ILNews

Former auditor wins appeal on attorney fee issue

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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.

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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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