MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              May 23 2019, 9:09 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David Paul Allen                                         Curtis T. Hill, Jr.
Hammond, Indiana                                         Attorney General
                                                         Sierra A. Murray
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Patrick Coughlin,                                        May 23, 2019
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         18A-PL-2846
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana ex rel.                                 The Honorable Bruce D. Parent,
Indiana Department of                                    Judge
Workforce Development,                                   Trial Court Cause No.
Appellee-Petitioner                                      45D04-1801-PL-3




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-2846 | May 23, 2019                    Page 1 of 13
                                             Case Summary
[1]   After the Indiana Department of Workforce Development (“DWD”)

      determined that Patrick Coughlin received unemployment compensation

      benefits to which he was not entitled, the State of Indiana filed a verified

      petition for civil enforcement of the DWD’s determination. Coughlin moved

      for summary judgment, asserting that the State’s claim was filed outside the

      applicable statute of limitations. The State filed a cross-motion for summary

      judgment on the merits of its claim. Coughlin then filed a motion to strike

      portions of the evidence that the State designated in support of its cross-motion.

      The trial court issued an order denying Coughlin’s motion for summary

      judgment and his motion to strike and granted the State’s cross-motion for

      summary judgment.


[2]   Coughlin now appeals. He contends that he is entitled to summary judgment

      because the State’s claim is barred by the statute of limitations. He also argues

      that the trial court abused its discretion in denying his motion to strike because

      the State’s designated evidence does not satisfy certain evidentiary rules

      pertaining to affidavits and authenticity. Finding no error, we affirm.


                                 Facts and Procedural History
[3]   Coughlin applied for and received unemployment compensation benefits in

      fiscal years 2009 and 2010 through the DWD. Subsequently, the DWD

      investigated his claims and concluded that he had failed to report income that

      he had earned during the relevant time period. The DWD mailed Coughlin


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2846 | May 23, 2019   Page 2 of 13
      determinations of eligibility and notices of potential overpayment, informing

      him that it had determined that he “knowingly failed to disclose or falsified

      material facts,” which, if known, would have rendered him ineligible for

      benefits. Appellant’s App. Vol. 2 at 27-33. The determinations of eligibility

      informed Coughlin that he had received $8102.00 to which he was not entitled,

      that penalties for the fraud would be assessed, and that interest on the balance

      due would accrue monthly. Id. Further, the determinations of eligibility

      informed Coughlin that they would become final unless appealed within ten

      days. Id. Coughlin did not appeal. On January 30, 2012, the determinations of

      eligibility became final.


[4]   On January 8, 2018, the State filed a verified petition for civil enforcement of

      the determinations of eligibility, alleging that Coughlin had failed to disclose

      material facts which would have made him ineligible to receive unemployment

      compensation benefits, resulting in an overpayment of $8102.00 and resulting

      penalties of $4486.25. The petition was verified by the DWD’s keeper of

      records, Whitney Cobb, and the notices of potential overpayment and the

      determinations of eligibility were referenced in and attached to the petition as

      exhibits. Id. at 20-33.


[5]   In June 2018, Coughlin filed a motion for summary judgment, supporting

      memorandum, and designated evidence, asserting that the State’s petition for

      civil enforcement was filed outside the applicable period of limitations. In

      August 2018, the State filed a cross-motion for summary judgment and

      opposition to Coughlin’s motion for summary judgment with a supporting

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2846 | May 23, 2019   Page 3 of 13
      memorandum and designated evidence. The State argued that its petition was

      timely and that “the undisputed facts of this case permit the court to determine

      that after offsets, tax interceptions, and payments [Coughlin] is indebted to [the

      State] in the amount of $11,592.03 plus continually accruing interest at one-half

      percent per month.” Id. at 77. Coughlin then filed a motion to strike portions

      of the State’s designated evidence.


[6]   Following a hearing in October 2018, the trial court issued an order denying

      Coughlin’s motion for summary judgment, denying his motion to strike, and

      granting the State’s cross-motion for summary judgment. This appeal ensued.


                                     Discussion and Decision

      Section 1 – The trial court properly denied Coughlin’s motion
                          for summary judgment.
[7]   Our review of summary judgments is well settled:


              The purpose of summary judgment is to terminate litigation
              about which there can be no factual dispute and which can be
              determined as a matter of law. The party moving for summary
              judgment has the burden of making a prima facie showing that
              there is no genuine issue of material fact and that it is entitled to
              judgment as a matter of law. If the moving party meets its
              burden, the burden then shifts to the nonmoving party whose
              response must set forth specific facts indicating that there is an
              issue of material fact. Any doubts as to any facts or inferences to
              be drawn from those facts must be resolved in favor of the
              nonmoving party.




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2846 | May 23, 2019   Page 4 of 13
              We review a summary judgment ruling de novo. A trial court’s
              findings and conclusions offer insight into the rationale for the
              court’s judgment and facilitate appellate review but are not
              binding on this Court. Moreover, we are not constrained to the
              claims and arguments presented to the trial court, and we may
              affirm a summary judgment ruling on any theory supported by
              the designated evidence. Cross-motions for summary judgment
              do not alter this standard or change our analysis. The party that
              lost in the trial court has the burden of persuading us that the trial
              court erred.


      Denson v. Estate of Dillard, 116 N.E.3d 535, 539 (Ind. Ct. App. 2018) (citations

      and quotation marks omitted). “The defense of a statute of limitation is

      peculiarly suitable as a basis for summary judgment.” LaCava v. LaCava, 907

      N.E.2d 154, 162 (Ind. Ct. App. 2009) (quoting Morgan v. Benner, 712 N.E.2d

      500, 502 (Ind. Ct. App. 1999), trans. denied).


[8]   Coughlin argues that he is entitled to summary judgment as a matter of law

      because the statute of limitations had run on the State’s claim. Specifically, he

      asserts that the State filed its verified petition for civil enforcement almost six

      years after the effective date of the determinations of eligibility, and therefore

      failed to bring the civil enforcement action within the applicable statute of

      limitations, which he contends is two years. “‘[T]he statute of limitation in

      effect at the time a lawsuit is commenced governs the action regardless of

      whether it lengthens or shortens the time allowed for bringing suit.’” Indiana

      Spine Grp., PC v. Pilot Travel Ctrs., LLC, 959 N.E.2d 789, 793, n.3 (Ind. 2011)

      (quoting State v. Hensley, 661 N.E.2d 1246, 1249 (Ind. Ct. App. 1996)).



      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2846 | May 23, 2019   Page 5 of 13
[9]   The DWD’s authority to recover unemployment benefits that have been

      improperly obtained, including by fraud, is found in Indiana Code Section 22-4-

      13-1. At the time the State filed its petition, the statute read as follows:


              (c) Any individual who knowingly:


                   (1) makes, or causes to be made by another, a false statement
                   or representation of a material fact knowing it to be false; or


                   (2) fails, or causes another to fail, to disclose a material fact;
                   and


              as a result thereof has received any amount as benefits to which
              the individual is not entitled under this article, shall be liable to
              repay such amount, with interest at the rate of one-half percent
              (0.5%) per month, to the department for the unemployment
              insurance benefit fund or to have such amount deducted from
              any benefits otherwise payable to the individual under this
              article.


              ….


              (h) Where any individual is liable to repay any amount to the
              department for the unemployment insurance benefit fund for the
              restitution of benefits to which the individual is not entitled under
              this article, the amount due may be collectible without interest,
              except as otherwise provided in subsection (c), by civil action in
              the name of the state of Indiana, on relation of the department,
              which remedy by civil action shall be in addition to all other
              existing remedies and to the methods for collection provided in
              this article.




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2846 | May 23, 2019      Page 6 of 13
[10]   Section 22-4-13-1 does not provide a time limitation on the civil enforcement

       action it authorizes. Accordingly, to determine the applicable statute of

       limitations, we must identify the substance of the cause of action. Whitehouse v.

       Quinn, 477 N.E.2d 270, 274 (Ind. 1985). “The substance of a cause of action is

       ascertained by an inquiry into the nature of the alleged harm.” Meisenhelder v.

       Zipp Express, Inc., 788 N.E.2d 924, 932 (Ind. Ct. App. 2003).


[11]   Coughlin claims that enforcement of a final administrative order is in the nature

       of a chose in action, and therefore the applicable statute of limitations is the

       two-year limitation period for personal injury found in Indiana Code Section

       34-11-2-4(a)(2). Section 34-11-2-4(a)(2) provides, “An action for injury to

       person or character, injury to personal property, or forfeiture of penalty given

       by statute must be commenced within two years after the cause accrues.”


[12]   In support of his argument, Coughlin relies on Haynes v. Contat, 643 N.E.2d 941

       (Ind. Ct. App. 1994). There, Haynes filed a complaint with the Indiana Civil

       Rights Commission (“ICRC”), alleging that Contat’s refusal to lease rental

       property to her constituted unlawful race discrimination. The ICRC issued an

       order finding in Haynes’s favor and assessing damages against Contat, which

       became effective on March 22, 1991. After Contat failed to pay the damages,

       on July 15, 1993, Haynes filed an action to enforce the ICRC order pursuant to

       Indiana Code Section 4-21.5-6-3, which at that time authorized a party to an

       agency action to file a petition for civil enforcement of the agency order, but

       contained no time limitation for bringing an enforcement action. Contat filed a

       motion to dismiss Haynes’s action, alleging that her claim was barred by the

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2846 | May 23, 2019   Page 7 of 13
       two-year limitation period in Indiana Code Section 34-1-2-2(1), the predecessor

       of Section 34-2-4(a)(2). The trial court agreed, and Haynes appealed.


[13]   In determining which statute of limitations applied to Haynes’ claim, another

       panel of this Court reasoned, “When the agency awarded [Haynes] money

       damages, it awarded her a ‘chose in action’: a personal property right not

       reduced to possession but recoverable in a court of law.” Id. at 943 (quoting

       BLACK’S LAW DICTIONARY 305 (4th ed. 1968)). The court concluded,

       “Haynes’s enforcement action sought to reduce to possession her property

       interest in the ICRC’s determination of money damages. As such, her claim

       falls under I.C. 34-1-2-2(1)’s two-year statute of limitations for actions based on

       injury to personal property.” Id. at 943-44.


[14]   Haynes is not applicable to this case. There, the two-year statute of limitations

       applied because Haynes’s claim was in the nature of an injury to her person,

       which clearly falls within the claims governed by Section 34-11-2-4(a)(2). In

       this case, the DWD determined that Coughlin applied for and received

       unemployment compensation benefits to which he was not entitled. Thus, the

       State’s claim to enforce the determinations of eligibility can best be categorized

       as an action on an account or a contract not in writing. Such claims fit within

       the claims governed by Indiana Code Section 34-11-2-7, which provides,


               The following actions must be commenced within six (6) years
               after the cause of action accrues:


                (1) actions on accounts and contracts not in writing.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2846 | May 23, 2019   Page 8 of 13
               (2) Actions for use, rents, and profits of real property.


               (3) Actions for injuries to property other than personal property,
               damages for detention of personal property and for recovering
               possession of personal property.


               (4) Actions for relief against frauds.


[15]   In this case, the six-year statute of limitations in Section 34-11-2-7 applies.

       Because the State filed its verified petition within six years, its petition was

       timely. Accordingly, we conclude that Coughlin’s summary judgment motion

       was properly denied.


            Section 2 – The trial court did not abuse its discretion in
             denying Coughlin’s motion to strike and did not err in
           granting the State’s cross-motion for summary judgment.
[16]   Coughlin also argues that the trial court erred in denying his motion to strike

       portions of the State’s designated evidence. We review a trial court’s decision

       on a motion to strike for an abuse of discretion. Halterman v. Adams Cty. Bd. of

       Comm’rs, 991 N.E.2d 987, 989 (Ind. Ct. App. 2013). An abuse of discretion

       occurs when the decision is clearly against the logic and effect of the facts and

       circumstances. Id.


[17]   Indiana Trial Rule 56(C) requires a summary judgment movant and respondent

       to “designate to the court all parts of pleadings, depositions, answers to

       interrogatories, admissions, matters of judicial notice, and any other matters on

       which it relies for purposes of the motion.” “In ruling on a motion for

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2846 | May 23, 2019   Page 9 of 13
       summary judgment, the trial court will consider only properly designated

       evidence which would be admissible at trial.” Seth v. Midland Funding, LLC, 997

       N.E.2d 1139, 1141 (Ind. Ct. App. 2013).


[18]   The State’s designated materials included Exhibit A, Cobb’s affidavit, in which

       she attested as follows: (1) she has personal knowledge of the facts stated

       therein, and they are true and correct to the best of her knowledge; (2) she is the

       DWD’s benefit payment control keeper of the records; (3) Coughlin applied for

       and received benefits during the benefit years ending August 1, 2009, and

       August 7, 2010; (4) the DWD paid Coughlin $8102.00 in benefits; (5) Coughlin

       incurred penalties totaling $4486.25 due to the “fraudulent” overpayment of

       benefits; (6) Coughlin accrued interest of $2625.90; (7) the amount of setoffs

       applied to the amount Coughlin owes the DWD totals $3622.12; and (8) the

       outstanding balance that Coughlin owes the DWD is $11,592.03. Appellant’s

       App. Vol. 2 at 83-84. The State also included Exhibit F, the notices of

       overpayment; Exhibit G, the determinations of eligibility; and Exhibit H, its

       verified petition for civil enforcement.


[19]   Coughlin argues that Exhibit A, paragraphs 3 through 8 are inadmissible

       because the statements are based on unspecified and/or unauthenticated

       records, and he argues that Exhibits B through G are inadmissible because they

       are not referenced in the affidavit or otherwise certified or authenticated.

       Indiana Trial Rule 56(E) provides,


               Supporting and opposing affidavits shall be made on personal
               knowledge, shall set forth such facts as would be admissible in

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2846 | May 23, 2019   Page 10 of 13
               evidence, and shall show affirmatively that the affiant is
               competent to testify to the matters stated therein. Sworn or
               certified copies not previously self-authenticated of all papers or
               parts thereof referred to in an affidavit shall be attached thereto
               or served therewith.


       Evidence is properly authenticated, and therefore admissible, when the

       proponent “produce[s] evidence sufficient to support a finding that the item is

       what the proponent claims it is.” Ind. Evidence Rule 901(a). Sufficient

       evidence includes testimony of a witness with knowledge. Ind. Evidence Rule

       901(b)(1).


[20]   As to Cobb’s affidavit, Coughlin does not challenge the admissibility of Cobb’s

       sworn statements that the facts recited therein are based on her personal

       knowledge and that she is the DWD’s keeper of the records. Because the

       affidavit is based on Cobb’s personal knowledge and shows that she is

       competent as the keeper of records to testify to the DWD’s unemployment

       insurance records, the affidavit is properly authenticated. In addition, “[a]n

       affidavit need not contain an explicit recital of personal knowledge when it can

       be reasonably inferred from its contents that the material parts thereof are

       within the affiant’s personal knowledge.” Kader v. State, Dep’t of Corr., 1 N.E.3d

       717, 724 (Ind. Ct. App. 2013) (quoting DeLage Landen Fin. Servs., Inc. v. Cmty.

       Mental Health Ctr., Inc., 965 N.E.2d 693, 701 (Ind. Ct. App. 2012), trans. denied).

       See also, e.g., Skaggs v. Merch. Retail Credit Ass’n, Inc., 519 N.E.2d 202, 203 (Ind.

       Ct. App. 1988) (averments that affiant was employed by phone company and

       responsible for customer billing and collections were sufficient to conclude that

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2846 | May 23, 2019   Page 11 of 13
       recital of payments and credits made by phone service customer were based on

       personal knowledge). Thus, Cobb’s affidavit is admissible on its own. 1


[21]   In addition, Coughlin does not challenge the admissibility of the State’s verified

       petition for civil enforcement. When the State’s petition was filed, it was

       verified by Cobb, the notices of overpayment and the determinations of

       eligibility were attached, and Cobb specifically referenced them in support of

       the allegations in the petition. When Cobb verified the petition, she also

       affirmed the exhibits cited therein. Accordingly, the trial court was entitled to

       consider the verified petition, the notices of overpayment, and the

       determinations of eligibility and thus did not abuse its discretion in denying

       Coughlin’s motion to strike.


[22]   Furthermore, we note that Cobb’s affidavit, the verified petition, the notices of

       overpayment, and the determinations of eligibility are sufficient to support the

       State’s cross-motion for summary judgment. Although Coughlin challenges




       1
         Coughlin argues that an affidavit based upon unspecified or unverified exhibits is based upon hearsay, and
       thus contrary to the personal knowledge requirement of Trial Rule 56(C), citing Seth, 997 N.E.2d at 1142.
       That case is distinguishable. There, Midland Funding, LLC (“Midland”), filed suit against Seth for
       nonpayment of credit card debt. To make a prima facie case in support of summary judgment, Midland was
       required to show that Seth opened a Visa account with Columbus Bank and Trust (“Columbus”), that
       Midland was the assignee of that debt, and that Seth owed Columbus the amount alleged in the complaint.
       In the affidavit submitted by Midland, the affiant stated that she was an employee of Midland Credit
       Management, Inc. (“MCM”), a servicing agent for Midland; that she was familiar with MCM’s record
       keeping practices; and that her statements were based upon personal knowledge of those account records
       maintained by MCM on Midland’s behalf. The Seth court concluded that the affidavit was inadmissible
       because the affiant’s employment with MCM did not establish her personal knowledge of any of the facts
       pertaining to Midland’s complaint against Seth and none of the records she relied on were attached to the
       affidavit. Id. Here, Cobb is an employee of the DWD and has personal knowledge of the records that are the
       basis of the State’s action against Coughlin.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2846 | May 23, 2019                  Page 12 of 13
       other exhibits, we need not address their admissibility because any error in their

       admission is harmless. See Decker v. Zengler, 883 N.E.2d 839, 845 (Ind. Ct. App.

       2008) (“Even if the trial court’s decision was an abuse of discretion, we will not

       reverse if the admission constituted harmless error.”), trans. denied. Coughlin

       also argues that the statement in Cobb’s affidavit that the overpayments were

       “fraudulent” is inadmissible. Because the determinations of eligibility found

       that Coughlin committed fraud by knowingly failing to disclose or falsifying

       material facts, any error in the admission of the statement is harmless.


[23]   Based on the foregoing, we affirm the denial of Coughlin’s summary judgment

       motion and his motion to strike and the grant of the State’s cross-motion for

       summary judgment.


[24]   Affirmed.


       Bradford, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2846 | May 23, 2019   Page 13 of 13
