News and Tribune

November 14, 2012

Dreyer estate rejects settlement deal with county

Clark council to consider new deal Thursday, as county attorney attempts to convince air board to sue its own lawyer

By MATT KOESTERS
matt.koesters@newsandtribune.com

CLARK COUNTY — The death of a Sellersburg landowner has caused a deal between the deceased’s estate and the county to fall through, and county officials are weighing their options.

On Nov. 8, Clark County Council Attorney Scott Lewis told the council that the estate of Margaret Dreyer had pulled out of a deal stemming from an eminent-domain judgment against the county in December 2011. The county council had agreed to a deal — already signed by the Clark County Commissioners and Dreyer — Oct. 30.

In the agreed order, Dreyer agreed to waive her right to force forfeiture of a 73-acre property and allow the county pay the eminent-domain judgment into escrow while the county pursued an appeal of the judgment, so long as the county was working to secure the money owed to Dreyer. The Clark County Board of Aviation Commissioners had purchased the land for the expansion of a runway at Clark County Regional Airport.

As of Aug. 1, the county owed the Dreyer estate the principal sum of $661,395, plus $162,648 in accrued interest, according to court documents. Additionally, the county owes Dreyer the principal sum of $24,036, plus $3,018 for attorney’s fees, costs and expenses.

But Oct. 20, Dreyer died, and her estate’s personal representatives do not agree to the deal.

“The co-personal representatives have refused to acknowledge that agreement by Ms. Dreyer, which they have the right to do, because that agreement was authorized originally by Ms. Dreyer,” Lewis told the council at the meeting last Wednesday. “... Her heirs, they weren’t a party to that agreement.”

Instead, the Dreyer estate is saying that it wants its money by Dec. 14 or it will invoke its right to force the forfeiture of the property by the county.

“My clients want the matter resolved before we get to the forfeiture date,” said John Mead, attorney to the Dreyer estate.

However, County Attorney Greg Fifer believes the Dreyer estate is trying to get the county to drop its appeal of the judgment, which Fifer believes the county has a good shot of winning.

“They’re trying to bluff us into paying the $900,000 and then walk away, which I don’t think any of us agree is the right thing to do,” Fifer said.

He said he doesn’t think the Dreyers would be able to sell the property to anyone else for as much as they’re getting from the county.

“I think they’ve got a number that they’d be crazy to walk away from,” Fifer said. “I think $865,000 is far and away their best [deal] on that piece of property, for a property that’s 10 feet in a flood plain.”

The county council will meet again Thursday, Nov. 15, to consider a new agreed order — which the council took no action upon Nov. 8 — between the Dreyer estate, the Clark County Commissioners and the County Council in which the county will agree to pay the estate what it is owed by, Dec. 14, the forfeiture date. Fifer is seeking relief in court to allow the payment to be placed into escrow pending the appeal.

Entering into the agreement would allow Auditor Monty Snelling to pursue short-term loans in the amount owed to the county. Currently, the judgment is accruing interest at the rate of $150 per day. Fifer said he believes Snelling should be able to secure a loan with an interest rate of less than 3 percent.

“Trading 8 for 3 [percent] is a good deal if we can get that done,” Fifer said.



FIFER TO MEET AIR BOARD THURSDAY

Also Thursday, Fifer will appear before the Clark County Board of Aviation Commissioners in the hopes of persuading the board to allow him and fellow attorney Steve Voelker to represent the board in a legal malpractice suit against air board attorney Jack Vissing.

Fifer is suing the attorney because he believes Vissing is responsible for the county owing the additional $661,395 plus interest. He claims Vissing could have asked that Mead’s filing of the original eminent domain lawsuit be dismissed because it was not filed in a timely manner.

“Mead had failed to timely ask for a trial on the issue of damages, and all Jack had to do was file a motion to dismiss, which means the case would have been over with,” Fifer said. “I’m 100 percent convinced of that.”

Legally, the air board would have to give Fifer and Voelker the authority to pursue the suit, which has already been filed against Vissing. Fifer said he wants Vissing to be responsible for the damages if the Indiana Court of Appeals rules against Fifer in his appeal of the eminent-domain judgment.

“I’m not going to let this go voluntarily,” Fifer said. “That’s all I can tell you. The public treasury should not be suffering this loss.”

However, Vissing believes that the air board will not agree to allow the malpractice suit to go forward. The air board had decided early on to allow the Dreyer lawsuit to go forward, Vissing said.

“It wasn’t malpractice on my part,” Vissing said. “It was a decision made early on, but Greg has never asked about that, and he’s never told the truth.”

Vissing said that an appraisal of the disputed land performed by Ed Haire on behalf of engineering firm Jacobi, Toombs and Lanz for the air board was at the heart of the problem. Haire had appraised the land as agricultural, but a jury found that it should have been appraised as light industrial.

“We’d always intended to let her have a right to a trial, because [Haire] was emphatic that we had offered sufficient monies,” Vissing said. “Well lo and behold, [Haire] had made a mistake, and the verdict came in substantially higher.”

Vissing said he believes that the Federal Aviation Administration has grants scheduled in 2013 that will pay a large portion, if not all, of the judgment.

No grant money has been awarded to the air board yet, but Airport Manager Melodee McNames said it’s possible that unspent grant monies from other airports could be redirected to the air board, as well as grant money that was returned to the FAA and the state for which other airports could not fund the local matching-funds requirements.

“I feel very positive that money will come through by the summer,” McNames said.