Esserman v. Indiana Department of Environmental Management

66 N.E.3d 993, 2016 Ind. App. LEXIS 471, 2016 WL 7492523
CourtIndiana Court of Appeals
DecidedDecember 29, 2016
DocketNo. 49A02-1605-PL-1129
StatusPublished
Cited by2 cases

This text of 66 N.E.3d 993 (Esserman v. Indiana Department of Environmental Management) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Esserman v. Indiana Department of Environmental Management, 66 N.E.3d 993, 2016 Ind. App. LEXIS 471, 2016 WL 7492523 (Ind. Ct. App. 2016).

Opinion

NAJAM, Judge.

Statement of the Case

[1]Suzanne E. Esserman appeals the trial court’s dismissal of her complaint against the Indiana Department of Environmental Management (“IDEM”), in which Esserman alleged that IDEM had unlawfully terminated her employment, in violation of Indiana’s False Claims Act, Ind.Code §§ 5-11-5.5-1 to -18 (2016), in retaliation for her reporting alleged misuse of State funds by certain IDEM officers. Esserman raises two issues for our review:

1. Whether the trial court erred when it concluded that sovereign immunity barred the court from having subject matter jurisdiction over Esser-man’s complaint against IDEM.
2, Whether the trial court erred when it concluded that Esserman had failed to state a claim upon which relief can be granted.

[2] We reverse and remand for further proceedings.

Facts and Procedural History

[3] In her complaint against IDEM, Esserman alleged the following facts to be true:

5. At all times during her [nearly 25 years of] employment with IDEM, Es-serman performed her job duties in a satisfactory manner.
6. During the course of her employment, Esserman discovered that certain individuals at IDEM were engaged in misuse of State funds.
7. Esserman made numerous objections to misuse of State funds and was terminated in retaliation for those objections.
8. Esserman objected to approval of some claims made by applicants for dispersal of State funds from the Excess Liability Trust Fund (ELTF), which pays for various projects including the remediation of contamination caused by leaking underground storage tanks. The ELTF is funded in large measure by tax dollars generated from the State tax on gasoline sales.
9. On many occasions, Esserman found that applicants had not properly documented their claims[ ] and therefore the claims were not “reasonable and cost effected [sic],” as required for ELTF funds under IC § 13-23-9-2 and its implementing regulations.
10. Esserman could not legally approve claims without reviewing them, and when she actually reviewed them, she was disciplined for working too slowly, [995]*995despite the fact that she found numerous instances in which the applicants should not legally have been paid for all costs invoiced.

Appellant’s App. Vol. II at 8. In light of those facts, Esserman claimed that IDEM had unlawfully terminated her employment in retaliation for reporting the alleged misuse of State funds.

[4] In response, IDEM moved for the trial court to dismiss Esserman’s complaint on two grounds. First, IDEM asserted that the State had not waived its right to sovereign immunity from suit for claims of retaliation under the False Claims Act and, as such, Esserman’s complaint did not invoke the subject matter of the trial court. Second, IDEM asserted that the facts alleged in Esserman’s complaint failed to state a claim upon which relief can be granted. The trial court agreed with both of IDEM’s arguments and dismissed Esserman’s complaint accordingly. This appeal ensued.

Discussion and Decision

Standard of Review

[5] The trial court dismissed Esserman’s complaint without holding an evidentiary hearing. Where, as here, the trial court’s judgment under Trial Rules 12(B)(1) and 12(B)(6) was based on facts not in dispute, we review the trial court’s dismissal of the complaint de novo. Thornton v. State, 48 N.E.3d 685, 587 (Ind. 2015); Berry v. Crawford, 990 N.E.2d 410, 414 (Ind.2013). Thus, we afford no deference to the trial court’s judgment. S.C. v. S.B. (In re M.B.), 51 N.E.3d 230, 233 (Ind.2016). “This Court views motions to dismiss ... with disfavor because such motions undermine the policy of deciding causes of action on their merits.” McQueen v. Fayette Cty. Sch. Corp., 711 N.E.2d 62, 65 (Ind.Ct.App.1999), trans. denied.

Issue One: Sovereign Immunity

[6] We first consider the trial court’s judgment that IDEM is entitled to common law sovereign immunity from claims of unlawful retaliation under the False Claims Act. As our supreme court has repeatedly recognized:

More than forty years ago, a series of judicial decisions almost entirely abolished common law immunity for government entities and activities in this state. Campbell v. State, 259 Ind. 55, 63, 284 N.E.2d 733, 737-38 (1972) (abrogating immunity for the state); Klepinger v. Bd. of Comm’rs of Miami Cnty., 143 Ind.App. 178, 198-202, 239 N.E.2d 160, 172-73 (1968) (abrogating immunity for counties), trans. denied; Brinkman v. City of Indianapolis, 141 Ind.App. 662, 666-69, 231 N.E.2d 169, 172-73 (1967) (abrogating immunity for municipalities), trans. denied. Under Indiana common law, with very limited exception, governmental entities are thus subject to liability under traditional tort theories.[1] See Benton v. City of Oakland City, 721 N.E.2d 224, 227 (Ind.1999) (noting the three limited circumstances in which common law sovereign immunity still exists: crime prevention, appointments to public office, and judicial decision-making).

F.D. v. Ind. Dep’t of Child Servs., 1 N.E.3d 131, 135-36 (Ind.2013). As Esserman’s complaint against IDEM does not invoke [996]*996any of “the three limited circumstances in which common law sovereign immunity still exists,” id., IDEM is not entitled to common law sovereign immunity.

[7] Nonetheless, IDEM argues that this court recently held that common law sovereign immunity might apply on behalf of the State in some circumstances. In particular, IDEM relies on Skillman v. Ivy Tech Community College, in which this court stated “the general principle” that “[a] state may not be sued in its own courts unless it has waived its sovereign immunity by expressly consenting to Such suit through a ‘clear declaration’ of that consent.” 52 N.E.3d 11, 16 (Ind.Ct.App.2016) (quoting Oshinski v. N. Ind. Commuter Transp. Dist., 843 N.E.2d 536, 539-40 (Ind.Ct.App.2006)), trans. denied. But the State’s reliance on Skillman and Osh-inski is misplaced.

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66 N.E.3d 993, 2016 Ind. App. LEXIS 471, 2016 WL 7492523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/esserman-v-indiana-department-of-environmental-management-indctapp-2016.