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Robertson v. State ex rel. Hill

Court of Appeals of Indiana

March 29, 2019

Cathy Jo Robertson, Appellant-Defendant,
v.
State of Indiana ex rel. Curtis T. Hill, Jr., Attorney General of Indiana, Appellee-Plaintiff, Ronald Bloemer, Auto-Owners Insurance Company, and OneBeacon Insurance Company, Defendants.

          Appeal from the Jennings Superior Court The Honorable Roger L. Duvall, Special Judge Trial Court Cause No. 40D01-1705-PL-67

          ATTORNEY FOR APPELLANT Ann C. Coriden Coriden Glover, LLC Columbus, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Frances Barrow Deputy Attorney General Indianapolis, Indiana

          ATTORNEYS FOR AMICUS CURIAE LIBERTY MUTUAL INSURANCE Kevin D. Koons Jennifer L. Watt Kroger, Gardis & Regas, LLP Indianapolis, Indiana

          NAJAM, JUDGE.

         Statement of the Case

         [¶1] Cathy Jo Robertson appeals the trial court's denial of her Indiana Trial Rule 12(B)(6) motion to dismiss a complaint to recover public funds filed by the Office of the Indiana Attorney General ("OAG"), which alleged that Robertson had diverted public funds from Jennings County for her personal gain during her tenure as a bookkeeper for the Clerk of the Circuit Court of Jennings County ("the Clerk's Office").[1] Robertson raises one issue for our review, namely, whether the trial court erred when it denied her motion to dismiss the OAG's complaint on the ground that the complaint had been filed outside the two-year statute of limitations.[2] Because we hold that the two-year limitations period did not begin to run until after the OAG received the final, verified report of the Indiana State Board of Accounts ("SBOA"), and because the OAG's complaint against Robertson was filed within two years of the OAG having received the final report, we affirm the trial court's denial of Robertson's motion to dismiss.

         Facts and Procedural History

         [¶2] In 2014, the SBOA conducted a special investigation of the records of the Clerk's Office. The SBOA's investigation was limited to a review of records associated with the deposit of funds from January 1, 2009, through April 8, 2011, during which time Robertson was a bookkeeper for the Clerk's Office. As a result of the investigation, the SBOA compiled a report in which it stated that Robertson had diverted $61, 393.73 from the county using a "checks substituted for cash" scheme. Appellant's App. Vol. II at 29.

         [¶3] On December 10, 2014, the SBOA discussed the report with Robertson. The next day, the SBOA requested that Robertson refund the money to the county. On December 11, the SBOA sent a letter to Jennings County officials and included the report with the letter. In the letter, the SBOA stated that it had also forwarded a preliminary, unverified report "to the office of the Indiana Attorney General and the local Prosecuting Attorney." Id. at 28. That letter provided that the "Official Response to this report has not been examined or verified for its accuracy." Id. Thereafter, SBOA investigators verified the report on January 21, 2016. On January 22, the SBOA published the signed and verified report and placed a copy of the final report with the OAG.

         [¶4] Based on the results of the special investigation, the OAG filed a complaint to recover public funds against Robertson on May 5, 2017, pursuant to Indiana Code Section 5-11-5-1. In Counts I and II of the complaint, the OAG alleged that Robertson had misappropriated public funds in the amount of $61, 393.73.[3]In Count III, the OAG sought treble damages pursuant to the Crime Victim Relief Act ("CVRA") in the amount of $184, 181.19. The OAG included a copy of the SBOA's published verified report as an exhibit to its complaint.

         [¶5] Thereafter, Robertson filed a motion to dismiss the OAG's complaint pursuant to Indiana Trial Rule 12(B)(6). In her motion to dismiss, Robertson asserted that the OAG's complaint was subject to a two-year statute of limitations and that the OAG had not timely filed its complaint. Specifically, Robertson asserted that the OAG's claim had accrued between January 1, 2009, and April 8, 2011, as that was the time period during which she was employed as a bookkeeper for the Clerk's Office. In the alternative, Robertson argued that, even if the statute of limitations did not begin to run until the OAG had discovered the alleged loss of funds, the OAG's complaint was still time barred because the OAG had actual notice of her alleged offenses when the SBOA had placed its unverified report with the OAG on December 11, 2014.

         [¶6] Following a hearing, the trial court determined that the plain language of Indiana Code Section 5-11-5-1 provided that "the statute of limitations during which the Office of the Indiana Attorney General could institute an action for the recovery of monies commenced on January 22, 2016," when the SBOA placed its verified report with the OAG. Id. at 14. The trial court concluded that the OAG had filed its complaint within two ...


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