                                                                           FILED
                                                                      Feb 28 2017, 7:46 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Michael L. Einterz, Jr.                                    Curtis T. Hill, Jr.
Mike Einterz                                               Attorney General of Indiana
Einterz & Einterz                                          Aaron T. Craft
Zionsville, Indiana                                        Elizabeth M. Littlejohn
                                                           Deputy Attorneys General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Alan Mizen,                                                February 28, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A02-1605-PL-1132
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana ex rel. Gregory                           The Honorable David J. Dreyer,
F. Zoeller, Attorney General of                            Judge
Indiana,                                                   Trial Court Cause No.
Appellee-Plaintiff.                                        49D10-1506-PL-19961




Riley, Judge.




Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017                   Page 1 of 24
                                 STATEMENT OF THE CASE
[1]   Appellant-Defendant, Alan Mizen (Mizen), appeals the trial court’s summary

      judgment in favor of Appellee-Plaintiff, State of Indiana ex rel. Curtis Hill,

      Attorney General of Indiana (State), as well as the denial of his own motion for

      summary judgment.


[2]   We affirm in part, reverse in part, and remand.


                                                    ISSUES
[3]   Mizen raises five issues on appeal, which we consolidate and restate as the

      following three issues:

      (1) Whether the trial court erred in granting summary judgment to the State

      because its claim is barred by the statute of limitations;

      (2) Whether the trial court erred in granting summary judgment to the State

      because the Attorney General does not have statutory authority to pursue

      special audit costs; and

      (3) Whether the trial court erred in granting summary judgment to the State

      under the Crime Victims Relief Act (CVRA) because the State did not suffer a

      pecuniary loss.


                       FACTS AND PROCEDURAL HISTORY
[4]   In November of 2001, Mizen was hired as the chief financial officer for Center

      Township (the Township) in Marion County, Indiana. The Township “is one

      of nine townships in Marion County, Indiana” and is the most populated

      township in the county. (Appellant’s App. Vol. II, p. 93). The Township’s
      Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017   Page 2 of 24
      primary mission “is to provide emergency and short-term assistance to the poor

      and needy, to treat everyone with dignity and respect, and to help clients

      become self-sufficient.” (Appellant’s App. Vol. II, pp. 93-94). The Township

      also aims “to be fiscally responsible and accountable to the public.”

      (Appellant’s App. Vol. II, p. 94).


[5]   On June 10, 2010, Mizen logged onto the Township’s computer system and

      created an invoice for a check in the amount of $343,541.08. According to the

      invoice, this check was purportedly payable to the Treasurer of the State of

      Indiana. However, the actual check from the Township’s bank account was

      made payable to “Attorney’s General Clearing Tr.” (Appellant’s App. Vol. II,

      p. 22). A few days later, Mizen endorsed the check and deposited it into an

      account held by “Alan S Mizen DBA Attorney’s General Clearing Tr.”

      (Appellant’s App. Vol. II, p. 22). Thereafter, Mizen transferred the funds to his

      various personal accounts and used the money to purchase a home in

      Zionsville, Indiana; purchase a Toyota Tacoma pickup truck; fund his child’s

      college education; finance several personal vacations; purchase a diamond

      necklace and diamond ring; and make other purchases. Mizen’s employment

      with the Township ended in January of 2011.


[6]   The Indiana State Board of Accounts (SBOA) is tasked with “examin[ing] all

      accounts and all financial affairs of every public office and officer, state office,

      state institution, and entity.” Ind. Code § 5-11-1-9(a). On January 22, 2014,

      the SBOA commenced a routine audit of the Township. During the course of

      this audit, the SBOA discovered discrepancies relating to the check that Mizen

      Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017   Page 3 of 24
      drafted for $343,541.08. This resulted in the SBOA conducting a special

      investigation of the Township’s accounts for the time period covering January

      1, 2010, through January 20, 2011. In addition, the SBOA reported its

      concerns of misappropriation of public funds to the authorities, including the

      Federal Bureau of Investigation. As a result, Mizen was subsequently charged

      in the United States District Court for the Southern District of Indiana with the

      theft of $343,541.08 belonging to the Township, which receives federal funding.

      On October 22, 2014, Mizen pled guilty pursuant to a plea agreement that left

      sentencing to the discretion of the federal district court. Mizen agreed that he

      would pay restitution in the amount of $343,541.08 to the Township.


[7]   Following Mizen’s guilty plea, on November 10, 2014, the SBOA completed its

      special investigation audit and filed a Special Investigation Report of Center

      Township, i.e., Special Investigation Report B44484. The report detailed

      Mizen’s misappropriation of funds and the means by which he accomplished

      and concealed his conduct. The SBOA requested that Mizen reimburse the

      Township for the full amount of the misappropriated funds. In addition, the

      SBOA described that it had “incurred additional costs in the investigation of the

      misappropriation of funds” and requested reimbursement from Mizen in the

      sum of $54,978.41. (Appellant’s App. Vol. II, p. 23).


[8]   On April 30, 2015, the district court entered judgment in accordance with the

      plea agreement and ordered Mizen to execute eighteen months in Federal

      Prison Camp in Terre Haute, Indiana. The district court also ordered the



      Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017   Page 4 of 24
       payment of restitution as set forth in the plea agreement. At some point, Mizen

       repaid the sum of $343,541.08 to the Township.


[9]    On June 17, 2015, the State filed a Complaint to Recover Public Funds against

       Mizen. In Count I of its Complaint, the State alleged that “[a]s a direct and

       proximate result of the breach of Mizen’s duty to [the] Township, [the] SBOA

       incurred additional audit costs in the amount of $54,978.41.” (Appellant’s

       App. Vol. II, p. 15). Accordingly, the State requested a judgment in this

       amount. In Count II, pursuant to the CVRA, Indiana Code section 34-24-3-1,

       the State asserted that it was entitled to treble damages, court costs, reasonable

       attorney fees, and other miscellaneous costs and expenses due to the fact that

       Mizen’s criminal offense resulted in a pecuniary loss to the State. The State

       requested a judgment of $1,030,623.24 (to be reduced by the amount already

       paid in restitution), plus court costs and reasonable attorney fees.


[10]   On September 9, 2015, Mizen filed his Answer, denying that the Township

       suffered any pecuniary loss as a result of his conduct as he repaid the “full

       amount of any sums wrongfully taken from [the] Township.” (Appellant’s

       App. Vol. II, p. 31). Mizen also raised several affirmative defenses, including

       that the State, by its “acts or omissions or the acts or omissions of [its] agents or

       representatives, [has] waived [its] right to pursue any claims against [Mizen].”

       (Appellant’s App. Vol. II, p. 31).


[11]   On January 25, 2016, Mizen filed a motion for summary judgment. He

       asserted that the Attorney General has no statutory authority to pursue the


       Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017   Page 5 of 24
       additional audit costs sought in Count I of the State’s Complaint. He further

       specified that although the State requested that he pay for the additional audit

       costs, “the undisputed facts reveal that no costs were ever billed and an

       examination of the law reveals that, no matter how they are classified, neither

       the State, the SBOA, nor the Township is entitled to recover examination costs

       from . . . Mizen—especially since there is no ‘amount owed.’” (Appellant’s

       App. Vol. II, p. 38). As to Count II of the State’s Complaint, Mizen argued

       that he “has already repaid any ‘pecuniary loss’, thus precluding any recovery

       based on ‘the actual damages’—because there are no actual damages in this

       matter.” (Appellant’s App. Vol. II, p. 39). Mizen also contended that the

       Attorney General is only authorized to recover misappropriated funds—“not

       fees, penalties, or additional costs.” (Appellant’s App. Vol. II, p. 39).

       Moreover, Mizen asserted that the State failed to file its Complaint within the

       CVRA’s two-year statute of limitations. On February 18, 2016, the State filed

       an objection to Mizen’s summary judgment motion, along with a cross-motion

       for summary judgment, in which the State reiterated the claims set forth in its

       Complaint.


[12]   On April 8, 2016, the trial court conducted a hearing on the parties’ cross-

       motions for summary judgment. At the onset of the hearing, Mizen filed a

       motion requesting the trial court to take judicial notice of three prior audit

       reports issued by the SBOA regarding the Township: (1) Report B40189, issued

       on March 15, 2012, concerning the records of the Center Township Small

       Claims Court from January 1, 2009, to December 31, 2010; (2) Report B40567,


       Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017   Page 6 of 24
       issued on July 13, 2012, concerning issues of Mizen’s salary, compensable time,

       overtime, paid time off, and excessive hours worked from January 1, 2005,

       through December 31, 2010; and (3) Report B40568, also issued on July 13,

       2012, concerning the Township’s financial statements from January 1, 2009, to

       December 31, 2010 . Despite not having included these reports in his

       designated evidence, Mizen argued that they were necessary to establish that

       the State’s claim is barred by the statute of limitations because there were

       financial discrepancies noted in the reports that should have given the State

       reason to exercise ordinary diligence in uncovering the misappropriation sooner

       than the audit commenced on January 22, 2014. 1 At the close of the hearing,

       the trial court took the matter under advisement.


[13]   On April 11, 2016, the State filed an objection to Mizen’s motion for judicial

       notice. The State conceded that the SBOA Reports B480189, B40567, and

       B40568 “are public documents and are readily available to the [c]ourt.”

       (Appellant’s App. Vol. II, p. 240). However, the State argued that the audit

       reports are irrelevant to this action because they “do not contemplate the fraud

       discovered, investigated, and reported by the [SBOA] in Special Investigation

       Report B44484.” (Appellant’s App. Vol. II, p. 240).




       1
         In his appellate brief, Mizen also discusses the SBOA’s Report B45431, which was filed on October 16,
       2015, and which is supposedly the report for the “normal” audit that was commenced on January 22, 2014,
       ultimately resulting in the special investigation and Special Investigation Report B44484. (Appellant’s Br. p.
       16). However, SBOA Report B45431 was neither included in Mizen’s designated evidence nor referenced in
       his motion for the trial court to take judicial notice. Therefore, we consider neither the report nor Mizen’s
       arguments related thereto in our decision.

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017                      Page 7 of 24
[14]   On April 29, 2016, the trial court denied Mizen’s motion for summary

       judgment but granted the State’s cross-motion. The trial court found that

       Mizen had waived his statute of limitations defense by failing to include it as an

       affirmative defense in his pleadings. Waiver aside, the trial court further noted

       that “Mizen’s criminal behavior belie[d] any consideration against the State’s

       ordinary diligence” in discovering the misappropriation sooner. (Appellant’s

       App. Vol. II, p. 10). As to the State’s contention that it was entitled to recover

       the incurred costs of conducting a special audit on behalf of the SBOA, the trial

       court agreed and awarded “[s]tatutory expenses in the amount of $54,978.41.”

       (Appellant’s App. Vol. II, p. 10). Pursuant to the CVRA, the trial court also

       awarded treble damages in the amount of $1,036,623.24, 2 along with reasonable

       attorney fees and court costs. On May 4, 2016, the trial court issued an order,

       summarily denying Mizen’s motion to take judicial notice of SBOA Reports

       B480189, B40567, and B40568. The trial court also ordered that portions of the

       motion for judicial notice be stricken from the record.


[15]   Mizen now appeals. Additional facts will be provided as necessary.




       2
         Although the trial court awarded $1,036,623.24 in treble damages, the State’s actual damages of
       $343,541.08 multiplied by three is actually $1,030,623.24.

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017                    Page 8 of 24
                                DISCUSSION AND DECISION
                                               I. Standard of Review

[16]   Our court reviews a trial court’s grant or denial of a motion for summary

       judgment under the same standard as the trial court—that is, summary

       judgment “is appropriate only if the designated evidentiary matter shows there

       is no genuine issue of material fact and the moving party is entitled to judgment

       as a matter of law.” Martin v. Brown, 716 N.E.2d 1030, 1032 (Ind. Ct. App.

       1999) (citing Ind. Trial Rule 56(C)). On appeal, our review is de novo; however,

       we consider only “the materials properly designated to the trial court, and we

       take all facts and draw all reasonable inferences in favor of the non-moving

       party.” Kesling v. Hubler Nissan, Inc., 997 N.E.2d 327, 331-32 (Ind. 2013).

       Although the trial court’s issuance of specific findings and conclusions assists in

       our review “by giving insight into the trial court’s rationale,” we are not bound

       by these findings and conclusions. Id. at 331. We will affirm a summary

       judgment “if it is sustainable on any theory or basis found in the evidentiary

       matter designated to the trial court.” Sam & Mac, Inc. v. Treat, 783 N.E.2d 760,

       764 (Ind. Ct. App. 2003).


                                             II. Statute of Limitations

[17]   Mizen claims that the State is not entitled to summary judgment because it

       failed to file its claim within the applicable statute of limitations and,

       accordingly, is barred from recovering under the CVRA. Statutes of limitation

       “are practical and pragmatic devices to spare the courts from litigation of stale

       claims, and the citizen from being put to his defense after memories have faded,

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017   Page 9 of 24
       witnesses have died or disappeared, and evidence has been lost.” Russo v. S.

       Developers, Inc., 868 N.E.2d 46, 48 (Ind. Ct. App. 2007). “They are enacted

       upon the presumption that one having a well-founded claim will not delay in

       enforcing it.” Morgan v. Benner, 712 N.E.2d 500, 502 (Ind. Ct. App. 1999),

       trans. denied. The accrual of a cause of action is a question of law, “as ‘it is well-

       established in Indiana law that it is the courts’ responsibility to determine, based

       on the facts of each case, when the cause of action accrues.’” Prime Mortg. USA,

       Inc. v. Nichols, 885 N.E.2d 628, 639 (Ind. Ct. App. 2008) (quoting Autocephalous

       Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc., 917 F.2d

       278, 288 (7th Cir. 1990)). Thus, a statute of limitations defense is a proper

       consideration on summary judgment. Martin, 716 N.E.2d at 1033. If the

       undisputed facts establish “that the complaint was filed after the running of the

       applicable statute of limitations, the trial court must enter judgment for the

       defendant.” Id.


[18]   It is long settled that “because the substance of a claim under [the CVRA] is

       punitive rather than compensatory, such claims are subject to a two-year statute

       of limitations.” Prime Mortg. USA, Inc., 885 N.E.2d at 638 (internal quotation

       marks omitted). Furthermore, “[a]ctions under the [CVRA] are subject to the

       discovery rule, under which a cause of action accrues, and the statute of

       limitations begins to run, when the plaintiff knew or, in the exercise of ordinary

       diligence, could have discovered that an injury had been sustained as a result of

       the tortious act of another.” Id. at 639-40 (internal quotation marks omitted).

       In this case, the State argues that, due to Mizen’s efforts to conceal his theft, the

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017   Page 10 of 24
       earliest its cause of action could have accrued was when the SBOA commenced

       its audit on January 22, 2014. Thus, the State asserts that its June 17, 2015

       Complaint falls within the two-year statute of limitations. On the other hand,

       Mizen asserts that because SBOA Reports B480189, B40567, and B40568

       establish that there were irregularities in the Township’s finances, the State, in

       an exercise of reasonable diligence, should have discovered the

       misappropriation no later than June of 2012. Mizen insists that because the

       State filed its Complaint after June of 2014, it is barred.


[19]   Before deciding whether the State’s action is timely, we must first consider the

       State’s assertion (and the trial court’s conclusion) that Mizen has waived any

       claim regarding the statute of limitations by failing to include it as an

       affirmative defense in his Answer. With respect to affirmative defenses,

       Indiana Trial Rule 8(C) provides that

               [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,
               including matters formerly required to be pleaded affirmatively
               by reply, shall have the burden of proving such matters.




       Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017   Page 11 of 24
       Our courts have generally held that the failure to raise an affirmative defense in

       a pleading results in waiver of the issue. See Sullivan Builders & Design, Inc. v.

       Home Lumber of New Haven, Inc., 834 N.E.2d 129, 136 (Ind. Ct. App. 2005),

       trans. denied.


[20]   Nevertheless, there is also case law that indicates that the failure to plead statute

       of limitations as an affirmative defense does not automatically result in a

       waiver. Rather, our courts have stated that “a statute of limitations defense

       may properly be raised by a motion for summary judgment” even if not raised

       in the pleadings. Honeywell, Inc. v. Wilson, 500 N.E.2d 1251, 1252 (Ind. Ct.

       App. 1986) (citing Schideler v. Dwyer, 417 N.E.2d 281 (Ind. 1981)), trans. denied.

       Allowing this issue to be raised in a summary judgment motion

               follows from the basic policies underlying the modern Indiana
               Rules of Trial Procedure. These rules are designed to avoid
               pleading traps and, to the greatest extent possible, ensure that
               cases are tried on the issues that their facts present. Thus the
               focus is not on the technical procedure used to raise the issue, but
               on the issue’s legal merits.


       Id. Moreover, there is a presumption “that issues can be raised as they, in good

       faith, are developed.” Id. In order to rebut this presumption, “the party against

       whom the new issue is raised” may make “an affirmative showing of

       prejudice.” Id. In order to demonstrate prejudice, the party must show that it

       “will be deprived of, or otherwise seriously hindered in the pursuit of some legal

       right if injection of the new issue is permitted.” Id.



       Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017   Page 12 of 24
[21]   In this case, the State argued that “to bring [the statute of limitations] up now

       would be prejudicial to the State as it seeks to convolute the pertinent and

       justifiable legal issues in this case. And additionally it distracts the court from

       the legal merits in the case.” (Tr. p. 13). Despite the delay, we decline to find

       prejudice because the State had ample time to prepare an argument and respond

       to Mizen’s statute of limitations defense. Furthermore, we elect to address the

       issue based on our preference of deciding matters on legal merits rather than

       technical procedure. 3


[22]   Mizen now relies primarily on evidence outside of the designated materials to

       contend that the State had either actual knowledge of Mizen’s

       misappropriation, or that it failed to exercise reasonable diligence that could

       have led to the discovery of the misappropriation, between December of 2011

       and June of 2012. On appeal, Mizen argues that the trial court abused its

       discretion by refusing to take judicial notice of the evidence purportedly

       supporting this claim: SBOA Reports B480189, B40567, and B40568. Indiana

       Evidence Rule 201(a) provides that a court may take judicial notice of “a fact

       that: (A) is not subject to reasonable dispute because it is generally known

       within the trial court’s territorial jurisdiction, or (B) can be accurately and

       readily determined from sources whose accuracy cannot reasonably be

       questioned.” A trial court “may take judicial notice at any stage of the



       3
         As such, we need not address Mizen’s contention that he did not waive his statute of limitations defense
       because by pleading the affirmative defense of waiver, he necessarily pled the statute of limitations defense as
       well.

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017                      Page 13 of 24
       proceeding” and is required to do so “if a party requests it and the court is

       supplied with the necessary information.” Ind. Evidence Rule 201(c)-(d).


[23]   As Evidence Rule 201 requires, Mizen provided the trial court with the three

       SBOA audit reports, which are public documents and are readily available on a

       website maintained by the State. Nonetheless, we find no abuse of discretion in

       the trial court’s denial of Mizen’s motion for judicial notice because SBOA

       Reports B480189, B40567, and B40568 are irrelevant to a determination of

       whether the State filed its CVRA claim within the statutory timeframe. See, e.g.,

       Brenwick Associates, LLC v. Boone Cnty. Redevelopment Comm’n, 870 N.E.2d 474,

       478 (Ind. Ct. App. 2007) (finding that the trial court was not required to take

       judicial notice of irrelevant facts), summarily aff’d in relevant part, 889 N.E.2d

       289, 290 n.4 (Ind. 2008). As the State points out, a review of SBOA Reports

       B480189, B40567, and B40568 “show that [the] Township did a poor job

       keeping its records, that certain records were missing, and that there were

       questions over Mizen’s salary” and other benefits. (State’s Br. p. 22). These

       audit reports did not, however, reveal any indication that Mizen was engaging

       in criminal conduct that would warrant further investigation. Moreover,

       although a trial court may take judicial notice of certain facts at any stage of the

       proceeding, all evidence to be considered for summary judgment purposes must

       be designated at the time of the filing of the summary judgment motion or

       response, including “matters of judicial notice.” T.R. 56(C). Because SBOA

       Reports B480189, B40567, and B40568 were not timely designated as evidence




       Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017   Page 14 of 24
       pursuant to Trial Rule 56(C), we find that it was appropriate for the trial court

       to disregard them from consideration.


[24]   The undisputed, designated evidence establishes that on January 22, 2014, the

       SBOA commenced a normal audit of the Township, at which time, the SBOA

       discovered suspected misappropriation of Township funds. At that point, the

       SBOA began a special investigation of the time period in which Mizen stole

       $343,541.08. Although other audits had been performed concerning the time

       period in question, Mizen took steps to conceal his conduct at the time he wrote

       and deposited the check. Specifically, Mizen created a false invoice in the

       Township’s computer system—indicating that check number 35453, dated June

       10, 2010, in the amount of $343,541.08, was being remitted to the Treasurer of

       the State for items such as “document storage fees”; judicial insurance fees”;

       “judicial salary fees”; “court administration fees”; “public defense admin fees”;

       and “court fees due others.” (Appellant’s App. Vol. II, p. 104). In reality,

       Mizen wrote the check to “Attorney’s General Clearing Tr” and deposited it

       into his own account. (Appellant’s App. Vol. II, p. 22). Accordingly, the

       designated evidence establishes that the earliest the State knew, or in the

       exercise of ordinary diligence could have known, about Mizen’s criminal

       misappropriation was during its special investigation, which stemmed from a




       Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017   Page 15 of 24
       normal audit that began on January 22, 2014. Thus, the State’s June 17, 2015

       Complaint is timely, and its claim under the CVRA is not barred. 4


                                            III. Recovery of Audit Costs

[25]   Mizen next claims that the trial court erred in granting summary judgment to

       the State and awarding $54,978.41 in additional audit costs. The designated

       evidence reveals that the additional audit costs were specifically incurred in

       investigating Mizen’s misappropriation. Furthermore, “[t]he special

       investigation into the misappropriation of Township funds by . . . Mizen, which

       led to the issuance of the Special Investigation Report [B44484], required

       663.75 hours of SBOA field examiner time.” (Appellant’s App. Vol. II, p. 88).

       At the time, an SBOA field examiner’s time was valued at $82.83 per hour,

       which “is the ‘actual direct and indirect cost of performing the examination or

       investigation.’” (Appellant’s App. Vol. II, p. 88).


[26]   Mizen insists that the Attorney General, on behalf of the SBOA, has no

       authority to pursue the recovery of additional audit costs from Mizen. Mizen

       correctly asserts that, “[i]n Indiana[,] the Attorney General is a statutory officer,




       4
         Having determined that the State’s claim was filed within the applicable statute of limitations based on the
       discovery rule, we need not address the State’s contention that Mizen is estopped under the doctrine of
       fraudulent concealment from arguing that the State failed to timely file its CVRA claim. Even where a
       statute of limitations has expired, a plaintiff may be able to proceed under the doctrine of fraudulent
       concealment, which “is an equitable doctrine which operates to prevent a defendant from asserting the statute
       of limitations as a bar to a claim where the defendant, by his own actions, prevents the plaintiff from
       obtaining the knowledge necessary to pursue a claim.” Meisenhelder v. Zipp Express, Inc., 788 N.E.2d 924, 931
       (Ind. Ct. App. 2003) (citing Doe v. Shults-Lewis Child & Family Servs., Inc., 718 N.E.2d 738, 744-45 (Ind.
       1999)). The statute of limitations is tolled “until the equitable grounds cease to operate as a reason for
       delay.” Id.

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017                    Page 16 of 24
exercising only the authority granted by statute.” State ex rel. Steers v.

Holovachka, 142 N.E.2d 593, 602 (Ind. 1957). Pursuant to Indiana Code

section 5-11-5-1, if an SBOA audit “discloses malfeasance, misfeasance, or

nonfeasance in office or of any officer or employee,” the Attorney General is

required to “diligently institute and prosecute civil proceedings against the

delinquent officer, or upon the officer’s official bond, or both, and against any

other proper person that will secure to the state or to the proper municipality the

recovery of any funds misappropriated, diverted, or unaccounted for.” (Emphasis

added). According to Mizen, this provision only permits the Attorney General

to seek recovery of the misappropriated funds, but it does not permit any

“action if recovery has already been effectuated, and the statute does not

authorize an action only for ‘additional’ costs or fees.” (Appellant’s Br. p. 26).

Here, there is no dispute that Mizen repaid the $343,541.08 of misappropriated

funds through his criminal restitution order. 5 Furthermore, Mizen contends

that the payment of audit costs is governed by Indiana Code section 5-11-4-3(a),

which provides that “[t]he expense of examination and investigation of

accounts shall be paid by each municipality or entity as provided in this

chapter.” Thus, Mizen argues that the SBOA cannot “request payment from

any individual or entity other than the municipality or entity that operates the

account.” (Appellant’s Br. p. 26).




5
  For these same reasons, Mizen also contends that Indiana Code section 5-11-5-1 precludes the Attorney
General from seeking exemplary damages under the CVRA. We will discuss recovery under the CVRA
below.

Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017                 Page 17 of 24
[27]   The State, however, directs our attention to Indiana Code section 5-11-5-7(c),

       which states that “[t]he costs of collection, including but not limited to

       reasonable attorney’s fees, may be added to money that is owed and collected

       under this section. However, the costs of collection may not exceed an amount

       that is equal to the amount of money that is owed.” According to the State,

       “[t]his more specific statute gives the [SBOA] authority to collect auditing costs

       above and beyond the normal auditing costs.” (State’s Br. p. 39). We disagree.

       The State’s cited provision specifically references collection costs for money

       that “is owed and collected under this section.” I.C. § 5-11-7-5(c). That section—

       Indiana Code section 5-11-7-5(a)—provides that the SBOA may collect: “(1)

       [u]npaid fines, costs, or fees that are imposed for violations of statutes defining

       a crime or infraction and are owed to the state or its political subdivisions[;] (2)

       [m]oney owed resulting from bond forfeitures . . . [; or] (3) [u]npaid user’s fees

       incurred under a pretrial diversion agreement by a person charged with a

       misdemeanor, infraction, or ordinance violation.” The additional audit

       expenses at issue do not represent costs that may be collected under Indiana

       Code section 5-11-7-5.


[28]   Nevertheless, we still find that the plain language of Indiana Code section 5-11-

       5-1 provides the Attorney General with authority to recover the additional audit

       costs in this case. We acknowledge that Indiana Code section 5-11-4-3(a) does

       stipulate that the Township is required to foot the bill for “[t]he expense of

       examination and investigation of [its] accounts.” However, as the SBOA

       averred in the designated evidence, the additional audit costs of $54,978.41


       Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017   Page 18 of 24
       “were not budgeted in terms of time and resources, nor were they contemplated

       in advance by the SBOA or the Township. The additional audit costs were not

       billed to or paid by the Township.” (Appellant’s App. Vol. II, p. 87). Thus, if

       the SBOA were to issue a bill to the Township for these additional audit costs,

       that $54,978.41 would have to be diverted away from other Township use as a

       direct result of Mizen’s malfeasance. See MERIAM-WEBSTER,

       https://www.merriam-webster.com/dictionary/divert (last visited February 16,

       2017) (defining “divert” as “to turn from one course or use to another”). The

       Attorney General has specific authority to recover any public funds that are

       diverted as a result of a public employee’s malfeasance. I.C. § 5-11-5-1(a).

       Thus, the trial court properly granted summary judgment in favor of the State

       on this issue. 6


                                            IV. Crime Victims Relief Act

[29]   Finally, Mizen claims that the trial court erred in granting the State’s summary

       judgment motion based on its CVRA claim. If a person suffers a pecuniary loss

       as the result of a violation of Indiana Code article 35-43 (i.e., the commission of

       theft, conversion, etc.), that person “is entitled to bring a civil action under the

       [CVRA] for damages in an amount not to exceed three times his actual




       6
         Our conclusion is further supported by the fact that on July 1, 2015, after the State filed its Complaint in
       the present action, Indiana Code section 5-11-1-27(m) became effective, which provides that if the Attorney
       General institutes civil proceedings under Indiana Code section 5-11-5-1, “the attorney general shall seek, in
       addition to the recovery of any funds misappropriated, diverted, or unaccounted for, restitution of: (1) costs
       incurred by the [SBOA]; and (2) all costs and reasonable attorney’s fees incurred by the attorney general; in
       connection with the civil proceedings.”

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017                     Page 19 of 24
       damages, plus costs and attorney fees.” Bayview Loan Servicing, LLC v. Golden

       Foods, Inc., 59 N.E.3d 1056, 1069-70 (Ind. Ct. App. 2016) (citing I.C. § 34-24-3-

       1). Although “the CVRA creates a civil remedy, its reliance on proof of a

       predicate criminal offense makes it inherently quasi-criminal.” Wysocki v.

       Johnson, 18 N.E.3d 600, 605 (Ind. 2014). In fact, we have described the CVRA

       as “a punitive statute intended to deter the wrongdoer and others from engaging

       in similar future conduct.” JPMCC 2006-CIBC14 Eads Parkway, LLC v. DBL Axel,

       LLC, 977 N.E.2d 354, 366 (Ind. Ct. App. 2012), trans. denied. As a penal

       statute, the CVRA must be strictly construed. Columbus Med. Servs. Org. v.

       Liberty Healthcare Corp., 911 N.E.2d 85, 98 (Ind. Ct. App. 2009).


[30]   In general, a claimant need only prove the elements of the criminal conduct by

       a preponderance of the evidence, but in this case, “[t]he parties agree that

       Mizen’s misappropriation is one of the species of criminal behavior that can

       lead to a civil action under the CVRA.” Wysocki, 18 N.E.3d at 606;

       (Appellant’s Br. p. 28). Thus, Mizen’s challenge on appeal revolves around the

       fact that he repaid the misappropriated funds of $343,541.08 to the Township

       pursuant to a restitution order prior to the State’s filing of the present action.

       Mizen now insists that the State cannot recover treble damages and other costs

       under the CVRA because it has not suffered a “pecuniary loss.” (Appellant’s

       Br. p. 27). See Coleman v. Coleman, 949 N.E.2d 860, 869 (Ind. Ct. App. 2011)

       (“[I]f a plaintiff suffers no pecuniary loss as the result of a defendant’s actions,

       the plaintiff is not entitled to recover . . . under the [CVRA].”). We disagree.




       Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017   Page 20 of 24
[31]   When Mizen stole $343,541.08 in public funds in 2010, the Township clearly

       suffered a pecuniary loss. The fact that Mizen subsequently paid restitution

       pursuant to a plea agreement that he entered into in the federal district court

       does not negate the fact that, for more than four years, he benefitted from his

       illegal conduct while simultaneously depriving the Township of the use of a

       substantial amount of money. As already mentioned, the purpose of the CVRA

       is to deter the wrongdoer and others from partaking in the same type of illicit

       conduct in the future. JPMCC 2006-CIBC14 Eads Parkway, LLC, 977 N.E.2d at

       366. It would do little to deter such behavior to simply require Mizen to return

       the funds that were stolen.


[32]   Moreover, we agree with the State that the present case is similar to Blankenship

       v. McKay, 534 N.E.2d 243, 246 (Ind. Ct. App. 1989), in which the defendant

       argued that the plaintiff’s claim for treble damages was barred because he had

       been subjected to criminal prosecution that resulted in a restitution order to the

       plaintiff. The Blankenship court found that the payment of restitution did not

       prevent the plaintiff from seeking treble damages in a civil suit. Id. Specifically,

       we noted that, although the plaintiff “is the beneficiary of the restitution order,

       it came about through criminal prosecution, a remedy elected by the State

       prosecutor. [The plaintiff] did not control the decision to prosecute. He,

       therefore, did not elect the remedy alluded to.” Id. We concluded that “[t]o the

       extent that [the plaintiff] has recovered pursuant to the restitution order, he may

       not duplicate the recovery in a judgment for treble damages pursuant to [the

       CVRA].” Id. Therefore, we held that the plaintiff could multiply his actual


       Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017   Page 21 of 24
       damages “by three and recover the total sum less any amount received under

       the restitution order.” Id.


[33]   Nonetheless, mirroring his argument that the State could not pursue the

       additional audit costs, Mizen also refutes that the State is entitled to summary

       judgment because he maintains that the Attorney General did not have the

       authority under Indiana Code section 5-11-5-1 to pursue treble damages as such

       an award would clearly exceed the amount of funds misappropriated.

       However, Indiana Code section 5-11-5-4 specifically provides that the Attorney

       General, in an action to recover misappropriated public funds, is “entitled to

       recover, in addition to the amount misappropriated, diverted or unaccounted

       for, all such penalties and interest as might be recoverable under laws other than

       this chapter.” We find that this provision allows the Attorney General to

       pursue the treble damages provided by the CVRA.


[34]   Finally, Mizen contends that allowing the State to recover under the CVRA

       would subject him to double jeopardy in violation of the Indiana Constitution

       and is a violation of due process. As the State points out, Mizen failed to raise

       his constitutional claims before the trial court. Thus, we find that he has

       waived his due process argument. See McBride v. Monroe Cnty. Office of Family &

       Children, 798 N.E.2d 185, 194 (Ind. Ct. App. 2003). However, “questions of

       double jeopardy implicate fundamental rights and, as such, may be raised for

       the first time on appeal, or even by this court sua sponte.” Ellis v. State, 29

       N.E.3d 792, 797 (Ind. Ct. App. 2015), trans. denied. “Whether convictions

       violate double jeopardy is a pure question of law,” so our review is de novo. Id.

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017   Page 22 of 24
       Pursuant to Article 1, Section 14 of the Indiana Constitution, “[n]o person shall

       be put in jeopardy twice for the same offense.”


[35]   Here, Mizen does not contend that he has multiple convictions that run afoul of

       double jeopardy. Rather, he insists that because he has paid restitution in full,

       any damages owed under the CVRA are purely punitive, with no compensatory

       purpose, thus subjecting him to a second punishment “based upon the same

       crime for which [he] was previously prosecuted.” (Appellant’s Br. p. 30). We

       disagree. Our court has previously held that “possible or actual subjection to

       criminal prosecution does not bar treble damages recoverable under [the

       CVRA].” Blankenship, 534 N.E.2d at 245. The treble damages awarded in this

       case are intended to both compensate the State’s actual loss and deter Mizen

       from engaging in the same conduct in the future.


[36]   Accordingly, we conclude that the State is entitled to recover no more than

       three times its actual damages. Because Mizen has already paid $343,541.08 in

       restitution, the trial court’s treble damages award of $1,030,623.24 should be

       reduced by the amount paid. Therefore, we remand for the trial court to reduce

       its judgment under the CVRA to $687,082.16, plus reasonable attorney fees and

       costs.


                                              CONCLUSION
[37]   Based on the foregoing, we conclude that the trial court properly granted

       summary judgment to the State because it filed its CVRA claim within the two-

       year statute of limitations based on the discovery rule, and the State is entitled

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017   Page 23 of 24
       to recover, as a matter of law, the $54,978.41 in additional audit costs that were

       expended, along with treble damages under the CVRA (as reduced by the

       restitution already paid) in the amount of $687,082.16, plus reasonable attorney

       fees and costs. 7


[38]   Affirmed in part, reversed in part, and remanded.


[39]   Crone, J. and Altice, J. concur




       7
         We note that Mizen appeals both the trial court’s denial of his motion for summary judgment, as well as the
       trial court’s entry of summary judgment in favor of the State. With the exception of the statute of limitations
       issue raised in Mizen’s motion, both parties rely on the same remaining issues in claiming that they are
       entitled to summary judgment—advocating the opposite sides of arguments relating to the incurred special
       audit costs of $54,978.41 and treble damages under the CVRA of $1,030,623.24. Thus, by concluding that
       the trial court properly granted summary judgment in favor of the State, we necessarily conclude that the trial
       court properly denied Mizen’s summary judgment motion.

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-1132 | February 28, 2017                     Page 24 of 24
