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Vissing v. Clark County Board of Aviation Commissioners

Court of Appeals of Indiana

October 31, 2014

JOHN R. VISSING, and VISSING, GRANNAN & ELSONT, LLC (f/k/a JOHN R. VISSING LLC), Appellants-Defendants
v.
CLARK COUNTY BOARD OF AVIATION COMMISSIONERS, and BOARD OF COMMISSIONERS OF CLARK COUNTY, Appellees-Plaintiffs

APPEAL FROM THE CLARK CIRCUIT COURT NO. 4. The Honorable J. Terrence Cody, Special Judge. Cause No. 10C04-1206-PL-55.

ATTORNEYS FOR APPELLANT: NEAL F. BAILEN, Stites & Harbison, PLLC, Jeffersonville, Indiana, MATTHEW W. BREETZ, Stites & Harbison, PLLC, Louisville, Kentucky.

FOR APPELLEES: C. GREGORY FIFER, Applegate Fifer Pulliam, LLC,Jeffersonville, Indiana.

MATHIAS, Judge. RILEY, J., and CRONE, J., concur.

OPINION

MATHIAS, Judge

John R. Vissing and Vissing, Grannan & Elston, LLC (f/k/a John R. Vissing, LLC) (collectively " Vissing" ), appeal the order of the Clark Circuit Court denying Vissing's motion to dismiss an attorney malpractice claim brought against Vissing by the Board of Commissioners of Clark County (" the County Commissioners" ) and the Clark County Board of Aviation Commissioners (" the Aviation Board" ). Vissing presents six issues on appeal, which we renumber and restate as the following two: (1) did the County Commissioners have standing to bring a legal malpractice claim against Vissing, and (2) could the Aviation Board properly ratify the filing of the malpractice claim against Vissing after the complaint had been filed and after the

Page 167

membership of the Aviation Board had been changed by the County Commissioners.

We affirm.

Facts and Procedural History

This is the third appeal arising out of the 2009 decision of the Aviation Board to expand the Clark County Regional Airport (" the Airport" ). To expand the Airport, the Aviation Board needed to acquire land owned by Margaret Dreyer (" Dreyer" ). Dreyer accepted the Aviation Board's offer to purchase certain portions of her land that did not lie in a flood zone for $55,000 per acre, but she rejected the Board's offer of $3,000 per acre for the remaining land that did lie in a flood zone. The Aviation Board, acting through its attorney, Vissing, then filed an eminent domain action on February 27, 2009.[1]

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 Dreyer 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 ...


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