A costly lesson for Outback. Plaintiff knew within a month that the Outback server would testify that she served drinks to the man who hit the Markley’s on their motorcycle when he was obviously intoxicated. However, plaintiffs never listed the server as a witness or person with knowledge about the case.  The server later gave a deposition claiming the driver was not intoxicated, but the day before she testified at trial, she told plaintiff’s counsel she intended to change her story.  Plaintiff’s counsel did not notify the other side and she did change her story on the stand.  The Court fault’s plaintiff’s counsel for not supplementing his discovery responses, but lets the $39 million judgment against Outback stand, finding that Outback could have stopped the trial, asked for sanctions, but instead opted to impeach the server on cross with her deposition testimony.

The  Court uphold’s the dismissal of father’s custody petition under Trial Rule 41, but reverses the trial court’s order restricting father’s access to child, holding that there was no factual foundation for the restriction, reverses the provision  permitting mother to designate an alternate custodian for the child if she becomes incapacitated, and revered the award of attorney fees to mother, noting that the parties have similar incomes, each party had custody of one of the parties’ children, and the evidence supporting the fee award did not provide specific time expenditures.

Independent contract hurt on the job.  Property owner escapes liability for injuries because general contractor had control of the work site, and property owner did not retain enough control over the general contractor’s activities to merit holding owner liable for work site injury.

Justin R. Cannon, a student at Earlham College in Richmond, Ind., is one of the youngest combatants in the Christian culture wars. But he’s a happy warrior because his contribution to the debate — an illuminating online analysis that argues the Bible doesn’t condemn faithful gay relationships — has piqued the interest of clergy and laypeople across the United States.

1. Water contamination.
2. Air pollution/smell
3. Inhuman treatment of animals

“If you burnt someone’s house down, it would be a crime,” he said. “But you can slowly take the value of someone’s property with a CAFO and nothing’s done.”

NPPII has a local veterinary that visits every two weeks. While the animals are kept indoors at all times, Hohl said the barns are environmentally controlled to be warm in the winter and cooler in the summer. Sows outside endure cold winters and hot summers.

“I think there’s an argument that (confined feeding is) more humane,” Hohl said.

But he reminds people that the animals are not pets.

“They are production animals,” he said. “But we give them the best care.”

A sad case.  Power line damaged in a storm.  Homeowners call fire department and power company.  Power company tells the fire department the line is live, stay away from it.  Fire department leaves the scene. Power company sends someone to look at the line, but no repairs are made and the power is still on.  The next day a kid mowing the lawn is electrocuted. Parents sue fire department (presumable the power company as well), and Court says the department never assumed a any duty to protect the child from the power line.

Sloppy business purchase gone wrong.  It started off pretty good, with the parties executing a written agreement for the transfer of assets and accounts, but then the parties entered a series of oral agreement that complicated the transaction, to say the least.

The Daniels Administration hopes reducing regulatory red tape — in terms of instituting quicker turn_around times for confined feeding permit applications, for instance — will drive expansion in the livestock sector, which will in turn lead to a cash infusion in rural areas as people come to work and do business with the new entities.

The quality of the jobs created in the green sector in terms of wages and skill level is up for debate in that there will be some low_paying jobs, but agriculture is becoming an increasingly sophisticated science — especially if farm boys begin learning how to operate systems like methane digesters. The general premise behind the effort to diversify the employment base is to avoid leaving the state’s workers and income too beholden to any one sector.

Green collar jobs

We saw a part of this effort locally when Andy Miller, the Director of the newly created Department of Agriculture appeared at the Wayne County Board of Zoning Appeals meeting as it was considering Wayne County’s first proposed CAFO.  Link

The Department has launched a 20 year plan: Possibilites Unbound: The Plan for 2025 in which it sets forth it vision (like to double Indiana’s pork production), its means and methods (like creating an Industry CAFO/CFO team consisting of key livestock organizations, IDEM, and EPA, charged with reviewing all of Indiana’s CAFO/CFO rules and processes and offer a holistic new approach by August 2005) and key roadblocks to be defeated along the way:

Indiana has significant weaknesses which must be addressed:

• A serious decline in food processing;
• A negative image in the industry of Indiana’s environmental regulatory agencies which dissuades investment in the State;
• A lack of coordination between multiple state agencies involved with agricultural economic development;
• Land costs that are well above the national average and increasing each year;
• Emerging local land use regulations that are affecting producers’ right to farm; and
• Reliance on Federal farm subsidies by a large number of the State’s producers.

An insurance coverage dispute that began a decade ago when OSI and Bwltec were sued by a competitor for using a key former employee to steal trade secrets and develop a competing fast food oven.  This litigation came up because Liberty refused to provide a defense to the two companies. 

A Blakely case. The Court finds no issue here, but provides a succinct statement of how to evaluate such a claim:

For Blakely purposes, there are at least four proper ways to enhance a sentence with aggravating circumstances: 1) a prior conviction; 2) a fact found by a jury beyond a reasonable doubt; 3) admissions by the defendant; or 4) during a guilty plea where a defendant has waived Apprendi rights and stipulated to facts or consented to judicial fact-finding.

The Court denied a successive petition for post-conviction relief in a death penalty case.  The clear indication from the record is that Mr. Baird suffered from a pretty severe mental disorder at the time that he killed his pregnant wife and his parents before being arrested later while watching a baseball game.  This decision is based primarily on procedural issues, effectively stating that Baird failed to bring up any issues that have not already been considered. Justice Rucker concurred, but noted he would have reached a different result if Baird was asserting that he was currently suffering from a severe mental disorder.

911 tapes are not “testimonial” under Crawford as the primary motivation of the 911 operator is not preserving testimony, but getting key details to assist in an emergency.  The court also notes that the proper procedure to follow after the trial court has sustained your objection to a statement by the prosecutor is to seek an admonishment of the jury, prior to requesting a mistrial.  Failure to seek an admonishment waives the claimed error for denying the mistrial under the invited error doctrine. So as a litigator, your choice is to either have the error “sanitized” by an admonishment or waive the error entirely. A nice catch-22.

An ATV is a motor vehicle for purposes of the HTV statute.

Mr. Dennis was mugged in a terminal bathroom and sued the bus line, claiming negligent security measures.  Grant of summary judgment to the bus line reversed. To survive summary judgment, Dennis did not have to show that he had good evidence to establish his claim, just that there were material issued of fact.

An appeal over the return of a $750.00 deposit? Ms. Breeding rented a facility from Kyle’s for her wedding and specified the DJ’s she wanted in the contract.  Kyle’s later had a break with the particular DJ’s and told Breeding she would have to pick someone else.  Breeding wins. Justice Barnes dissents as follows:

My colleagues apparently want to “Save the Last Dance” for Ms. Breeding. I, however, believe she received what she bargained and signed the contract for – a reception hall with a disc jockey of Kye’s choice. Stuck is stuck. Although the other members of the panel cannot “Stand by Me,” I believe that Kye’s clearly and explicitly reserved the right to select the disc jockey, and Breeding was bound by the clear and unambiguous contract.

The Majority drops a footnote in response:

In his dissent, our colleague Judge Barnes borrows from the music of his youth (and ours) to illustrate his point that the contract that Breeding signed was for the rental of the hall, not the provision of disc jockey services. For reasons stated elsewhere in this opinion, we disagree. We do note, however, that Breeding, having Heard It Through the Grapevine that Kyes had disassociated itself from Sounds Unlimited, and doubtless suffering from the Wedding Bell Blues upon finding that she could Get No Satisfaction from Kyes, said to herself (and Kyes) Its My Party. She decided that it would be Kind of a Drag, if she could not have the Mr. Tambourine Man of her choice as her disc jockey, and, rather than shedding 96 Tears, she would be a Hard Headed Woman because Big Girls Dont Cry. It is a shame that the parties were unable to resolve their differences amicably by Building a Bridge Over Troubled Water so that they could Let It Be. Alas, Breeding was left to go Downtown to seek another Sugar Shack for her wedding reception before Leaving on a Jet Plane for her honeymoon. (Our apologies to the younger generations who have never heard any of these songs and have no idea what we are talking about.)

The obligatory PowerPoint presentation glows on the screen.  The facts pile up, and I jot down what strikes me:  11,200 producing sows.  Plus another 15%.  4,800 “isoleans” a week.     Traffic to and from the factory.  Run off.  Water containment.  Smell. Six mile long hoses for spreading the manure. 60,000 gallons a day of water use, water from wells. A 1200 acre manure easement. A compost heap where dead sows are taken.  It is so hot from the decomposing bodies, the Iowa man tells us, that a dead sow will be reduced to bones in a week.  There is a horror to this that I cannot shake.  Yet, he touts the benefits to the community: 35 jobs. Good jobs, 10 dollar an hour jobs. The need to purchase corn and soy from local farmers.  Money pumped back into the community.  Money.  More money.

“There are so many invasive plants. The one that we’re tackling right now is the bush honeysuckle. It’s so prolific that it is out competing our native shrubs and spring and summer wildflowers,” said Mary Klunk, the land stewardship manager for Five Rivers MetroParks.

The honeysuckle is also threatening second-generation forest trees, she said. Normally when a tree falls, other trees sprout in its place. However, honeysuckle grows so quickly that it takes over the vacant space before new trees have a chance to grow.

The article links to an Invasive Plants List maintained by the National Parks Service, and Ohio Department of Natural Resources  Invasive Plants web page with plant-by-plant fact sheets containing identification and eradication tips.

Steinke, at attorney who regularly practices before the Workers Compensation of Indiana, filed a writ of mandamus against the Board seeking to have a trial court order compliance with state law. Steinke claims the Board members fail to devote themselves full-time to their positions, and hold other jobs as employees and employers that interfere with and conflict with their obligations to the people coming before the board, the attorneys who represent those people and the residents of Indiana generally.  His complaint was dismissed on lack of standing grounds at the trial court level, and the Court of Appeals upholds this result, finding that the worker’s comp statute was meant to benefit injured workers, not attorneys representing them.  The Court enters a general discussion of the issue of “public standing,” where members of the general public can bring an action not because they have been specifically harmed, but because as a member of the public, they have an interest in seeing the law complied with.  In the end, the Court sees Steinke’s petition as an invitation to supervise the functions and operations of an independent government body, something the Court does not believe its role to be.

Attorneys involved in the split up of a law firm, fighting about money and client stealing.  It’s best to just look away.

Meet Deputy Reaves of the Elkhart County Sheriff’s Department.  He is a very resourceful officer.  When Storey hid in the bushes and would not come out, Reaves announced his plan to bring out his dog to force Storey out, and then barked like a dog. I guess either Storey was either convinced he faced an immanent ferocious canine attack, or maybe he was dumbfounded by having a cop bark at him, as he came out of the bush and submitted himself to arrest.  Storey was charged with maintaining a meth lab in a nearby corn field.  However, despite being gullible enough to buy the barking deputy’s dog story, Storey was smart enough to immediately ask to talk to a lawyer.  The Court hear rules that the deputy’s thereafter collected confession violated the Miranda decision as Reaves collected it after the request to speak to counsel.  Reaves here got by the trial court’s scrutiny because he elicited the confession on the long car trip to jail not by asking questions, but by noting loudly what a shame it was that he was going to have to arrest Storey’s driver that day (his wife) unless he heard that she was not involved.

A rare reversal for misconduct of a prosecutor at trial.  During jury selection, the prosecutor questioned potential jurors about a fact pattern that tracked the facts of the case.  The Court found this to be trying the case during jury selection, a practice earlier condemned by the courts.  The prosecutor also questioned potential jurors about the “war on drugs” and the importance of fighting this war, basically recruiting the jury pool for this purpose.  Both tactics crossed the line. Conviction reversed. 

Fairly standard real estate matter: Father wanted to split a 25 acre parcel in half and give each of two children a half.  The attorney drafted 2 deeds to accomplish these gifts, but gave the wrong half to one child and the entire parcel to the other.  The siblings got into a dispute and the trial court ruled that the deed of child who got the entire parcel had priority and she has the entire parcel.  The Court straightens this out holding that roger could sue to reform his sister’s deed as he was “in privity” with the father, and, in a 2 grantee situation, one grantee could bring an action asserting unilateral mistake on the part of the grantor against the other grantee.  The Court also noted that the “parol evidence rule” applies only to contracts, and gifts are not contracts, so the father and his attorney should have been permitted to testify as to the circumstances surrounding the execution of the deeds. 

A distinction from the Court:  having already determined that a consent to search a car did not include the search of a pager’s memory, but here, the search of the pager’s memory for phone numbers was incident to an arrest, which the Court says is okay.

The Court also got to try out the new Blakely principle announced by the Supreme Court in Estes v. State of Indiana, 827 N.E.2d 27, 29 (Ind. 2005). Specifically, when an aggravated sentence does not exceed the time the trial court could have imposed by issuing presumptive sentences on all counts and running them consecutively, there is no Blakely review required.

 

The Lynn’s own a condo and got into a fee dispute with the association.  The association sued and got a judgment for the fees back in 2001.  The Lynn’s appealed and lost.  Then the Lynne’s quit claimed title to the condo to “HAL” (which the court notes just happens to be the initials of Mr. Lynn’s father) and in the present action claim that the quit claim deed extinguished the associations judgment lien in the condo.  The Court does not buy it, saying this second action is just an attempt to get out of the judgment from the prior decision, and awards appellate attorney fees to the association.

A bad night out for Mr. Brown.  It started at the Briar Patch Tavern in Pennville, and ended with Mr. Brown charged with operating a vehicle after a lifetime suspension, theft and resisting law enforcement.  Mr. Brown left the tavern after a dispute of some type came up and the cops were called.  The cops tracked him down to a friends house and he ran to the barn and attempted to flee police on a snowmobile, practically running over an officer in the process.  He fled to his father’s house. 

 

The Court finds that a snowmobile is a motorized vehicle, and as such, operation on the roadway requires a license.  The Court also determines that the trial court properly excluded evidence regarding Mr. Brown’s actual arrest, and his phone conversation with a judge and another police officer at his father’s house in an attempt to find someone he trusted to turn himself in to.  Brown wanted to present this evidence to show that he had a justified fear of the Pennville police using unreasonable force in arresting him, to justify his decision to flee. As the phone calls and arrest happened after the crimes were completed, they were not relevent.

A med-mal case. Radiologist misread a mammogram, causing a 20 month delay in cancer diagnosis. Radiologist lost in a jury trial and asserted on appeal that patient failed to prove that 20 month delay in diagnosis caused her any damage. This is a “loss of chance doctrine” case, and the injury asserted by the patient was a decrease in her life expectancy (3-4% off the 10 year survival rate). 

 

The Court rules that the patient could rely on the medical review panel’s conclusion that the care provided need not meet the standard of care as her sole evidence of malpractice. Patient’s failure to follow the instructions of the radiologist to get another mammogram 1 year later could not constitute contributor negligence on behalf of the patient as the negligent treatment was complete once the radiologist turned in his faulty report, so patient’s failure could not “unite” with the negligent mammogram reading to cause the injury. Finally, the Court goes in depth on the difficult issue of instructing a jury how to determine damages for the increased likelihood of injury caused by the negligent conduct.

A very involved case dealing with easements and riparian rights along Clear Lake, a lake belonging to the State of Indiana. The Court tackles several unsettled issues, including what happens to an easement when the subordinate property is submerged (part of the lake, owned by the State), and then re-appears later.  The dispute arose in a lake front development after a public road along the shore was abandoned by the city, and the developer attempted to dedicate the property for the use and benefit of the adjacent lot owners, so they could access the shore.  One lot owner decided to build a pier, and other lot owners took action, I think,  as the structure blocked their ability to stroll the beach.  After much heavy lifting, the Court decides the pier is a no-go.

The Court takes on a parental repudiation case.  In Indiana, child support must continue to be paid, regardless of the status of the relationship between parent and child, but there is a line of cases that carves out a judicial exception for the obligation to pay college expenses: Where the child refuses to have anything to do with the parent, the parent can be relieved of this obligation.

 

Here, the child blamed the father for the divorce and wanted nothing to do with father’s girlfriend, and this led to poor communications and a break down in the relationship between father and son.  Son switched from IU to Ball State without consulting father, and the two had limited communication. However, child’s testimony that he would like to try to rebuild relationship with father in the future supports the trial court’s determination that there had not been a complete repudiation.

A wound care medical negligence case.  Home healthcare provider giving care to patient who was sent home with an open wound was found to have the wound in its “exclusive control” where patient showed that doctor was the last medical provider to use the type of wound packing that was subsequently found left in the wound after home healthcare worker had changed the dresings.  Patient could not change the dressings herself, so the doctrine of res ipsa loquitur (injury would not occur without negligence) applies and expert opinion not required.

Indiana Code Section 32-21-1-10 says real estate listing agreements must be in writing to be enforceable.  Young wanted to sell some land and asked her brother to help her find a buyer and promised him $50,000 if he did.  Adams accepted, despite the fact that his broker’s license had lapsed. The court spends some time discussing the Statute of Frauds and the concept of partial performance before concluding that, yes, listing agreements must be in writing to be enforceable.  Adams does not get paid.