well as any reply to a counterclaim, answer to a cross-claim, third-party complaint, and answer to a third-party complaint” and “any written instrument attached to a pleading, pursuant to Ind. Trial Rule 9.2.” Celadon Trucking Servs., Inc., 70 N.E.3d at 840 (quotations and citations omitted).

II. Open Door Law Claim

[10] Lee argues the trial court erred in granting judgment on the pleadings as to his ODL claim. “The Indiana Open Door Law, Ind. Code §§ 5-14-1.5-1 to -8, seeks to assure that government business ‘be conducted openly so that the general public may be fully informed.’ ” Lake Cnty. Tr. Co. v. Advisory Plan Comm'n of Lake Cnty., 904 N.E.2d 1274, 1279 (Ind. 2009) (quoting Dillman v. Trs. of Ind. Univ., 848 N.E.2d 348, 351 (Ind. Ct. App. 2006), trans. denied). We are required to liberally construe the ODL to give effect to the legislature's intention that state business be conducted openly. Baker v. Town of Middlebury, 753 N.E.2d 67, 70 (Ind. Ct. App. 2001) (citing Ind. Code § 5-14-1.5-1 (1987)), trans. denied.

[11] Under the ODL, a meeting is defined as “a gathering of a majority of the governing body of a public agency for the purpose of taking official action upon public business” whereas an executive session is defined as a “meeting from which the public is excluded[.]” Ind. Code § 5-14-1.5-2(c), (f) (2024). A governing body may only hold an executive session for one or more of the statutorily enumerated instances, including to discuss strategy with respect to “[i]nitiation of litigation or litigation that is either pending or has been threatened specifically in writing.” Ind. Code § 5-14-1.5-6.1(b)(2)(B) (2023). Public notice of executive sessions “must state the subject matter by specific reference to the enumerated instance or instances for which executive sessions may be held under subsection (b).” Id. § 5-14-1.5-6.1(d) (emphasis added). An action may be filed by any person to obtain a declaratory judgment; enjoin continuing, threatened, or future violations of the ODL; or declare void any policy, decision, or final action by the agency. Ind. Code § 5-14-1.5-7(a) (2012).

[12] Here, Lee made the following relevant allegations in his complaint:

34. The Commission met privately prior to its meetings on December 11, 2023; January 17, 2024; February 21, 2024; March 20, 2024; April 17, 2024; May 15, 2024; June 20, 2024; and July 17, 2024. Members of the public were not allowed to attend and record these private meetings.

35. On information and belief, the Commission discusses subjects in these private meetings that are subjects not eligible for discussion in an executive session.

36. Since at least December 2023, the Commission has justified its private meetings prior to its public monthly meetings by noticing them as an Executive Session “for the discussion of pending litigation.” The notices do not identify any pending litigation, nor do they provide a “specific reference to the enumerated instance or instances for which executive sessions may be held under subsection (b)” as required by Ind. Code § 5-14-1.5-6.1(d).

37. Plaintiff is not aware of any pending litigation to which the Commission is a party.

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41. Upon information and belief, the Commission's standard practice of holding private meetings prior to each monthly meeting results in “a perfunctory ratification of a foregone conclusion drawn behind closed doors.”

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44. During some or all of these private meetings, the Commission discusses subjects that are not among the enumerated exceptions to public meetings set forth in Ind. Code § 5-14-1.5-6.1 or otherwise takes official action on public business that is required to be open at all times for the purpose of permitting members of the public to observe and record.

***

49. These private meetings and the notices of these meetings violate Indiana's Open Door Law. Ind. Code §§ 5-14-1.5-3(a), - 6.1(d).

App. Vol. II pp. 79-81 (formatting altered).

[13] Taking the material facts in these allegations as true, Lee's own complaint acknowledged that the Commission's notices indicated the executive sessions were held “for the discussion of pending litigation.” Id. at 80. This is precisely one of the enumerated reasons that an executive session may be held under Indiana Code section 5-14-1.5-6.1(b). And the statute requires a public notice to include no more than “specific reference to the enumerated instance” for which the executive session is being held. I.C. § 5-14-1.5-6.1(d). Lee's argument that the Commission's notices must specifically identify any pending litigation to be discussed invites us to “engraft new words onto a statute or add restrictions where none exist[,]” which we will not do.¹ Kitchell v. Franklin, 997 N.E.2d 1020, 1026 (Ind. 2013) (quotation and citation omitted). Thus, as a matter of law, Lee's pleadings failed to allege a viable claim on the basis that the Commission failed to satisfy the public-notice requirement for executive sessions.

[14] Lee also contended in his complaint that the Commission members discussed or took official action on public matters during executive sessions rather than properly addressing them at public meetings. The Commission argues that Lee failed to plead sufficient operative facts to satisfy our notice pleading standard, and we agree. “Indiana Trial Rule 8(A), this state's notice pleading provision, requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’ ” Trail v. Boys & Girls Clubs of Nw. Ind., 845 N.E.2d 130, 135 (Ind. 2006) (quoting Ind. Trial Rule 8(A)). “Although the plaintiff need not set out in precise detail the facts upon which the claim is based, [he] must still plead the operative facts necessary to set forth an actionable claim.” Id. Additionally, a court “need not accept as true conclusory, nonfactual assertions or legal conclusions.” Crystal Valley Sales, Inc. v. Anderson, 22 N.E.3d 646, 653 (Ind. Ct. App. 2014), trans. denied.

[15] In support of his contention regarding discussions in executive sessions, Lee made several conclusory allegations that the commissioners discussed public matters in executive sessions. See supra ¶12. Specifically, he alleged that such matters were discussed and conclusions were reached on his own “information and belief[.]” App. Vol. II p. 80. Yet, he did not articulate any factual basis to support his assertions that the Commission members took official action on or discussed improper subjects during the executive sessions.

[16] Our Supreme Court addressed a similar issue in Trail, which we find instructive. 845 N.E.2d 130. There, a former Boys & Girls Club director filed a complaint alleging the Boys & Girls Club defamed him by generating and disseminating a report that reflected negatively on him. Because he did not have access to the report, the former director did not plead specific facts or examples of the alleged defamatory statements in his complaint. The trial court entered judgment on the pleadings in favor of the Boys & Girls Club. The Supreme Court affirmed, holding that although “there is some ground for sympathy with [the former director's] argument that he can allege nothing else without access to the report itself ․ under notice pleading, a plaintiff must still set out the operative facts of the claim.” Id. at 136.

[17] Here, Lee's claim contains a similar fatal flaw. He did not specifically plead any factual basis from which improper discussions could be inferred. He provided examples of neither the alleged topics that were discussed nor the actions that the Commission took following executive sessions that form the basis for his beliefs. Instead, Lee simply speculated and concluded that the Commission exceeded the scope of its executive sessions, and we need not accept these nonfactual assertions as true.² See Crystal Valley Sales, Inc., 22 N.E.3d at 653. Nevertheless, Lee asserts in his brief that he “observed several meetings” where the Commission appeared to change decisions after executive sessions, thus he “has reason to believe” improper discussions occurred. Appellant's Br. 11. But that assertion did not appear in his complaint or amended complaint, and such extra-pleading assertions cannot rescue Lee's complaint on appeal. Because he did not plead sufficient operative facts to set forth an actionable ODL claim, the trial court's judgment on this issue was appropriate.³

III. Challenged Commission Members

[18] Lee next argues the trial court erred in granting judgment on the pleadings as to his claim that William Baker and Tom Wichlinski are municipal employees and are thus ineligible to serve on the Commission. He specifically alleged:

53. Commission member William Baker is the president of the City of Munster, Indiana's Plan Commission. As such, Commissioner Baker is an employee of a city governmental unit as defined by Ind. Code § 34-6-2-38, in violation of Ind. Code § 14-13-2-7(d)(3).

54. Commission member Tom Wichlinski is the Secretary of the Town of Griffith, Indiana's Board of Zoning Appeals. As such, Commissioner Wichlinski is an employee of a city governmental unit as defined by Ind. Code § 34-6-2-38, in violation of Ind. Code § 14-13-2-7(d)(3).

App. Vol. II p. 82 (formatting altered). Indiana Code section 14-13-2-7(d)(3) provides that Commission members appointed after July 2012 “may not be an employee or elected official of a city, town, or county governmental unit.”

[19] Again, Lee's allegations were conclusory. Lee merely alleged that Baker and Wichlinski respectively serve as president of Munster's Plan Commission and secretary of Griffith's Board of Zoning Appeals. He did not provide any factual support demonstrating how these positions render Baker and Wichlinski municipal employees, such as an explanation of their duties, their tenure, or their hiring, supervisory, or pay structure. Lee's complaint lacked the operative facts that would be necessary to prevail on his claim that Baker and Wichlinski are employees. And relief could not be granted based on his conclusory allegations alone. See Trail, 845 N.E.2d at 136.

[20] Additionally, Lee's citation to Indiana Code section 34-6-2-38 is unavailing. Indiana Code section 34-6-2-38 defines employee and public employee “for purposes of section 91 of [that] chapter, IC 34-13-2, IC 34-13-3, IC 34-13-4, and IC 34-30-14” only.⁴ No provision in Indiana Code chapter 14-13-2 incorporates Indiana Code section 34-6-2-38’s definition of an employee. Lee's reference to Indiana Code section 34-6-2-38 is irrelevant, leaving his complaint not only devoid of supporting facts but also devoid of relevant authority. Cf. Bayer Corp. v. Leach, 153 N.E.3d 1168, 1181 (Ind. Ct. App. 2020) (finding a plaintiff's complaint sufficient to satisfy Indiana's notice-pleading standard, in part, because it cited relevant federal regulations).

[21] For all these reasons, Lee's pleadings are insufficient to set forth an actionable challenge to Baker and Wichlinski's service as Commission members. The trial court did not err in granting judgment on the pleadings as to this claim.

IV. Statutory Authority for Maya Contract

[22] Finally, Lee argues the trial court erred in granting judgment on the pleadings as to his claim that the Commission lacked statutory authority to enter into the Maya Contract. The Commission contends this issue should be dismissed as moot because the Maya Contract was terminated in October 2025. We agree.

[23] “A case is moot when it is no longer live and the parties lack a legally cognizable interest in the outcome or when no effective relief can be rendered.” Bookwalter v. Ind. Election Comm'n, 209 N.E.3d 438, 443 (Ind. Ct. App. 2023) (quotation and citation omitted), trans. denied. Generally, a court may not consider a request for declaratory judgment if the case is moot or merely calls for an advisory opinion. Id. Here, it is undisputed that the Maya Contract is no longer in effect, and thus the challenged issue no longer exists. Because there is no effective relief that can be rendered to Lee on his complaint, the issue is moot.

[24] Nonetheless, Lee argues we should address this issue as one of great public importance. Indiana courts may adjudicate a moot issue on the merits under the public interest exception, “ ‘which may be invoked when the issue involves a question of great public importance which is likely to recur.’ ” Yergy's State Road BBQ, LLC v. Wells Cnty. Health Dep't, 189 N.E.3d 189, 193 (Ind. Ct. App. 2022) (quoting T.W. v. St. Vincent Hosp. & Health Care Ctr., Inc., 121 N.E.3d 1039, 1042 (Ind. 2019)), reh'g denied, trans. denied.

In determining what factors are considered when determining whether a question is of great public importance which is likely to reoccur, it is helpful to describe issues of great public importance as extraordinary issues needing resolution. However, the exception should not be invoked when for all practical purposes, a decision on the merits results in the issuance of an advisory opinion. This Court has explained that appellate courts do not engage in discussions of moot questions or render advisory opinions.

Id. (quotations and citations omitted).

[25] We cannot say the issue presented here is an extraordinary one needing resolution. Lee's specific claim—that the Commission did not have authority to enter into the Maya Contract—is unlikely to recur. To the extent Lee wishes to challenge the general authority of the Commission to enter into lease contracts, we may address that issue if and when it is presented to us. To opine on that issue now would amount to rendering an advisory opinion, which we do not do. See I.J. v. State, 178 N.E.3d 798, 799 (Ind. 2022) (vacating the Court of Appeals’ opinion that addressed a moot issue under the public interest exception, effectively issuing an advisory opinion, and holding that the appeal should be simply dismissed as moot). Because the issue is moot and we decline to address it under the exception for issues of great public importance, we dismiss as to this issue.

Conclusion

[26] We affirm the trial court's grant of judgment on the pleadings as to Lee's first two claims. We find Lee's third issue moot and grant the Commission's motion to dismiss.

[27] Affirmed in part and dismissed in part.

FOOTNOTES

1.   Lee cites to Gary/Chicago Airport Bd. of Auth. v. Maclin, in which our court held that a notice identifying “ ‘legal matters’ and ‘FOI requests’ ” did not make specific reference to an enumerated instance for holding an executive session under subsection (b). 772 N.E.2d 463, 468 (Ind. Ct. App. 2002). In that case, the Airport Board argued its notice “substantially complied” with the ODL because the legal matters and FOI requests “could lead to litigation[.]” Id. at 469. Here, however, the Commission's notices explicitly complied with the ODL by specific reference to an enumerated instance for holding executive sessions—that is, the discussion of pending litigation, not topics that could lead to litigation.

2.   We do not hold that an ODL claimant must allege the contents of an executive session he could not observe. A plaintiff who pleads concrete indicia of improper closed-session conduct may state a claim consistent with our notice-pleading standard. Lee pleaded none.

3.   For the first time in his reply brief, Lee contends the Commission's Rule 12(C) motion as to his ODL claim should be treated as a Rule 12(B)(6) motion. Because Lee cannot raise this argument for the first time in his reply brief, it is waived. Felsher v. Univ. of Evansville, 755 N.E.2d 589, 593 n.6 (Ind. 2001). Additionally, Lee and the Commission dispute whether he may conduct discovery into the content of the Commission's executive session discussions, if his ODL claim survives. Because we conclude the trial court did not err in granting judgment on the pleadings on Lee's ODL claim, we do not reach this issue.

4.   Indiana Code chapter 34-6-2 was repealed effective July 1, 2025. This definition has been recodified at Indiana Code section 34-6-2.1-54.

Scheele, Judge.

Brown, J., and Felix, J., concur.