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Majority upholds finding of contempt

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Three Indiana justices affirmed a trial court order finding a business owner, his attorney and an environmental firm in contempt for doing work on a site with possible environmental issues after a temporary restraining order had been issued.

At issue in John Witt, HydroTech Corp, and Mark Shere v. Jay Petroleum, Inc., and Jack R. James, No. 38S02-1110-CV-608, is whether the decision by John Witt and attorney Mark Shere to backfill holes on Witt’s property – which were dug to remove underground storage tanks and test soil – violated the terms of a temporary restraining order obtained by Jay Petroleum Inc. and Jack James, the previous owners of the land.

Jay Petroleum wanted to have its own environmental consultant on location when HydroTech Corp. began removal of the UST. The parties couldn’t agree and Witt refused to allow Jay Petroleum’s environmental consultant on the property. Jay Petroleum and James obtained a temporary restraining order that said Witt and the others are enjoined and restrained from “conducting UST removal, soil excavation, or other environmental investigation and remediation activities on the Property …”

Shere interpreted the TRO to mean that HydroTech could backfill the holes for safety reasons and also conduct testing on one of the exposed pits. Jay Petroleum filed for contempt of court; the trial court found Witt, HydroTech and Shere in contempt and held them jointly and severally liable for $108,487.32 in costs and attorney fees.

Justices Brent Dickson and Steven David and Chief Justice Randall Shepard upheld the order, finding the collection of the samples clearly violated the order and that if they believed backfilling was the only way to provide for public safety, Witt should have sought permission from the trial court. The majority also upheld the decision to exclude from trial any evidence gathered after the entry of the TRO and the costs imposed.

Justices Robert Rucker and Frank Sullivan dissented, believing that the order did not prohibit any activity to ensure that the site wouldn’t pose a threat to public safety. With regards to the testing of samples, the record is unclear whether they were taken before or after the restraining order was issued and whether Witt would have used those tests in the case, wrote Rucker.

 

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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