B.L. Reever Transport, Inc. v. Department Of State Revenue

ATTORNEYS FOR PETITIONERS: ATTORNEYS FOR RESPONDENT:
WILLIAM A. RAMSEY THEODORE E. ROKITA
JOSHUA C. NEAL ATTORNEY GENERAL OF INDIANA
BARRETT & MCNAGNY LLP LYDIA A. GOLTEN
Fort Wayne, IN STEPHEN J. REEN
DEPUTY ATTORNEYS GENERAL
PAUL D. CULLEN, JR. Indianapolis, IN FILED
KATHLEEN B. HAVENER
Jan 10 2024, 2:40 pm
THE CULLEN LAW FIRM, PLLC SEAN P. BURKE
Washington, DC HAMISH S. COHEN CLERK
Indiana Supreme Court
Court of Appeals
MATTINGLY, BURKE, COHEN & and Tax Court
BIEDERMAN LLP
Indianapolis, IN

IN THE
INDIANA TAX COURT

B.L. REEVER TRANSPORT, INC., )
CHARLES PAAR, d/b/a SANDMAN )
SERVICES, and LELAND WILKINS, )
d/b/a LOST RIVER TRUCKING, )
)
Petitioners, )
)
v. ) Case No. 20T-TA-00009
)
INDIANA DEPARTMENT OF )
STATE REVENUE, )
)
Respondent. )

ORDER ON PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT

FOR PUBLICATION
January 10, 2024

WENTWORTH, Special J.

B.L. Reever Transport, Inc., Charles Paar (d/b/a Sandman Services), and Leland

Wilkins (d/b/a Lost River Trucking) have appealed the Indiana Department of State
Revenue’s denials of their claims for refund of motor carrier fuel tax (“MCFT”) remitted

during the 2016 and 2017 tax years. The matter is currently before the Court on the

parties’ cross-motions for summary judgment. Upon review, the Court grants summary

judgment in favor of the Department and against B.L. Reever, Paar, and Wilkins.

FACTS AND PROCEUDRAL HISTORY

The following facts are not in dispute. B.L. Reever, Paar, and Wilkins are small

business motor carriers (collectively, “Motor Carriers”) that are registered with and

authorized by the U.S. Department of Transportation to haul others’ property in

interstate commerce. (See Joint Stipulations of Facts (“Jt. Stip.”) ¶¶ 4, 10, 17, 29.)

During the years at issue, they logged a varying number of miles and, therefore,

consumed different amounts of fuel while hauling property on Indiana’s roadways,

including the Indiana Toll Road. (See Jt. Stip. ¶¶ 5, 11, 18.) As a result, they each

remitted quarterly payments to the Department for MCFT. (See Jt. Stip. ¶¶ 5-6, 11-12,

18-19.)

On November 8, 2017, Paar and Wilkins each filed separate claims seeking

refunds of the portion of MCFT paid with respect to their consumption of fuel on the Toll

Road for one or more of the quarters in 2016. (See Jt. Stip. ¶¶ 12-14, 19-21, Exs. 3, 5.)

Just over a year later, B.L. Reever filed a claim for refund of MCFT paid for its

consumption of fuel on the Toll Road during the fourth quarter of 2017. (See Jt. Stip. ¶¶

6-7, Ex. 1.) Ultimately, Paar sought a refund of $56.27 for the 2016 tax year, Wilkins

sought a refund of $7.47 for the 2016 tax year, and B.L. Reever sought a refund of

$8.02 for the 2017 tax year. (Jt. Stip. ¶¶ 6, 14, 21.)

On December 17, 2018, the Department sent Paar and Wilkins separate letters

2
stating that it was “unable to process” their refund claims because “[t]oll [r]oads are not

exempt in Indiana.” (Jt. Stip. ¶¶ 15-16, 22-23, Exs. 4, 6.) The following day, the

Department sent B.L. Reever a similar letter explaining that its refund claim could not be

processed because there were “[n]o refunds for toll roads.” (Jt. Stip. ¶¶ 8-9, Ex. 2.) On

February 15, 2019, B.L. Reever, Paar, and Wilkins each filed a protest. (Jt. Stip. ¶ 24,

Exs. 7a-7c.) While their individual protests were pending, they also filed a single,

combined appeal with this Court on March 15, 2019. (Jt. Stip. ¶ 25.) The Court,

consistent with the parties’ subsequent agreement, dismissed that appeal without

prejudice on June 21, 2019. (Jt. Stip. ¶¶ 25-26.) Several months later, the Department

conducted an administrative hearing on the three pending protests and, on February 5,

2020, issued final orders denying each protest. (See Jt. Stip. ¶ 27, Exs. 8-10.)

On May 4, 2020, the Motor Carriers initiated this original tax appeal as a small

tax case. On July 6, 2020, the Department moved to dismiss the appeal pursuant to

Indiana Trial Rule 12(B), and shortly thereafter, the parties filed their first cross-motions

for summary judgment. See, e.g., B.L. Reever Transp., Inc. v. Indiana Dep’t of State

Revenue, 163 N.E.3d 968, 971 n.1 (Ind. Tax Ct. 2021). The Court subsequently denied

each of those motions. See id.

On September 17, 2021, the parties filed their second cross-motions for

summary judgment, disputing whether the Toll Road was a “highway” for purposes of

the MCFT. (See Pet’rs’ Mem. Supp. Mot. Summ. J. (“Pet’rs’ Br.”) at 4-10; Resp’t Br.

Supp. Mot. Summ. J. (“Resp’t Br.”) at 24-40.) On December 1, 2021, the Court held a

hearing on the parties’ cross-motions. Additional facts will be supplied when necessary.

3
STANDARD OF REVIEW

The Tax Court reviews final determinations of the Department de novo. IND.

CODE § 6-8.1-9-1(c) (2024). Accordingly, the Court is not bound by the evidence

presented or the issues raised during the administrative proceedings. Horseshoe

Hammond, LLC v. Indiana Dep’t of State Revenue, 865 N.E.2d 725, 727 (Ind. Tax Ct.

2007), review denied. The Court will grant a motion for summary judgment only when

the designated evidence demonstrates that no genuine issues of material fact exist, and

the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C).

Cross-motions for summary judgment do not alter the standards for determining

whether summary judgment is warranted. Horseshoe Hammond, 865 N.E.2d at 727.

LAW

During the years at issue, Indiana imposed a MCFT “on the consumption of

motor fuel by a carrier in its operations on highways in Indiana.” IND. CODE § 6-6-4.1-

4(a) (2016) (amended 2017) (emphasis added). The word “highway” was defined for

purposes of the MCFT as “the entire width between the boundary lines of every publicly

maintained way that is open in any part to the use of the public for purposes of vehicular

travel.” IND. CODE § 6-6-4.1-1(h) (2016) (emphasis added). Furthermore, the statute

designated the formula for calculating the amount of fuel consumed for purposes of

imposing the MCFT as follows:

The amount of motor fuel consumed by a carrier in its operations
on highways in Indiana is the total amount of motor fuel consumed
in its entire operations within and without Indiana, multiplied by a
fraction. The numerator of the fraction is the total number of miles
traveled on highways in Indiana, and the denominator of the
fraction is the total number of miles traveled within and without
Indiana.

4
I.C. § 6-6-4.1-4(b). A motor carrier’s tax liability was then calculated by multiplying the

tax rate in effect for the reporting period by the total amount of fuel consumed by the

carrier in its operations on Indiana highways. See I.C. § 6-6-4.1-4-(c).

ANALYSIS

On appeal, the Motor Carriers claim that they are entitled to a refund of the

MCFT they paid on the fuel consumed traveling on the Toll Road during the 2016 and

2017 tax years for alternate reasons. (See, e.g., Pet’rs’ Br. at 1-2; Pet’rs’ Reply Resp’t

Opp’n Pet’rs’ Mot. Summ. J. (“Pet’rs’ Reply Br.”) at 1-8.) First, they claim the imposition

of the MCFT during the years at issue was improper because the Toll Road did not

meet the statutory definition of a “highway.” (See, e.g., Hr’g Tr. at 4-6.) In the

alternative, they assert that the Department erred in denying their refund claims due to

certain admissions made in a related federal case. (See, e.g., Pet’rs’ Reply Br. at 4-5.)

Moreover, the Motor Carriers claim that the holding in that federal case bars several of

the Department’s arguments in this case. (See Pet’rs’ Reply Br. at 5-8; Pet’rs’

Sursurreply Resp’t Surreply Supp. Resp’t Mot. Summ. J. (“Pet’rs’ Sursurreply Br.”) at 2-

5.)

I. Statutory Definition of “Highway”

In their motion for summary judgment, the Motor Carriers claim that their fuel

consumption on the Toll Road is not subject to MCFT because the Toll Road is not a

“highway,” as that word is defined under the MCFT statute, because it is not a “publicly

maintained way.” (See, e.g., Pet’rs’ Br. at 1-2.) Specifically, the Motor Carriers assert

that the Toll Road was not publicly maintained because over fifteen years ago it was

leased to a private entity that assumed responsibility for the Toll Road’s upkeep. (See

5
Pet’rs’ Br. at 4-8; Jt. Stip. ¶ 33.) As support, they point to both the enabling legislation

for the lease and the lease itself, claiming that together they created a “public-private

partnership” that formed a “‘private entity partially or entirely responsible’ for several

aspects of the Toll Road[’s operations], including its maintenance.” (See, e.g., Pet’rs’

Br. at 9-10 (citation omitted).) (See also Pet’rs’ Br. at 4-7; Hr’g Tr. at 8-14).

Consequently, the Motor Carriers claim that they are entitled to judgment in their favor

because the undisputed material facts show the Toll Road was privately maintained

during the years at issue, and as a matter of law, the MCFT cannot be imposed on fuel

consumed when not traveling on a “publicly maintained way.” (See Pet’rs’ Br. at 4-10.)

Constructed in the 1950s, the Toll Road “runs through the seven Indiana

counties along Michigan’s southern border. The road is a major artery connecting

Chicago and points west with destinations in the Northeast.” Bonney v. Indiana Fin.

Auth., 849 N.E.2d 473, 476 (Ind. 2006). The Toll Road has been owned by the Indiana

Finance Authority (“IFA”) since May 2005, and in April of 2006, the IFA leased the Toll

Road to a private entity, the ITR Concession Company LLC (“Concessionaire”), for a

period of 75 years. See id. (See also Jt. Stip. ¶¶ 40, 42, 44-45, Ex. 11.)

Subsequent to the lease transaction, the “Indiana Toll Road Concession and

Lease Agreement” (the “Lease”)1 and the contemporaneously created “Concession and

Lease Agreement for the Indiana Toll Road Operating Standards Manual” (“Operating

Standards Manual”) govern the operation and maintenance of the Toll Road during the

1
The Lease has been amended several times since 2006, (see Joint Stipulations of Fact ¶ 47),
and the parties disagree about whether the amendments are germane to their cross-motions.
(Compare Pet’rs’ Mem. Supp. Mot. Summ. J. at 5 n.6 (stating that none of the amendments to
the Lease are “critical”) with Resp’t Br. Supp. Mot. Summ. J. at 6 (asserting that the 2017
amendment to the Lease is relevant).) The Court, however, does not need to settle the
disagreement about the relevance of the Lease amendments to resolve the cross-motions.
6
entire lease period. (See Jt. Stip. ¶¶ 48-49, Exs. 11, 21-24.) For example, the Lease

provides that “the IFA shall . . . grant the Concessionaire an exclusive franchise and

license for and during the [Lease t]erm to provide Toll Road Services, and in connection

therewith to operate, manage, maintain, rehabilitate and toll the Toll Road for Highway

Purposes and otherwise in accordance with and pursuant to” the Lease. (Jt. Stip., Ex.

11 at REE-732 (emphasis added).) Furthermore, the preamble to the three-volume

Operating Standards Manual states that its purpose:

is to provide the general terms and conditions for Volume I:
Maintenance Manual, Volume II: Operations and Procedures
Manual and Volume III: Environmental Management Manual
(collectively, the “Operating Standards”) for the [Toll Road]. . . . The
Operating Standards provide guidelines and criteria to the
Concessionaire on the standards, specifications, policies,
procedures and processes that apply to the operation,
maintenance, rehabilitation and tolling of, and capital improvements
to, the [Toll Road].”

(Jt. Stip. ¶ 48(c), Ex. 21 at REE-8202 (emphasis added).) Moreover, the 110-page

Maintenance Manual contains guidelines and other criteria the Concessionaire must

follow when performing various maintenance activities on the Toll Road, including, for

example, the standards for roadway, pavement delineation, and landscape and

roadside maintenance. (See Jt. Stip. ¶ 48(d), Ex. 22 at REE-7210, REE-7213.)

The language of the Lease states that the entire lease transaction was

contingent on its enabling legislation, which was enacted into law as Public Law 47-

2006 and currently is codified at Indiana Code §§ 8-15.5-1-1 through 8-15.5-13-8

(hereinafter, “Article 15.5”). See Bonney, 849 N.E.2d at 476; IND. CODE §§ 8-15.5-1-1 to

-13-8 (2024). This enabling legislation provided that the powers it conferred were “in

addition and supplemental to the powers conferred by any other law. [Thus, i]f any

7
other law or rule is inconsistent with [it], [Article 15.5] is controlling as to any public-

private agreement entered into under th[e] article.” IND. CODE § 8-15.5-1-1 (2016)

(emphasis added). A “public-private agreement” was defined as “an [Article 15.5]

agreement . . . between a private entity and the [IFA] under which the private entity,

acting on behalf of the [IFA] (and, where applicable, a governmental entity) as lessee,

licensee, or franchisee, will plan, design, acquire, construct, reconstruct, equip, improve,

extend, expand, lease, operate, repair, manage, maintain, or finance a project.” IND.

CODE § 8-15.5-2-8 (2016) (emphases added) (“Public-Private Agreement Statute”); see

also IND. CODE § 8-15.5-2-2 (2016) (providing that the word “Authority” refers to the IFA

for purposes of Article 15.5).

The parties do not dispute that the Lease is a “public-private agreement” as that

term is defined under Article 15.5. (See, e.g., Pet’rs’ Br. at 9 and Pet’rs’ Opp’n Resp’t

Mot. Summ. J. (“Pet’rs’ Resp. Br.”) at 11; Resp’t Resp. Opp’n Pet’rs’ Mot. Summ. J.

(“Resp’t Resp. Br.”) at 4.) Accordingly, maintenance activities performed by the

Concessionaire on the Toll Road in furtherance of its obligations under the Lease are

done “acting on behalf of” the IFA. See I.C. § 8-15.5-2-8. Moreover, when the IFA

exercises its powers as an independent public body politic and corporate entity, it is

performing “an essential governmental, public, and corporate function.” IND. CODE § 4-

4-11-4(a) (2006) (repealed 2018); see also Bonney, 849 N.E.2d at 479-80 (explaining

that the IFA is a “municipal corporation” because it was “created by state law and is

both a ‘public instrumentality’ and a ‘public corporate body’” (citation omitted)).

Accordingly, whether the Toll Road is a “highway,” i.e., a “publicly maintained way,” for

purposes of imposing the MCFT depends on the meaning of the phrase “acting on

8
behalf of” as used in the Public-Private Agreement Statute.

The interpretation of a statute is a pure question of law reserved for the courts.

See Grandville Coop., Inc. v. O’Connor, 25 N.E.3d 833, 838 (Ind. Tax Ct. 2015). “The

first step in interpreting a statute is to determine whether the Legislature has spoken

clearly and unambiguously on the point in question.” City of Carmel v. Steele, 865

N.E.2d 612, 618 (Ind. 2007) (citation omitted). Fittingly, therefore, clear and

unambiguous statutes leave no room for judicial construction. Id.

In this case, the Public-Private Agreement Statute does not define the phrase

“acting on behalf of.” See I.C. § 8-15.5-2-8. “[W]hen a statutory term is undefined, the

legislature directs [the courts] to interpret the term using its “‘plain, or ordinary and

usual, sense.’” Rainbow Realty Grp., Inc. v. Carter, 131 N.E.3d 168, 174 (Ind. 2019)

(citation omitted); see also Johnson Cnty. Farm Bureau Coop. Ass’n v. Indiana Dep’t of

State Revenue, 568 N.E.2d 578, 581 (Ind. Tax Ct. 1991) (explaining that non-technical

statutory words and phrases are to be understood in their plain, ordinary, and usual

sense), aff’d, 585 N.E.2d 1336 (Ind. 1992). To determine the plain, ordinary, and usual

meaning of an undefined phrase, Indiana courts customarily refer to English language

dictionaries. See, e.g., Moriarity v. Indiana Dep’t of Nat. Res., 113 N.E.3d 614, 621

(Ind. 2019) (relying on Webster’s Third New International Dictionary to define the word

“stream”); Buckeye Hosp. Dupont, LLC v. O’Day, 144 N.E.3d 850, 856 (Ind. Tax Ct.

2020) (relying on Webster’s Third New International Dictionary to define the word

“hotel”); Estes v. State, 166 N.E.3d 950, 952 (Ind. Ct. App. 2021) (using the Merriam-

Webster Dictionary to define the word “endanger”). To this end, the Court looks to

Webster’s Dictionary, which states the plain, ordinary, and usual meaning of the phrase

9
“on behalf of” is “in the interest of[,] as the representative of[, or] for the benefit of[.]”

WEBSTER’S THIRD NEW INT’L DICTIONARY 198 (2002 ed.). Similarly, the American

Heritage Dictionary provides that the phrase “on behalf of” means “[a]s the agent of; on

the part of” or “[f]or the benefit of; in the interest of.” The American Heritage Dictionary,

https://www.ahdictionary.com/word/search.html?q=on+behalf+of (last visited Jan. 8,

2024).

In light of these definitions, when the Concessionaire performs maintenance

activities on the Toll Road pursuant to the Lease, it does so in the interest of, in the

name of, or as the agent or representative of the IFA, a “public instrumentality” and

“public corporate body” expressly created by the Legislature. See I.C. § 4-4-11-4(a);

see also Bonney, 849 N.E.2d at 479-80. In effect, therefore, the IFA through its proxy,

the Concessionaire, maintains the Toll Road as part of its statutory obligation to provide

essential governmental and public functions. See I.C. § 4-4-11-4(a). As a result, the

Court holds that the Toll Road was a publicly maintained way during the years at issue,

meeting the MCFT’s statutory definition of a “highway.” Accordingly, the Motor Carriers

are not entitled to judgment as a matter of law on this basis, having failed to

demonstrate that the Toll Road was not a “highway” for purposes of the MCFT.

II. Admissions

The Motor Carriers assert in the alternative that they are entitled to judgment as

a matter of law because the Department is bound by certain admissions made in a

related federal case concerning the constitutionality of increases to certain Toll Road

tolls (the “Owner-Operator litigation”). (See, e.g., Pet’rs’ Reply Br. at 4-5 (referring to

Owner-Operator Indep. Drivers Ass’ns v. Holcomb, No. 1:19-cv-00086-RLY-MJD, 2019

10
WL 8955083 (S.D. Ind. Aug. 12, 2019), R. & R. adopted sub nom. by Owner-Operator

Indep. Drivers Ass’n v. Holcomb, No. 1:19-cv-00086-RLY-MJD, 2020 WL 1149595 (S.D.

Ind. Mar. 10, 2020), aff’d, 990 F.3d 565 (7th Cir. 2021), cert. denied)).) Specifically, the

Motor Carriers maintain that in those cases the State of Indiana, through the

Concessionaire, the IFA, and Governor Eric J. Holcomb, made the following

admissions:

 Pursuant to the [L]ease, [the Concessionaire] is responsible for
all operation and maintenance of the Toll Road until 2081[;]

 Indiana has exercised its rights as a property owner of the Toll
Road to lease that property – and the attendant right to collect
tolls – to [the Concessionaire], a private toll-road company that
is now operating the Toll Road as a private enterprise[;]

 Indiana, by contrast, does not even operate the Toll Road; it has
rented the Toll Road to [the Concessionaire] in an arm’s-length
market transaction for valuable consideration[;]

 That Indiana caps [the Concessionaire’s] tolls is
inconsequential[; and]

 Indiana’s budget commits 100% of the money the State
receives from [the Concessionaire] under the [L]ease
amendment to fund work on roads that the Indiana General
Assembly has determined have a nexus with the Toll Road. . . .
And those figures do not include the additional $50 million in
improvements that the amended [L]ease obligates [the
Concessionaire] to make to the Toll Road itself.

(Pet’rs’ Reply Br. 4-5 (internal quotation marks, citations, and footnotes omitted).)

The Motor Carriers claim these admissions establish that the Toll Road was

privately maintained by the Concessionaire, and, therefore, preclude the Department

from denying their refunds in this case. (See Pet’rs’ Reply Br. at 4-5.) In other words,

the Motor Carriers claim that on the basis of several judicial admissions made during

the Owner-Operator litigation, the Department is barred from arguing that the Toll Road

11
was publicly maintained during the years at issue in the present case.

A “judicial admission” is a formal stipulation or acknowledgment, voluntarily made

in a pleading or during a trial, that admits a material fact or concedes an element of a

claim or defense. See, e.g., Harr v. Hayes, 106 N.E.3d 515, 526-27 (Ind. Ct. App.

2018), op. corrected on reh’g, 108 N.E.3d 405 (Ind. Ct. App. 2018). A judicial admission

is conclusive and binding upon the party making it and relieves the opposing party of

the duty to present evidence on that issue. Stewart v. Alunday, 53 N.E.3d 562, 568-69

(Ind. Ct. App. 2016).

The Motor Carriers have not claimed that the alleged judicial admissions were

made at trial. (See Pet’rs’ Reply Br. at 4-5; Pet’rs’ Sursurreply Br. at 1.) Instead, the

Motor Carriers state that the admissions were made in the defendants’ briefs regarding

their joint motion to dismiss for failure to state a claim in the Owner-Operator litigation:

[T]he quoted arguments were not part of [the p]laintiff’s Complaint
in the Owner-Operator[] litigation, but rather were excerpted from
the [defendants’] briefs – from the [defendants’] “Background” and
“Argument Section I(A)” in [their] Motion to Dismiss in the District
Court, and [their] “Statement of the Case, Section II” in [their] brief
to the Seventh Circuit.

(Pet’rs’ Sursurreply Br. at 1 (emphasis omitted).) (See also Pet’rs’ Reply Br. at 4-5 nn.

3-7 (citing Pet’rs’ Supp’l Des’g Evid. Supp. Mot. Summ. J., Ex. 16 at 6, 10, 13 and Ex.

17 at 8-9).) Motions and responses to motions, however, are not pleadings as that term

is defined by Indiana Rule of Trial Procedure 7(A). See Ind. Trial Rule 7(A) (specifying

what constitutes a pleading); see also, e.g., Seastrom, Inc. v. Amick Constr. Co., 306

N.E.2d 125, 127 (Ind. Ct. App. 1974) (explaining why a motion is not a pleading).

Consequently, the statements on which the Motor Carriers have relied cannot be

considered as judicial admissions. As a matter of law, therefore, the Motor Carriers are

12
not entitled to judgment on the basis that binding judicial admissions were made in the

Owner-Operator litigation. See Stewart, 53 N.E.3d at 570 (providing that determining

“[w]hether a party’s statement constitutes a judicial admission is a question of law”)

(citation omitted).

III. The Federal Case

Finally, the Motor Carriers assert that the Court should bar the Department from

claiming that the Toll Road was publicly maintained during the years at issue based on

the resolution of the Owner-Operator litigation. (See, e.g., Pet’rs’ Sursurreply Br. at 2-

5.) More specifically, the Motor Carriers explain that in that federal case the defendants

successfully claimed that the State of Indiana acted “as a private market participant”

when it leased the Toll Road to the Concessionaire, making all acts of leasing,

operating, and maintaining the Toll Road “a private enterprise not a governmental

activity[.]” (See Pet’rs’ Reply Br. at 5-6; Pet’rs’ Sursurreply Br. at 2-5; Hr’g Tr. at 16-20.)

While the Motor Carriers’ arguments suggest that the relief they seek is grounded

in equity, they have not identified which equitable principle applies. (See, e.g., Pet’rs’

Reply Br. at 5-6; Hr’g Tr. at 16-20.) At best, they indirectly imply that their claims are

13
based on the doctrine of judicial estoppel.2 (See Pet’rs’ Sursurreply Br. at 4-5.) In so

doing, however, they have not addressed or have simply glossed over several

differences between the Owner-Operator litigation and this case.

For instance, the Motor Carriers disregarded the differences in the procedural

postures of the Owner-Operator cases and this case. (See Pet’rs’ Reply Br. at 3-8;

Pet’rs’ Sursurreply Br. at 1-5.) Specifically, each of the Owner-Operator decisions

concerned the resolution of the defendants’ joint motion to dismiss for failure to state a

claim. See, e.g., Owner-Operator Indep. Drivers Ass’ns, No. 1:19-cv-00086-RLY-MJD,

2019 WL 8955083, at *1. As a result, the “facts” as determined by the courts in each of

those decisions were “not necessarily objectively true” because in reviewing those

motions to dismiss, the courts were required to “accept[] as true all factual allegations in

the [c]omplaint and draw[] all reasonable inferences in favor of [p]laintiffs as the non-

moving party.” See, e.g., id. On the other hand, this case involves the resolution of

cross-motions for summary judgment requiring the Court to determine, among other

things, whether the designated evidence demonstrates that no genuine issues of

2
The doctrine of judicial estoppel has been explained as follows:

Judicial estoppel is a judicially created doctrine that seeks to prevent a
litigant from asserting a position that is inconsistent with one asserted in
the same or a previous proceeding. Judicial estoppel is not intended to
eliminate all inconsistencies; rather, it is designed to prevent litigants from
playing fast and loose with the courts. The primary purpose of judicial
estoppel is not to protect litigants but to protect the integrity of the
judiciary. The basic principle of judicial estoppel is that, absent a good
explanation, a party should not be permitted to gain an advantage by
litigating on one theory and then pursue an incompatible theory in
subsequent litigation. Judicial estoppel only applies to intentional
misrepresentation, so the dispositive issue supporting the application of
judicial estoppel is the bad-faith intent of the litigant subject to estoppel.

Morgan Cnty. Hosp. v. Upham, 884 N.E.2d 275, 280 (Ind. Ct. App. 2008) (citations and internal
quotation marks omitted), trans. denied.
14
material fact exist. See T.R. 56(C). See also Hughley v. State, 15 N.E.3d 1000, 1003

(Ind. 2014) (providing that “‘an issue is ‘genuine’ if a trier of fact is required to resolve

the parties’ differing accounts of truth, or if the undisputed material facts support

conflicting reasonable inferences’”) (emphases added and citation omitted).

Moreover, the Motor Carriers have summarily, yet incorrectly, concluded that any

differences between the issues in the Owner-Operator cases and this case did not

matter because the “market-participant doctrine” is “an all or nothing rule.” (See Hr’g Tr.

at 18-20; see also Pet’rs’ Reply Br. at 3-8; Pet’rs’ Sursurreply Br. at 1-5.) The market-

participant doctrine “‘differentiates between a State’s acting in its distinctive

governmental capacity, and a State’s acting in the more general capacity of a market

participant; only the former is subject to the limitations of the negative Commerce

Clause.’” Camps Newfound/Owatonna, Inc. v. Town of Harrison, Me., 520 U.S. 564,

592 (1997) (citations omitted). Nonetheless, “[i]t is well settled that a state may act as a

market participant with respect to one portion of a program while operating as a market

regulator in implementing another. Accordingly, ‘[c]ourts must evaluate separately each

challenged activity of the state to determine whether it constitutes participation or

regulation.’” United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 438

F.3d 150, 158 (2d. Cir. 2006), aff’d, 550 U.S. 330 (2007) (citation omitted).

As explained in the Owner-Operator decisions, that litigation concerned the

constitutionality of increases to certain Toll Road tolls:

On September 4, 2018, Defendant Governor Holcomb announced
his infrastructure plan that called for a $1 billion expenditure for
infrastructure projects known as the “Next Level Connections
Program.” [The Concessionaire] agreed to fund the program with
$1 billion and, in return, was authorized by the IFA to increase toll
rates for Class 3 and higher vehicles by 35 percent. This

15
authorization is reflected in the amended [L]ease agreement. The
increase in tolls went into effect on October 5, 2018 and only
affects heavy vehicles.

See, e.g., Owner-Operator Indep. Drivers Ass’ns, No. 1:19-cv-00086-RLY-MJD, 2019

WL 8955083, at *1-2 (citations omitted). Therefore, the Owner-Operator litigation

involved the 2018 amendment to the Lease. See id. In contrast, this case concerns

whether the execution of the Lease, in the first instance, “[w]as a [m]aterial [c]hange in

[f]act and [l]aw [t]hat [r]emoved the Toll Road from the [MCFT’s s]tatutory [d]efintion of

[a] “[h]ighway.” (See, e.g., Pet’rs’ Br. at 4, 9-10 (emphasis omitted).) See also Bonney,

849 N.E.2d at 476-77 (discussing the circumstances surrounding the 2006 execution of

the Lease). Thus, the two cases involve distinct activities that occurred roughly twelve

years apart: namely, the ramifications of the 2006 execution of the Lease and the

ramifications of the 2018 amendment to the Lease. Furthermore, the Motor Carriers’

reliance on the Owner-Operator litigation is ironic considering they have stated that the

amendments to the Lease “are not critical to [their] arguments” in this case. (Pet’rs’ Br.

at 5 n.6.) Without something more, therefore, the Court will not assume that the

differences in the two cases do not matter. Consequently, the Court finds that the Motor

Carriers have not shown that they are entitled to judgment as a matter of law on this

basis either.

CONCLUSION

The Motor Carriers have claimed that the express terms of the 75-year Lease of

the Indiana Toll Road demonstrate there is no genuine issue of material fact and that as

a matter of law the Toll Road was privately maintained during the 2016 and 2017 tax

years. The Lease, however, was a statutorily authorized public-private agreement that,

16
along with its enabling legislation, established as a matter of law that the Toll Road was

a publicly maintained highway throughout the years at issue. Accordingly, consumption

of fuel on the Toll Road during the years at issue was subject to the imposition of

MCFT, and the Motor Carriers are not entitled to a refund. The Court GRANTS

summary judgment in favor of the Department and AGAINST B.L. Reever, Paar,

Wilkins.

SO ORDERED this 10th day of January 2024.

Martha Blood Wentworth
Special Judge, Indiana Tax Court

Distribution:
William A. Ramsey, Joshua C. Neal, Paul D. Cullen, Jr., Kathleen B. Havener, Lydia A.
Golten, Stephen J. Reen, Sean P. Burke, Hamish S. Cohen

17