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FOR PUBLICATION
ATTORNEYS FOR APPELLANT: RONALD C. SMITH MARY F. SCHMID DAVID I. RUBIN Stewart & Irwin, P.C. Indianapolis, Indiana ATTORNEYS FOR APPELLEE: EDWARD R. HANNON CHRISTOPHER C.T. STEPHEN Hannon Roop & Hutton, P.C. Indianapolis, Indiana GREGORY STEUERWALD Steuerwald Zielinski & Witham Danville, Indiana

IN THE COURT OF APPEALS OF INDIANA
CURTIS L. COONROD, C.P.A., P.C. Appellant-Plaintiff, vs. NANCY LEE MARSH, as Current Auditor of Hendricks County, Indiana, Appellee-Defendant. ) ) ) ) ) ) ) ) ) )

No. 06A01-0409-CV-381

APPEAL FROM THE BOONE SUPERIOR COURT The Honorable Matthew C. Kincaid, Judge Cause No. 06D01-0312-PL-0460

June 30, 2005 OPINION-FOR PUBLICATION BAKER, Judge

In this case, we are confronted with the issue of whether a County Auditor has the authority to contract with an individual for the identification and collection of various county assets and funds in exchange for payment to that individual for such services, absent permission to do so from the appropriate governing body. We hold that the auditor does not. Appellant-plaintiff Curtis L. Coonrod, 1 C.P.A., P.C., appeals the trial court's dismissal of his complaint for breach of contract against appellee-defendant Nancy Lee Marsh, the current Auditor of Hendricks County. Specifically, Coonrod asserts that the trial court erroneously determined that Marsh was not the proper defendant in this litigation and erred in concluding that the county auditor lacked the authority to enter into the contract. Hence, Coonrod argues that the trial court incorrectly concluded from the face of the pleadings that there were no circumstances under which Coonrod could be entitled to relief. Marsh also brings a cross-appeal, arguing that the trial court erred in denying her request for attorneys' fees that related to a change of venue dispute. Finding that the auditor lacked the authority to enter into this agreement, and further concluding that the trial court properly denied Marsh's request for attorneys' fees, we affirm the judgment of the trial court.

Coonrod is a former auditor of Marion County. See Rossman v. Dunson, 580 N.E.2d 304, 305 (Ind. Ct. App. 1991).

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FACTS 2 On June 29, 2000, Debbie Simpson--the auditor of Hendricks County at the time--entered into an Agreement and Contingent Fee Memorandum with Coonrod and his accounting firm. This agreement called for the "investigation, location, calculation, identification, and collection of assets," which included County Adjusted Gross Income Tax (CAGIT) funds held by the State Treasurer in the State general fund. Appellant's App. p. 27. The CAGIT is a tax that is authorized by Indiana Code section 6-3.5-1.1-2, that counties meeting certain requirements may adopt. Pursuant to Indiana Code section 6-3.5-1.1-8, revenues collected by the State for the CAGIT are held in a specific account with the State general fund and remain in that account, earning interest, until the funds are removed for the benefit of the civil taxing units that are entitled to the money. In exchange for Coonrod's services, Coonrod was to be paid 33.3% of the amount of assets that his corporation recovered for the Auditor. Coonrod ultimately disclosed to the Auditor that the available funds contained in the Hendricks County special account amounted to $8,269,493. The money was

deposited with the Hendricks County Treasurer and distributed to the various civil taxing units. Thereafter, Coonrod sought $2,756,222 in payment as his contingent fee for his services. After his demand for payment was rejected, Coonrod filed his initial complaint against Marsh, the current Hendricks County Auditor, on June 10, 2003. The complaint

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We heard oral argument in this case on May 25, 2005, in Indianapolis. We commend appellate counsel for their able presentations.

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was filed in Marion County, and Coonrod's corporation was the named plaintiff in the action. At some point, Marsh filed a motion for transfer to the court of preferred venue. Coonrod's corporation then assigned its interest in this case to Coonrod personally on July 11, 2003. Coonrod also filed an amended complaint alleging breach of contract, quasi contract, and promissory estoppel, wherein he named himself as the plaintiff in the action. As a result, Marsh moved to strike the amended complaint, alleging that this filing was improper because Coonrod failed to seek leave from the court to do so as required by Trial Rule 25(C). Marsh's motion also included a request for attorneys' fees regarding this venue dispute. Thereafter, Marsh supplemented her reply in support of her motion for transfer of venue. A hearing was conducted on the transfer of venue motion where the trial court entered a minute sheet order setting a striking panel. The panel listed the counties contiguous to Hendricks County, one of which was the county that Marsh claimed was the proper venue. The order also specifically reserved the right to seek attorneys' fees on the change of venue dispute. On December 4, 2003, the parties reported to the Marion Superior Court that they had agreed to transfer the matter to Boone Superior Court I. The Marion Superior Court approved, and the cause was filed and docketed on December 17, 2003. Marsh then filed a motion for attorneys' fees and costs associated with the change of venue dispute and moved to dismiss Coonrod's complaint pursuant to Indiana Trial Rule 12(B)(6). In the motion to dismiss, Marsh contended that she was only acting as an 4

agent of the various taxing units. Thus, Marsh contended that these taxing units had to be named as the defendants in the action. Following a hearing, the trial court granted Marsh's motion to dismiss and denied her request for attorneys' fees. In relevant part, the order provided as follows: Count I, alleging breach of contract, should be dismissed for the reason that the Auditor lacks authority to enter into the contract at issue. Count II, based upon promissory estoppel, should be dismissed for the reason that there can be no reasonable reliance upon any promises made by the Auditor when the Auditor lacks authority to contract. Count III should be dismissed because, while Plaintiff may have conferred a benefit upon the various taxing units in Hendricks County, the Auditor is the mere conduit for tax money and there was no benefit conferred upon the Auditor. Appellant's App. p. 4. Coonrod now appeals the grant of the motion to dismiss, and Marsh cross-appeals the denial of her request for attorneys' fees. DISCUSSION AND DECISION I. Standard Of Review The standard of review on appeal of a trial court's grant of a motion to dismiss for failure to state a claim is de novo. Sims v. Beamer, 757 N.E.2d 1021, 1024 (Ind. Ct. App. 2001). We do not defer at all to the trial court's decision because deciding a motion to dismiss based on failure to state a claim involves a pure question of law. Id. That is, it does not require reference to extrinsic evidence, the drawing of inferences therefrom, or the weighing of credibility for its disposition. Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind. 2000). The grant or denial of a motion to dismiss turns only on the legal sufficiency 5

of the claim and does not require determinations of fact. Sims, 757 N.E.2d at 1024. If a complaint states a set of facts that would not support the relief requested, even if they were true, we will affirm the dismissal. Id. Also, when reviewing a dismissal for failure to state a claim, we view the pleadings in a light most favorable to the nonmoving party and draw every reasonable inference in favor of that party. McDonald v. Smart Prof'l Photo Copy Corp., 664 N.E.2d 761, 764 (Ind. Ct. App. 1996). "A complaint is not subject to dismissal unless it appears to a certainty that the plaintiff would not be entitled to relief under any set of facts." Id. We do not assess the sufficiency of facts in support of the complaint. Rather, we determine whether the complaint states any set of allegations upon which the trial court could have granted relief. Id. II. Propriety of Dismissal Coonrod maintains that the trial court's dismissal of the complaint was improper because the allegations he set forth established that the county auditor had the authority to enter into the agreement. In essence, Coonrod argues that when considering the facts pleaded in the amended complaint as true and drawing all reasonable inferences in his favor, the trial court could not have concluded that he was not entitled to relief under any set of circumstances. Therefore, Coonrod urges that the judgment of the trial court must be reversed. In resolving this issue, we first note that Indiana Code section 36-2-9-10 expressly provides that an auditor may sue any principal to recover funds. However, the statute is silent as to how such suits are to be funded. And a companion statute, Indiana Code 6

section 36-2-9-14, provides that if the auditor expends funds without approval of the county fiscal body, she commits a class A misdemeanor. In particular, this statute provides that except for monies that by statute are due to the state or township or municipality, money shall be paid from a county treasury only upon a warrant drawn by the auditor. Further, a warrant may be drawn on a county treasury only if the county

fiscal body has made an appropriation for the money and if it is budgeted. I.C.

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