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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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