Former auditor wins appeal on attorney fee issue

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Supreme Court decided a case seven years ago but left for another day the answer to a question about governmental attorney fees, and now that specific issue has found its way to an appeal before the state’s second-highest appellate court.

A decision on that issue comes today in Clinton County, et al. v. Jacqueline R. Clements, et al., No. 54A01-1008-PL-407, which involves the former Clinton County auditor who served in that role between August 2004 and November 2008 and explored software changes for the county property tax management systems.

Several companies offered proposals for the system software, and at one point a dispute arose over the estimated costs for the legislative changes, resulting in the county terminating a contract with one of the companies. The county in June 2009 filed an amended complaint against Clements and the company Nikish involving breach of contract, fraud, negligence, actual fraud, and intentional interference with contractual relations. The complaint also included a civil action by a crime victim against both Nikish and Clements, and claims involved Clements knowingly misrepresenting to the county what the system changes would cost.

Clements filed a motion for summary judgment claiming that she had governmental immunity, and the trial court agreed on the basis that county officials didn’t prove that any intentional misrepresentation existed to override that immunity. The court also found she was immune from liability because she’d been acting within the scope of her employment.

But the trial court denied her motion for reimbursement of attorney fees and costs, based on Indiana Code 34-13-3-5e(e), which states that “the governmental entity shall provide counsel for and pay all costs and fees incurred by or on behalf of an employee in defense of a claim or suit for a loss occurring because of acts or omissions within the scope of the employee’s employment, regardless of whether the employee can or cannot be held personally liability for the loss.”

In denying that motion, the trial court relied on State v. Evans,  810 N.E. 2d 335 (Ind. 204) and found that state statute ambiguous and intended to apply only where a third party claimant filed a claim against a governmental employee personally, and concluded that “an absurd result would occur if it accepted Clements’s interpretation of the statute.”

The Court of Appeals affirmed the ruling on the governmental immunity aspect, but disagreed on the attorney fee issue. It said Evans didn’t go far enough to address this specific issue raised by Clements on whether the statute would afford reimbursement to a defendant who prevails.

“Although our supreme court concluded in Evans that it would be absurd to require the Attorney General to finance both sides of the litigation against the prosecutor accused of misappropriating funds during the litigation, it specifically left open the possibility of reimbursing an employee who prevails in such an action,” Judge Michael Barnes wrote.

Statute enacted following that Evans holding in 2004 shows the Legislature’s intent to reimburse an officer or employee wrongly accused by the governmental entity in certain civil suits, the appellate panel found.

“Where, as here, a county has filed an unsuccessful and highly questionable action against its former auditor, it would be unjust to deny her request for reimbursement of her attorney fees. We conclude that Clements is entitled to reimbursement of her attorney fees under a plain reading of Indiana Code Section 34-13-2-5(e),” the appellate panel wrote, finding the trial court abused its discretion on that issue.

With that holding, the appellate panel has remanded for a calculation of attorney fees owed to Clements.


Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.