Judges affirm county commissioners can sue attorney for legal malpractice

The trial court did not err in denying an attorney’s motion to dismiss a legal malpractice claim brought against him by Clark County’s Board of Commissioners and Aviation Board, the Indiana Court of Appeals ruled.

After receiving an unfavorable court ruling, the Clark County Board of Aviation and Board of Commissioners of Clark County voted to pursue a legal malpractice claim against John R. Vissing, alleging Vissing should have argued that a landowner did not file her exceptions to appraisers’ reports within the statutorily prescribed 20 days.

The aviation board, exercising eminent domain, sought portions of Margaret Dreyer’s land in order to expand the county’s regional airport. She sold only a portion of the land to the county and disputed how much it offered for another portion. She ultimately was awarded $865,000 in compensation by a jury. The county was unsure as to how it would pay the judgment.

In seeking relief from the judgment, the aviation board claimed Dreyer had to file her exceptions to the appraisers’ report within 20 days per I.C. 32-24-1-11(a).

The county commissioners decided to bring a malpractice claim against Vissing, the aviation board’s attorney, alleging he was negligent in failing to seek dismissal of Dreyer’s demand for a jury trial on the grounds her exception to the report was untimely.

On interlocutory appeal in John R. Vissing, and Vissing, Grannan & Elsont, LLC (f/k/a John R. Vissing LLC) v. Clark County Board of Aviation et. al., 10A04-1403-PL-99, the Court of Appeals affirmed the denial of Vissing’s motion to dismiss.

They found this case to be similar to that of Municipal Tax Liens Inc. v. Alexander, 893 N.E.2d 733 (Ind. Ct. App. 2008), which held the general rule against assigning malpractice claims did not bar a legal malpractice claim assigned to a successor corporation that was a direct continuation of the predecessor corporation.

“The County Commissioners are not stepping into the shoes of the Aviation Board by way of subrogation; they are the executive branch of the very political entity that was ordered to pay the judgment against Dreyer. In fact, instead of being akin to a successor corporation, Clark County is more akin to a parent corporation, as the Aviation Board is a subsidiary unit of the Clark County government, and the Aviation Board’s members are appointed by the County Commissioners. Under these quite unique facts and circumstances, we conclude that the County Commissioners, acting on behalf of Clark County, can maintain an action for malpractice against Vissing,” Judge Paul Mathias wrote.


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