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Court grants 5 transfers, denies 1

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The Indiana Supreme Court has agreed to take five cases, but declined to hear a judicial review case involving a transfer tax.

Justices denied transfer of LHT Capital LLC v. Indiana Horse Racing Commission, et al., No. 49A02-0712-CV-1149. The Indiana Court of Appeals had decided the case in August and denied rehearing later last year, affirming a decision of Marion Superior Judge Gerald Zore's dismissal of the complaint in favor of the state commission on grounds that LHT didn't exhaust all its administrative remedies when it challenged the commission's rules and regulations.

The case stems from an emergency rule that led to a $9 million fee as part of a deal to sell off a minority interest in Indiana Downs horse racing track in Shelbyville. After lawmakers allowed slot machines at the horse racing casinos in 2007, the Indiana Horse Racing Commission, which reviews slot machine licensing, adopted an emergency rule allowing it to impose ownership transfer fees. The commission imposed a $9 million fee on LHT, and the company paid the fee in order to move ahead with the minority ownership transfer before a Nov. 1, 2007, deadline to pay a license fee to add slot machines. But the company objected to the validity of the emergency rule and subsequent fee, which it claimed was a "transfer tax" and wasn't authorized by legislators. The company ultimately sought judicial review, but the judiciary decided the company hadn't exhausted all the administrative options.

The cases that did get transferred included a suit filed by parents against manufacturers of a measuring cup for medicine after their son died from an overdose, and one challenging a trial court's decision to exclude the results of a breathalyzer test because it showed the wrong time of day.

- Jim Kovach v. Caligor Midwest, et al., 49A04-0707-CV-406. Two petitions were granted in this case filed by Jim and Jill Kovach following the death of their 9-year-old son from asphyxia due to an opiate overdose. The Kovachs alleged the nurse using a measuring cup manufactured by the defendants gave their son more than the recommended dosage. The Court of Appeals affirmed summary judgment with respect to the parents' action of implied warrant of fitness for a particular purpose under the Uniform Commercial Code and that the trial court didn't abuse its discretion by admitting testimony of an expert witness who is a pharmacist. It reversed the grant of summary judgment to all the defendants with respect to the Kovachs' arguments under the Product Liability Act and the implied warranty of merchantability under the UCC. Chief Judge John Baker dissented, believing the Kovachs failed to show that the nurse's actions were the result of a measuring error.

- State of Indiana v. Jason Cioch, No. 79A05-0804-CR-218. The Court of Appeals affirmed the suppression of evidence of Jason Cioch's breathalyzer test because the printout contained the incorrect time of day due to the switch to Daylight Saving Time. The person who administered the test noticed the discrepancy, and the arresting officer noted it in his incident report, but the appellate court found the state failed to meet its burden of establishing a foundation for admitting the evidence. The statutes and regulations regarding the administration of the breath test and the admissibility of its results don't expressly contemplate the use of outside evidence to supplement the evidence ticket.

- Anita Inlow v. Jason Inlow, No. 29A02-0712-CV-1039. The appellate court upheld the trial court's approval of money received in a wrongful death suit to be used to reimburse the deceased man's estate for funeral and burial expenses. Anita Inlow, the widow who paid for those expenses and received reimbursement from the estate, argued the wrongful death award wasn't itemized to include a portion for funeral expenses so the estate shouldn't be reimbursed. Judge Melissa May dissented, writing the statute specifically addressing wrongful death awards should control.

- R.Y. (mother) v. Marion County Department of Child Services, No. 49A02-0804-JV-394. The Court of Appeals affirmed the termination of R.Y.'s parental rights to her son. It found the Department of Child Services proved by clear and convincing evidence a reasonable probability R.Y. hadn't resolved the condition that resulted in her son's removal and termination of parental rights was in her son's best interest. The Court of Appeals also affirmed she failed to show DCS didn't make reasonable efforts for her son's return and that her son is a CHINS because R.Y. is incarcerated and failed to make arrangements for his care.

- Elizabeth Thomas v. Blackford County Area Board of Zoning Appeals, No. 05A04-0711-CV-731. The appellate court reversed the dismissal of Elizabeth Thomas' petition for writ of certiorari from the Blackford County BZA and remanded to afford the parties an opportunity to complete their presentation of evidence and to render a decision on the merits. The Court of Appeals found the evidence of the case established an issue of fact as to whether Thomas will suffer unpleasant odors and loss of property value if a confined feeding operation goes in a half mile from her property.

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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