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Indiana Court Holds That County Commissioners Can Sue Their Attorney For Legal Malpractice


The malpractice lawsuit arose out of an effort to claim, by eminent domain, certain property, which was to be used to an airport. In 2009, the Clark County Aviation Board attempted to purchase land to expand the Clark County Airport.

The alleged error was the failure to object to the landowner’s attempt to file exceptions to an appraiser’s report in the applicable statutory period.

The Indiana Court of Appeals explained the factual background as follows:

On April 24, 2009, court-appointed appraisers filed a report concluding that Dreyer was owed $203,605 in damages. A copy of this report was delivered to [Margaret] Dreyer [the landowner] on May 7, 2009. On July 6, 2009, Dreyer filed exceptions to the appraisers’ report and requested a jury trial.[2] On July 7, 2009, the Aviation Board paid the amount of damages contained in the appraisers’ report to the county clerk and obtained possession of the subject property pursuant to the provisions of Indiana Code section 32-24-1-10.

On July 13, 2010, Dreyer filed a motion to set aside the appraisers’ report, claiming that the appraisers had not been properly instructed pursuant to the relevant statute. Over the Aviation Board’s objection, the trial court granted Dreyer’s motion to set aside the appraisers’ report. The trial court subsequently instructed the appraisers pursuant to the relevant statute.

On September 21, 2010, the appraisers filed their second report, assessing the damages for the taking at $201,100, which was $2,505 lower than the 2009 appraisal. On September 27, 2010, the trial court ordered the clerk to send a copy of the appraisers report to all parties and attorneys of record, but although Dreyer’s counsel was served, Dreyer herself was not. On November 17, 2010, Dreyer filed exceptions to the appraisers’ new report and again requested a jury trial.

Following trial, the jury awarded Dreyer $865,000 in compensation. The trial court entered judgment on the jury’s verdict that same day and subsequently granted Dreyer’s motion for attorney fees and costs in an amount of $24,036. The Aviation Board appealed, claiming that the trial court had abused its discretion in the admission of evidence regarding the highest and best use of the property that was inconsistent with the current condition of the property. We held that the Aviation Board had not objected to the admission of the evidence at issue and, therefore, did not properly preserve the evidentiary issue for appeal. Clark Cnty. Bd. of Aviation Comm’rs v. Dreyer, No. 10A01-1012-PL-659, 2011 WL 6249161 at *2 (Ind. Ct. App. Dec. 14, 2011).[3] The Aviation Board did not petition for rehearing or transfer to our supreme court….

On January 17, 2012, the Aviation Board filed a motion for relief from judgment under Trial Rule 60(B). In this motion, the Aviation Board argued for the first time that Dreyer had not filed her exceptions to the appraisers’ report within the statutorily-prescribed twenty days. See Ind. Code § 32-24-1-11(a) (2002).[5] The Aviation Board noted that Dreyer had been served with notice of the damages award pursuant to the assessment on May 7, 2009, but failed to file exceptions until July 6, 2009. The Aviation Board claimed that the trial court therefore lacked jurisdiction to determine damages in excess of the court-appointed appraisers’ assessment. The trial court entered an order granting Dreyer’s motion to enter judgment against Clark County on May 29, 2012, awarding her $661,395 together with 8% interest from July 6, 2009 until paid, and $24,035.06 in attorney fees and litigation expenses together with 8% interest from January 6, 2011 until paid.[6]The trial court’s order denied the Aviation Board’s motion for partial relief from judgment.”

After the litigation was terminated, the County Commissioners and the Aviation Board filed a legal malpractice action against the Aviation Board’s lawyer, John Vissing, who they alleged had failed to object to Dreyer’s late filing of the exception to the appraisal report.

The Defense:

Vissing filed a motion to dismiss on the ground that the County Commissioners were not in privity with him. The trial court rejected that argument as the Indiana Court of Appeals. Privity can be a good defense to a legal malpractice action. Vissing was arguing that he had an attorney-client relationship with the Aviation Board, but not the County Commissioners. The court held that privity was present because the county commissioners were the executive body ultimately responsible for paying the damage award to Margaret Dreyer.

Edward X. Clinton, Jr.

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