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Judges rule on issues stemming from cemetery case

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The Indiana Court of Appeals ruled on matters involving alleged looting of cemetery funds in two cases Monday, upholding the denial of class certification in one case and adopting a “plain legal prejudice” standard in the other case.

A proposed class-action lawsuit was filed against Memory Gardens Management Corp. regarding alleged misappropriation of millions of dollars in trust funds by the original owners of the corporation, the new owner — Ansure Mortuaries of Indiana, and other entities. William Fishback’s suit sought to recover damages for customers who had paid for perpetual care services; Angela Farno was later added as a plaintiff. She had pre-paid for space and services. Her complaint alleged 11 counts, including claims under Indiana’s Deceptive Consumer Practices Act and violations of statutes governing cemetery trust accounts.

After the proposed class action was filed, the receiver appointed by the Indiana Securities Commissioner filed a complaint asserting similar claims. The class-action claims regarding the perpetual care services were dismissed, leaving Farno as the only named plaintiff. She filed a motion for class certification, which the trial court denied because it found that action was not superior to other available methods for the fair and efficient adjudication of the controversy under Indiana Trial Rule 23(B)(3). The Court of Appeals took up the matter on interlocutory appeal.

After she filed a motion to stay the proceedings pending an appeal, another business agreed to acquire Ansure’s mortuary business and maintain the cemeteries. Farno sought to lift the stay so she could seek preliminary approval of a class-action settlement she had reached with some defendants, including Ansure and the receiver. Matthew Goldberg and his company, Indiana Investment, were the only non-settling defendants to object. Goldberg was alleged to have issued worthless debentures to the trust accounts in order to conceal the misappropriation of funds. The trial court granted preliminary approval to the class-action settlement. The Court of Appeals also accepted Goldberg’s appeal on interlocutory appeal.

In Angela K. Farno v. Ansure Mortuaries of Indiana, LLC, et al., No. 41A05-1002-PL-104, the appellate court affirmed the denial of Farno’s motion for class certification. Farno argued the trial court shouldn’t have considered the receiver’s action or an action brought by the Securities Commissioner in its superiority analysis under T.R. 23(B)(3). The judges cited Kamm v. California City Development Co., 509 F.2d 205 (9th Cir. 1975), as a case supporting that actions brought by third parties are superior to a class action to rule on issues between the class-action plaintiffs and defendants.

Citing Kamm, the judges found Farno and the receiver brought similar claims against many of the same defendants. In addition, Farno didn’t cite any authority for her suggestion that a trial court may not consider factors other than the four listed in T.R. 23(B)(3) when deciding the question of superiority.

“Farno’s stated purpose for requesting class certification was to ‘resolv[e] the customers’ claims to restore the pre-need trust funds and to ensure that customers’ pre-paid burial services and merchandise will be provided when they pass away,’” wrote Judge Terry Crone. “However, the Securities Commissioner’s Action, the Receiver’s Action, and the pending sale of the cemeteries were all geared toward restoring both the pre-need trust funds and the perpetual care trust funds, which would in turn ensure both that the customers’ pre-paid burial services and merchandise will be provided when they pass away and that their burial sites will be cared for in perpetuity. As such, these alternative methods were clearly better suited for ‘handling the total controversy’ in the words of the Federal Rules Advisory Committee.”

In Matthew Goldberg, et al. v. Angela K. Farno, et al., No. 41A01-1007-MF-348, the judges affirmed the trial court’s preliminary approval of the settlement agreement. The 7th Circuit Court of Appeals and other circuits have adopted the doctrine that a defendant must “prove plain legal prejudice in order to have standing to challenge a partial settlement to which it is not a party,” wrote Judge Crone. Indiana Trial Rule 41(a)(2) is substantially similar to Federal Rule of Civil Procedure 41(a)(2) regarding voluntary dismissals. The appellate court adopted the “plain legal prejudice” standard based on Federal Rule 41(a)(2) for determining whether a non-settling defendant has standing to challenge a partial settlement to which it is not a party, whether “in a class action or simply ordinary litigation.”

Goldberg failed to establish plain legal prejudice in this case. The class settlement didn’t interfere with his contractual rights, his ability to seek contribution or indemnification, nor did it strip him of a legal claim or cause of action, wrote Judge Crone. He has no standing to challenge the ruling.

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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