I N THE

Indiana Supreme Court

Supreme Court Case No. 19S-PL-432 

Cathy Jo Robertson, 

Appellant/Defendant, 

–v–

State of Indiana, 

Appellee/Plaintiff.

Argued: September 5, 2019 | Decided: March 30, 2020 

Appeal from the Jennings Superior Court

No. 40D01-1705-PL-67

The Honorable Roger Duvall, Special Judge

On Petition to Transfer from the Indiana Court of Appeals 

No. 18A-PL-1002 

Opinion by Justice David

Chief Justice Rush and Justices Massa and Goff concur.

Justice Slaughter concurs in the judgment with separate opinion. 
Indiana Supreme Court | Case No. 19S-PL-432| March 30, 2020 Page 2 of 8 

David, Justice. 

In this case, the Office of the Indiana Attorney General brought two

claims against a county bookkeeper for misappropriation of public funds 

and, under a third claim, sought additional relief under the Crime Victims 

Relief Act. At issue is what the applicable statutes of limitations are for 

these claims. We hold that as for the claims to recover public funds

pursuant to Indiana Code Section 5-11-5-1(a), the limitations period begins 

to run only after the Office of the Indiana Attorney General receives a 

final, verified report from the State Board of Accounts. We further hold 

that claims pursuant to the Crime Victims Relief Act are governed by the 

discovery rule. We therefore affirm the trial court’s denial of the motion 

to dismiss Counts I and II, reverse the trial court’s denial of the motion to 

dismiss Count III as to the Crime Victims Relief Act claim and remand for 

further proceedings consistent with this opinion. 

Facts and Procedural History 

Cathy Jo Robertson was a bookkeeper for the Clerk of the Jennings 

Circuit Court from January 1, 2009 to April 8, 2011. In 2014, the State 

Board of Accounts (SBOA) conducted a special investigation of the Clerk’s 

records for the time period Robertson served as bookkeeper. It concluded 

that over $61,000 in cash collections was misappropriated in a “checks 

substituted for cash” scheme during that time period. It further concluded 

that these substitutions did not occur on days that Robertson was off from 

work. 

In December of 2014, SBOA discussed its report with Robertson and 

asked her to return the money to Jennings County. On December 11, 2014, 

it also sent a letter to county officials including its investigation report. 

The letter indicated that a copy of the report was also being sent to the 

local prosecuting attorney and the Office of the Indiana Attorney General 

(OAG). It also indicated that the official response to the report had not 

been examined or verified for accuracy. 

The results of the investigation were discussed with Jennings County 

officials in February 2015. On January 21, 2016, more than one year after 
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the refunds were requested, the SBOA special investigation report (“Audit 

Report”) was verified and, on January 22, 2016, the Audit Report was 

formally published and made public. 

On May 5, 2017, the OAG filed a complaint to recover public funds 

against Robertson pursuant to Indiana Code section 5-11-5-1(a). In that 

complaint, the OAG attached a copy of the SBOA’s published verified 

report as an exhibit and alleged that Robertson misappropriated public 

funds. It sought to recover those public funds (Counts I and II) and also 

sought treble damages pursuant to the Crime Victim Relief Act (CVRA)

(Count III). 

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. 

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. (Appellant’s App. Vol. 

II at 14.) Since the complaint was filed within two years of that date, the 

trial court denied Robertson’s motion to dismiss. 

The Court of Appeals granted Robertson’s motion for interlocutory 

appeal and affirmed the trial court. Robertson v. State ex rel. Hill, 121 

N.E.3d 588 (Ind. Ct. App. 2019), vacated. Robertson sought transfer which 

we granted. Ind. Appellate Rule 58(A). For reasons discussed herein, we 

affirm in part, reverse in part and remand for further proceedings. 

Standard of Review 

Indiana Trial Rule 12(B)(6) allows a motion to dismiss based on failure 

to state a claim upon which relief can be granted. When ruling on such a 

motion, the court must “view the pleadings in the light most favorable to 

the nonmoving party, with every reasonable inference construed in the 
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non-movant’s favor.” Thornton v. State, 43 N.E.3d 585, 587 (Ind. 2015) 

(citation omitted). Because such a motion challenges only the legal 

sufficiency of the complaint, it presents a legal question that is reviewed de 

novo on appeal. Ward v. Carter, 90 N.E.3d 660, 662 (Ind. 2018). 

Further, “matters of statutory interpretation present pure questions of 

law; as such, these questions are reviewed de novo.” Rodriguez v. State, 129 

N.E.3d 789, 793 (Ind. 2019). 

Discussion and Decision

I. Pursuant to Indiana Code Section 5-11-15-1(a), the

claim accrues when the OAG gets the final,

verified report.

The first issue is when the statute of limitations began to run as to the 

State’s misappropriation of public funds claims against Robertson (Counts 

I and II).

1 Robertson argues that the limitations period began to run, at the 

latest, on December 11, 2014 when the SBOA provided the OAG with a 

copy of its preliminary report. The OAG argues that the limitations period 

began only after it filed its final, verified report on January 22, 2016. 

 “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) (citation omitted). 

“[I]t is not necessary under this rule that the full extent of the damage be 

1 As our Court of Appeals noted, it seems that for purposes of this appeal, the parties have 

agreed that the OAG’s claims are subject to a two-year statute of limitations. See Ind. Code § 

34-11-2-4 (providing a two-year limitation for actions for injury to personal property.)

However, previously, the OAG argued that its claims were subject to a five- or six- year

statute of limitations pursuant to Indiana Code section 34-11-2-6 which provides those

limitation periods for an action against a public officer. We think the five- or six- year

limitations period may apply here but decline to decide the matter as it has not been fully

briefed by the parties and neither party objects to using a two-year limitations period now.
Indiana Supreme Court | Case No. 19S-PL-432| March 30, 2020 Page 5 of 8 

known or even ascertainable, but only that some ascertainable damage has 

occurred.” Id. However, our discovery rule does not apply where our 

Legislature intends that another rule should apply. See Carrow v. Streeter, 

410 N.E.2d 1369, 1373 (Ind. Ct. App. 1980) (noting Indiana courts have 

expressly rejected the so-called “discovery rule” when it is found to be 

against “legislative intent”); Toth v. Lenk, 164 Ind. App. 618, 621, 330 

N.E.2d 336, 338 (1975) (“[T]he legislature did not intend actual discovery 

to be the event that triggers the commencement of the statutory period”). 

The operative statute provides that with regard to a preliminary report, 

“the state examiner may provide a copy of the report to the attorney 

general. The attorney general may institute and prosecute civil 

proceedings against the delinquent officer or employee. . .” Ind. Code § 5-

11-5-1(e). With regard to a final verified report, the statute provides that

once filed: “[t]he attorney general shall diligently institute and prosecute

civil proceedings.” Ind. Code § 5-11-5-1(a).

Here, the OAG filed its complaint pursuant to Indiana Code section 5-

11-5-1(a). Given the permissive language about the preliminary report

(“may”) and the mandatory language about the final, verified report

(“shall”), we agree with our trial court and Court of Appeals colleagues

that our Legislature did not intend that the discovery rule apply to claims

brought pursuant to Indiana Code section 5-11-5-1(a). That is, the plain

language of the statute does not require the OAG to take any action until

it receives a verified final report. Therefore, the statute controls instead of

the default discovery rule for when claims under this statute must be

brought. To hold otherwise would require us to rewrite the statute such

that the permissive “may” would become a “shall” with regard to the

OAG instituting legal action after receiving a preliminary report. We will

not do this. See Ind. Alcohol & Tobacco Comm’n v. Spirited Sales, LLC, 79

N.E.3d 371, 376 (Ind. 2017) (citation omitted) (“We may not add new

words to a statute which are not the expressed intent of the legislature.”).

Further, there are good reasons for the OAG to wait to institute legal 

proceedings until receiving the final report. For instance, if the OAG is 

forced to act on the preliminary report which is subject to change and 

unverified, it puts the OAG in the position of relying on unverified and 
Indiana Supreme Court | Case No. 19S-PL-432| March 30, 2020 Page 6 of 8 

incomplete information, hindering ongoing investigation, and creating 

premature, potentially unnecessary litigation. 

Should there be a very egregious case of misappropriation of public

funds that requires immediate action, the OAG can file upon receipt of the 

preliminary report pursuant to Indiana Code section 5-11-5-1(e). In that 

case, the limitations period would begin to run when the OAG receives 

the preliminary report. Otherwise, waiting for a final, verified report 

allows for judicial efficiency and fairness to the accused as well—the OAG 

won’t be forced to bring litigation against a party unless the investigation 

is complete. 

Finally, to the extent Robertson and amicus are concerned that waiting 

for a final report before the limitations period begins to run will result in 

indefinite tolling of the statute of limitations because the SBOA can 

deliberately drag out the process, this concern is highly speculative. As 

our Court of Appeals aptly noted, our Legislature chose not to impose a 

time limit for conducting investigations and recognized that some 

investigations will necessarily take longer than others depending on the 

circumstances. It is not for the Court to set a deadline when one is not 

prescribed by the applicable statute. 

In light of the above, we hold the statute of limitations for the OAG’s 

complaint to recover public funds pursuant to Indiana Code section 5-11-

5-1(a) does not begin until the OAG receives from SBOA the final, verified

report. In this case the OAG received the final, verified report on

January 22, 2016. It filed its complaint on May 5, 2017, less than two years

later. Accordingly, we affirm the trial court’s denial of Robertson’s

motion to dismiss Counts I and II.

II. The CVRA claim is untimely.

Robertson also argues that with regard to the CVRA claim (Count III)

against her, the discovery rule applies. Further, she argues that the Court 

of Appeals opinion is in conflict with Mizen v. State ex rel. Zoeller, 72 

N.E.3d 458 (Ind. Ct. App. 2017). In Mizen, our Court of Appeals 

addressed a similar case arising from a SBOA audit and a statute of 
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limitations defense. In that case, the county official accused of 

misappropriating funds argued that the CVRA claim against him was not 

timely filed. Id. at 464. While Mizen does not squarely address the issue 

here, it applies the discovery rule to the CVRA claim there citing prior 

case law that establishes: “[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 466 (quoting

Prime Mortg. USA v. Nichols, 885 N.E.2d 628, 639-40 (Ind. Ct. App. 2008)). 

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 twoyear statute of limitations.” Id. (quoting Prime Mortg. USA, 885 N.E.2d at 

638.) 

While our trial court and Court of Appeals colleagues applied the 

statute of limitations pursuant to Indiana Code section 5-11-15-1 to all 

three counts, a different statute—Indiana Code section 34-24-3-1—governs 

with regard to the CVRA claim. This statute does not provide a limitations 

period, and thus, the default discovery rule applies as there is no 

legislative intent to the contrary and our case law, discussed above, is 

clear that the two-year limitations period applies to these claims. 

Accordingly, we find that while the OAG may proceed with its first two 

Counts against Robertson, the CVRA claim is untimely. The OAG knew 

or should have known of its injury by December 11, 2014, when the SBOA 

provided the OAG with a copy of its preliminary report and the complaint 

was not filed until May of 2017, more than two years later. 

Conclusion 

We affirm the trial court’s denial of Robertson’s motion to dismiss 

Counts I and II, reverse the trial court’s denial of Robertson’s motion to 

dismiss Count III and remand for further proceedings consistent with this 

opinion.
Indiana Supreme Court | Case No. 19S-PL-432| March 30, 2020 Page 8 of 8 

Rush, C.J., and Massa and Goff, JJ., concur. 

Slaughter, J., concurs in the judgment with separate opinion. 

ATTORNE Y S FOR APPEL LANT

Ann C. Coriden

Coriden Glover LLC

Columbus, Indiana

ATTORNE Y S FOR AM I C U S C U R I A E, 

LIBERTY MUTUAL INSURANCE

Kevin D. Koons

Jennifer L. Watt 

Kroger, Gardis & Regas, LLP

Indianapolis, Indiana 

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr. 

Attorney General of Indiana

Frances Barrow 

Deputy Attorney General 

Indianapolis, Indiana 
Slaughter, J., concurring in the judgment.

I agree with much of the Court’s opinion. As to Part I, I agree that the 

State’s claims for misappropriated public funds are timely and may 

proceed. As to Part II, I agree that the State’s claim for treble damages 

under the Crime Victims Relief Act is time-barred and cannot proceed. I 

write separately to address two related issues. The first concerns the 

procedural posture of this case—specifically, the Court’s tacit approval of 

using Trial Rule 12(B)(6) to decide the merits of an affirmative defense, 

contrary to our recent case law. The second concerns how to apply this 

case law here.

A

I begin with the procedural posture. This case arises from Robertson’s 

12(B)(6) motion seeking dismissal based on her affirmative defense that 

the State’s claims are untimely under the applicable two-year statute of 

limitations. We held unanimously in Bellwether Properties, LLC v. Duke 

Energy Indiana, Inc., 87 N.E.3d 462 (Ind. 2017), that dismissal under Trial 

Rule 12(B)(6) is “rarely appropriate when the asserted ground for 

dismissal is an affirmative defense.” Id. at 464. The reason, we explained, 

is that a 12(B)(6) motion merely tests the legal sufficiency of the complaint. 

Id. at 466. “A complaint states a claim on which relief can be granted when 

it recounts sufficient facts that, if proved, would entitle the plaintiff to 

obtain relief from the defendant.” Id. As we held, “[a] complaint that 

survives that limited scrutiny states a claim for relief, even if there may 

lurk on the horizon an unassailable defense.” Id. at 464.

The Court does not mention Bellwether or the legal principle we 

announced there. This omission risks leaving the reader with the 

misconception that a 12(B)(6) motion is the proper procedural vehicle for 

defeating an untimely claim. Most of the time, it is not. A notable 

exception applies where the plaintiff’s complaint shows on its face that the

claim is untimely—i.e., the complaint alleges facts establishing that the 

claim was brought outside the limitations period. As we recounted in 

Bellwether, “[o]nly where a plaintiff has pleaded itself out of court by 

alleging, and thus admitting, the essential elements of a defense does its 

complaint fail to state a claim on which relief can be granted.” Id.
Indiana Supreme Court | Case No. 19S-PL-432 | March 30, 2020 Page 2 of 3 

Here, the complaint and attached documents identify three dates

relevant to the statute-of-limitations analysis: 

• the date the attorney general received the state examiner’s

preliminary report;

• the date the attorney received the final, verified report; and

• the date the attorney general filed suit.

These three dates provide all the information necessary for determining if

the State brought its misappropriation and treble-damages claims outside

the limitations period. Thus, Bellwether’s narrow exception applies here, 

allowing us to decide the merits of Robertson’s affirmative defense. 

B 

Having determined that Robertson’s 12(B)(6) dismissal motion is a 

proper vehicle for resolving her statute-of-limitations defense, I address 

whether the State’s misappropriation and treble-damages claims are 

timely. 

If a state-board-of-accounts examination uncovers misappropriation of 

public funds, then Section 5-11-5-1 empowers the attorney general to sue 

to recover those funds. Under the statute, the attorney general has two 

separate causes of action for recouping misappropriated money—one 

under Subsection 5-11-5-1(a) and one under Subsection 5-11-5-1(e). Under 

Subsection 1(a), the cause of action accrues when the attorney general 

receives a final verified report from the state examiner. Here, the attorney 

general sued Robertson under Subsection 1(a) after receiving the state 

examiner’s final report. According to the complaint, the attorney general 

received the state examiner’s final report in January 2016. He then filed 

suit in May 2017, well within the two-year statute of limitations. Thus, the

face of the State’s complaint shows that its Subsection 1(a) claims are

timely, as the Court rightly holds.

Next, I apply Bellwether’s exception to the State’s treble-damages claim. 

The basis of the State’s claim is that it sustained injury when Robertson 

perpetrated her checks-for-cash scheme. Not only does the complaint 

allege when and how this scheme occurred, but also it alleges that the 

State learned of the underlying facts in December 2014 when the attorney 
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general received the preliminary report. Because the State did not sue 

until May 2017, outside the two-year limitations period, its claim is 

untimely.

For these reasons, I concur in the Court’s judgment but do not join its 

opinion.