News and Tribune

April 1, 2013

Clark County loses Dreyer appeal

Former county attorney considering options in 2009 eminent domain case

By MATT KOESTERS
matt.koesters@newsandtribune.com

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.”

The county has taken loans and placed the judgment in escrow, and is prepared to pay the judgment to Dreyer’s family, as she has since died. Fifer said asking the supreme court to look at the case or having the court of appeals reconsider are both options. 

“I don’t have unilateral authority to decide what to do,” Fifer said. “I’ve given it to the [Clark County] Commissioners and [County Attorney] Jake [Elder], but my inclination is we will either probably ask the court of appeals to reconsider or the supreme court to consider taking it up on what’s called transfer.”

Elder declined to comment on the case, as Fifer is more familiar with the details. 

The decision of the appeals court didn’t surprise Commissioners President Jack Coffman, who is skeptical that the county can win the case at this point.  

“I don’t think taking it further is going to accomplish anything,” Coffman said. “In my personal opinion, I don’t know how much longer we can drag this out.”

Coffman didn’t rule out allowing Fifer to pursue another appeal.

“He might do that just so no one can say, ‘Hey, you should have done that,’” Coffman said. 

Airport officials have stated at previous meetings that the Federal Aviation Administration will likely reimburse the air board for the judgment through grants. A grant of $166,000 to be used for the judgment was given to the air board late last year. 

Former air board attorney Jack Vissing is being sued by Fifer and attorney Steve Voelker on behalf of the air board for judicial malpractice in the handling of the eminent domain action. Fifer said that case is on hold until the appeals of the Dreyer judgment are exhausted.