IN THE INDIANA COURT OF APPEALSCAUSE NO-

GRAPHIC PACKAGING INTL, INC;ROCK-TENN CONVERTING CO- andCATHY WEINMANN,

Appellants, Plaintiffs Below,

CITY OF INDIANAPOLIS and the CITYOF INDIANAPOLIS BOARD OFPUBLIC WORKS,

Appellees, Defendants Below.

Appeal fromthe MarionSuperiorCotoC

Trial Court Case No.:49D04-1409-PL-029775

The Hon. Judge Cynthia J. Ayers, Judge

NOTICE OF APPEAL

Party Information(Appearance)

Name: Graphic Packaging International, Inc.Address: 301 South Progress Dr.

Kendallville, IN 46755

Name: Rock-Tenn Converting Co.Address: 1775 South West Street

Indianapolis, IN 46225

Name: Cathy WeinmannAddress: 728 Canyon Road

Indianapolis, IN 46217

The following party information only ifnot represented by an attorney:Tel. No.: Fax No.:E-Mail:Requesting service of orders and opinions of the Court by:

• E-mail • FAXor • U.S.Mail (choose one)Informa pauperis: • Yes • No

Attorney(s) representing party filing Notice of Appeal, if any:Name: Allison Wells GrittonAttorney # 19620-49Address: SPALDING & HILMES, PC

338 South Arlington AvenuePO Box 199020

999999/1131839-1

Indianapolis, IN 46219-9020Tel. No.: (317) 375-1140 Fax No.: (877) 352-9340E-Mail: awgritton@spaldinglaw.net

Name: Rosemary G. SpaldingAttorney # 8614-49Address: SPALDING & HILMES, PC

338 South Arlington AvenuePO Box 199020Indianapolis, IN 46219-9020

Tel. No.: (317) 375-1140 Fax No.: (877) 352-9340E-Mail: rgspalding@spaldinglaw.net

IMPORTANT: Each attorney specified above:(a) certifies that the contact information listed for him/her on the Indiana Supreme

Court Roll of Attorneys is current and accurate as of the date of this Notice ofAppeal;

(b) acknowledges that all orders, opinions, and notices in this matter will be sent tothe attorney at the email address(es) specified by the attorney on the Roll ofAttorneys regardless of the contact information listed above for the attorney; and

(c) understands that he/she is solely responsible for keeping his/her Roll ofAttorneys contact information accurate, see Ind. Admis. Disc. R. 2(A).

Attorneys can review and update their RoU of Attorneys contact information on theClerk of Courts Portal at http://appealsclerk.in.gov.

INFORMATION FOR JUDGMENT/ORDER BEING APPEALEDDate of Judgment/Order being appealed: April 6,2015Title of Judgment/Order being appealed: Findings of Fact and Conclusions of Lawon Dispositive MotionsDate Motion to Correct Error denied • or deemed denied •, if applicable:If case was heard by a magistrate, date trial judge approved judgment or order: April6,2015Basis for Appellate Jurisdiction:

X Appeal from a Final Judgment, as defined by Appellate Rule 2(H) and 9(1)• Appeal from an interlocutoryorder,taken as of right pursuant to Appellate

Rulei4(A),(C),(D)• Appeal from an interlocutoryorder,accepted by discretion pursuant to

Appellate Rule 14(B)(3)• Expedited Appeal, taken pursuant toAppellate Rule14.1

This appeal will be taken to:X Court of Appeals of Indiana, pursuant to Appellate Rule 5• Indiana SupremeCourt,pursuant to Appellate Rule4

• This is an appeal in which a sentence of death or life imprisonmentwithout parole is imposed under Ind. Code § 35-50-2-9 or a postconviction relief case in which the sentence was death

• This is an interlocutory appeal authorized under Rule 14 involving thedeath penalty or a life without parole case raising a question ofinterpretation of Ind. Code § 35-50-2-9

n This is an appeal from an order declaring a statute unconstitutional["~1 This is an appeal involving a waiver of parental consent to abortion

under Rule 62• This is an appeal involvingmandate of funds

Trial Court Clerk/Administrative Agency/Court Reporter InstructionsPursuant to Appellate Rule 10 or i4*i(C), the clerk ofMarion Superior Court isrequested to assemble the Clerk's Record, as defined in Appellate Rule 2(E).Pursuant to Appellate Rule 11or i4-i(C)> the court reporter of the Marion SuperiorCourt is requested to transcribe, certify, and file with the clerk of the MarionSuperior Court the following hearings of record, including exhibits: Hearing onDefendants Motion to Dismiss and for SummaryJudgment on March io. 2015.

Public Access

Was the entire trial court or agency record sealed or excluded from public access?• Yes x No

Was a portion of the trial court or agency record sealed or excluded from publicaccess?

•Yes XNoIf yes, which provision in Administrative Rule 9(G) provides the basis for thisexclusion:

If Administrative Rule 9(G) provides the basis for this exclusion, was the trial courtor agency order issued in accordance with the requirements of Administrative Rule9(H)?

•Yes QNo

Appellate Alternative Dispute ResolutionIf civil case, is Appellant willingto participate in AppellateDispute Resolution?

•Yes XNoIfyes,providea brief statement of the factsof the case. (Attachadditional pages asneeded.)

Attachments

The following SHALL be attached to this NoticeofAppeal (in all appeals):X Copy of judgment or order being appealed

Thefollowing SHALL be attached to this Notice ofAppeal if applicable (checkifapplicable):

• Copyof the trial court or Administrative Agency's findings and conclusion (incivil cases)

• Copy ofthe sentencing order (in criminal cases)• Order denying Motion to Correct Error or, if deemed denied, copy of Motion

to Correct Error• Copyof all orders and entries relating to the trial court or agency's decision to

seal or exclude information from public access• If proceeding pursuant to Appellate Rule 14(B)(3), copy of Order from Court

of Appeals accepting jurisdiction over interlocutory appeal• The documents required by Rule 40(C), ifproceeding informa pauperis

CertificationBy signing below, I certify that:

(1) This case • does X does not involve an interlocutory appeal; issues of childcustody, support, visitation, adoption, paternity, determination that a child isin need of services, termination of parental rights; or an appeal entitled topriorityby rule or statute.

(2) I have reviewed and complied, and will continue to comply, with therequirements ofAppellate Rule 9(J) and Administrative Rule 9(G)(4) onappeal; and,

(3) I will make satisfactory payment arrangements for any Transcripts ordered inthis Notice of Appeal, as required by Appellate Rule 9(H).

Respectfully submitted, ^_

Allison Wells Gritton, Atty. #io»20-49Rosemary G. Spalding, Atty. ^614-49Attorneys for Plaintiffs Graphic PackagingInfl, Inc., Rock-Tenn Converting Co., andCathy Weinmann

SPALDING & HILMES, PC338 South Arlington AvenuePO Box 199020Indianapolis, IN 46219-9020Telephone: (317)375-1140

CF.RTIFICATE OF FTl.TNfi AND SERVICE

Ihereby certify that on this 21* day ofApril, 2015, the foregoing was filed with theClerk ofthe Indiana Supreme Court, Court ofAppeals, and Tax Court.

I also certify that on this 21st day of April, 2015, the foregoing was served by U.S.First Class Mail, Certified upon:

(1) QtyofIndianapolis and City ofIndianapolis Board ofPublicWorksAndriana KatzenOffice ofCorporationCounsel200 East Washington Street, Suite 1601Indianapolis, Indiana 46204

(2)Myla Eldridge, Marion County Clerk200 E. Washington St., Suite W1222Indianapolis, IN 46204

(3) Ann Foreman, Court ReporterMarion Superior CourtCivil Division, Room IV200 E. Washington St., Suite W-442Indianapolis, IN 46204

(4) Judge Cynthia J. Ayers, JudgeMarion Superior CourtCivil Division, Room IV200 E. Washington St., Suite W-442Indianapolis, IN 46204

(5) Judge Mark F.Renner, CommissionerMarion Superior CourtCivil Division, Room IV200 E. Washington St., Suite W-442Indianapolis, IN 46204

t)£&P^_AllisonWells Gritton, Atty. #36620-49Rosemary G. Spalding, Atty. #8614-49

SPALDING & HILMES, PC338 South Arlington AvenuePO Box 199020Indianapolis, IN 46219-9020Telephone: (317) 375-1140

EXfflBIT A

STATE OF INDIANA )) SS:

COUNTY OF MARION )

GRAPHIC PACKAGING, INT'L, INC.;ROCK-TENN CONVERTING CO. andCATHYWEINMANN,

Plaintiffs,

CITY OF INDIANAPOLIS and the CITYOF INDIANAPOLIS BOARD OF PUBLIC,WORKS,

Defendants.

IN THE MARION SUPERIORCOURT

CAUSE NO.: 49D04-1409-PL-029775

^

^R 06 2015 @

FINDINGS OF FACT AND

CONCLUSIONS OF LAW ON DISPOSITIVE MOTIONS

This matter having come before the Court on Defendants' Motion to Dismiss and for

Summary Judgment and Plaintiffs1 Cross Motion for Summary Judgment, and the Court having

considered the Parties' written filings and having held a hearing on the motions on March 10,

2015, hereby makes the following Findings ofFact and Conclusions ofLaw.

I. Procedural Findings

1. On September 5, 2014, Plaintiffs Graphic Packaging International, Inc., Rock-

Tenn Converting Company and Cathy Weinmann (collectively "Plaintiffs") filed their Complaint

for Permanent Declaratory and Injunctive Relief ("Complaint*0 against Defendants the City of

Indianapolis ("City") and the City of Indianapolis Board of Public Works ("Board") (collectively

"Defendants") alleging Defendants violated the Waste Disposal Statute at Ind. Code §36-9-31 in

connection with Defendants' approval ofthe First Amendment to Amended and Restated Service

Agreementon August 6,2014 ("Second Amendment").

2. On November 3, 2014, Defendants filed their Motion to Dismiss alleging the

Plaintiffs lacked standing to contest the governmental action and a Motion for SummaryJudgment.

3. Plaintiffs responded and filed their Cross Motion for Summary Judgment on

December 22,2014.

4. Both sides submitted evidence outside of the Complaint in support of their

dispositive motions.

5. This matter was fully briefed and the parties presented argument to the Court on

March 10,2015.

II. Findings ofFact and Conclusions ofLaw

6. Plaintiffs, Graphic Packaging International, Inc., Rock-Tenn Converting

Company and Cathy Weinmann (collectively "Plaintiffs") brought this action against Defendants

contesting the Second Amendment to the Original Agreement under the Waste Disposal Statute.

7. Plaintiffs also allege a cause of action under the Uniform Declaratory Judgment

Act.

8. Plaintiff Graphic Packaging International, Inc. ("Graphic Packaging") is a

Delaware corporation engaged in the business of manufacturing and selling paperboard and

folding cartons. Graphic Packaging has a facility in Kendallville, Indiana that manufactures and

sells folding cartons made from recycled paper and fresh/virgin fibers. Graphic Packaging

purchases recycled paper and paper board for the manufacture of its Kendallville products.

9. Plaintiff Rock-Tenn Converting Company ("Rock-Tenn") is a Georgia

coiporation engaged in the businesses of managing recycled fiber by collecting, sorting and

bailing recovered materials for sale and of manufacturing paperboard for packaging and paper

board products with 100% recovered materials. Rock-Tenn has facilities in Indianapolis and

Eaton, Indiana. The Indianapolis facility collects, sorts, and bales various grades of paper,

plastics, metals and other recyclable materials, and the Eaton facility manufactures paperboard

from recovered paper. Rock-Tenn purchases recycled paper from theIndianapolis area recycling

facilities for themanufacture ofits Eaton products.

10. Plaintiff Cathy Weinmann is a citizen of Indianapolis who has an interest in the

proper administration of government resources in contracting for the disposal of waste in the

City.

11. The Indiana General Assembly enacted the Waste Disposal Statute, Indiana Code

§ 36-9-31, et seq., as a specific statutory scheme governing the manner in which a municipality

manages the collection and disposal ofsolid waste.

12. The Waste Disposal Statute states, in pertinent part:

(1) In order to provide for the collection and disposal of waste in theconsolidated city and for the management, operation, acquisition andfinancing of facilities for waste disposal, the board may exercise thefollowing powers on behalfofthe city.

(3) To provide for the collection of waste accumulated within the servicedistrictand to provide for disposal of waste accumulated within the wastedisposal district, including contracting with persons for collection,disposal, or waste storage, andthe recoveryofbyproducts from waste, andgranting these persons the right to collect and dispose of any such wastesand store and recover byproducts from them.

(5) To enter into all contracts or agreements necessary or incidental to thecollection, disposal, or recovery of by products from waste, such as put orpay contracts, contracts and agreements for the design, construction,operation, financing, ownership or maintenance of facilities or the

processing or disposal of waste or the sale or other disposition of anyproducts generated by a facility. Notwithstanding any other statute, anysuch contract or agreement may be for aperiod not to exceed forty (40)years.

(11) To sell orlease to any person any facility or part of it.

(26) To otherwise do all things necessary for the collection and disposal ofwaste andrecoveryofbyproducts from it

Ind. Code 36-9-31-3.

13. A chy may contract freely for services involving either the collection and/or

disposal of waste accumulated within a city, including contracting with third parties for the

disposal, storage, or recovery ofbyproducts from waste. LC. §§ 5-22-6 and 36-9-31-3(3).

14. A city may also award a contract for the "design, construction, operation,

financing, ownership or maintenance" of awaste disposal facility as long as it either follows the

competitive bidding requirements articulated in the Public Work Statute, found in Indiana Code

chapter 36-1-12, or the request for proposal requirements outlined in the teims of the Waste

Disposal Statute. LC. §36-9-3l-4(b).

15. A citymay freely enter into an agreement to sell or lease any portion of its real

property for thepurpose ofdisposal and recovery ofwaste. LC. §36-9-31-3(11).

16. In late 1985, the City entered into a contract with Massburn, Inc., predecessor to

Covanta Indianapolis, Inc. ("Covanta'5), for the disposal of solid waste through waste to energy

incineration technology ("Original Agreement").

17. As a part of the Original Agreement, Covanta agreed to receive and dispose

acceptable solid waste provided to it by the City. The service was to be performed through a

facility designed, constructed, owned, maintained and operated by Covanta.

18. The effective start date for the contract term was the date the facility was fully

operational and receiving waste from Defendants.

19. The effective start date for the Original Agreement began onJanuary 1,1989 and

terminates, under the Second Amendment,on December 31,2028.

20. On December 1, 1985, Defendants and Covanta also entered into a lease

agreement ("Facility Site Lease") for property owned by the City of Indianapolis and located at

the southwest corner ofHarding and Raymond Streets; theFacility Site Lease permitted Covanta

to use the City owned premises for the construction and operation of the facility and title in the

facility vested in Covanta.

21. In 2008, the City and Covanta amended the Original Agreement by the 2008

"Amended and Restated Service Agreement between The City of Indianapolis, Indiana and

Covanta Indianapolis, Inc." ("First Amendment").

22. Pursuant to the First Amendment, Covanta and the Defendants extended the term

for the ownership and operation of the City's waste-to-energy incinerator until 2018, with two

optional five year extensions available.

23. The FirstAmendment also reduced the solid waste delivery quota and reducedthe

tipping fees.

24. Simultaneously, the parties also amended the Facility Site Lease to

correspondinglyextend the lease term through December 31,2018.

25. At some time in 2014, Covanta advised the City of its desire to build the

Advanced Materials Recovery Center ("ARC") as a state-of-the-art facility to sort recyclables

from solid waste.

26. At some time in 2014, Covanta and the City amended the Original Agreement,

First Amendment, and the Facility She Lease to permit Covanta to construct the ARC and

modify the terms ofthe service agreement. ("Second Amendment").

27. On August 6, 2014, the City, through the Board ofPublic Works approved the

contract at issue herein, the Second Amendment to the Original Agreement.

28. The terms of the Second Amendment established that Defendants and Covanta

entered into the transaction to modify: (1) the original contract for waste disposal services to

remove the solid waste quota and (2) the original facility site lease to permit Covanta to finance,

construct, operate and maintain the ARC Facility onCity property.

29. Pursuant to the terms of the Second Amendment, Defendants permitted Covanta

to "design, engineer, construct and operate an Advanced Materials Recovery Center ("ARC") for

the recovery ofrecyclables from acceptable waste" on City owned property.

30. The Defendants and Covanta also agreed to exercise the term election provision

authorized under the First Amendment and extend the original contract term until December 31,

2028.

31. Simultaneously, Defendants and Covanta amended the Facility Site Lease to

permit construction and operation of the ARC Facility under the lease and to extend the lease

term until May 1,2026.

32. The Second Amendment was a modification to valid, pre-existing government

contracts, specifically to theOriginal Agreement and Facility Site Lease.

33. At mis time, the ARC has not been built and is not producing any recyclable

materials from waste.

34. The Uniform Declaratory Judgments Act provides that "any person . . . whose

rights, status, or other legal relations are affected by astatute, municipal ordinance, contract, or

franchise, may have determined any question of construction or validity arising under the

instrument, statute, ordinance, contract, or franchise and obtain adeclaration ofrights, status, or

other legal relations thereunder." LC. §34-14-1-2.

35. Plaintiffs also alleged a cause of action under the Public Lawsuit Statute Ind.

Code §34-13-5, which provides ameans by which to challenge contracts relating to apublic

improvement. LC. §§ 34-13-5-2,34-6-2-124.

36. Plaintiffs also further alleged that they have standing to pursue this action under a

traditional standing analysis.

37. Under the traditional standing doctrine, only those persons who have apersonal

stake in the outcome ofthe litigation and who show that they have suffered or were inimmediate

danger ofsuffering a direct injury as aresult of the complained-ofconduct will be found tohave

standing.

38. Plaintiffs specifically alleged that the Second Amendment did not comply with

the public bidding process and public hearing requirements articulated in the Waste Disposal

Statute in relation to contracts awarded by Defendants for the "design, construction, operation,

financing, ownership, or maintenance" ofwaste disposal facilities bythe City.

39. Plaintiffs further alleged that the Second Amendment improperly extends the

original contract term beyond the forty (40)year time limit articulated in the Waste Disposal

Statute in relation to contracts awarded for the "design, construction, operation, financing,

ownership, ormaintenance" ofwaste disposal facilities by the Defendants.

40. Plaintiffs Graphic Packaging International, Inc. and Rock-Tenn Converting

Company are corporations that manufacture their own products using recycled materials

purchased in Indianapolis.

41. They claim harm from the Second Amendment because the recycled materials

that Covanta will produce from the ARC facility in the future will not meet their quality

specifications and, as aresult, they will not be purchasing those products.

42. All Plaintiffs claim injury because they were denied their right to participate in a

public competitive bidding process for the Second Amendment

43. Plaintiff Rock-Tenn Converting Company also claims harm as apotential bidder

because it was denied the opportunity tobid ontheSecond Amendment

44. The Original Agreement, the First Amendment and the Facility Site Lease are not

contested, and are valid government contracts only the Second Amendment is at issue in this

action.

A. Plaintiffs' Standing to Contest Defendants' Actions

Standing under the Waste Disposal Statute

45. Plaintiffs specifically brought this action under the Waste Disposal Statute

alleging that the language ofsubsection 4(d) creates a private right ofaction for this lawsuit.

46. The language in question is as follows:

(d) An action to contest the validity of the contract awarded or theprocedure by which it was awarded must be brought within thirty (30)days following the award of the contract After that date, the contract isincontestable foranycause."

47. These terms ofthe Waste Disposal Statute donotgive Plaintiffs a private right of

action and therefore do not confer standing on the Plaintiffs. The unambiguous terms of this

relevant subsection set forth above clearly and simply define atime limitation for aparty to bring

an action.

48. Plaintiffs are not accorded standing under the Waste Disposal Statute.

Standing under thePublicLawsuit Statute

49. Plaintiffs acknowledge that they did not bring their claims under the Public

Lawsuit Statute, but ask the Court to extend the Public Lawsuit Statute to them in equity.

50. The Public Lawsuit Statute, Ind. Code §34-13-5, provides ameans to challenge

contracts relating to a public improvement LC. §§ 34-13-5-2,34-6-2-124.

51. This Statute has a strict procedural process and allows Defendants to request the

Plaintiffs post a bond for the payment of all damages and costs that may accrue by reason of the

filing ofthelawsuit ifthedefendant prevails.

52. Plaintiffs failed to define this lawsuit as being pursued under this Statute and

therefore Defendants did not have the opportunity to seek a surety bond to cover their costs

should they prevail. Plaintiffs cannot now use the Public Lawsuit Statute at this point toperfect a

standing position in order to bring thislawsuit.

Traditional StandingAnalysis

53. The Indiana Supreme Court summarized standing as follows: Standing refers to

the question ofwhether a party has an actual demonstrable injury for purposes ofa lawsuit... In

order to invoke a court's jurisdiction, a plaintiff must demonstrate a personal stake in the

outcome ofthelawsuit and mustshow that heorshe has sustained orwas in immediate danger of

sustaining, some direct injury as a result of the conduct at issue/' Hammes v. Brwnlev. 659

N.R2d 1021, 1029-30 (Ind. 1995). See also Ind Civil Rtehts Comm'n v. Indianapolis

Newspapers. Inc.. 716 NJE,2d 943,945 (bid.1999).

54. Plaintiffs Graphic Packaging International, Inc. and Rock-Tenn Converting

Company claim apersonalized future harm from the byproducts ofthe ARC.

55. Their specific claims are that they will be directly and negatively affected by the

contamination ofthe recycled materials stream that the ARC Facility creates by reducing the

amount ofmaterial in the market that meets their specifications. (Findings ofFact?)

56. There is no evidence that these two Plaintiffs are using the resource at issue, i.e.

the recycled products from the ARC, because the facility has not been constructed and is not

producing any products in the stream ofcommerce.

57. Such speculative claims are insufficient to establish an actual or imminent injury.

58. A mere unilateral expectation oran abstract environmental need is not an interest

entitled to protection absent personal useof the resource at issue. Webb's Fabulous Pharmacies

v. Bechwith, 449 U.S. 155,162 (1980); Sierra Club v. Morton. 405 U.S. 727,735-40 (1972).

59. Plaintiffs also claim direct injury under the common law standing requirements

because Defendants did not follow procedural public bidding requirements.

60. Deprivation of a procedural right in the public bidding process alone without an

additional concrete and personal injury is insufficient to create standing. Shook Heavy & Envtl

Constr. Grp.. a Div. of Shook. Inc. v. Citv of Kokomo. 632 N.E.2d 355, 359 (Ind.1994), 632

N.E.2d at 361 (citing Brock v. Roadway Express. Inc.. 481 U.S. 252(1987)); Luian v. Defenders

of Wildlife. 504 U.S. 555, 580-81 (1992); see also Allen v. Wripht. 468 U.S. 737, 754-55

(1984)(Governmenfs alleged failures to act in accordance with the law in a civil rights action

was anabstract injury and ageneralized grievance insufficient to establish standing).

61. Plaintiff Cathy Weinmann claims no concrete or personalized injury beyond a

general interest in the recycling effortsofthe City.

10

62. The Waste Disposal Statute does require competitive bidding or requests for

proposal proceedings (RFPs) to "award contracts for the design, construction, operation,

financing, ownership or maintenance" ofawaste disposal facility. LC. 36-9-31-4.

63. "The purpose behind competitive bidding requirements is to safeguard the public

against fraud, favoritism, graft, extravagance, improvidence, and corruption and toensure honest

competition for the bestworkorsupplies atthe lowest reasonable cost" Gariup Constr. Co.. Inc.

v. Carras-Szanv-Kuhn & Associates. /> C 945 N.E.2d 227, 235 (Ind. Ct. App. 2011), trans,

denied (citing Schindler Elevator Corp. v, Metro Dev. Common. 641 N.E.2d 653, 657 (Ind. Ct

App. 1994)).

64. The terms of the Second Amendment establish that Defendants and Covanta

entered into the transaction to modify: (1) an original contract for waste disposal services to

remove the solid waste quota and (2) to modify an original facility site lease to permit Covanta to

finance, construct, operate and maintain the ARC Facility onCity property.

65. These typesofagreements are specifically permitted underthe termsof the Waste

Disposal Statute without submission to competitive bidding, public hearing, ortime restrictions.

LC§ 36-9-3^3(3), (11), (26).

66. The Waste Disposal Statute did not require competitive bidding or a request

proposal proceedingon the partofDefendants.

67. Plaintiffs further allege the Second Amendment improperly extends the original

contract termbeyondthe forty year time limitarticulated in theWaste Disposal Statute.

68. The stated purpose ofthe Waste Disposal Statute is for thecollection and disposal

ofwaste.

11

69. The Court found that the effective date of the Original Agreement began on

January 1,1989, the date collection and disposal ofwaste began under the agreement.

70. The Second Amendment, by its terms, ends on December 31,2028.

71. The Second Amendment does not violate the forty year time limit of the Statute.

72. Plaintiffs suffered no injury as Defendants did not violate public bidding

requirements and have not violated the forty year limit on contracts under the Waste Disposal

Statute.

Public StandingDoctrine

73. Indiana recognizes the public standing doctrine for aplaintiff seeking to enforce a

public right.

74. The public standing doctrine, applies in cases where public rather than private

rights are at issue and in cases which involve the enforcement of apublic rather than a private

right. Old Utica School Preservation v. Utica Township, 7 N.E.3d 327, 331 (Ind. App. 2014).

75. Plaintiffs claim standing under the common law Public Standing Doctrine, which

conveys standing to taxpayers and/or citizens who seek declaratory judgment regarding the

administration of a public work for benefit of the general public. See State ex. rel Cittadine v.

Indiana Dept ofTransportation. 790 N.E.2d 978 (Ind. 2003).

76. Plaintiffs did not seek the proper administration of a public work owned by the

Defendant in this matter; rather, they contest the validity of the Second Amendment, a

government contract.

77. Plaintiffs' position under the public standing doctrine is that they are seeking to

protect the interests of all members of the public who rights were denied due to Defendants

violation of LC. 36-9-31, theWaste Disposal Statute.

12

77. The Court has already determined the Defendants did not violate the public

bidding or request proposal requirements ofthe Waste Disposal Statute in their actions pursuant

to the Second Amendment.

Cause ofAction and Standing under the Declaratory Judgment Act

78. The Uniform Declaratory Judgments Act provides that "any person . . . whose

rights, status, or other legal relations are affected bya statute, municipal ordinance, contract, or

franchise, may have determined any question of construction or validity arising under the

instrument, statute, ordinance, contract, or franchise and obtain adeclaration of rights, status, or

other legal relations thereunder/* LC. §34-14-1-2.

79. Plaintiffs are contesting the validity ofthe award of the Second Amendment and

allege their rights and other legal relations are affected bythe City's failure to comply with Ind.

Code §36-9-31.

80. A primary requirement ofthe Act is that the plaintiffs demonstrate thatthey have

standing for thereliefrequested. Pitts v. Mills, 333 N.E.2d 897 (Ind. App 1975).

81. In order then to obtain reliefunder thisAct, Plaintiffs must demonstrate that they

have standing. Citv of Hammond v. Boaid of Zoning Appeals f19721 Ind.Ct.App., 284 N.E.2d

119: Montacano v. Citv ofElkhart H971V f149^ IndApp. (283), 271 N.E.2d475.

82. Plaintiffs alleged that they have no adequate remedy at law unless this Court

grants the requested relief.

83. The Indiana General Assembly does provide taxpayers a remedy at law through

the statutory right to contest a government contract under either the Public Lawsuit Statute,

Indiana Code chapter 34-13-5 and/or the Antitrust Act, Indiana Code §24-1-2-7.

13

84. Plaintiffs did not bring their claims under these statutes and this Court does not

find Plaintiffs' actionsto be within these statutes.

85. The Declaratory Judgment Act requires Plaintiffs to first establish standing rather

than have the Court to confer standing on Plaintiff. Thereafter, Plaintiffs may seek benefits ofthe

provisions ofthe Act

IH.Summary Judgment

86. Plaintiffs and Defendants have moved for Summary Judgment.

87. Summary judgment is appropriate only where the evidence shows there is no

genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

T.R. 56(C); Cooper Industries, LLC v. The City ofSouth Bend, 899 N.E.2d 1274, 1279 (Ind.

2009); Neal v. Cure, 937 N.E.2d 1227,1230 (Ind. App. 2010).

88. A genuine issue of material fact exists where the facts concerning an issue that

would dispose of the litigation are in dispute or where the undisputed material facts are capable

of supporting conflicting inferences on such an issue." American Intern. Adjustment Co. v.

Galvin, 86 F.3d 1455,1459 (7th Cir. 1996).

89. Mere assertions, opinions or conclusions of law will not suffice to create a

genuine issue of material fact sufficient to preclude summary judgment. Sanchez v. Hamara.

534 N.E.2d 756, 759 (Ind. Ct. App. 1989); McMahan v. Snap on Tool Corn.. 478 N.E.2d 116,

119 and. Ct App. 1985).

90. The issue as to whether the Waste Disposal Statute creates a private right of

action isamatter ofstatutory interpretation of the Waste Disposal Statute reserved for the Court

91. The Court has already resolved that issueagainst the Plaintiffs and in favor ofthe

Defendants.

14

92. Plaintiffs asserted that the Waste Disposal Statute required the Defendants to

competitively bid the work covered by the Second Amendment or to utilize the request for

proposal process(RFP Process).

93. The Court has herein resolved those issues against the Plaintiffs and in favor of

Defendants.

94. Plaintiffs asserted that the Waste Disposal Statute was violated by terms of the

Second Amendment in which the total length of the contract between Defendants and Covanta

exceeded forty (40) years.

95. The Court hasalso resolved this issue herein against the Plaintiffs and in favor of

the Defendants.

96. Plaintiffs asserted that the Second Amendment is void as a result of its violations

ofthe Waste Disposal Statute.

97. The Court found noviolation oftheWaste Disposal Statute in Defendants actions

in regards to execution ofthe Second Amendment

98. The Court finds no genuine issues ofmaterial fact to be decided at a trial.

IV. Rulings

1. The Waste Disposal Statute, LC. 36-9-31, doesnot create a private right ofaction

for this lawsuitundersubsection 4(d).

2. Plaintiffs have notestablished standing under theWaste Disposal Statute.

3. Plaintiffs did not bring this present action under the Public Lawsuit Statute, LC.

34-13-5, buttheyaskthe Court toextend the Statute to them in equity.

15

4. Plaintiffs have failed to sufficiently comply with the requirements to bring an

action under the Public Lawsuit Statute and the Court declines to extend this statute to confer

standing on these Plaintiffs.

5. In order to establish standing under atraditional standing analysis, Plaintiffs must

demonstrate a personal stake in the outcome and must show a direct injury or the immediate

danger of sustaining some direct injury as aresult ofthe conduct inquestion.

6. Plaintiffs have failed to make the requisite showing ofadirect injury or the threat

ofimmediate danger ofdirect injury in order to establish standing under this traditional approach

to standing.

7. Under the Public Standing Doctrine, Plaintiffs must establish that they seek to

enforce a public right rather than a private one.

8. In this case, Plaintiffs sought to establish that Defendants violated the public

bidding requirement or request proposal requirements of the Waste Disposal Statute as well as

violatedthe forty yearlimit on contracts.

9. The Court found the Defendants did not violate the Waste Disposal Statute in

their conduct involved in the Second Amendment

10. There is no public right to enforce in regards to Defendants' conduct under the

Waste Disposal Statute or in the terms ofthe Second Amendment.

11. Standing is not conferred uponthe Plaintiffs under the Public Standing Doctrine.

12. The Uniform Declaratory Judgment Act doesnot conferstanding by its terms,but

rather a remedy once standingis found.

13. The Court does not find standing for these Plaintiffs under any theory and

therefore the Uniform Declaratory Judgment Act is not applicable to these proceedings.

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14. Defendants' Motion to Dismiss for Lack of Standing on the part of Plaintiffs is

granted.

15. The designated evidentiary matters have been found by the Court to present no

genuine issue as to any material fact and therefore Summary Judgment is hereby entered for

Defendants. Plaintiffs Motion for Summary Judgment is denied.

16. Defendants are entitled tojudgmentas a matteroflaw.

There being nojust cause fordelay theCourt directs entry of Judgment in favor of

Defendants.

,2015.All ofwhich is Ordered, Adjudged and Decreed this^o Day of

Distribution to:

Allison Wells GrittonRosemary G. SpaldingSPALDING & HILMES, PC338 S. Arlington Ave.P.O. Box 199020

Indianapolis, Indiana 46219

AdrianaKatzenAssistant Corporation Counsel200 East Washington Street, Suite 1601Indianapolis, Indiana 46204

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Mark F. Renner, Commissioner

jtithia J. Ayers, Judge

Marion Superior Court IV