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Monday, November 12, 2012

Ind. Law - "Consider legalities when renegotiating farmland leases"

From a long article by Jennifer Stewart of Purdue University, published at Drovers Cattle Network:

As the end of grain harvest draws near, many landlords and tenants will be renegotiating or terminating farmland lease agreements - a process full of legal requirements, a Purdue University Extension agricultural economist warns.

First and foremost, lease agreements and terminations should be in writing. While oral farmland lease agreements are as legal as written leases in Indiana, Gerry Harrison said some details of the oral agreement might be disputed.

“Oral leases should be avoided,” he said. “There are many problems with oral leases, including what is or was the actual agreement.”

Earlier this year, the Indiana Court of Appeals ruled that a lease termination is required to be in writing, which protects both landlord and tenant.

“It could be very risky to rely on an oral notice to terminate a lease,” Harrison said. “Further, if a new leasing arrangement is needed with the existing tenant and a lease agreement does not come, the tenant, without a proper notice to quit, likely has the land for the coming year at the same rent or arrangement as the current year.”

Indiana law also requires that a notice to quit, or terminate, a lease needs to be delivered by a landlord or tenant in a timely manner. For a lease of at least a year, law requires notice to be delivered three months before the end of the lease year.

If a lease doesn’t specify the lease-year end, Harrison said it’s customary in Indiana to consider the end of February of the coming crop year as the lease-year end.

“Farming is a continuous process. If there is to be a new tenant, the current tenant needs to plan for the transition, and the new tenant would likely want to start preparations for the coming crop year during the late summer or the fall of a current crop year,” he said.

For landlords and tenants who are renegotiating lease agreements, Harrison said it’s important for both parties to have an understanding about the rental value of the farmland.

“Landlords must recognize the difference in the rental value of varying farmland parcels as to size in acres and quality of the land,” he said. “While crop farming has been quite profitable in recent years, an oddly shaped 30 acres is not likely to be as desirable to a tenant as a very fertile 300-acre parcel.”

Some lease renegotiations might require professional help to draft an appropriate rental agreement.

The story links to a useful, useful 12-page article by Gerald A. Harrison, Purdue Extension Economist, titled "Legal Aspects of Indiana Farmland Leases and Federal Tax Considerations."

ILB: The COA case mentioned is The Guardianship of Harold G. Gardner, Scott A. Gardner, Guardian v. Carl Prochno, a March 13, 2012 opinion summarized here in the ILB. A quote:

The designated evidence in this case shows that Prochno did not receive written notice to terminate his year-to-year tenancy to 240 acres of farm ground owned by Harold within three months of March 1, the generally accepted start date for farm leases. Because we conclude that Indiana Code chapter 32-31-1 requires written notice to terminate a year-to-year tenancy “not less than three (3) months before the expiration of the year,” we affirm the trial court’s grant of summary judgment in favor of Prochno.

See also a South Bend Tribune story about the trial court opinion in the same case, quoted here in a May 31, 2011 ILB entry.

Posted by Marcia Oddi on Monday, November 12, 2012
Posted to Indiana Law

Law - "Arson and the Science of Fire"

Ken Strutin has assembled a "collection of selected research publications, web resources and case studies as well as scholarly legal articles and scientific reports on arson investigation and fire science." Access it here at LLRX.com/.

Readers will recall the Indiana appeal earlier this year involving Kristine Bunch, an "Indiana woman convicted of setting a 1995 fire that killed her 3-year-old son." The COA reversed the conviction, citing advances in fire science. The Supreme Court denied the AG's petition to transfer and Bunch is currently free on bond, awaiting possible retrial.

Posted by Marcia Oddi on Monday, November 12, 2012
Posted to General Law Related

Environment - "Sandy Stirs Toxic-Site Worry"

Free today on the WSJ site, this story by Rob Barry, Dionne Searcey and John Carreyrou that begins:

Hurricane Sandy's environmental impact is still being assessed, but the worries for residents of New York and New Jersey are crystallized by one fact: Of the two states' 198 Superfund toxic-waste sites, 45 are within a half-mile of coastal areas vulnerable to storm surge.

The Environmental Protection Agency, which oversees cleanup of those sites, was unable to say how many of them flooded on the night of Oct. 29. But the agency said its initial appraisals show that several "were impacted by the storm," including a site contaminated by lead near Sayreville, N.J., and the Gowanus Canal and Newtown Creek sites in New York City.

The 45 Superfund sites vulnerable to coastal flooding were identified by The Wall Street Journal using data from the EPA and the U.S. Army Corps of Engineers. Many of the sites are concentrated in northern New Jersey in a blighted industrial zone west of Manhattan, 11 flank the Delaware River and a half-dozen are scattered across New York's Long Island.

The story ncludes a map locating the sites.

Posted by Marcia Oddi on Monday, November 12, 2012
Posted to Environment

Ind. Gov't. - More on: Center Twp. small claims court's mandate action now fully briefed and transmitted to Supreme Court

Note: The ILB has now received all the documents, so is reproducing last week's entry, as updated with the newly acquired documents.

The ILB's most recent entry on this lawsuit, where the Center Twp. Trustee is attempting to move the location of the Center Township of Marion County small claims court, against the wishes of Judge Michelle Smith Scott, who cites security concerns among her objections, was Oct. 4, 2012. This is Case Number: 49 S 00 - 1207 - MF - 00420, IN RE: CENTER TOWNSHIP OF MARION COUNTY SMALL CLAIMS COURT.

The ILB has been able to obtain the briefs of the parties:

• Aug. 27, 2012 - Brief of Appellants

• Aug. 27, 2012 - Appendix: Special Judge Berger's June 11, 2012 Findings of Fact, Conclusions of Law, and Decree

• Aug. 27, 2012 - Center Twp. Addendum to Brief of Appellants

• Oct. 1, 2012 - Brief of Appellee Judge Michelle Smith Scott

• Oct. 19, 2012 - Reply Brief of Appellants

• Oct. 19, 2012 - Center Twp. Addendum to Brief of Appellants

Updating the Clerk's Docket subsequent to these filings:

DATE	TEXT
	O.A. NONE ENTERED ON 10/22/12 AB
10/22/12	TRANSMITTED SUPREME ***********10/22/12***********
	ENTERED ON 10/22/12 AB
10/23/12	VERIFIED MOTION TO FILE VERIFIED STATEMENT IN RESPONSE TO
	FOOTNOTE 11 IN THE BRIEF OF APPELLEE (6) CERTIFICATE OF SERVICE
	(6) BY MAIL 10/23/12 **ROTUNDA** ENTERED ON 10/24/12 AS
10/23/12	****RECEIVED 10/24/12: VERIFIED STATEMENT IN RESPONSE TO
	FOOTNOTE 11 IN THE BRIEF OF APPELLEE. HOLD FOR RULING ON MOTION
	TO FILE. **ROTUNDA** ENTERED ON 10/24/12 AS
11/08/12	ISSUED THE ENCLOSED ORDER:
11/08/12	BEING DULY ADVISED, THE MOTION IS GRANTED.
	THE CLERK'S OFFICE IS DIRECTED TO FILE, AS OF THE DATE OF THIS
	ORDER, THE "VERIFIED STATEMENT IN RESPONSE TO FOOTNOTE 11 IN
	THE BRIEF OF APPELLEE."
	BRENT E. DICKSON, CHIEF JUSTICE
	(ORDER REC'D 11/08/12 AT 1:45 P.M.) ENTERED ON 11/08/12 KJ
11/08/12	****** ABOVE ENTRY MAILED ******
11/08/12	VERIFIED STATEMENT IN RESPONSE TO FOOTNOTE IN THE BRIEF OF
	APPELLEE (6) CERTIFICATE OF SERVICE (6) BY MAIL 10/23/12
	ENTERED ON 11/08/12 AS

Posted by Marcia Oddi on Monday, November 12, 2012
Posted to Indiana Government

Catch-up: What did you miss over the weekend from the ILB?

Below is the answer to "What did you miss over the weekend from the ILB?

From Sunday, November 11, 2012:

• Ind. Gov't. - "Social issues face GOP-controlled Indiana legislature"
• Environment - "Couple drop bid for hog farm"
• Ind. Gov't. - "Around the state, sympathy for Monroe County clerk — but much quicker election results"

From Saturday, November 10, 2012:

• Ind. Gov't. - "Judge, family law professor offer solutions for state's $2.3 billion child support problem"
• Courts - Delaware Supreme Court rebukes chief judge of the Delaware Court of Chancery for opinion containing nearly a dozen pages of dictum

Posted by Marcia Oddi on Monday, November 12, 2012
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of (11/12/12):

• No oral arguments currently scheduled.

Next week's oral arguments before the Supreme Court (week of (11/19/12):

Wednesday, November 21st (Note that Justice Loretta Rush will be hearing oral arguments today for the first time.)

• 9:00 AM - Teresa Meredith et al. v. Mitch Daniels, et al. (49S00-1203-PL-172) - This case involves constitutional challenges to Indiana’s “Choice Scholarship Program,” signed into law by Governor Daniels on May 5, 2011. The Plaintiffs/Appellants are 12 citizen taxpayers opposed to the Program. After denying Plaintiffs’ motion for preliminary injunction, the Marion Superior Court, Judge Michael D. Keele presiding, entered summary judgment in favor of Defendants on January 13, 2012. The Supreme Court granted transfer pursuant to App. Rule 56(A), thereby assuming jurisdiction over the appeal.

  ILB: This is the school voucher challenge and is a direct transfer from the trial court. Here is the Jan. 13, 2012 ILB entry which includes a link to the trial court opinion. Note that the Court has set aside one hour for this oral argument.

• 10:05 AM - Mary A. Manley, et al. v. Ryan A. Sherer, M.D. (59S01-1205-PL-249) - A defendant-physician accused of negligence moved for a preliminary determination of law and summary judgment, and the Orange Circuit Court granted the defendant’s motions. The Court of Appeals reversed, concluding that material issues of fact remain regarding whether the doctrine of “continuing wrongs” affects the statute of limitations here and regarding the defendant’s breach of duty and proximate causation of the plaintiff’s injuries. Manley v. Sherer, 960 N.E.2d 815 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

  ILB: This is Dec. 30, 2011 COA opinion reversing the trial court’s grant of Sherer's motion for summary judgment.

• 10:50 AM - Gerald A. VanPatten v. State of Indiana (02S03-1205-CR-251) - Gerald VanPatten was convicted of several counts of child molesting in the Allen Superior Court. The Court of Appeals affirmed in a not-for-publication decision, VanPatten v. State, (Ind. Ct. App. Feb. 14, 2012). The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

  ILB: This is 2-1 Feb. 14, 2012 NFP COA opinion dealing with the admissibility of evidence in a child molesting case.

Webcasts of Supreme Court oral arguments are available here.

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This week's oral arguments before the Court of Appeals (week of 11/12/12):

Tuesday, November 13th

• 11:00 AM - David Bleeke v. State of Indiana, et al (02A05-1201-PL-25) - After the trial court granted summary judgment in favor of the State in this declaratory judgment action, Bleeke filed a notice of appeal. Among the questions presented in this appeal are: (1) whether designated Indiana Parole Board conditions of parole are void because they were not promulgated pursuant to IC 11-13-3-4(b); (2) whether designated Indiana Parole Board conditions of parole are void because they were imposed without the Indiana Parole Board first making an individualized determination that the conditions were reasonably related to Bleeke's reintegration into the community and that the conditions were not unduly restrictive of Bleeke's fundamental rights; (3) whether designated Indiana Parole Board conditions of parole are unconstitutionally vague or overbroad; (4) whether IC 11-13-3-4(g) and IC 35-42-4-11 are facially overbroad; (5) whether the State's "Sex Offender Management and Monitoring Program" is unconstitutional; and (6) whether the trial court erred in not dismissing Bleeke's action against parties other than the Parole Board. The Scheduled Panel Members are: Judges Friedlander, Brown and Sr. Judge Darden. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 11/19/12):

Tuesday, November 20th

• 11:00 AM - Granite City Insurance v. Robert Lodholtz and Pulliam Enterprises, Inc. (71A04-1111-CT-635) - Appellant Granite State Insurance Company appeals from the trial court’s denial of its motion to intervene and vacate the default judgment previously entered in the tort suit between Appellee-Plaintiff Robert Lodholtz and Appellee-Defendant Pulliam Enterprises, Inc. Granite State, Pulliam’s commercial carrier, argues that it has a direct interest in the litigation sufficient to warrant intervention or, in the alternative, that authority to the effect that it does not should not be followed. Granite State also argues that Lodholtz’s tort claim against Pulliam should be dismissed because it involves an employee injury and is therefore governed by Indiana’s worker’s compensation system. The Scheduled Panel Members are: Chief Judge Robb, Judges Baker and Bradford. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

• 1:30 PM - Alva Electric, Inc., et al, v. Evansville Vanderburgh School Corporation (82A01-1201-PL-2) - Alva Electric, Inc., Arc Construction Company, Inc., Danco Construction, Inc., Deig Brothers Lumber & Construction Co., Empire Contractors, Inc., Peyronnin Construction Company, Inc., Weddle Brothers Construction Company, Inc., and Wink Construction Inc. (collectively, “the Contractors”), on behalf of themselves and all similarly situated taxpayers within the district of the Evansville Vanderburgh School Corporation (“the School Corporation”), appeal the Vanderburgh Circuit Court’s denial of their motion for summary judgment and grant of a cross-motion for summary judgment in favor of the School Corporation and its related Foundation, on the Contractors’ claims under Indiana’s Public Lawsuit Statute (Ind. Code §§ 34-13-5-1 to -12) and Antitrust Act (Ind. Code § 24-1-2-3). The Contractors challenge the propriety of the grant of summary judgment as the sole issue on appeal. Specifically, they argue that the trial court erred in concluding that the contested building renovation project was not subject to competitive bidding procedures. The Scheduled Panel Members are: Judges Friedlander, Kirsch and Pyle. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

Wednesday, November 21st

• 11:00 AM - Daniel Brewington vs. State of Indiana (15A01-1110-CR-550) - Brewington appeals his convictions for two counts of class A misdemeanor intimidation, one count of class D felony intimidation, class D felony attempt to commit obstruction of justice, and class D felony perjury. Brewington asserts that the trial court abused its discretion in instructing the jury; the evidence is insufficient to sustain his convictions for intimidation, attempted obstruction of justice, and perjury; his convictions constitute double jeopardy; the trial court abused its discretion in admitting evidence; and that the trial court abused its discretion in empanelling an anonymous jury. The Scheduled Panel Members are: Judges Friedlander, Brown and Sr. Judge Darden. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

The past COA webcasts which have been webcast are accessible here.

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NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, November 12, 2012
Posted to Upcoming Oral Arguments