Alan Mizen v. State of Indiana ex rel. Gregory F. Zoeller, Attorney General of Indiana

FILED
Feb 28 2017, 7:46 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael L. Einterz, Jr. Curtis T. Hill, Jr.
Mike Einterz Attorney General of Indiana
Einterz & Einterz Aaron T. Craft
Zionsville, Indiana Elizabeth M. Littlejohn
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Alan Mizen, February 28, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1605-PL-1132
v. Appeal from the Marion Superior
Court
State of Indiana ex rel. Gregory The Honorable David J. Dreyer,
F. Zoeller, Attorney General of Judge
Indiana, Trial Court Cause No.
Appellee-Plaintiff. 49D10-1506-PL-19961

Riley, Judge.

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 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
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 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

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 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

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 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] waived [its] right to pursue any claims against [Mizen].”

(Appellant’s App. Vol. II, p. 31).

[11] On January 25, 2016, Mizen filed a motion for summary judgment. He

asserted that the Attorney General has no statutory authority to pursue the

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 additional audit costs sought in Count I of the State’s Complaint. He further

specified that although the State requested that he pay for the additional audit

costs, “the undisputed facts reveal that no costs were ever billed and an

examination of the law reveals that, no matter how they are classified, neither

the State, the SBOA, nor the Township is entitled to recover examination costs

from . . . Mizen—especially since there is no ‘amount owed.’” (Appellant’s

App. Vol. II, p. 38). As to Count II of the State’s Complaint, Mizen argued

that he “has already repaid any ‘pecuniary loss’, thus precluding any recovery

based on ‘the actual damages’—because there are no actual damages in this

matter.” (Appellant’s App. Vol. II, p. 39). Mizen also contended that the

Attorney General is only authorized to recover misappropriated funds—“not

fees, penalties, or additional costs.” (Appellant’s App. Vol. II, p. 39).

Moreover, Mizen asserted that the State failed to file its Complaint within the

CVRA’s two-year statute of limitations. On February 18, 2016, the State filed

an objection to Mizen’s summary judgment motion, along with a cross-motion

for summary judgment, in which the State reiterated the claims set forth in its

Complaint.

[12] On April 8, 2016, the trial court conducted a hearing on the parties’ cross-

motions for summary judgment. At the onset of the hearing, Mizen filed a

motion requesting the trial court to take judicial notice of three prior audit

reports issued by the SBOA regarding the Township: (1) Report B40189, issued

on March 15, 2012, concerning the records of the Center Township Small

Claims Court from January 1, 2009, to December 31, 2010; (2) Report B40567,

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 issued on July 13, 2012, concerning issues of Mizen’s salary, compensable time,

overtime, paid time off, and excessive hours worked from January 1, 2005,

through December 31, 2010; and (3) Report B40568, also issued on July 13,

2012, concerning the Township’s financial statements from January 1, 2009, to

December 31, 2010 . Despite not having included these reports in his

designated evidence, Mizen argued that they were necessary to establish that

the State’s claim is barred by the statute of limitations because there were

financial discrepancies noted in the reports that should have given the State

reason to exercise ordinary diligence in uncovering the misappropriation sooner

than the audit commenced on January 22, 2014. 1 At the close of the hearing,

the trial court took the matter under advisement.

[13] On April 11, 2016, the State filed an objection to Mizen’s motion for judicial

notice. The State conceded that the SBOA Reports B480189, B40567, and

B40568 “are public documents and are readily available to the [c]ourt.”

(Appellant’s App. Vol. II, p. 240). However, the State argued that the audit

reports are irrelevant to this action because they “do not contemplate the fraud

discovered, investigated, and reported by the [SBOA] in Special Investigation

Report B44484.” (Appellant’s App. Vol. II, p. 240).

1
In his appellate brief, Mizen also discusses the SBOA’s Report B45431, which was filed on October 16,
2015, and which is supposedly the report for the “normal” audit that was commenced on January 22, 2014,
ultimately resulting in the special investigation and Special Investigation Report B44484. (Appellant’s Br. p.
16). However, SBOA Report B45431 was neither included in Mizen’s designated evidence nor referenced in
his motion for the trial court to take judicial notice. Therefore, we consider neither the report nor Mizen’s
arguments related thereto in our decision.

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[14] On April 29, 2016, the trial court denied Mizen’s motion for summary

judgment but granted the State’s cross-motion. The trial court found that

Mizen had waived his statute of limitations defense by failing to include it as an

affirmative defense in his pleadings. Waiver aside, the trial court further noted

that “Mizen’s criminal behavior belie[d] any consideration against the State’s

ordinary diligence” in discovering the misappropriation sooner. (Appellant’s

App. Vol. II, p. 10). As to the State’s contention that it was entitled to recover

the incurred costs of conducting a special audit on behalf of the SBOA, the trial

court agreed and awarded “[s]tatutory expenses in the amount of $54,978.41.”

(Appellant’s App. Vol. II, p. 10). Pursuant to the CVRA, the trial court also

awarded treble damages in the amount of $1,036,623.24, 2 along with reasonable

attorney fees and court costs. On May 4, 2016, the trial court issued an order,

summarily denying Mizen’s motion to take judicial notice of SBOA Reports

B480189, B40567, and B40568. The trial court also ordered that portions of the

motion for judicial notice be stricken from the record.

[15] Mizen now appeals. Additional facts will be provided as necessary.

2
Although the trial court awarded $1,036,623.24 in treble damages, the State’s actual damages of
$343,541.08 multiplied by three is actually $1,030,623.24.

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 DISCUSSION AND DECISION
I. Standard of Review

[16] Our court reviews a trial court’s grant or denial of a motion for summary

judgment under the same standard as the trial court—that is, summary

judgment “is appropriate only if the designated evidentiary matter shows there

is no genuine issue of material fact and the moving party is entitled to judgment

as a matter of law.” Martin v. Brown, 716 N.E.2d 1030, 1032 (Ind. Ct. App.

1999) (citing Ind. Trial Rule 56(C)). On appeal, our review is de novo; however,

we consider only “the materials properly designated to the trial court, and we

take all facts and draw all reasonable inferences in favor of the non-moving

party.” Kesling v. Hubler Nissan, Inc., 997 N.E.2d 327, 331-32 (Ind. 2013).

Although the trial court’s issuance of specific findings and conclusions assists in

our review “by giving insight into the trial court’s rationale,” we are not bound

by these findings and conclusions. Id. at 331. We will affirm a summary

judgment “if it is sustainable on any theory or basis found in the evidentiary

matter designated to the trial court.” Sam & Mac, Inc. v. Treat, 783 N.E.2d 760,

764 (Ind. Ct. App. 2003).

II. Statute of Limitations

[17] Mizen claims that the State is not entitled to summary judgment because it

failed to file its claim within the applicable statute of limitations and,

accordingly, is barred from recovering under the CVRA. Statutes of limitation

“are practical and pragmatic devices to spare the courts from litigation of stale

claims, and the citizen from being put to his defense after memories have faded,

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 witnesses have died or disappeared, and evidence has been lost.” Russo v. S.

Developers, Inc., 868 N.E.2d 46, 48 (Ind. Ct. App. 2007). “They are enacted

upon the presumption that one having a well-founded claim will not delay in

enforcing it.” Morgan v. Benner, 712 N.E.2d 500, 502 (Ind. Ct. App. 1999),

trans. denied. The accrual of a cause of action is a question of law, “as ‘it is well-

established in Indiana law that it is the courts’ responsibility to determine, based

on the facts of each case, when the cause of action accrues.’” Prime Mortg. USA,

Inc. v. Nichols, 885 N.E.2d 628, 639 (Ind. Ct. App. 2008) (quoting Autocephalous

Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc., 917 F.2d

278, 288 (7th Cir. 1990)). Thus, a statute of limitations defense is a proper

consideration on summary judgment. Martin, 716 N.E.2d at 1033. If the

undisputed facts establish “that the complaint was filed after the running of the

applicable statute of limitations, the trial court must enter judgment for the

defendant.” Id.

[18] It is long settled that “because the substance of a claim under [the CVRA] is

punitive rather than compensatory, such claims are subject to a two-year statute

of limitations.” Prime Mortg. USA, Inc., 885 N.E.2d at 638 (internal quotation

marks omitted). Furthermore, “[a]ctions under the [CVRA] are subject to the

discovery rule, under which a cause of action accrues, and the statute of

limitations begins to run, when the plaintiff knew or, in the exercise of ordinary

diligence, could have discovered that an injury had been sustained as a result of

the tortious act of another.” Id. at 639-40 (internal quotation marks omitted).

In this case, the State argues that, due to Mizen’s efforts to conceal his theft, the

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 earliest its cause of action could have accrued was when the SBOA commenced

its audit on January 22, 2014. Thus, the State asserts that its June 17, 2015

Complaint falls within the two-year statute of limitations. On the other hand,

Mizen asserts that because SBOA Reports B480189, B40567, and B40568

establish that there were irregularities in the Township’s finances, the State, in

an exercise of reasonable diligence, should have discovered the

misappropriation no later than June of 2012. Mizen insists that because the

State filed its Complaint after June of 2014, it is barred.

[19] Before deciding whether the State’s action is timely, we must first consider the

State’s assertion (and the trial court’s conclusion) that Mizen has waived any

claim regarding the statute of limitations by failing to include it as an

affirmative defense in his Answer. With respect to affirmative defenses,

Indiana Trial Rule 8(C) provides that

[a] responsive pleading shall set forth affirmatively and carry the
burden of proving: accord and satisfaction, arbitration and
award, discharge in bankruptcy, duress, estoppel, failure of
consideration, fraud, illegality, injury by fellow servant, laches,
license, payment, release, res judicata, statute of frauds, statute of
limitations, waiver, lack of jurisdiction over the subject-matter,
lack of jurisdiction over the person, improper venue,
insufficiency of process or service of process, the same action
pending in another state court of this state, and any other matter
constituting an avoidance, matter of abatement, or affirmative
defense. A party required to affirmatively plead any matters,
including matters formerly required to be pleaded affirmatively
by reply, shall have the burden of proving such matters.

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 Our courts have generally held that the failure to raise an affirmative defense in

a pleading results in waiver of the issue. See Sullivan Builders & Design, Inc. v.

Home Lumber of New Haven, Inc., 834 N.E.2d 129, 136 (Ind. Ct. App. 2005),

trans. denied.

[20] Nevertheless, there is also case law that indicates that the failure to plead statute

of limitations as an affirmative defense does not automatically result in a

waiver. Rather, our courts have stated that “a statute of limitations defense

may properly be raised by a motion for summary judgment” even if not raised

in the pleadings. Honeywell, Inc. v. Wilson, 500 N.E.2d 1251, 1252 (Ind. Ct.

App. 1986) (citing Schideler v. Dwyer, 417 N.E.2d 281 (Ind. 1981)), trans. denied.

Allowing this issue to be raised in a summary judgment motion

follows from the basic policies underlying the modern Indiana
Rules of Trial Procedure. These rules are designed to avoid
pleading traps and, to the greatest extent possible, ensure that
cases are tried on the issues that their facts present. Thus the
focus is not on the technical procedure used to raise the issue, but
on the issue’s legal merits.

Id. Moreover, there is a presumption “that issues can be raised as they, in good

faith, are developed.” Id. In order to rebut this presumption, “the party against

whom the new issue is raised” may make “an affirmative showing of

prejudice.” Id. In order to demonstrate prejudice, the party must show that it

“will be deprived of, or otherwise seriously hindered in the pursuit of some legal

right if injection of the new issue is permitted.” Id.

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[21] In this case, the State argued that “to bring [the statute of limitations] up now

would be prejudicial to the State as it seeks to convolute the pertinent and

justifiable legal issues in this case. And additionally it distracts the court from

the legal merits in the case.” (Tr. p. 13). Despite the delay, we decline to find

prejudice because the State had ample time to prepare an argument and respond

to Mizen’s statute of limitations defense. Furthermore, we elect to address the

issue based on our preference of deciding matters on legal merits rather than

technical procedure. 3

[22] Mizen now relies primarily on evidence outside of the designated materials to

contend that the State had either actual knowledge of Mizen’s

misappropriation, or that it failed to exercise reasonable diligence that could

have led to the discovery of the misappropriation, between December of 2011

and June of 2012. On appeal, Mizen argues that the trial court abused its

discretion by refusing to take judicial notice of the evidence purportedly

supporting this claim: SBOA Reports B480189, B40567, and B40568. Indiana

Evidence Rule 201(a) provides that a court may take judicial notice of “a fact

that: (A) is not subject to reasonable dispute because it is generally known

within the trial court’s territorial jurisdiction, or (B) can be accurately and

readily determined from sources whose accuracy cannot reasonably be

questioned.” A trial court “may take judicial notice at any stage of the

3
As such, we need not address Mizen’s contention that he did not waive his statute of limitations defense
because by pleading the affirmative defense of waiver, he necessarily pled the statute of limitations defense as
well.

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 proceeding” and is required to do so “if a party requests it and the court is

supplied with the necessary information.” Ind. Evidence Rule 201(c)-(d).

[23] As Evidence Rule 201 requires, Mizen provided the trial court with the three

SBOA audit reports, which are public documents and are readily available on a

website maintained by the State. Nonetheless, we find no abuse of discretion in

the trial court’s denial of Mizen’s motion for judicial notice because SBOA

Reports B480189, B40567, and B40568 are irrelevant to a determination of

whether the State filed its CVRA claim within the statutory timeframe. See, e.g.,

Brenwick Associates, LLC v. Boone Cnty. Redevelopment Comm’n, 870 N.E.2d 474,

478 (Ind. Ct. App. 2007) (finding that the trial court was not required to take

judicial notice of irrelevant facts), summarily aff’d in relevant part, 889 N.E.2d

289, 290 n.4 (Ind. 2008). As the State points out, a review of SBOA Reports

B480189, B40567, and B40568 “show that [the] Township did a poor job

keeping its records, that certain records were missing, and that there were

questions over Mizen’s salary” and other benefits. (State’s Br. p. 22). These

audit reports did not, however, reveal any indication that Mizen was engaging

in criminal conduct that would warrant further investigation. Moreover,

although a trial court may take judicial notice of certain facts at any stage of the

proceeding, all evidence to be considered for summary judgment purposes must

be designated at the time of the filing of the summary judgment motion or

response, including “matters of judicial notice.” T.R. 56(C). Because SBOA

Reports B480189, B40567, and B40568 were not timely designated as evidence

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 pursuant to Trial Rule 56(C), we find that it was appropriate for the trial court

to disregard them from consideration.

[24] The undisputed, designated evidence establishes that on January 22, 2014, the

SBOA commenced a normal audit of the Township, at which time, the SBOA

discovered suspected misappropriation of Township funds. At that point, the

SBOA began a special investigation of the time period in which Mizen stole

$343,541.08. Although other audits had been performed concerning the time

period in question, Mizen took steps to conceal his conduct at the time he wrote

and deposited the check. Specifically, Mizen created a false invoice in the

Township’s computer system—indicating that check number 35453, dated June

10, 2010, in the amount of $343,541.08, was being remitted to the Treasurer of

the State for items such as “document storage fees”; judicial insurance fees”;

“judicial salary fees”; “court administration fees”; “public defense admin fees”;

and “court fees due others.” (Appellant’s App. Vol. II, p. 104). In reality,

Mizen wrote the check to “Attorney’s General Clearing Tr” and deposited it

into his own account. (Appellant’s App. Vol. II, p. 22). Accordingly, the

designated evidence establishes that the earliest the State knew, or in the

exercise of ordinary diligence could have known, about Mizen’s criminal

misappropriation was during its special investigation, which stemmed from a

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 normal audit that began on January 22, 2014. Thus, the State’s June 17, 2015

Complaint is timely, and its claim under the CVRA is not barred. 4

III. Recovery of Audit Costs

[25] Mizen next claims that the trial court erred in granting summary judgment to

the State and awarding $54,978.41 in additional audit costs. The designated

evidence reveals that the additional audit costs were specifically incurred in

investigating Mizen’s misappropriation. Furthermore, “[t]he special

investigation into the misappropriation of Township funds by . . . Mizen, which

led to the issuance of the Special Investigation Report [B44484], required

663.75 hours of SBOA field examiner time.” (Appellant’s App. Vol. II, p. 88).

At the time, an SBOA field examiner’s time was valued at $82.83 per hour,

which “is the ‘actual direct and indirect cost of performing the examination or

investigation.’” (Appellant’s App. Vol. II, p. 88).

[26] Mizen insists that the Attorney General, on behalf of the SBOA, has no

authority to pursue the recovery of additional audit costs from Mizen. Mizen

correctly asserts that, “[i]n Indiana[,] the Attorney General is a statutory officer,

4
Having determined that the State’s claim was filed within the applicable statute of limitations based on the
discovery rule, we need not address the State’s contention that Mizen is estopped under the doctrine of
fraudulent concealment from arguing that the State failed to timely file its CVRA claim. Even where a
statute of limitations has expired, a plaintiff may be able to proceed under the doctrine of fraudulent
concealment, which “is an equitable doctrine which operates to prevent a defendant from asserting the statute
of limitations as a bar to a claim where the defendant, by his own actions, prevents the plaintiff from
obtaining the knowledge necessary to pursue a claim.” Meisenhelder v. Zipp Express, Inc., 788 N.E.2d 924, 931
(Ind. Ct. App. 2003) (citing Doe v. Shults-Lewis Child & Family Servs., Inc., 718 N.E.2d 738, 744-45 (Ind.
1999)). The statute of limitations is tolled “until the equitable grounds cease to operate as a reason for
delay.” Id.

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exercising only the authority granted by statute.” State ex rel. Steers v.

Holovachka, 142 N.E.2d 593, 602 (Ind. 1957). Pursuant to Indiana Code

section 5-11-5-1, if an SBOA audit “discloses malfeasance, misfeasance, or

nonfeasance in office or of any officer or employee,” the Attorney General is

required to “diligently institute and prosecute civil proceedings against the

delinquent officer, or upon the officer’s official bond, or both, and against any

other proper person that will secure to the state or to the proper municipality the

recovery of any funds misappropriated, diverted, or unaccounted for.” (Emphasis

added). According to Mizen, this provision only permits the Attorney General

to seek recovery of the misappropriated funds, but it does not permit any

“action if recovery has already been effectuated, and the statute does not

authorize an action only for ‘additional’ costs or fees.” (Appellant’s Br. p. 26).

Here, there is no dispute that Mizen repaid the $343,541.08 of misappropriated

funds through his criminal restitution order. 5 Furthermore, Mizen contends

that the payment of audit costs is governed by Indiana Code section 5-11-4-3(a),

which provides that “[t]he expense of examination and investigation of

accounts shall be paid by each municipality or entity as provided in this

chapter.” Thus, Mizen argues that the SBOA cannot “request payment from

any individual or entity other than the municipality or entity that operates the

account.” (Appellant’s Br. p. 26).

5
For these same reasons, Mizen also contends that Indiana Code section 5-11-5-1 precludes the Attorney
General from seeking exemplary damages under the CVRA. We will discuss recovery under the CVRA
below.

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[27] The State, however, directs our attention to Indiana Code section 5-11-5-7(c),

which states that “[t]he costs of collection, including but not limited to

reasonable attorney’s fees, may be added to money that is owed and collected

under this section. However, the costs of collection may not exceed an amount

that is equal to the amount of money that is owed.” According to the State,

“[t]his more specific statute gives the [SBOA] authority to collect auditing costs

above and beyond the normal auditing costs.” (State’s Br. p. 39). We disagree.

The State’s cited provision specifically references collection costs for money

that “is owed and collected under this section.” I.C. § 5-11-7-5(c). That section—

Indiana Code section 5-11-7-5(a)—provides that the SBOA may collect: “(1)

[u]npaid fines, costs, or fees that are imposed for violations of statutes defining

a crime or infraction and are owed to the state or its political subdivisions[;] (2)

[m]oney owed resulting from bond forfeitures . . . [; or] (3) [u]npaid user’s fees

incurred under a pretrial diversion agreement by a person charged with a

misdemeanor, infraction, or ordinance violation.” The additional audit

expenses at issue do not represent costs that may be collected under Indiana

Code section 5-11-7-5.

[28] Nevertheless, we still find that the plain language of Indiana Code section 5-11-

5-1 provides the Attorney General with authority to recover the additional audit

costs in this case. We acknowledge that Indiana Code section 5-11-4-3(a) does

stipulate that the Township is required to foot the bill for “[t]he expense of

examination and investigation of [its] accounts.” However, as the SBOA

averred in the designated evidence, the additional audit costs of $54,978.41

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 “were not budgeted in terms of time and resources, nor were they contemplated

in advance by the SBOA or the Township. The additional audit costs were not

billed to or paid by the Township.” (Appellant’s App. Vol. II, p. 87). Thus, if

the SBOA were to issue a bill to the Township for these additional audit costs,

that $54,978.41 would have to be diverted away from other Township use as a

direct result of Mizen’s malfeasance. See MERIAM-WEBSTER,

https://www.merriam-webster.com/dictionary/divert (last visited February 16,

2017) (defining “divert” as “to turn from one course or use to another”). The

Attorney General has specific authority to recover any public funds that are

diverted as a result of a public employee’s malfeasance. I.C. § 5-11-5-1(a).

Thus, the trial court properly granted summary judgment in favor of the State

on this issue. 6

IV. Crime Victims Relief Act

[29] Finally, Mizen claims that the trial court erred in granting the State’s summary

judgment motion based on its CVRA claim. If a person suffers a pecuniary loss

as the result of a violation of Indiana Code article 35-43 (i.e., the commission of

theft, conversion, etc.), that person “is entitled to bring a civil action under the

[CVRA] for damages in an amount not to exceed three times his actual

6
Our conclusion is further supported by the fact that on July 1, 2015, after the State filed its Complaint in
the present action, Indiana Code section 5-11-1-27(m) became effective, which provides that if the Attorney
General institutes civil proceedings under Indiana Code section 5-11-5-1, “the attorney general shall seek, in
addition to the recovery of any funds misappropriated, diverted, or unaccounted for, restitution of: (1) costs
incurred by the [SBOA]; and (2) all costs and reasonable attorney’s fees incurred by the attorney general; in
connection with the civil proceedings.”

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 damages, plus costs and attorney fees.” Bayview Loan Servicing, LLC v. Golden

Foods, Inc., 59 N.E.3d 1056, 1069-70 (Ind. Ct. App. 2016) (citing I.C. § 34-24-3-

1). Although “the CVRA creates a civil remedy, its reliance on proof of a

predicate criminal offense makes it inherently quasi-criminal.” Wysocki v.

Johnson, 18 N.E.3d 600, 605 (Ind. 2014). In fact, we have described the CVRA

as “a punitive statute intended to deter the wrongdoer and others from engaging

in similar future conduct.” JPMCC 2006-CIBC14 Eads Parkway, LLC v. DBL Axel,

LLC, 977 N.E.2d 354, 366 (Ind. Ct. App. 2012), trans. denied. As a penal

statute, the CVRA must be strictly construed. Columbus Med. Servs. Org. v.

Liberty Healthcare Corp., 911 N.E.2d 85, 98 (Ind. Ct. App. 2009).

[30] In general, a claimant need only prove the elements of the criminal conduct by

a preponderance of the evidence, but in this case, “[t]he parties agree that

Mizen’s misappropriation is one of the species of criminal behavior that can

lead to a civil action under the CVRA.” Wysocki, 18 N.E.3d at 606;

(Appellant’s Br. p. 28). Thus, Mizen’s challenge on appeal revolves around the

fact that he repaid the misappropriated funds of $343,541.08 to the Township

pursuant to a restitution order prior to the State’s filing of the present action.

Mizen now insists that the State cannot recover treble damages and other costs

under the CVRA because it has not suffered a “pecuniary loss.” (Appellant’s

Br. p. 27). See Coleman v. Coleman, 949 N.E.2d 860, 869 (Ind. Ct. App. 2011)

(“[I]f a plaintiff suffers no pecuniary loss as the result of a defendant’s actions,

the plaintiff is not entitled to recover . . . under the [CVRA].”). We disagree.

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[31] When Mizen stole $343,541.08 in public funds in 2010, the Township clearly

suffered a pecuniary loss. The fact that Mizen subsequently paid restitution

pursuant to a plea agreement that he entered into in the federal district court

does not negate the fact that, for more than four years, he benefitted from his

illegal conduct while simultaneously depriving the Township of the use of a

substantial amount of money. As already mentioned, the purpose of the CVRA

is to deter the wrongdoer and others from partaking in the same type of illicit

conduct in the future. JPMCC 2006-CIBC14 Eads Parkway, LLC, 977 N.E.2d at

366. It would do little to deter such behavior to simply require Mizen to return

the funds that were stolen.

[32] Moreover, we agree with the State that the present case is similar to Blankenship

v. McKay, 534 N.E.2d 243, 246 (Ind. Ct. App. 1989), in which the defendant

argued that the plaintiff’s claim for treble damages was barred because he had

been subjected to criminal prosecution that resulted in a restitution order to the

plaintiff. The Blankenship court found that the payment of restitution did not

prevent the plaintiff from seeking treble damages in a civil suit. Id. Specifically,

we noted that, although the plaintiff “is the beneficiary of the restitution order,

it came about through criminal prosecution, a remedy elected by the State

prosecutor. [The plaintiff] did not control the decision to prosecute. He,

therefore, did not elect the remedy alluded to.” Id. We concluded that “[t]o the

extent that [the plaintiff] has recovered pursuant to the restitution order, he may

not duplicate the recovery in a judgment for treble damages pursuant to [the

CVRA].” Id. Therefore, we held that the plaintiff could multiply his actual

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 damages “by three and recover the total sum less any amount received under

the restitution order.” Id.

[33] Nonetheless, mirroring his argument that the State could not pursue the

additional audit costs, Mizen also refutes that the State is entitled to summary

judgment because he maintains that the Attorney General did not have the

authority under Indiana Code section 5-11-5-1 to pursue treble damages as such

an award would clearly exceed the amount of funds misappropriated.

However, Indiana Code section 5-11-5-4 specifically provides that the Attorney

General, in an action to recover misappropriated public funds, is “entitled to

recover, in addition to the amount misappropriated, diverted or unaccounted

for, all such penalties and interest as might be recoverable under laws other than

this chapter.” We find that this provision allows the Attorney General to

pursue the treble damages provided by the CVRA.

[34] Finally, Mizen contends that allowing the State to recover under the CVRA

would subject him to double jeopardy in violation of the Indiana Constitution

and is a violation of due process. As the State points out, Mizen failed to raise

his constitutional claims before the trial court. Thus, we find that he has

waived his due process argument. See McBride v. Monroe Cnty. Office of Family &

Children, 798 N.E.2d 185, 194 (Ind. Ct. App. 2003). However, “questions of

double jeopardy implicate fundamental rights and, as such, may be raised for

the first time on appeal, or even by this court sua sponte.” Ellis v. State, 29

N.E.3d 792, 797 (Ind. Ct. App. 2015), trans. denied. “Whether convictions

violate double jeopardy is a pure question of law,” so our review is de novo. Id.

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 Pursuant to Article 1, Section 14 of the Indiana Constitution, “[n]o person shall

be put in jeopardy twice for the same offense.”

[35] Here, Mizen does not contend that he has multiple convictions that run afoul of

double jeopardy. Rather, he insists that because he has paid restitution in full,

any damages owed under the CVRA are purely punitive, with no compensatory

purpose, thus subjecting him to a second punishment “based upon the same

crime for which [he] was previously prosecuted.” (Appellant’s Br. p. 30). We

disagree. Our court has previously held that “possible or actual subjection to

criminal prosecution does not bar treble damages recoverable under [the

CVRA].” Blankenship, 534 N.E.2d at 245. The treble damages awarded in this

case are intended to both compensate the State’s actual loss and deter Mizen

from engaging in the same conduct in the future.

[36] Accordingly, we conclude that the State is entitled to recover no more than

three times its actual damages. Because Mizen has already paid $343,541.08 in

restitution, the trial court’s treble damages award of $1,030,623.24 should be

reduced by the amount paid. Therefore, we remand for the trial court to reduce

its judgment under the CVRA to $687,082.16, plus reasonable attorney fees and

costs.

CONCLUSION
[37] Based on the foregoing, we conclude that the trial court properly granted

summary judgment to the State because it filed its CVRA claim within the two-

year statute of limitations based on the discovery rule, and the State is entitled

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 to recover, as a matter of law, the $54,978.41 in additional audit costs that were

expended, along with treble damages under the CVRA (as reduced by the

restitution already paid) in the amount of $687,082.16, plus reasonable attorney

fees and costs. 7

[38] Affirmed in part, reversed in part, and remanded.

[39] Crone, J. and Altice, J. concur

7
We note that Mizen appeals both the trial court’s denial of his motion for summary judgment, as well as the
trial court’s entry of summary judgment in favor of the State. With the exception of the statute of limitations
issue raised in Mizen’s motion, both parties rely on the same remaining issues in claiming that they are
entitled to summary judgment—advocating the opposite sides of arguments relating to the incurred special
audit costs of $54,978.41 and treble damages under the CVRA of $1,030,623.24. Thus, by concluding that
the trial court properly granted summary judgment in favor of the State, we necessarily conclude that the trial
court properly denied Mizen’s summary judgment motion.

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