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Opinions Oct. 9, 2013

October 9, 2013
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The following Indiana Tax Court opinion was posted after IL deadline Tuesday:
Douglas G. Kildsig v. Warrick County Assessor
82T10-1101-TA-2
Tax. Reverses Indiana Board of Tax Review’s determination that the burden-shifting rule contained in Indiana Code 6-1.1-15-1(p) did not apply to its proceedings. The rule applies to the entire appeals process. Affirms that a portion of Douglas G. Kildsig’s land was properly classified as residential excess acreage for the 2009 tax year. The assessor presented evidence to support Kildsig did not use his land for agricultural purposes.

Indiana Court of Appeals
Specialty Foods of Indiana, Inc., d/b/a Jersey Mike's Subs v. City of South Bend and Century Center Board of Managers
71A05-1302-MI-95
Miscellaneous. Affirms order denying Specialty Foods of Indiana’s complaint for declaratory judgment as to its right to continue operating its business in the college Football Hall of Fame in South Bend under a use management and operations agreement. The force majeure provision of the agreement to be exclusive provider of food and beverages for the College Football Hall of Fame in South Bend is applicable to excuse the Century Center Board of Manager’s nonperformance of its obligations under the agreement because the closure of the Hall of Fame constitutes a “reason not within the reasonable control of Century Center.”

In Re: the Marriage of L.C. v. T.M.
32A01-1303-DR-91
Domestic relation. Reverses denial of mother’s request to modify custody. She presented sufficient evidence of changed circumstances due to participation in a travel soccer league and that modification is in the children’s best interests. Remands for an order to be entered that modifies the custody arrangement in accordance with the children’s best interests.

Custom Radio Corp., Custom Management Group, Inc., Richard Yarger and Robert O'Brien v. Actuaries & Benefit Consultants, Inc., and John M. Fogle
32A01-1303-CC-143
Civil collection. Reverses summary judgment in favor of Fogle and Actuaries & Benefit Consultants Inc. in a suit filed alleging negligent provision of consulting services and breach of oral contract. There is a genuine issue of fact as to whether the appellants’ knew or could have known that their Welfare Benefit Plans were noncompliant with federal law and that their plan contributions were retroactively taxable by April 30, 2004.

Jesse Doyle, Jr. v. State of Indiana (NFP)
15A01-1303-CR-132
Criminal. Affirms denial of request to withdraw guilty plea and eight-year sentence for Class C felony incest.

Derek Dewitt v. State of Indiana (NFP)
49A02-1301-CR-33
Criminal. Affirms imposition of consecutive sentences for Class A felony attempted murder and murder convictions.

Darrell Hix v. State of Indiana (NFP)
49A02-1303-CR-331
Criminal. Affirms conviction of Class B felony possession of a firearm by a serious violent felon.

Jeffrey Cook v. State of Indiana (NFP)
48A05-1211-CR-608
Criminal. Affirms refusal by trial court to give Cook’s proffered jury instruction on self-defense because the evidence didn’t support giving it, and affirms convictions of murder, Class B felony prisoner in possession of a dangerous device or material and class D felony criminal gang activity.

The Indiana Supreme Court and Tax Court posted no decisions by IL deadline. The 7th Circuit Court of Appeals issued no Indiana opinions by IL deadline.
 

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  1. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  2. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

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