Court of Appeals of Indiana | Memorandum Decision 18A-PL-771 |June 24, 2019 Page 1 of 21

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Curtis T. Hill, Jr.

Attorney General of Indiana

Frances Barrow

Deputy Attorney General

Indianapolis, Indiana

ATTORNEYS FOR APPELLEES 

PFISTER AND SOPKO

Greg A. Bouwer

Jeff Carroll

Koransky Bouwer & Poracky, P.C.

Dyer, Indiana

ATTORNEY FOR APPELLEE OHIO 

FARMERS

Stephen C. Wheeler

Smith Fisher Maas Howard & 

Lloyd, P.C. 

Indianapolis, Indiana 

IN THE

COURT OF APPEALS OF INDIANA

State of Indiana ex rel. Curtis T. 

Hill, Attorney General of 

Indiana, 

Appellant-Plaintiff,

v.

William J. Pfister, Richard A. 

Sopko, Travelers Insurance 

Companies, Western Surety 

June 24, 2019

Court of Appeals Case No.

18A-PL-771

Appeal from the Lake Circuit

Court

The Honorable Marissa J. 

McDermott, Judge

Trial Court Cause No.

45C01-1705-PL-51
Court of Appeals of Indiana | Memorandum Decision 18A-PL-771 |June 24, 2019 Page 2 of 21

Insurance Company, and Ohio 

Farmers Insurance Company,

Appellees-Defendants.

Brown, Judge.

[1] The State of Indiana ex rel. Curtis T. Hill, Jr., Attorney General of Indiana (the 

“State”) appeals the trial court’s entry of summary judgment in favor of 

William J. Pfister, Richard A. Sopko, and Ohio Farmers Insurance Company 

(“Ohio Farmers”). The State raises several issues which we consolidate and 

restate as whether the court erred in entering summary judgment. We affirm.

Facts and Procedural History

A. Background

[2] This appeal stems from a complaint brought by the State against Pfister and

Sopko, officials of the School Town of Munster, Lake County (the “School 

Town”), and Ohio Farmers,

1 pursuant to Ind. Code § 5-11 et seq., seeking to 

recover funds related to allegations of “malfeasance, misfeasance, and/or 

nonfeasance on the part of Pfister and Sopko” occurring from July 1, 1999, to 

June 30, 2014. Appellant’s Appendix Volume II at 47. 

 

1 The State also sought recovery from parties that do not participate in this appeal. 
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1. Pfister’s Contracts

[3] From July 1, 1999, through February 1, 2009, the School Town entered into 

twelve Superintendent’s Contracts with Pfister that contained provisions for 

various fringe benefits. Pfister’s contracts from 1999 to 2003 were signed by the 

President and Secretary of the Board of School Trustees (the “Board”), and his 

contracts from 2004 to 2009 were signed by the President, Vice President, 

Secretary, and two members of the Board.

2

 

[4] Pfister’s contracts from 1999 to 2000 stated that the School Town shall pay his 

“annual contribution to the Indiana State Teachers[’] Retirement Fund.”3

 

Appellant’s Appendix Volume III at 69, 74, 80. The June 27, 2001 contract 

stated that it shall pay his “annual contribution to the Indiana State Teachers[’]

Retirement Fund, plus an additional 2% toward his Indiana Teacher 

Retirement Fund.” Id. at 85. The June 27, 2002 contract stated that it shall pay 

his “annual contribution to the Indiana State Teachers[’] Retirement Fund, plus 

 

2 According to the version of the School Town’s Bylaws and Policies which was designated in support of 

Pfister and Sopko’s summary judgment motion, the Board consists of five members and serves as the 

governing body for, and conducts the supervision of, the School Town, which is a body corporate capable of 

suing and being sued. The Board exercises executive power by appointing the Superintendent and annually 

“evaluate[s] the performance of the Superintendent.” Appellant’s Appendix Volume III at 60. As an 

outcome of the evaluation of the Superintendent’s performance, the Board “judge[s] the advisability of 

retention of the Superintendent” and is better prepared to “determine the Superintendent’s advisory and 

benefit package.” Id. at 61. Further, the School Town’s Bylaws and Policies provide that, “[i]f the services of 

the superintendent are found to be unsatisfactory to the Board, the Superintendent shall be notified in writing 

by the President, as approved by the Board, that his/her contract will expire upon the expiration date set 

forth in the contract.” Id. at 62. 

3 Two Superintendent’s Contracts, dated June 21 and October 20, 2000, contain the same relevant language 

as the July 1, 1999 contract. 
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each year an additional 2% toward an annuity of his choice.” Id. at 91. The 

June 27, 2003 contract stated that it shall pay his “annual contribution to the 

Indiana State Teachers[’] Retirement Fund, plus each year an additional 4% 

toward an annuity of his choice.” Id. at 97. The language from Pfister’s 2003 

contract appeared in each of his contracts from 2004 to 2009. 

2. Sopko’s Contracts

[5] From July 1, 1998, through July 1, 2011, the School Town entered into

fourteen Assistant Superintendent’s Contracts with Sopko,

4 and on July 1, 

2012, it entered into a Superintendent’s Contract with him that provided that he 

would “devote his entire time and energy to his duties as . . . Superintendent.” 

Id. at 207. Each of Sopko’s contracts contained provisions for various fringe 

benefits, his contracts from 1998 to 2005 were signed by the President and 

Secretary of the Board, and his contracts from 2006 to 2012 were signed by the 

President, Vice President, Secretary, and two members of the Board. 

[6] Sopko’s contracts from 1998 to 2000 stated that the School Town shall pay his 

“annual contribution to the Indiana State Teachers’ Retirement Fund.” Id. at 

138. His June 27, 2001 contract stated that it shall pay his “annual contribution 

to the Indiana State Teachers’ Retirement Fund, plus an additional 2% toward 

 

4 According to the School Town’s Bylaws and Policies which Pfister and Sopko designated, the assistant 

superintendent is considered an administrator, and the Board “approve[s] the employment, fix[es] the 

compensation and establish[es] the term of employment for each administrator.” Appellant’s Appendix 

Volume III at 63. Further, the Board “give[s] written notice of renewal or refusal to renew” an assistant 

superintendent’s contract. Id. at 65. 
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his Indiana Teacher Retirement Fund.” Id. at 151. His June 27, 2002 contract 

stated that it shall pay his “annual contribution to the Indiana State Teachers’

Retirement Fund, plus each year an additional 2% toward an annuity of his 

choice.” Id. at 156. His June 27, 2003 contract stated that it shall pay his 

“annual contribution to the Indiana State Teachers’ Retirement Fund, plus each 

year an additional 3% toward an annuity of his choice.” Id. at 161. The 

language from Sopko’s 2003 contract appeared in each of his contracts from 2004

to 2011, and his 2012 superintendent’s contract does not mention annuity 

contributions in the section detailing fringe benefits. 

3. Accounts Payable Vouchers and Voucher Registers

[7] In November 2003, the School Town’s Director of Financial Operations and 

Treasurer, Janice Swanson, signed an Accounts Payable Voucher for the School 

Town that reported that school year’s initial deposit to pension bond funds to 

payee “Valic” for “Group #1456, 401A Account, CS3-Plan 2, Subgroup #1 

(William Pfister & Richard Sopko).” Appellant’s Appendix Volume III at 217. 

Each year from 2004 through 2013, she signed an Accounts Payable Voucher 

that reported an amount for that school year’s employer retirement contribution 

to payee “Valic” for “Group #1456, 401A Account, CS3-Plan 2, Subgroup #1 -

William Pfister & Richard Sopko.” Id. at 222. Accord id. at 227, 232, 237, 243, 

248; Appellant’s Appendix Volume IV at 5, 11, 17, 23. In 2014, she signed an 

Accounts Payable Voucher for that school year’s employer retirement 

contribution to payee “Valic” for “Group #1456, 401A Account, CS3-Plan 2, 

Subgroup #1 for Richard A. Sopko.” Id. at 29. On each of the 2003-2014
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Vouchers, Swanson’s signature appears below the statement, “I hereby certify 

that the attached invoice(s), or bill(s), is (are) true and correct and I have 

audited same in accordance with IC 5-11-10-1.6.”5

 Appellant’s Appendix 

Volume III at 217. Accord id. at 227, 232, 237, 243, 248; Appellant’s Appendix 

Volume IV at 5, 11, 17, 23, 29. 

[8] At each regular meeting held in June of the School Town’s Board, from 2000 

until 2004, from 2006 until 2007, and from 2009 until 2013, the Board

approved, by motion, an Accounts Payable Voucher Register that had been 

“hand delivered to each [Board] member before the public meeting that was 

held to approve them.”6

 Appellant’s Appendix Volume III at 214. Documents 

titled “Accounts Payable Voucher Register,” which stated “We have examined 

the vouchers on the foregoing Accounts Payable Voucher Register consisting of 

___ pages and, except for vouchers not allowed as shown on the register, such 

vouchers are hereby allowed in the total amount of . . . ,” were signed by the 

President, Vice President, Secretary, and two members of the Board, and

approved each year from 2003 to 2014. Id. at 216. Accord id. at 221, 226, 231, 

236, 242, 247; Appellant’s Appendix Volume IV at 4, 10, 16, 22, 28.

 

5 Ind. Code § 5-11-10-1.6 (2003) provided that the “fiscal officer of a governmental entity may not draw a 

warrant or check for payment of a claim unless . . . the fiscal officer audits and certifies before payment that 

the invoice or bill is true and correct.” (Subsequently amended by Pub. L. No. 1-2005, § 78 (eff. July 1, 

2005); Pub. L. No. 169-2006, § 4 (eff. July 1, 2006); Pub. L. No. 182-2009(ss), § 77 (eff. January 1, 2010). 

6 In 2005, according to the June 6 minutes of a Regular Board Meeting, the Accounts Payable Voucher was 

“presented at Special Board Meeting on June 10, 2005.” Appellant’s Appendix Volume V at 209. The 

record does not contain a copy of the minutes of June 20, 2005 Special Board Meeting. 
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4. The Ohio Farmers’ Policies

[9] On or about July 1, 1997, Ohio Farmers issued Policy No. CBP 5634356 

(“Policy No. 1”) to the School Town. Policy No. 1 indicated that the policy 

period was from July 1, 1997, to July 1, 2000, and stated the policy “Consists 

Of The Following Coverage Parts: Commercial Crime Coverage Part.” 

Appellant’s Appendix Volume II at 182. In the “General Conditions” 

subsection under the Crime General Provisions, it states “Discovery Period for 

Loss: We will pay only for covered loss discovered no later than one period 

from the end of the policy period.” Id. at 192. Ohio Farmers did not renew 

Policy No. 1. 

[10] On July 1, 2002, Ohio Farmers issued Policy No. 5260158 (“Policy No. 2”) to 

the School Town. Policy No. 2 indicated the policy period was from July 1, 

2002, to July 1, 2005, and stated that the policy “Consists Of The Following 

Coverage Parts: Commercial Crime Coverage Part.” Id. at 220. In the 

“General Conditions” subsection under the “Crime General Provisions (Loss 

Sustained Form),” it stated “Extended Period to Discover Loss: We will pay 

only for covered loss discovered no later than 1 year from the end of the Policy 

Period.” Exhibit IX at 17-18. Accord id. at 46-47, 78-79.

[11] On July 1, 2005, Ohio Farmers issued a renewal of Policy No. 2 (“Policy No. 2 

Renewal”) for the period from July 1, 2005, to July 1, 2008, to the School 

Town. Policy No. 2 Renewal contains the same statements regarding the 

“Extended Period to Discover Loss” as Policy No. 2. Ohio Farmers did not 
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renew Policy No. 2 Renewal at its expiration on July 1, 2008. Further, since 

the expiration of Policy No. 2 Renewal, Ohio Farmers “has not written an 

Employee Dishonesty policy” for the School Town. Appellant’s Appendix 

Volume VIII at 158. 

5. State Board of Accounts’ Biennial Audit Reports

[12] Pursuant to Ind. Code § 5-11-1-9(a), the State Board of Accounts (the “SBOA”) 

conducted regular biennial audit examinations of the School Town during the

time period relevant to this appeal.

7

 As part of the audit process, the SBOA 

requested that Pfister provide documents, including the Superintendent’s and 

Assistant Superintendent’s Contracts into which he and Sopko entered, and he 

did so. The SBOA issued six audit reports (collectively, the “Biennial Audit 

Reports”), each covering two-year increments and together spanning from July 

1, 2001, to June 30, 2013. In an initial letter addressed to the School Town, 

each Biennial Audit Report stated:

[W]e conducted our audit in accordance with auditing standards 

generally accepted in the United States. Those standards require 

that we plan and perform the audit to obtain reasonable 

 

7 The SBOA is tasked with “examin[ing] all accounts and all financial affairs of every public office and 

officer, state office, state institution, and entity.” See Ind. Code § 5-11-1-9(a) (1999) (subsequently amended 

by Pub. L. No. 4-2005, § 25 (eff. February 9, 2005); Pub. L. No. 213-2007, § 2 (eff. July 1, 2007); Pub. L. No. 

217-2007, § 2 (eff. July 1, 2007); Pub. L. No. 172-2011, § 12 (eff. May 10, 2011); and Pub. L. No. 280-2013, § 

3 (eff. May 11, 2013)). Ind. Code § 5-11-1-16(c) (1993) provided that “public office” means “the office of any 

and every individual who for or on behalf of the state or any municipality . . . holds, receives, disburses, or 

keeps the accounts of the receipts and disbursements of any public funds,” while subsection 16(a) provided

that “municipality” means “any county, township, city, town, school corporation, special taxing district, or 

other political subdivision of Indiana.” (Subsequently amended by Pub. L. No. 104-2014 (eff. March 25, 

2014)).
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assurance about whether the financial statements are free of 

material misstatement. An audit includes examining, on a test 

basis, evidence supporting the amounts and disclosures in the 

financial statements. An audit also includes assessing the 

accounting principles used and significant estimates made by 

management, as well as evaluating the overall financial statement 

presentation. We believe that our audit provides a reasonable 

basis for our opinions.

Appellant’s Appendix Volume IV at 41. Accord id. at 86, 125, 182, 231; 

Appellant’s Appendix Volume V at 29.

B. SBOA Special Investigation Report, the State’s Complaint, and Subsequent 

Proceedings

[13] On July 24, 2015, Attorney Kathleen M. Maicher, representing the School 

Town, sent a letter to the Office of the Prosecuting Attorney of Lake County and 

the SBOA which indicated that, “[p]ursuant to Indiana Code § 5-11-1-27(j),” she 

wished to advise them of suspected misappropriation of School Town funds by 

then-former superintendents Pfister and Sopko and which referenced the 

“benefits and severance payments to be paid under the Superintendent’s 

contract.” Appellant’s Appendix Volume IV at 32. The letter indicated in part 

that contracts for both administrators contained references to an “Annuity Starter 

401(a)” and that Pfister proposed in 2000-2001 that the School Town pay him 

and Sopko an additional 2% toward their Indiana Teacher Retirement Fund and 

the Board agreed. Id. at 33. The letter also stated: 

In the 2003-2004 school year contract, [Pfister] proposed raising

[the School Town’s] annuity contribution to 4% of his salary and 
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to raise [Sopko’s] annuity to 3% of his salary and [the School 

Town] agreed. [Pfister and Sopko], however, interpreted the 

annuity starter clause to mean that each year the stated 

percentage would be added to the figure from the prior year 

resulting in an ever increasing percentage that would be 

multiplied against their total salary to calculate the amount of 

their annuity payment.

Most of the School Board members thought that the percentage

identified in the contracts (i.e., 2% and later 4% for [Pfister] and 

2% and later 3% for [Sopko]) would be a constant number 

multiplied each year against [Pfister’s and Sopko’s] increasing

salary to calculate the amount of the Annuity Starter payment. 

The members were not informed of the exact amount of the 

annuity contributions.

The dramatic financial consequences of [Pfister’s and Sopko’s] 

interpretation of the contract were obvious. By the time they 

chose to retire, the multiplier against their salaries had increased 

to 42% and 36%, respectively.

Id. at 33-34. 

[14] On October 25, 2015, SBOA field examiner Karen Tetrault was assigned to 

investigate the School Town’s financial records, books, accounts, and contracts 

from July 1, 1999, to June 30, 2014, due to suspected malfeasance, misfeasance, 

and/or nonfeasance. On June 8, 2016, the SBOA issued Special Investigation 

Report B46414 (the “Special Investigation Report”), based on an investigation 

limited to “Salary Contracts, Payroll Records and Annuity payments,” and 
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referred it to the Indiana Attorney General’s Office pursuant to Ind. Code § 5-11-

5-1(a).8

 Appellant’s Appendix Volume V at 137. 

[15] On May 23, 2017, the State filed a Complaint to Recover Public Funds against 

Pfister, Sopko, Ohio Farmers, and others, alleging that the Special Investigation 

Report had “disclosed malfeasance, misfeasance, and/or nonfeasance on the 

part of Pfister and Sopko” and “was placed by the State Examiner with the 

Attorney General pursuant to Ind. Code § 5-11-5-1(a).” Appellant’s Appendix 

Volume II at 47. Counts I and II of the Complaint allege: from 2001 to 2012, 

Pfister was wrongfully paid in excess of his contracted Annuity Starter in the 

total amount of $359,728.94 and, as a direct and proximate result of his 

multiple breaches of duty, the School Town suffered a pecuniary loss of 

$463,922.75; that, during the same period, Sopko was wrongfully paid in excess 

of his contracted Annuity Starter in the total amount of $311,198.75 and, as a 

direct and proximate result of his multiple breaches of duty, the School Town 

suffered a pecuniary loss of $377,475.28; and that the SBOA had incurred 

$10,053.32 of additional audit costs as a result of the breaches of duty of Pfister 

and Sopko. Counts III and IV seek treble damages in the amount of

$1,391,768.25 from Pfister and $1,132,425.84 from Sopko, respectively, and 

state that the State was a party suffering a pecuniary loss and “on behalf of the 

 

8 Ind. Code § 5-11-5-1(a) (2016) provided in relevant part that, if an examination made under the article 

“discloses malfeasance, misfeasance, or nonfeasance in office or of any officer or employee, a copy of the 

report, signed and verified, shall be placed by the state examiner with the attorney general and the inspector 

general.” Subsequently amended by Pub. L. No. 188-2016, § 5 (eff. July 1, 2016). 
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School Town” was entitled to the relief described in Ind. Code § 34-24-3-1.9

 Id.

at 56-57. Count VII alleges that three crime insurance policies covering Pfister 

provided “$5,000 in coverage from July 1, 1997 to July 1, 2000, $5,000 in 

coverage from July 1, 2002 to July 1, 2005, and $5,000 in coverage from July 1, 

2005 to July 1, 2008,” and that, as a result of Pfister’s actions, Ohio Farmers 

was jointly and severally liable in the amount of $15,000.10 Id. at 61. The State 

attached copies of Policy Nos. 1 and 2 and Policy No. 2 Renewal to the 

Complaint. 

[16] On October 26, 2017, Pfister and Sopko filed a motion for summary judgment

and designated the School Town’s Bylaws and Policies; Pfister and Sopko’s 

superintendent and assistant superintendent contracts, the attendant Accounts 

Payable Voucher Registers for the School Town, and an Affidavit of Business 

Records Custodian For Authenticating Written Documents Relating to Docket 

Voucher Registers by Swanson; the SBOA’s Biennial Audit Reports; the 

SBOA’s Special Investigation Report; and the minutes of regular meetings held 

in June of the School Town’s Board from 2000 until 2007 and from 2009 until 

 

9 Ind. Code § 34-24-3-1 (2011), which is often referred to as the Crime Victims Relief Act and is titled 

“Pecuniary loss as result of property offenses,” provides in part that a person, with “an unpaid claim on a 

liability that is covered by IC 24-4.6-5” or who “suffers a pecuniary loss as a result of a violation of IC 35-43, 

IC 35-42-3-3, IC 35-42-3-4, or IC 35-45-9,” may bring a civil action for: “[a]n amount not to exceed three (3) 

times . . . the actual damages of the person suffering the loss,” “[t]he costs of the action,” “[a] reasonable

attorney’s fee,” and “[a]ll other reasonable costs collection.” Subsequently amended by Pub. L. No. 276-

2019, § 1 (eff. July 1, 2019). 

10 The initial complaint named defendant Westfield Companies in Count VII. (61) An entry in the 

chronological case summary dated August 7, 2017, states “Order dated 07-31-17, Court Grants order 

Suibstitution [sic] [Ohio Farmers] for Westfield Companies As the Real Party Defendant In Interest For 

Count VII of Complaint.” Appellant’s Appendix Volume II at 13. 
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2013. The Accounts Payable Voucher Registers included copies of checks from 

the School Town payable to Valic and the School Town’s Accounts Payable 

Vouchers. The records contained in the Account Payable Voucher Register for 

2007 included a document titled “Annuity Contribution to Valic for 

Superintendent and Assistant Superintendent Per Supplemental Contracts” and 

states that the “Employer Contribution Pension Accounts” for Pfister was “22% 

of Salary[,] $164,440 x .22 = $36,177” and for Sopko was “18% of Salary[,] 

$137,766 x .18 = $24,798.” Appellant’s Appendix Volume III at 238. 

Additional records contained in the Account Payable Voucher Register further 

indicate that the employer contribution to pension accounts for Pfister was 

“30% of Salary[,] $177,964 x .30 = $53,389” in 2009, “34% of Salary[,] 

$182,888 x .34 = $62,182” in 2010, “38% of Salary[,] $177,501 x .38 = $67,450” 

in 2011, and “42% of Salary[,] $178,101 x .42 = $74,802” in 2012; and for 

Sopko was “24% of Salary[,] $152,747 x .24 = $36,659” in 2009, “27% of 

Salary[,] $156,806 x .27 = $42,338” in 2010, “30% of Salary[,] $152,619 x .30 = 

$45,786” in 2011, “33% of Salary[,] $154,643 x .33 = $51,032” in 2012, and 

“36% of Salary[,] $155,243 x .36 = $55,887” in 2013.11 Id. at 249; Appellant’s 

Appendix Volume IV at 6, 12, 19, 24. 

[17] Also on October 26, 2017, Ohio Farmers filed a Motion for Partial Summary 

Judgment Against Count VII of the Complaint and, in support of its motion, a 

 

11 The Account Payable Voucher with an invoice date of “2/15/2013” indicates that Sopko’s employer 

retirement contribution for 2012-2013 was “$55,887.00.” Appellant’s Appendix Volume IV at 23.
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Notice of Filing Discovery Request and Discovery Response that contained the 

State’s responses to Ohio Farmers’ first set of interrogatories. The State’s 

answer to Question 2(e) references a “four (4) page e-mail stream,” attached to 

the first set of interrogatories as Exhibit 1, and states that “the e-mails 

accurately set forth [the State’s] position that the loss [set forth in Complaint 

VII] was discovered by the School Town in June/July 2015; however, the loss 

was not discovered by [the State] until [the Special Investigation Report] was 

issued on June 8, 2016.” Appellant’s Appendix Volume VIII at 139. 

[18] On November 16, 2017, Pfister and Sopko filed a Motion to Compel and 

requested that the State produce the notes and paperwork associated with the 

Biennial Audit Reports. On November 22, 2017, the State filed a response in 

opposition to Ohio Farmer’s motion for partial summary judgment, and on 

November 28, 2017, it filed a response in opposition to Pfister and Sopko’s 

motion for summary judgment. On December 8, 2017, the State filed a 

response in opposition to Pfister and Sopko’s motion to compel, in which it 

indicated that the work papers and notes accompanying four of the Biennial 

Audit Reports had been destroyed “pursuant to the Records and Retention 

Schedule” and were no longer in existence and argued that Pfister and Sopko’s 

document requests would require the State to “spend hundreds of exhaustive 

hours compiling and preparing work papers for prior SBOA audit reports 

clearly irrelevant to the present matter.” Appellant’s Appendix Volume VI at 

185. 
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[19] On January 25, 2018, the court held a hearing on the summary judgment 

motions and entered a Miscellaneous Order that set Pfister and Sopko’s motion 

to compel for a hearing and required the State to bring to the hearing a 

“detailed privilege log as well as copies of the responsive documents it has not 

produced so that the court may conduct an in camera inspection of the same.” 

Appellant’s Appendix Volume X at 198. 

[20] On March 27, 2018, the court entered an order granting summary judgment in 

favor of Pfister as to the treble damages claim and as to all claims for repayment 

of monies paid out before May 23, 2012; in favor of Sopko as to the treble 

damages claim and “as to all claims for repayment except as to the annuity 

payment of February 15, 2013” and any non-annuity payment paid before May 

23, 2012; and in favor of Ohio Farmers on Count VII of the Complaint. 

Appellant’s Appendix Volume II at 43. 

Discussion

[21] The issue is whether the trial court erred in entering summary judgment in 

favor of Pfister, Sopko, and Ohio Farmers. Summary judgment is appropriate 

only where there is no genuine issue of material fact and the moving party is 

entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Mangold ex rel. 

Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). All facts 

and reasonable inferences drawn from those facts are construed in favor of the 

nonmovant. Mangold, 756 N.E.2d at 973. Our review of a summary judgment 

motion is limited to those materials designated to the trial court. Id. We must 

carefully review a decision on summary judgment to ensure that a party was 
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not improperly denied its day in court. Id. at 974. In reviewing a grant of 

summary judgment we face the same issues as the trial court and follow the 

same process. Klinker v. First Merchs. Bank, N.A., 964 N.E.2d 190, 193 (Ind.

2012). Under Trial Rule 56(C), the moving party bears the burden of making a 

prima facie showing that there are no genuine issues of material fact and that it is 

entitled to judgment as a matter of law. Id. If it is successful, the burden shifts 

to the nonmoving party to designate evidence establishing the existence of a 

genuine issue of material fact. Id.

[22] The State argues that its actions to recover public funds and for treble damages 

were timely. It contends that the authority of the Attorney General derives only 

from statutes and that an action to recover public funds, under Ind. Code § 5-

11-5-1(a), is not conditioned on the competent and diligent efforts of local 

governments. It further contends that the Attorney General had no means of 

discovering the information in the Special Investigation Report until June 8, 

2016, when it was first placed with him as required by Ind. Code § 5-11-5-1(a). 

The State points, in a notice of additional authority, to this Court’s recent 

decision in Robertson v. State ex rel. Hill (filed March 29, 2019), Ind. App. No.

18A-PL-1002.

12

 

12 By separate order, we grant Pfister and Sopko’s March 29, 2019 Motion for Leave to Submit Supplemental 

Brief Addressing Additional Authority and the State’s April 12, 2019 Motion for Leave to File Reply 

Regarding Notice of Additional Authority. Further, by separate order, we deny Ohio Farmers’ November 

12, 2018 Motion to Dismiss Appeal as to Ohio Farmers.
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[23] The general purpose of a statute of limitations is to encourage the prompt 

presentation of claims. Russo v. S. Developers, Inc., 868 N.E.2d 46, 48 (Ind. Ct. 

App. 2007) (citing Havens v. Ritchey, 582 N.E.2d 792, 794 (Ind. 1991)). In 

Indiana, statutes of limitations “are enacted upon the presumption that one 

having a well-founded claim will not delay in enforcing it.” V. Ganz Builders &

Dev. Co., Inc. v. Pioneer Lumber, Inc., 59 N.E.3d 1025, 1032 (Ind. Ct. App. 2016)

(quoting Morgan v. Benner, 712 N.E.2d 500, 502 (Ind. Ct. App. 1999), reh’g 

denied, trans. denied), reh’g denied, trans. denied.

[24] Under Indiana’s discovery rule, a cause of action accrues, and the limitations

period begins to run, when a claimant knows or in the exercise of ordinary 

diligence should have known of the injury. Cooper Indus., LLC v. City of S. Bend, 

899 N.E.2d 1274, 1280 (Ind. 2009) (citing Wehling v. Citizens Nat’l Bank, 586 

N.E.2d 840 (Ind. 1992)). 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), reh’g denied). For an action to 

accrue, it is not necessary that the full extent of the damage be known or even 

ascertainable, but only that some ascertainable damage has occurred. Cooper 

Indus., LLC, 899 N.E.2d at 1280 (citing Pflanz v. Foster, 888 N.E.2d 756, 759 

(Ind. 2008)). “A statute of limitations defense is particularly appropriate for 

summary judgment determination.” V. Ganz Builders & Dev. Co., Inc., 59 N.E.3d 
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at 1032 (quoting Stickdorn v. Zook, 957 N.E.2d 1014, 1021 (Ind. Ct. App. 2011)). 

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.” Martin v. Brown, 716 N.E.2d 1030, 1033 (Ind. Ct. App. 1999). 

[25] Ind. Code § 5-11-1-27(j) (2015), to which Attorney Maicher’s letter to the 

SBOA cited, provides that “[a]ll erroneous or irregular material variances, 

losses, shortages, or thefts of political subdivision funds or property shall be 

reported immediately” to the SBOA, and Ind. Code § 5-11-1-27(c) (2011), from 

which subsection -27(j) originated, provided that “[a]ll erroneous or irregular 

variances, losses, shortages, or thefts of local government funds or property 

shall be reported immediately” to the SBOA. (Subsequently amended by Pub. 

L. No. 184-2015, § 6 (eff. July 1, 2015)). Ind. Code § 34-11-2-6 provides that an 

action against a public officer “growing out of a liability incurred by doing an 

act in an official capacity, or by the omission of an official duty, must be 

commenced within five (5) years after the cause of action accrues.” Claims for 

treble damages brought under the Crime Victims Relief Act (“CVRA”) are 

subject to a two-year statute of limitations. See Mizen v. State ex rel. Zoeller, 72 

N.E.3d 458, 466 (Ind. Ct. App. 2017) (“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.’”) (quoting Prime 

Mortg. USA, Inc. v. Nichols, 885 N.E.2d 628, 638 (Ind. Ct. App 2008)), trans. 

denied.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-771 |June 24, 2019 Page 19 of 21

[26] The State’s May 23, 2017 complaint sought to recover funds paid to Pfister and 

Sopko over a span of approximately thirteen years ending in 2013, pursuant to 

twenty-seven employment contracts which the School Town entered into 

beginning in 1998. The record reveals that various members of the Board 

signed each contract. We note that Swanson, the School Town’s Director of 

Financial Operations and Treasurer, signed Accounts Payable Vouchers each 

year from 2003 to 2014. From 2000 until 2004, from 2006 until 2007, and from 

2009 until 2013, the Board allowed payments to Pfister and Sopko, and 

examined and approved the relevant Account Payable Voucher Registers –

which included the Accounts Payable Vouchers, documents noting the specific 

amount and salary percentage of the annuity contributions to Pfister and 

Sopko’s accounts, and copies of the checks made to them. We also observe that 

the SBOA conducted six regular biennial audit examinations of the School 

Town during this period. We conclude under these circumstances that the 

causes of action brought against Pfister and Sopko for amounts paid before May 

23, 2012, five years prior to the May 23, 2017 complaint filed by the State, are 

barred by the statute of limitations.

[27] To the extent that the State points to Robertson and argues that no claim exists

for an action to recover public funds until the SBOA publishes its audit report 

and finds that a public official has committed malfeasance, misfeasance, or 

nonfeasance, we find Robertson distinguishable. Specifically, we note that 

Robertson involved an interlocutory appeal of a motion to dismiss under Ind. 

Trial Rule 12(B)(6) and a defendant who “assert[ed] that the . . . claims against 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-771 |June 24, 2019 Page 20 of 21

her . . . accrued . . . when the [Office of the Attorney General] received a copy 

of the preliminary report from the SBOA,” and that this Court observed in a 

footnote that she did not argue that the discovery rule did not apply to her case. 

Robertson, slip op. at 3. See id. at 3 n.6 (“Robertson also briefly asserts that the 

claims against her accrued . . . [during] the time period when she was employed 

as a bookkeeper in the Clerk’s Office. However, Robertson does not cite any 

authority to support her contention nor does she argue that the discovery rule 

does not apply.”). 

[28] To the extent that the State maintains that Ohio Farmers is liable for the policy 

amounts of Policy Nos. 1 and 2 and Policy No. 2 Renewal to cover allegations 

regarding Pfister if it were to prevail in its claims against him, and argues that 

the policies qualified as public bonds “notwithstanding the requirements of 

Indiana Code section 5-4-1-18,” we note that the cases to which the State cites 

do not stand for the proposition that a loss discovery period contained in a 

“crime insurance policy” under Ind. Code § 5-4-1-18(d) is against public policy.

Appellant’s Brief at 27. We observe that Ind. Code § 5-4-1-18 required, during 

the relevant periods, that “[t]hose employees directed to file an individual bond 

by the fiscal body” of a city, town, or county shall file one, except for as 

provided in a relevant subsection which stated that the fiscal body of a city, 

town, county, or township “may by ordinance authorize the purchase of . . . a 

crime insurance policy,” see Ind. Code § 5-4-1-18 (1996) (subsequently amended 

by Pub. L. No. 28-2004, § 56 (eff. July 1, 2003); Pub. L. No. 146-2008, § 34 (eff. 

July 1, 2008)), and that the State does not point to the record to indicate that 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-771 |June 24, 2019 Page 21 of 21

these requirements were met. The period for Policy No. 2 Renewal expired on 

July 1, 2008, and the complaint against Ohio Farmers was brought in 2017. 

Under these circumstances, we conclude that the court did not err in granting 

summary judgment in favor of Ohio Farmers.

[29] For the foregoing reasons, we affirm the trial court’s entry in favor of summary 

judgment of Pfister, Sopko, and Ohio Farmers. 

[30] Affirmed. 

May, J., and Mathias, J., concur.