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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. How nice, on the day of my car accident on the way to work at the Indiana Supreme Court. Unlike the others, I did not steal any money or do ANYTHING unethical whatsoever. I am suing the Indiana Supreme Court and appealed the failure of the district court in SDIN to protect me. I am suing the federal judge because she failed to protect me and her abandonment of jurisdiction leaves her open to lawsuits because she stripped herself of immunity. I am a candidate for Indiana Supreme Court justice, and they imposed just enough sanction so that I am made ineligible. I am asking the 7th Circuit to remove all of them and appoint me as the new Chief Justice of Indiana. That's what they get for dishonoring my sacrifice and and violating the ADA in about 50 different ways.

  2. Can anyone please help this mother and child? We can all discuss the mother's rights, child's rights when this court only considered the father's rights. It is actually scarey to think a man like this even being a father period with custody of this child. I don't believe any of his other children would have anything good to say about him being their father! How many people are afraid to say anything or try to help because they are afraid of Carl. He's a bully and that his how he gets his way. Please someone help this mother and child. There has to be someone that has the heart and the means to help this family.

  3. I enrolled America's 1st tax-free Health Savings Account (HSA) so you can trust me. I bet 1/3 of my clients were lawyers because they love tax-free deposits, growth and withdrawals or total tax freedom. Most of the time (always) these clients are uninformed about insurance law. Employer-based health insurance is simple if you read the policy. It says, Employers (lawyers) and employees who are working 30-hours-per-week are ELIGIBLE for insurance. Then I show the lawyer the TERMINATION clause which states: When you are no longer ELIGIBLE! Then I ask a closing question (sales term) to the lawyer which is, "If you have a stroke or cancer and become too sick to work can you keep your health insurance?" If the lawyer had dependent children they needed a "Dependent Conversion Privilege" in case their child got sick or hurt which the lawyers never had. Lawyers are pretty easy sales. Save premium, eliminate taxes and build wealth!

  4. Ok, so cheap laughs made about the Christian Right. hardiharhar ... All kidding aside, it is Mohammad's followers who you should be seeking divine protection from. Allahu Akbar But progressives are in denial about that, even as Europe crumbles.

  5. Father's rights? What about a mothers rights? A child's rights? Taking a child from the custody of the mother for political reasons! A miscarriage of justice! What about the welfare of the child? Has anyone considered parent alienation, the father can't erase the mother from the child's life. This child loves the mother and the home in Wisconsin, friends, school and family. It is apparent the father hates his ex-wife more than he loves his child! I hope there will be a Guardian Ad Litem, who will spend time with and get to know the child, BEFORE being brainwashed by the father. This is not just a child! A little person with rights and real needs, a stable home and a parent that cares enough to let this child at least finish the school year, where she is happy and comfortable! Where is the justice?

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