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Man's suit filed after all statutes of limitations

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The Indiana Court of Appeals agreed a Logansport resident has standing to sue his city over the operation and management of a city park, but that his suit is barred by statutes of limitations.

In State of Indiana on the relation of Michael Berkshire v. City of Logansport, Ind., et al., No. 09A02-0911-CV-1139, resident Michael Berkshire, upset that alcohol was being sold in Dykeman Park, filed a verified complaint for writ of mandate and declaratory and injunctive relief in April 2009 against the city and its Parks & Recreation Board. Berkshire claimed the park wasn't being maintained and operated as was directed by the will of Cass County Circuit Judge David D. Dykeman and the resolution passed by the city in 1915 adopting Judge Dykeman's request.

Judge Dykeman had left his farm to the city to be used as a public park. He requested the city spend $1,500 a year to maintain it and that it be controlled by three park commissioners appointed by the Board of County Commissioners of Cass County, the Cass Circuit Court, and the common council.

Those three appointments were never made and eventually the oversight of the park was maintained by the Board of the Department of Parks and Recreation, which was created in 1979 and has five members. The city did maintain the park and spend at least $1,500 on it throughout the years.

The trial court granted partial summary judgment for Berkshire, finding he did have standing to sue, but also ruled that the statute of limitations for him to bring the suit had expired.

Berkshire argued on appeal that Logansport's response to his summary judgment motion didn't comply with the designation of evidence requirements of Indiana Trial Rule 56(C). The appellate court relied on the recent Indiana Supreme Court ruling in Reiswerg v. Statom, No.49S02-0906-CV-280, in which the high court determined that defendants didn't waive a statute of limitations defense when they failed to assert it in a response to the plaintiff's motion for partial summary judgment. Logansport did assert its defense in its answer to the complaint and in the motion to dismiss, wrote Chief Judge John Baker.

The Court of Appeals also affirmed that Berkshire had standing to bring his suit - he as well as other Logansport residents have a public right in the enjoyment of the park. But, Berkshire didn't bring his suit in time to comply with any of the possible statutes of limitations. It could be argued that the suit had to have been brought within 20 years of 1917 or within 20 years of when the Parks and Recreation Board was created in 1979.

The appellate court noted that the city had complied with two out of the three requests laid out in Judge Dykeman's will - the land was designated as Dykeman Park and the city has spent more than $1,500 a year on improvements, wrote the chief judge.

"Thus, it is reasonable to conclude that Logansport's operation of Dykeman Park for over ninety years has amounted to substantial compliance with the agreement and the provisions of the Will," he wrote. "Even more compelling, it is apparent that Logansport has fulfilled Judge Dykeman's intent as a result of its agreement to establish and operate the park. As a result, the trial court properly granted Logansport's motion to dismiss Berkshire's action."

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  1. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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