from the Marion Superior Court The Honorable David J. Dreyer,
Judge Trial Court Cause No. 49D10-1506-PL-19961
ATTORNEYS FOR APPELLANT Michael L. Einterz, Jr. Mike Einterz
Einterz & Einterz Zionsville, Indiana.
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Aaron T. Craft Elizabeth M. Littlejohn Deputy
Attorneys General Indianapolis, Indiana.
OF THE CASE
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
We affirm in part, reverse in part, and remand.
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
(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.
AND PROCEDURAL HISTORY
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 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).
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.
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
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.
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).
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 payment
of restitution as set forth in the plea agreement. At some
point, Mizen repaid the sum of $343, 541.08 to the Township.
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.
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] ...