Court denies latest appeal in Thompson lawsuit

By Deb Kelly
The Tribune-Star

TERRE HAUTE May 08, 2008 11:51 pm

— Plaintiffs were dealt another setback last week in a two-year-old lawsuit regarding a land swap deal between a local businessman and the county.
The Supreme Court of Indiana refused to accept the case of Robert Thompson vs. Famco Fabrication Works, Greg Gibson and Vigo County. The order, dated April 30, states the court had reviewed the decision of the Court of Appeals, which upheld the trial court’s dismissal of both counts, and denied the petition to transfer the case to the Supreme Court.
The case involves Thompson, owner of Thompson’s Motorsports, who filed a lawsuit in June 2006 accusing Vigo County Commissioners of scheming with businessman Greg Gibson to reach a pre-determined result in a land swap agreement in 2004.
The lawsuit named the Vigo County commissioners, Famco Fabrication Works LLC and Gibson individually as defendants, and alleged that each of them violated state bidding and antitrust laws. Gibson was doing business as Famco.
The real estate at issue included land at First and Ohio streets that once housed the County Highway Department, and about 121⁄2 acres of Famco land on the site of the former Jamax Operations Facility on Haythorne Avenue. The two properties eventually were exchanged after the county published a notice requesting proposals for a swap and Famco submitted the only bid.
The commissioners finalized the Famco bid in August 2004, and construction began on the Community Corrections Work Release Center. The County Highway Department moved operations to Haythorne Avenue and the community corrections center opened in March 2006.
In the complaint, Thompson accused county commissioners of creating terms and conditions that precluded anyone else from submitting a bid for the land at First and Ohio streets. The lawsuit claimed the commissioners engaged in a scheme that favored “Famco and Gibson to the exclusion of all others.”
The document included an allegation that Gibson and Famco manipulated the bidding process to reach a pre-determined outcome, “violating the purposes behind the competitive bidding statutes to safeguard the public against favoritism, extravagance, improvidence, and to ensure honest competition.”
Thompson also claimed the appraisers of the real estate underestimated the value of the property on Ohio Street and overestimated the value of the Famco property to effect the appearance of an even exchange, defrauding Vigo County taxpayers a “minimum amount of $223,500.”
After the lawsuit was filed, the defendants separately filed motions to dismiss the complaint in August 2006. In December 2006, the court dismissed count one of the complaint after finding that Thompson failed to comply with the statutory requirements of a public lawsuit. Thompson argued it was not a public lawsuit, but a private suit. The court disagreed, saying even though it was Thompson’s intent to bring a private action, the public lawsuit statute provides, “No action may be brought … if it could have been the subject of a public lawsuit.” Because Thompson’s action “goes to the heart of the question concerning whether or not it would be in the public interest for the county to proceed with the project,” the case is “exactly the type of action contemplated by the Public Lawsuit Statute,” according to the Court of Appeals.
The Court of Appeals got the case in January 2007, and wrote in an opinion published in November 2007: “We conclude that the trial court properly granted Vigo County’s motion to dismiss because Count I of Thompson’s Complaint should be certified as a public lawsuit, subject to the provisions of the Public Lawsuit Statute.”
In April 2007, the trial court granted a motion to dismiss count two of the complaint, stating that Thompson failed to prove his business would have received the contract bid if it weren’t for the alleged violation. The Court of Appeals agreed.
Thompson was out of town on vacation Thursday and could not be reached by phone, according to his attorney, Peter Kovacs of the Stewart & Irwin law firm in Indianapolis.
Kovacs said he could not comment on the case.
Gibson did not immediately return a call seeking comment.
Deb Kelly can be reached at (812) 231-4254 or deb.kelly@tribstar.com.