State of Indiana v. Beth A. Neff

FILED
Feb 27 2019, 3:21 pm
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Indiana Supreme Court
Supreme Court Case No. 18S-IF-00478
State of Indiana,
Appellant/Cross-Appellee (Plaintiff below),
–v–
Beth A. Neff,
Appellee/Cross-Appellant (Defendant below).
Argued: September 27, 2018 | Decided: February 27, 2019
Appeal from the Delaware Circuit Court,
No. 18C01-1707-IF-000015
The Honorable Marianne L. Vorhees, Judge
On Petition to Transfer from the Indiana Court of Appeals,
No. 18A02-1708-IF-01933
Opinion by Justice Goff
Chief Justice Rush and Justices David, Massa, and Slaughter concur.
Goff, Justice.
Turning to the judiciary to remove a duly-elected public official from
office is a radical departure from our usual democratic process because it
risks silencing the collective voice of the people, spoken in each election.
As such, it is a remedy rarely sought and even more rarely granted. This
appeal involves such a request by the State to remove the Town of
Yorktown’s Clerk-Treasurer, Beth Neff, but it does not fall within the
exceptionally rare category of cases that warrant removal. Under the
statute relied on by the State for this removal action, a public official may
be removed from office for only a general failure to carry out his or her
required duties. Because the State has not shown that Neff’s failures and
errors constitute such a general failure, she is not subject to removal.
Factual and Procedural History
At all times relevant to this appeal, Beth Neff served as the elected
Clerk-Treasurer of the Town of Yorktown and was responsible for, among
other things, managing and keeping account of Yorktown’s finances. In
connection with these responsibilities, her office was subject to financial
examination by the Indiana State Board of Accounts (the “SBOA”). Two
such examinations by the SBOA, along with actions taken in response to
those examinations, laid the foundation for this proceeding.
The first examination related to the 2012 calendar year, and the SBOA
uncovered several deficiencies in Yorktown’s financial records and
processes. The deficiencies included improper bank account
reconciliations, errors in Yorktown’s report of its yearly financial
activities, and a financial account showing a negative cash balance of
approximately $140,000. In a November 2013 exit conference, the SBOA
discussed the results of its examination with Neff, the Yorktown Town
Council President, and the Yorktown Town Manager, and it provided
some direction to Neff on avoiding future deficiencies.
The second examination related to the 2013, 2014, and 2015 calendar
years, and the SBOA found that the deficiencies noted in the 2012
examination continued into 2013, 2014, and 2015. In fact, the SBOA Audit
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Manager who oversaw both examinations testified that Yorktown’s
financial records worsened after the first examination, and, as a practical
matter, there were too many errors to identify. In an October 2016 exit
conference, the SBOA again discussed the results of its examination with
Neff, the Yorktown Town Council President, and the Yorktown Town
Manager.
In response to the second examination, the Yorktown Town Council
approved hiring an outside accounting firm to review Yorktown’s books
and to complete bank account reconciliations for the 2012, 2013, 2014, and
2015 calendar years. The accounting firm’s review revealed over 150
errors that, without considering whether each error increased or
decreased the balance of Yorktown’s books, totaled approximately
$3,090,000. The net effect of these errors was that Yorktown’s books were
understated by approximately $346,000. After completing the bank
account reconciliations, the accounting firm was able to identify and
propose adjustments to Yorktown’s books to reduce the errors to just near
$250. Yorktown initially contracted to spend $20,000 for this work but
ultimately spent almost $70,000 after discovering the full extent of the
work required.
On July 12, 2017, about a month after the outside accounting firm
completed its work reviewing Yorktown’s 2012, 2013, 2014, and 2015
books, the State, by the Delaware County prosecuting attorney, filed its
Complaint for Removal from Office against Neff. Relying on Indiana
Code section 5-8-1-35 (the “Removal Statute”), the State sought Neff’s
removal for her alleged “refus[al] or neglect[], on numerous occasions, to
perform the official duties pertaining to the office of the Yorktown Clerk-
Treasurer.” Appellant’s App. Vol. 2, p. 23, ¶4. The State brought three
specific counts alleging that Neff failed to: (1) complete monthly
accounting reconciliations; (2) follow the directions of the SBOA, the
relevant state examiner; and (3) use the accounting and financial reporting
systems adopted by the SBOA in its Accounting and Uniform Compliance
Guideline Manual for Cities and Towns (the “SBOA Manual”). Neff
sought dismissal of the complaint pursuant to Trial Rule 12(B)(6), but the
trial court denied her motion.
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Sixteen days after the State filed its Complaint and within the Removal
Statute’s twenty-day deadline, the trial court held a summary hearing on
the merits. See Ind. Code § 5-8-1-35(a) (2017). A few days later, the trial
court issued its written findings of fact, conclusions of law, and judgment
in favor of Neff. It found that “Neff failed to reconcile [Yorktown’s] books
for forty-eight consecutive months[;] . . . did not follow [SBOA]
directives; violated the [SBOA] Manual that should have directed her in
doing her job; and committed errors that resulted in over $3 million in
total errors affecting over thirty accounts.” Appellant’s App. Vol. 2, p. 81
(emphases in original). However, it also found that Neff was completing
the other work of her office, including fulfilling her non-financial duties.
Id. at 84. After discussing this Court’s precedent interpreting the Removal
Statute and applicable constitutional provisions, the trial court concluded
that the Removal Statute applies in three situations: “complete failures to
act, the inability to act due to mental conditions, or crimes.” Id. Because
Neff was successfully completing some of her duties as Clerk-Treasurer,
the trial court concluded that she had committed misfeasance rather than
nonfeasance; that is, she had not completely failed to carry out her duties.
Id. Thus, the trial court entered judgment in her favor. Id.The State appealed, arguing that the Removal Statute does not require
the State to show a failure to fulfill all duties, all the time, to remove a
public official. Instead, the State contended that pervasive failures
involving critical duties suffice for removal. In response, Neff argued in
favor of the trial court’s judgment, but she also cross-appealed the trial
court’s denial of her motion to dismiss the complaint. The Court of
Appeals agreed generally with the State and held that “an officeholder
like Neff need not abandon each and every statutory duty before removal
from office may be warranted.” State v. Neff, 103 N.E.3d 635, 642 (Ind. Ct.
App. 2018). It concluded that the Removal Statute applied because Neff
“neglected to perform a critical, official, and mandatory duty of her office
for an extended period of time.” Id. at 643. Thus, it reversed the trial
court. Id. at 643–44.
We granted Neff’s petition to transfer to address the merits of the
State’s complaint for removal, thereby vacating the Court of Appeals
opinion in part. See Ind. Appellate Rule 58(A). We summarily affirm the
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portion of the Court of Appeals opinion regarding Neff’s cross-appeal.
See App. R. 58(A)(2).
Standard of Review
The parties do not dispute the trial court’s factual findings regarding
what Neff did or did not do. 1 Instead, they disagree as to the standard for
removing a public officer under the Indiana Constitution and the Removal
Statute. This disagreement concerning the meaning of our Constitution
and statutes presents us with a question of law, which we review de novo.
Horton v. State, 51 N.E.3d 1154, 1157 (Ind. 2016). See also State v. McRoberts,
207 Ind. 293, 298–300, 192 N.E. 428, 430–31 (1934) (reviewing the trial
court’s legal conclusions in an appeal of a removal proceeding de novo). 2
Discussion and Decision
Although public officials are normally voted in and out of office, our
Constitution provides ways to remove an official outside of an election in
certain circumstances. See Ind. Const. art. 6, §§ 7–8. One such way is
through a judicial proceeding pursuant to the Removal Statute. I.C. § 5-8-
1Neff erroneously characterizes the trial court’s conclusion that she committed misfeasance
rather than nonfeasance as a factual finding. While this conclusion was surely informed by
the trial court’s findings regarding Neff’s actions, its determination was a conclusion of law,
and we owe it no deference.
2 Both parties contend that, because the trial court entered findings of fact and conclusions of
law, the clearly erroneous standard of review applies here. However, the clearly erroneous
standard in this context comes from Trial Rule 52(A). See Gittings v. Deal, 109 N.E.3d 963, 970
(Ind. 2018). In at least one case, we relied on the summary nature of proceedings under the
Removal Statute in stating that “the ordinary rules of civil procedure do not apply to the
procedure in the trial court, and no good reason is seen why they should be made to apply
here.” Beesley v. State, 219 Ind. 239, 242, 37 N.E.2d 540, 541 (1941). Because we would review
the legal issues in this appeal de novo whether we applied Trial Rule 52(A)’s clearly
erroneous standard or not, compare Horton, 51 N.E.3d at 1157 (noting the general rule that we
review legal questions de novo) with Gittings, 109 N.E.3d at 970 (noting the rule that, when
applying Trial Rule 52(A), we review legal questions de novo), we decline to address the
rule’s applicability on appeal here.
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1-35. But judicial removal “is an extreme and extraordinary measure,
intended only for extreme and extraordinary occasions. It is fraught with
seriousness and a demand for extreme caution both from the standpoint
of [the person] who prefers the charge and [the person] who listens and
pronounces judgment.” State ex rel. Ayer v. Ewing, 231 Ind. 1, 16, 106
N.E.2d 441, 447 (1952) (Emmert, J., concurring) (citation omitted). As a
result, we exercise restraint and caution in considering petitions for
removal. Bateman v. State, 214 Ind. 138, 149, 14 N.E.2d 1007, 1011 (1938)
(stating that removal “is a matter of serious importance” that “should be
exercised with caution”).
With this cautious approach in mind, we consider two related
questions in this appeal. First, under what circumstances do the Indiana
Constitution and the Removal Statute allow for the judicial removal of a
public official? Second, should Neff have been removed? We address
each question in turn.
I. The Removal Statute applies only in limited
situations.
The judiciary’s removal power originates from two provisions of the
Indiana Constitution. Article 6, section 7 provides, “All State officers
shall, for crime, incapacity, or negligence, be liable to be removed from
office, either by impeachment . . . or by a joint resolution of the General
Assembly . . . .” Article 6, section 8 states more generally that “[a]ll State,
county, township, and town officers, may be impeached, or removed from
office, in such manner as may be prescribed by law.” We have said that
these two sections should be construed together. McComas v. Krug, 81 Ind.
327, 333 (1882). Thus, as relevant here, our Constitution provides that
county, township, and town officers may be impeached, or removed from
office, for crime, incapacity, or negligence in such manner as the
legislature may prescribe. Id. (construing Article 6, sections 7 and 8).
While our Constitution lays the general foundation for removal, the
Removal Statute supplies the specific mechanism applicable here by
which a public official may be removed. At issue in this case is Subsection
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(a)(2) of the Removal Statute which allows for removal of an officer for
“refusing or neglecting to perform the official duties pertaining to the
officer’s office[.]” I.C. § 5-8-1-35(a)(2); accord I.C. § 5-8-1-35(b). When the
State files an action according to the Removal Statute, the trial court must
hear the case within twenty days in a summary proceeding, I.C. § 5-8-1-
35(a), where “the rules of civil procedure have been held
inapplicable . . . .” State ex rel. Durham v. Marion Circuit Court, 240 Ind.
132, 139, 162 N.E.2d 505, 508 (1959) (citing Beesley v. State, 219 Ind. 239, 37
N.E.2d 540 (1941); State v. Perry Circuit Court, 204 Ind. 673, 185 N.E. 510(1933)). Because of the unique nature of the summary proceedings and
the penalty mandated by the legislature, the Removal Statute must be
strictly construed in favor of the defendant and not expanded further than
the legislature has expressly provided. Ayer, 231 Ind. at 5–6, 106 N.E.2d at
442; Beesley, 219 Ind. at 244, 37 N.E.2d at 542.
Although the language of Subsection (a)(2) of the Removal Statute has
remained largely unchanged since the statute’s enactment in 1897, compare
I.C. § 5-8-1-35 with McRoberts, 207 Ind. at 298, 192 N.E. at 430 (quoting the
statute in effect without change since 1897), we have addressed it only a
handful of times. From these few cases, we can glean a broad rule that
Subsection (a)(2) may be invoked to remove an officer only if there has
been “a general failure to perform official duties.” Ayer, 231 Ind. at 12, 106
N.E.2d at 445. Supporting this broad rule are three more specific
guidelines. First, as Subsection (a)(2) uses the plural “official duties”
when describing a basis for removal, we have said that “a failure to
perform just one duty required by law is not . . . sufficient” for removal.
Ayer, 231 Ind. at 12, 106 N.E.2d at 445 (discussing McRoberts). And until
proven otherwise, a defendant in a removal action is presumed to have
carried out his or her duties. See id. at 8, 106 N.E.2d at 443; McRoberts, 207
Ind. at 299, 192 N.E. at 430. Therefore, the State must affirmatively show
that an officer has failed to perform multiple required duties before that
officer is subject to removal under the Removal Statute. Second,
Subsection (a)(2) addresses nonfeasance rather than malfeasance or
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misfeasance. 3 Ayer, 231 Ind. at 13, 106 N.E.2d at 446. In other words, the
statute is not concerned with degrees of failure—only complete failure to
perform required duties will do. Third, the officer’s nonfeasance must
have a significant impact on the day-to-day operation of the officer’s
office. See Bateman, 214 Ind. at 148–49, 14 N.E.2d at 1011 (refusing to allow
removal for “inconsequential matters”). Nonfeasance of critical or
essential duties of the office will necessarily have a significant impact on
the day-to-day operation of the officer’s office and will thus warrant
removal. On the other hand, nonfeasance of a few ancillary duties will not
always have an impact large enough to warrant removal. Based on this
broad rule and its related guidelines, Subsection (a)(2) of the Removal
Statute does not apply when an officer has done his or her job poorly or
even improperly; rather, it applies when an officer has effectively not
done his or her job at all. 4
While applying the rule and guidelines in previous cases, we provided
two examples of situations that did not warrant removal and one
hypothetical example that would. In McRoberts, we held that the alleged
failure of several members of the Gibson County Council to appropriate
$300 for the travel expenses of the County Superintendent did not warrant
removal. 207 Ind. at 295–300, 192 N.E. at 429–31. “The petition . . .
specifie[d] but one instance where it [was] claimed and alleged that [the
councilmen] failed to perform the duties of the office[,]” and that was not
enough to remove them. Id. at 299, 192 N.E. at 430. In Ayer, we held that a
Hammond Township, Spencer County, trustee could not be removed
under the Removal Statute for his alleged refusal to consider the
3Nonfeasance is “[t]he failure to act when a duty to act exists.” Nonfeasance, BLACK’S LAW
DICTIONARY (10th ed. 2014); see also McRoberts, 207 Ind. at 298, 192 N.E. at 430 (providing a
similar definition). Malfeasance is “[a] wrongful, unlawful, or dishonest act[.]” Malfeasance,
BLACK’S LAW DICTIONARY (10th ed. 2014); see also McRoberts, 207 Ind. at 298, 192 N.E. at 430(providing a similar definition). Misfeasance is “[a] lawful act performed in a wrongful
manner.” Misfeasance, BLACK’S LAW DICTIONARY (10th ed. 2014); see also Ayer, 231 Ind. at 20,
106 N.E.2d at 449 (Emmert, J., concurring) (providing a similar definition).
4We note that the legislature has provided other tools that could be used to address an
officer’s performance when removal is not warranted. See, e.g., I.C. ch. 34-27-3 (2018).
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employment applications of two teachers unless they donated to his
political campaign. 231 Ind. at 4–5, 8, 106 N.E.2d at 442–443. These
allegations did not allege a general failure by the trustee to perform the
official duties of his office, and the Removal Statute did not apply. Id. at
12, 106 N.E.2d at 445–46. On the other hand, in both McRoberts and Ayer
we gave the same hypothetical example of when an officer would be
subject to removal under the Removal Statute: “where a sheriff closes his
office and remains away and refuses and neglects to discharge the duties
thereof, and has no one to perform his official duties.” McRoberts, 207 Ind.
at 299, 192 N.E. at 430; Ayer, 231 Ind. at 12, 106 N.E.2d at 445. Such a
complete abandonment of the office “would come squarely within the
statute.” McRoberts, 207 Ind. at 299, 192 N.E. at 430. These three examples
provide the poles at opposite ends of the wide spectrum of errors and
failures that could potentially fall within Subsection (a)(2) of the Removal
Statute. This case, however, falls in between these poles and thus presents
a much closer question.
II. Neff’s failures and errors do not rise to the level
required for removal pursuant to the Removal
Statute.
Neff’s case is a particularly close call because she was undeniably
ineffective in carrying out certain parts of her job. Moreover, her shoddy
performance cost Yorktown tens of thousands of dollars. Given these
facts it is not surprising that the local prosecutor would look to the
Removal Statute to prevent further economic harm. However, a careful
analysis of Neff’s conduct, as it relates to her official duties as Clerk-
Treasurer, demonstrates that she was still carrying out the essential
functions of her job and, thus, did not generally fail to perform her official
duties.
Our review of the record and of the applicable statutes reveals at least
fourteen statutory duties of a town clerk-treasurer. Eleven specific duties
and one catch-all provision are provided in a single section of the Indiana
Code dedicated to town clerk-treasurers. This section required Neff to:
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(1) Receive and care for all town money and pay the money out
only on order of the town legislative body.
(2) Keep accounts showing when and from what sources the
clerk-treasurer has received town money and when and to
whom the clerk-treasurer has paid out town money.
(3) Prescribe payroll and account forms for all town offices.
(4) Prescribe the manner in which creditors, officers, and
employees shall be paid.
(5) Manage the finances and accounts of the town and make
investments of town money.
(6) Prepare for the legislative body the budget estimates of
miscellaneous revenue, financial statements, and the proposed
tax rate.
(7) Maintain custody of the town seal and the records of the
legislative body.
(8) Issue all licenses authorized by statute and collect the fees
fixed by ordinance.
(9) Serve as clerk of the legislative body by attending its
meetings and recording its proceedings.
(10) Administer oaths, take depositions, and take
acknowledgment of instruments that are required by statute to
be acknowledged, without charging a fee.
(11) Serve as clerk of the town court under IC 33-35-3-2, if the
judge of the court does not serve as clerk of the court or
appoint a clerk of the court under IC 33-35-3-1.
(12) Perform all other duties prescribed by statute.
I.C. § 36-5-6-6(a) (2017). The State did not allege any deficiencies in Neff’s
performance of these eleven specific duties. Rather, its allegations related
to three additional duties imposed on town clerk-treasurers by other
statutes. See I.C. § 36-5-6-6(a)(12) (providing a catch-all provision
incorporating other duties). These other statutes required Neff to
“reconcile at least monthly the balance of public funds, as disclosed by
[her records], with the balance statements provided by the respective
depositories[,]” I.C. § 5-13-6-1(e), to follow the SBOA’s directions, I.C. § 5-
11-1-10(2), and to use the systems of accounting and financial reporting
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adopted by the SBOA, I.C. § 5-11-1-21. The State focused on these final
three duties in this removal proceeding.
To determine whether Neff’s alleged failures to carry out her duties
amounted to “a general failure to perform official duties” that would
subject her to removal, we consider Neff’s duties and actions in light of
the three specific removal guidelines discussed above. First, an officer
may be removed under the Removal Statute only for failure to perform
multiple required duties. Second, the officer’s failures must constitute
nonfeasance rather than malfeasance or misfeasance. Third, this
nonfeasance must significantly impact the day-to-day operation of the
officer’s office. We address each guideline below.
A. Neff’s failures and errors involved multiple duties.
The State alleged and the trial court found that Neff’s failures related to
multiple duties. The State alleged that Neff failed to complete monthly
account reconciliations, follow the SBOA’s directions, and adopt and use
the systems of accounting and financial reporting required by the SBOA,
and the trial court entered findings consistent with these allegations. As
noted above, each of these relates to a separate duty of a town clerk-
treasurer. See I.C. §§ 5-13-6-1(e), 5-11-1-10(2), 5-11-1-21. Thus, the first
guideline in the removal analysis is met.
B. Neff’s failures and errors resulted in nonfeasance of at
least one duty, but we need not determine the full
extent of her nonfeasance.
While the trial court’s undisputed factual findings support the
conclusion that Neff committed nonfeasance of at least one specific duty,
they are less clear regarding whether Neff committed nonfeasance of
multiple duties. As discussed above, the State alleged, and the trial court
found, that Neff failed to complete the required reconciliations, follow the
SBOA’s directions, and adopt and use the accounting and financial
reporting systems adopted by the SBOA as required in the SBOA Manual.
Because Neff failed to complete monthly accounting reconciliations when
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she had a duty to do so, she committed nonfeasance of this duty. See
Nonfeasance, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining
nonfeasance as “[t]he failure to act when a duty to act exists”). However,
the trial court’s findings regarding Neff’s response to the SBOA’s
directions and her adoption and use of the systems required by the SBOA
Manual are less clear. Compare Appellant’s App. Vol. 2, p. 81 (“Neff did
not follow [SBOA] directives [and] violated the [SBOA] Manual that
should have directed her in doing her job . . . .”) with id. at 84 (“Neff is
making mistakes and not performing up to the standards expected by the
[SBOA] . . . .”). If Neff wholly failed to act on all the SBOA’s directions
and failed to adopt and use any of the systems required by the SBOA
Manual, she would have committed nonfeasance of these duties. But if
Neff tried to follow the SBOA’s directions and adopt and use the required
systems but just could not get it all done properly, she would have
committed misfeasance. See Misfeasance, BLACK’S LAW DICTIONARY
(defining misfeasance as “[a] lawful act performed in a wrongful
manner”). We need not resolve this question because, even assuming
Neff committed nonfeasance in connection with each of these three duties,
her nonfeasance did not have a significant impact on the operation of her
office.
C. Neff’s failures and errors did not have a significant
impact on the day-to-day operation of her office.
Neff’s failure to carry out three of her duties did not have a significant
impact on the day-to-day operation of her office because those duties were
not essential to the regular functioning of her office. Those three duties—
completing reconciliations, following the SBOA’s directions, and adopting
and using certain accounting and financial systems—dealt with
maintaining proper oversight rather than ensuring the daily functioning
of her office. In other words, the fact that Neff failed to reconcile accounts
and follow the SBOA’s directions had no impact on the ability of a
Yorktown resident to pay his or her water bill. Because Neff’s
nonfeasance did not have a significant impact on the day-to-day operation
of her office, the third guideline in the removal analysis is not met, and
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she did not generally fail to perform her official duties. Thus, she was not
subject to removal. 5
Our conclusion that Neff’s failures did not significantly impact the day-
to-day operation of her office is driven home by the many duties she
presumably did carry out. As an initial matter, we note that Neff holds
the dual office of Clerk-Treasurer, and her duties include some related to a
traditional clerk’s role and others related to a traditional treasurer’s role.
Despite this dual role, the State did not allege that Neff failed to perform
any of the duties traditionally associated with a clerk, such as recording
the proceedings of the town’s legislative body or keeping custody of the
town seal. See I.C. § 36-5-6-6(a)(7), (9). Absent any contrary findings, we
must presume she fully carried out these duties. See Ayer, 231 Ind. at 8,
106 N.E.2d at 443; McRoberts, 207 Ind. at 299, 192 N.E. at 430. Further, the
State did not allege that Neff failed to perform many of the duties
traditionally associated with a treasurer, such as paying money out only
on order of the town legislative body, investing the town’s money, or
preparing budget estimates. See I.C. § 36-5-6-6(a)(1), (5), (6). As noted
above, without proof otherwise, we presume she performed these duties.
Thus, we cannot say that there was a “general failure to perform official
duties.”
Given all the duties she presumably carried out, Neff is more similar to
the McRoberts councilmen and the Ayer trustee that were not subject to
removal than the McRoberts/Ayer hypothetical sheriff that would have
been. Rather than effectively closing up shop like the hypothetical sheriff,
Neff continued the daily operation of her office like the councilmen and
trustee. Although Neff failed to carry out some of her required duties,
this did not amount to a general failure to carry out her duties as Clerk-
5We acknowledge that Yorktown spent almost $70,000 to fix the problems Neff’s performance
caused, and that expenditure may have had a significant impact on Yorktown’s finances
generally. However, the Removal Statute and our cases require us to focus on the impact of
Neff’s failures on her office specifically. Thus, while this large, unexpected expense might be
significant for Yorktown residents, it cannot be significant in our analysis.
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Treasurer. As such, she is not subject to the extreme and extraordinary
measure of removal.
Conclusion
The judiciary has the power to remove a public official only in extreme
situations, and we wield this power only after careful and cautious
consideration. For a public official to be removed pursuant to Subsection
(a)(2) of the Removal Statute, the State must show that the official has
generally failed to perform his or her official duties. Here, Neff’s failures
and errors did not result in such a general failure, so the Removal Statute
does not apply. Accordingly, we affirm the trial court’s judgment in favor
of Neff.
Rush, C.J., and David, Massa, and Slaughter, JJ., concur.
ATTORNEYS FOR APPELLANT/CROSS-APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana
Patricia C. McMath
Deputy Attorney General
Indianapolis, Indiana
ATTORNEY FOR APPELLEE/CROSS-APPELLANT
Jeffrey M. Heinzmann
Heinzmann Law Office LLC
Fishers, Indiana
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