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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. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  2. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  3. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  4. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  5. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

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