Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mizen v. State ex rel. Zoeller

Court of Appeals of Indiana

February 28, 2017

Alan Mizen, Appellant-Defendant,
v.
State of Indiana ex rel. Gregory F. Zoeller, Attorney General of Indiana, Appellee-Plaintiff.

         Appeal 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.

          Riley, Judge.

         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 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 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 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] ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.