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Thursday, March 09, 2017

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 18 NFP memorandum decision(s))

For publication opinions today (2):

In Jay Garrison v. Pamela Garrison, an 8-page opinion, Sr. Judge Shepard writes:

When someone on his deathbed transfers his property under circumstances where competence may be in question, how should the burden of proof concerning the transfer be applied?g the transfer be applied? * * *

Jay argues that 1) the trial court erroneously concluded it was a gift causa mortis as opposed to a gift inter vivos, 2) applied the wrong standard of review, and 3) based its decision on insufficient evidence.

Pamela raised a straight claim of incompetence in her petition to recover assets. A review of a variety of standards of review, burdens of proof, and burdens of going forward, will aid in resolving this appeal. * * *

Certain transfers are viewed differently based on the relationship of the donor and donee. * * *

Inasmuch as Thomas and Jay were father and son, the presumption of undue influence arose with respect to the transfer. Jay presented testimony that Thomas was competent at the time of the transfer, and that Jay possessed certificates of title to the two vehicles dated July 30, 2015. Pamela, however, presented testimonial evidence of Thomas’ incompetency before and at the time of transfer. The trial court found the evidence of competency was evenly split. Jay, therefore, has not rebutted the presumption of undue influence, and the estate is entitled to recovery of the vehicles.

Conclusion. For the foregoing reasons, we affirm the decision of the trial court.

In Fazia Deen-Bacchus v. Harold M. Bacchus, Jr., a 10-page opinion, Judge Najam writes:
Fazia Deen-Bacchus (“Wife”) appeals the dissolution court’s February 2016 order in which the court directed Harold M. Bacchus, Jr. (“Husband”) to promptly transfer certain amounts from three investment accounts (“the investment accounts”) to Wife. Wife raises a single issue for our review, which we restate as follows: whether the dissolution court erroneously interpreted its January 2011 property distribution order, in which the court had set aside the investment accounts to Wife as “her property,” when the court ordered Husband in February of 2016 to transfer only the January 2011 value of the investment accounts to Wife. We reverse and remand with instructions. * * *

In sum, the parties and the dissolution court had the opportunity to clarify any ambiguities in the January 2011 order within the time prior to the court’s judgment on the motions to correct error that were filed on that order, yet neither the parties nor the court suggested that the language of the January 2011 order to distribute the investment accounts to Wife was ambiguous. And it was not ambiguous; the order plainly and unmistakably identifies the investment accounts, not a certain value of the accounts, as Wife’s property. Accordingly, the dissolution court’s February 2016 order to the contrary is erroneous. We reverse the February 2016 order on this issue and remand with instructions that the dissolution court order Husband transfer ownership of the investment accounts to Wife and to enter any other findings and conclusions the court deems appropriate that are not inconsistent with this opinion.

NFP civil decisions today (6):

Gasser Chair Company, Inc. v. Marlene J. Nordengreen (mem. dec.)

Neidlinger Trust #0801, by John P. Neidlinger and Casey Neidlinger, Trustees v. Michael S. Lewallen and JMJ Farms, LLC (mem. dec.)

Elizabeth (Newman) Lewis v. David Newman (mem. dec.)

In the Matter of: V.G. (Minor Child), Child in Need of Services and R.G. (Mother) v. The Indiana Department of Child Services (mem. dec.)

In the Matter of R.Y. and B.H. (Minor Children) Children in Need of Services, S.H. v. Indiana Department of Child Services (mem. dec.)

In the Termination of the Parent Child Relationship of: A.P. & D.P. (Minor Children) and, J.P. (Father) and A.M. (Mother) (mem. dec.)

NFP juvenile and criminal decisions today (12):

Darrell Berry v. State of Indiana (mem.dec.)

Robin Dalekilgore Peppers v. State of Indiana (mem. dec.)

Alan Ponce-Gomez v. State of Indiana (mem. dec.)

Carl Hughes v. State of Indiana (mem. dec.)

Rodrick Osborn Sheron v. State of Indiana (mem. dec.)

Justin Rhymer v. State of Indiana (mem. dec.)

Calvin McGregory v. State of Indiana (mem. dec.)

Devon R. Rush v. State of Indiana (mem. dec.)

Juan Escatel-Flores v. State of Indiana (mem. dec.)

Kevin Chadwick v. State of Indiana (mem. dec.)

Ira Steven Link v. State of Indiana (mem. dec.)

Devon L. Hunter v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, March 09, 2017
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Pence's history with transparency

Kristine Phillips of the Washington Post had an analysis piece March 8 headed "Mike Pence says he advocates for a free press. Here’s his shaky history with transparency." Some quotes:

Pence sponsored versions of the legislation a few times when he was in Congress. Although the Free Flow of Information Act never became law, Pence's advocacy for the news media earned him praise from journalists, including an award from a newspaper association.

But while Pence does have a track record of supporting a free press and the First Amendment, that record is tainted and his stance on the public's right to know has become muddled, critics say.

During his time as Indiana governor, for instance, Pence found himself rebuked by free speech and open-government advocates — once because of a widely criticized plan to create a taxpayer-funded news service, and again when his staff deleted Facebook comments that disagreed with his stance on same-sex marriage.

Posted by Marcia Oddi on Thursday, March 09, 2017
Posted to Indiana Government

Ind. Gov't. - More on "Bill to reduce regulations on livestock operations raising concerns"

Updating this ILB post from Feb. 23rd, Niki Kelly of the Fort Wayne Journal Gazette reported yesterday:

A controversial confined animal feeding bill has hit a wall in the state Senate.

Fort Wayne Republican Senate President Pro Tem David Long assigned the measure to the Rules Committee – a place where legislation generally is sent to die.

“It’s where I parked it for now. It may stay there,” he said. “I think it’s just bad legislation.”

Rep. Dave Wolkins, R-Warsaw, authored House Bill 1494 and has called it a streamlining of the regulatory process for factory farms raising hundreds or thousands of animals.

But confusion reigned in committee and on the House floor about what the bill actually does. It just passed the House chamber 66-25.

Opponents argue it limits notice to neighbors for expansions of a confined animal feeding operation, as well as other changes.

“I don’t see the value in that at all,” Long said, noting neighbors deserve notice and the chance to be heard during the permit process.

He referenced a CAFO in Whitley County, saying he has heard from constituents.

Several Whitley County residents testified against Wolkins’ bill and generally support efforts to help neighbors instead of the CAFOs.

The Whitley County Board of Zoning Appeals approved a new operation consisting of 2,200 finishing hogs and 880 animal units after hundreds of people attended a meeting. Brent and Liza Emerick also have a permit pending with the Indiana Department of Environmental Management for the operation, according to local news reports.

High-profile Roanoke businessman Pete Eshelman said about 1,000 residents live near the proposed farm, and the state’s one-size-fits-all approach doesn’t work for more populated areas.

Posted by Marcia Oddi on Thursday, March 09, 2017
Posted to Indiana Government

Ind. Decisions - 7th Circuit denies class action status to law firm in self-renewing contract case

CAFFERTY, CLOBES, MERIWETHER & SPRENGEL, LLP, on behalf of itself and all others similarly situated, Plaintiff-Appellant, v. XO COMMUNICATIONS SERVICES, LLC, an interesting to read, 5-page opinion yesterday from Judge Posner on a case out of Illinois. A few quotes:

The plaintiff, a law firm, seeks both individual and class relief against XO Communications, a large provider of telecommunications services to business customers, such as the plaintiff, and wholesalers. The plaintiff’s contract with XO provided that the contract would be automatically renewed at the end of the customer’s current service term “for a similar term and at the same rates” set forth in the contract. A customer who didn’t want to renew was required to so notify XO at least 30 days prior to the expiration date in the contract; if it failed to do so, the contract would renew automatically. The contract also provided that XO would notify the customer of the automatic-renewal feature of the contract (which it did from time to time), thus reminding the customer that if it decided not to renew the contract it would have to so notify XO at least 30 days before expiration. The contract further stated that if the customer terminated the contract after the deadline it would have to pay XO a termination fee based on the revenue that XO would have received from the customer over the remaining months of the contract had it not been terminated prematurely and thus in violation of the contract. XO’s monthly invoices contain a prominent reminder of the automaticrenewal feature of the contract. * * *

It’s not as if the plaintiff were some hapless consumer bamboozled by a huge company. According to the plaintiff’s website (www.caffertyclobes.com/home, visited March 3, 2017), “Cafferty Clobes Meriwether & Sprengel LLP, which has offices in Chicago, Philadelphia, and Ann Arbor, combines the diverse talents of attorneys with a wide range of litigation experience. Since its founding in 1992, the firm has focused on representing plaintiffs, such as investors, employees, consumers and companies, in complex civil litigation throughout the country. The firm and its attorneys have helped recover billions of dollars for the benefit of represented plaintiffs and classes, and in some cases, have secured the reform of corporate practices alleged to be unlawful or abusive. The skill and experience of our attorneys has been recognized on repeated occasions by courts that have appointed these attorneys to leadership positions in complex multidistrict or consolidated litigation.” Had this substantial enterprise kept track of the date of its contract with XO (more precisely the date of its latest renewal of the contract), it would not have incurred the modest termination fee that it seeks to recover by this suit.

Of course its real aim, doubtless, was, in the words of its website, to “recover billions of dollars for the benefit of represented plaintiffs and classes.” It can’t have brought this suit just to recover a $9,000 termination fee (less, actually, because it hadn’t paid the entire fee); it must have hoped that a class would be certified, although a different law firm—Lite DePalma Greenberg, LLC—would be representing the class in the litigation.

Posted by Marcia Oddi on Thursday, March 09, 2017
Posted to Ind. (7th Cir.) Decisions

Courts - "SCOTUS: Racial bias in the jury room can violate a defendant’s right to a fair trial"

Robert Barnes of the Washington Post reports on the March 6th SCOTUS opinion in Peña-Rodriguez v. Colorado (SCOTUSblog page here) - the story begins:

Accusations that a juror made racially biased statements about a defendant may require judges to break through the usual secrecy that surrounds jury deliberations, the Supreme Court ruled Monday.

“A constitutional rule that racial bias in the justice system must be addressed — including, in some instances, after the verdict has been entered — is necessary to prevent a systemic loss of confidence in jury verdicts,” Justice Anthony M. Kennedy wrote in a 5-to-3 decision.

“The Nation must continue to make strides to overcome race-based discrimination,” wrote Kennedy, who sided with the court’s four liberal members. “The progress that has already been made underlies the Court’s insistence that blatant racial prejudice is antithetical to the functioning of the jury system.”

The court’s decision came in the case of Coloradan Miguel Angel Peña Rodriguez, who found out after his 2007 conviction that a juror said he thought that Peña Rodriguez was guilty of sexual assault because he was Mexican and that “Mexican men take whatever they want.”

Posted by Marcia Oddi on Thursday, March 09, 2017
Posted to Courts in general