                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                       Jan 22 2013, 8:51 am
any court except for the purpose of
establishing the defense of res judicata,                          CLERK
collateral estoppel, or the law of the case.                     of the supreme court,
                                                                 court of appeals and
                                                                        tax court




APPELLANT PRO SE:                              ATTORNEY FOR APPELLEE LINDA
                                               PHILLIPS, TIPPECANOE COUNTY
JASON T. MYERS                                 ASSESSOR:
Pendleton, Indiana
                                               DOUGLAS J. MASSON
                                               Hoffman, Luhman & Masson, P.C.
                                               Lafayette, Indiana

                                               ATTORNEYS FOR APPELLEE OFFICE OF
                                               THE INDIANA ATTORNEY GENERAL,
                                               UNCLAIMED PROPERTY DIVISION:

                                               GREGORY F. ZOELLER
                                               Attorney General of Indiana

                                               KATHY BRADLEY
                                               Deputy Attorney General
                                               Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

JASON T. MYERS,                                )
                                               )
       Appellant-Plaintiff,                    )
                                               )
               vs.                             )      No. 79A05-1209-PL-493
                                               )
LINDA PHILLIPS, TIPPECANOE COUNTY              )
ASSESSOR and OFFICE OF THE                     )
INDIANA ATTORNEY GENERAL,                      )
UNCLAIMED PROPERTY DIVISION,                   )
                                               )
       Appellees-Defendants.                   )
                 APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                        The Honorable Gregory J. Donat, Judge
                            Cause No. 79D04-1207-PL-25



                                     January 22, 2013


               MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge


       On May 24, 2012, Jason T. Myers filed an action against Linda Phillips, personally

and in her capacity as the Tippecanoe County Assessor, and the Office of the Indiana

Attorney General, Unclaimed Property Division seeking reimbursement of a $250 bond that

was posted by his grandmother on his behalf on January 25, 1997. The trial court dismissed

Myers’s lawsuit, finding that Myers had failed to state a claim upon which relief could be

granted. On appeal, Myers argues that the trial court erred in dismissing his complaint

because he had standing to bring the instant action and also because the complaint was timely

filed. Concluding that Myers did not have standing to bring the instant action, we affirm.

                       FACTS AND PROCEDURAL HISTORY

       On January 25, 1997, Myers’s grandmother, Pauline Beeler, posted a $250 bond for

Myers’s release from pre-trial incarceration for charges that were subsequently brought under

Cause Number 79E01-9706-CM-143 (“Cause No. 143”). Myers, by his own admission,

failed to appear for a June 30, 1997 initial hearing relating to Cause No. 143. On December

22, 2001, Myers was again arrested in connection to the charges alleged in Cause No. 143.


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On December 28, 2001, Myers posted a second $250 bond for his release from pre-trial

incarceration.

        On June 7, 2002, Myers pled guilty to the charges levied in Cause No. 143. Myers

soon thereafter requested that the Tippecanoe County Clerk return the bond monies posted on

January 25, 1997 and December 28, 2001. The bond money posted on December 28, 2001,

was returned to Myers. However, with respect to the bond posted by Beeler on January 25,

1997, Myers was informed that the bond money was “for some reason not available to

[him].”1 Appellant’s App. p. 10.

        The bond money posted by Beeler on January 25, 1997, was remitted to the Attorney

General’s Office to be placed in the Indiana Abandoned Property Fund on October 10, 2002.

Records associated with the transfer of the bond money list Beeler as the owner of the bond

money. Nothing in the record indicates that Beeler has ever requested that the bond money

be returned to her.

        On or about August 9, 2011, Myers filed a Notice of Tort Claim informing the State

that he intended to bring an action against Linda Phillips, personally and in her capacity as

the Tippecanoe County Assessor,2 and the Office of the Attorney General of Indiana,

Unclaimed Property Division (“Attorney General”), claiming that Phillips and the Attorney


        1
           The facts, as presented, are gleaned from Myers’s Notice of Tort Claim and reflect his representation
of the facts, not the official words of any representative of the Tippecanoe County Clerk’s Office.
        2
           The record indicates that Myers filed suit against Phillips in her capacity as Tippecanoe County
Assessor. Phillips, who was Clerk of the Tippecanoe County Courts from January 1, 2003 to December 31,
2010, currently serves as the Tippecanoe County Assessor. Myers’s claim on appeal, however, appears to
relate back to Phillips’s prior duties as Clerk of the Court rather than her duties as Assessor.

                                                       3
General had wrongfully failed to remit the bond money posted by Beeler on January 25,

1997, to him. Myers filed a small claims action against Phillips and the Attorney General on

May 24, 2012, claiming that they had erroneously denied him the relief requested in his

Notice of Tort Claim. Phillips filed a motion to dismiss on June 6, 2012. On July 11, 2012,

the case was transferred from the small claims docket to the plenary docket at Myers’s

request. The Attorney General filed a motion to dismiss on August 10, 2012. On September

5, 2012, the trial court issued an order stating that “It is therefore ORDERED, ADJUDGED

and DECREED by the Court that Myers’s Complaint is hereby DISMISSED.” Appellee

Phillips’s App. p. 49. This appeal follows.

                               DISCUSSION AND DECISION

       Myers contends that the trial court erred in dismissing his complaint pursuant to

Indiana Trial Rule 12(B)(6). Specifically, Myers argues that the trial court erred in

dismissing his complaint because he had standing to bring the claim against Phillips and the

Attorney General. Myers also argues that the trial court erred in dismissing his complaint

because it was timely filed.

       An Indiana Trial Rule 12(B)(6) motion to dismiss tests the legal sufficiency of
       a claim, not the facts supporting the claim. Godby v. Whitehead, 837 N.E.2d
       146, 149 (Ind. Ct. App. 2005), trans. denied. Therefore, we view the
       complaint in the light most favorable to the non-moving party and draw every
       reasonable inference in favor of that party. Id. When reviewing a ruling on a
       motion to dismiss, we stand in the shoes of the trial court and must determine
       if the trial court erred in its application of the law. Id. The trial court’s grant
       of a motion to dismiss is proper if it is apparent that the facts alleged in the
       complaint are incapable of supporting relief under any set of circumstances.
       Id. In determining whether any facts will support the claim, we look only to
       the complaint and may not resort to any other evidence in the record. Id.

                                               4
Estate of Verdak v. Butler Univ., 856 N.E.2d 126, 134 (Ind. Ct. App. 2006).

              I. Whether Myers Has Standing to Bring the Instant Claim

       “Standing is a fundamental, threshold, constitutional issue that must be addressed by

this, or any, court to determine if it should exercise jurisdiction in the particular case before

it.” Alexander v. PSB Lending Corp., 800 N.E.2d 984, 989 (Ind. Ct. App. 2003).

       The issue of standing focuses on whether the complaining party is the proper
       one to invoke the court’s power. Scott v. Randle, 736 N.E.2d 308 (Ind. Ct.
       App. 2000). The standing requirement assures that litigation will be actively
       and vigorously contested, as plaintiffs must demonstrate a personal stake in the
       litigation’s outcome in addition to showing that they have sustained, or are in
       immediate danger of sustaining, a direct injury as a result of the defendant’s
       conduct. Id. To establish standing, therefore, a plaintiff must demonstrate a
       personal stake in the outcome of the lawsuit and that the injury is a result of
       the defendant’s conduct. Hibler v. Conseco, Inc., 744 N.E.2d 1012 (Ind. Ct.
       App. 2001). If properly challenged, when a plaintiff fails to establish standing
       in the pleadings, the court must dismiss the complaint. Schulz v. State, 731
       N.E.2d 1041 [(Ind. Ct. App. 2000)].

Id.

       In order to prove that he had a personal stake in the outcome of the underlying action,

Myers would have to prove that he was the legal owner of, and therefore was entitled to

recover, the funds in question. Pursuant to the Unclaimed Property Act, an “owner” of the

unclaimed property is:

               (1) a person who has a legal or an equitable interest in property subject
       to this chapter; or
               (2) the person’s legal representative.
       (b) The term includes the following:
               (1) A depositor in the case of property that is a deposit.
               (2) A beneficiary in the case of property that is a trust other than a
       deposit in trust.
               (3) A creditor, claimant, or payee in the case of other property.

                                               5
Ind. Code § 32-34-1-14.

       It is undisputed that Beeler, not Myers, posted the $250 bond for Myers’s release on

January 25, 1997, and was the legal owner of the funds. It is also undisputed that Myers is

not Beeler’s legal representative. On appeal, Myers asserts that he had standing to bring the

instant claim against Phillips and the Attorney General because Beeler had transferred her

interest in the bond money to him in a letter dated March 21, 2011. Myers, however, did not

include this assertion in his complaint but rather in documents that he subsequently submitted

to the court. The complaint does not demonstrate that Beeler transferred her interest in the

bond money to Myers or that Myers was the legal owner of the bond money in question. The

complaint merely states that the money “was paid on [Myers’s] behalf for [his] release.”

Appellant’s App. p. 9. Again, in determining whether any facts will support the party’s claim

for the purpose of defeating a Trial Rule 12(B)(6) motion to dismiss, we look only to the

complaint and may not resort to any other evidence in the record. Estate of Verdak, 856

N.E.2d at 134. Because the complaint filed by Myers does not support his assertion that he

was the legal owner of or was entitled to recover the funds in question, we conclude that

Myers did not have standing to bring the instant lawsuit against Phillps and the Attorney

General. As such, the trial court properly dismissed Myers’s action against Phillips and the

Attorney General.

       The judgment of the trial court is affirmed.

NAJAM, J., and FRIEDLANDER, J., concur.



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