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April 1, 2013

Clark County loses Dreyer appeal

Former county attorney considering options in 2009 eminent domain case

JEFFERSONVILLE — The Court of Appeals of Indiana has affirmed a trial court’s judgment against the Clark County Board of Aviation Commissioners — and by extension, the county — in a case stemming from a 2009 eminent domain action for the expansion of Clark County Regional Airport. 

In 2009, the air board used eminent domain to acquire property owned by Margaret Dreyer for the expansion project at the airport. Dreyer sued the air board, saying that the appraisals the air board used to determine the value of the property acquired through eminent domain were wrong, won the case and was awarded a judgment of $865,000. In January 2012, the county became party to the case when Dreyer’s motion to have the “civil government of Clark County” pay the judgment was granted. 

Former county attorney Greg Fifer appealed the judgment, arguing that the trial court did not have subject-matter jurisdiction because the appraisals Dreyer used to make her case were not timely filed. The appeals court rejected the argument. 

In the opinion issued March 21, the appeals court said that the jurisdiction issues argued by Fifer were simply a “legal error,” to which a different set of rules apply. 

“Accordingly, because legal error is not subject to collateral attack and the [air board] did not object to Dreyer’s 2009 exceptions or even raise the issue on direct appeal, we cannot say the trial court erred ...” the opinion states. 

The court described an Indiana Supreme Court case Fifer used to make his argument was “misleading,” which Fifer said he found surprising. 

“I think I might not have liked it, but I could have understood this decision if it came from the supreme court,” Fifer said. “But I don’t think the court of appeals can decide that a supreme court case that is supposed to be binding on the court of appeals is misleading, because I don’t think it is.”

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