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Monday, March 07, 2005

Ind. Decisions - Court of Appeals posts one today; Tax Court posts one

Kenneth R. Shepherd v. Raymond D. Truex, et al (3/7/05 IndCtApp) [Torts]
Bailey, Judge

* * * Shepherd raises two issues, which we consolidate and restate as whether the trial court erred by granting judgment on the pleadings to Appellees because the allegations in the complaint, when taken as true, support an independent action for fraud upon the court, pursuant to Indiana Trial Rule 60(B), and a cause of action for attorney deceit, pursuant to Indiana Code Section 33-21-1-8. * * *

Here, Shepherd alleges in the complaint at issue that Appellees committed fraud and consented to deceit and collusion, for which they are not immune from liability, by knowingly preparing and submitting the false affidavits to the trial court. However, these allegations, even when taken as true, do not demonstrate that Appellees personally made a false representation with the intent to deceive and for the purpose of inducing Shepherd to act upon such representation, nor do they show that Shepherd, in fact, relied upon such representation to his injury or damage. To the contrary, pursuant to the complaint allegations, Shepherd never relied upon the averments made in the affidavits, i.e., the purported false representations. Rather, throughout his prosecution of the original lawsuit against Truex, Shepherd consistently and repeatedly maintained that the affidavits were fraudulent and that the information contained therein was false. As such, the trial court did not err by concluding that Shepherd’s complaint for attorney deceit failed to state a claim for relief. See, e.g., Anderson, 399 N.E.2d at 403-04.

For the foregoing reasons, we affirm the trial court’s grant of judgment on the pleadings. Affirmed.
FRIEDLANDER, J., and DARDEN, J. concur.

Chadd Barney v. Indiana Dept. of State Revenue (3/4/05 IndTaxCt) [Controlled substance excise tax]
Fisher, J.
Chadd Barney (Barney) appeals the final determination of the Indiana Department of State Revenue (Department) assessing him with controlled substance excise tax (CSET). The issues for the Court to decide are: (1) whether the exclusionary rule bars the use of Barney’s admissions in a tax assessment proceeding; (2) whether those admissions are sufficient evidence that Barney possessed the marijuana upon which the CSET assessment is based; and (3) whether the Department properly allowed for the weight of the marijuana’s packaging when calculating the assessment. * * *

Conclusion. For the aforementioned reasons, the Court AFFIRMS the Department’s final determination assessing Barney with CSET.

Posted by Marcia Oddi on March 7, 2005 01:48 PM
Posted to Ind. App.Ct. Decisions