Najam, J.
Statement of the Case
Cathy Jo Robertson appeals the trial court’s denial of her Indiana Trial Rule 12(B)(6) motion to dismiss a complaint to recover public funds filed by the Office of the Indiana Attorney General (“OAG”), which alleged that Robertson had diverted public funds from Jennings County for her personal gain during her tenure as a bookkeeper for the Clerk of the Circuit Court of Jennings County (“the Clerk’s Office”). [Footnote omitted.] Robertson raises one issue for our review, namely, whether the trial court erred when it denied her motion to dismiss the OAG’s complaint on the ground that the complaint had been filed outside the two-year statute of limitations. [Footnote omitted.] Because we hold that the two-year limitations period did not begin to run until after the OAG received the final, verified report of the Indiana State Board of Accounts (“SBOA”), and because the OAG’s complaint against Robertson was filed within two years of the OAG having received the final report, we affirm the trial court’s denial of Robertson’s motion to dismiss.
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Here, the OAG filed its complaint against Robertson pursuant to Indiana Code Section 5-11-5-1…
Indiana Code Section 5-11-5-1(a) (2018) provides, in relevant part, that, whenever the SBOA conducts an examination, “a report of the examination shall be made.” That report “must include a list of findings and shall be signed and verified by the examiner making the examination.” I.C. § 5-11-5-1(a). Further, “[i]f an examination 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[.]” Id. (emphasis added).
Additionally, Indiana Code Section 5-11-5-1(d) provides that, if, during an examination, a field examiner determines that a substantial amount of public funds has been misappropriated and that the malfeasance or misfeasance that resulted in the misappropriation was committed by an officer or an employee of the officer, the examiner “shall” report that determination to the state examiner. However, “[a]fter receiving a preliminary report under subsection (d), the state examiner may provide a copy of the report to the attorney general.” I.C. § 5-11-5-1(e) (emphasis added). The attorney general likewise “may” then institute and prosecute civil proceedings against the officer or employee based on the preliminary report. Id.
Here, the SBOA conducted its examination and compiled a report in 2014. On December 11, the SBOA sent a letter to Jennings County officials along with that report. In that letter, the SBOA stated that a copy of the report had been sent to the OAG. But the SBOA also stated that the “Official Response to this report has not been examined or verified for its accuracy.” Appellant’s App. Vol. II at 28. Only some time thereafter, on January 21, 2016, did SBOA examiners verify and sign the report, which the SBOA then placed with the OAG the next day.
In other words, it is clear that the report that the SBOA sent to the OAG on December 11, 2014, was a preliminary report as contemplated by Indiana Code Section 5-11-5-1(e).4 The SBOA report did not become the final report under Indiana Code Section 5-11-5-1(a) until the examiners verified the report on January 21, 2016. And the OAG did not have notice of the final report until January 22, 2016.
On appeal, the parties agree that the OAG’s complaint is subject to a two-year statute of limitations. Indeed, there is no dispute that Counts I and II of the complaint are subject to a two-year statute of limitations pursuant to Indiana Code Section 34-11-2-4(2).5 And both parties agree that Count III is also subject to a two-year statute of limitations. See Prime Mortg. USA, Inc., v. Nichols, 885 N.E.2d 628, 638 (Ind. Ct. App. 2008). But the parties dispute when the OAG’s claims against Robertson accrued. Robertson asserts that the OAG’s claims against her accrued on December 11, 2014, when the OAG received a copy of the preliminary report from the SBOA…
Although the SBOA has discretion to provide a copy of the preliminary report to the OAG pursuant to Indiana Code Section 5-11-5-1(e), which discretion the SBOA here exercised in December 2014, those reports are not signed or verified. Such preliminary reports are not final and are subject to change as the SBOA continues its examination. Contrary to Robertson’s argument on appeal, we cannot agree that our legislature intended for the statute of limitations to begin to run when the OAG receives a copy of an unverified report that is not yet final and that is still subject to change.
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In sum, we hold that the statute of limitations for the OAG’s complaint to recover public funds does not begin to run until the OAG receives the final, verified report from the SBOA. In the present case, the OAG received the final, verified report from the SBOA on January 22, 2016. Accordingly, the OAG’s claim accrued and the statute of limitations began to run on that date. And the OAG filed its complaint against Robertson on May 5, 2017, less than two years after the OAG had received the final report. Accordingly, the OAG timely filed its complaint, and the trial court did not err when it denied Robertson’s motion to dismiss. We affirm the trial court.
Affirmed.
Pyle, J., and Altice, J., concur