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. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.