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Posts from July 2009.
Posted in Litigation

In Elrod v. Brooks, the Indiana Court of Appeals held that Indiana Trial Rule 43(D) applied to small claims proceedings and that the small claims court abused its discretion by not allowing a plaintiff/counter-defendant to present evidence to rebut evidence presented by the counter-plaintiff on the counterclaim. 

The small claims court heard evidence by the plaintiff and then asked ...

Posted in Litigation

Addressing a couple's marital dissolution case for the second time, the Indiana Court of Appeals again reversed the trial court in Montgomery v. Faust

In 2008, the Indiana Court of Appeals held that the trial court erred when it indicated in a footnote in its final dissolution decree that “due to the short duration of the marriage” it “set off to each” party the “property which ...

Posted in Litigation

In Nichols v. Estate of Tyler, the Indiana Court of Appeals affirmed the trial court’s determination that deceased Ernest Tyler was incompetent to enter contracts and thus, the trust he formed in 2002 to hold his real estate with his neighbor to serve as trustee, and the subsequent conditional sales contract he executed in February 2005 to convey to the same neighbor, in exchange for ...

Posted in Litigation

In Cimarron Oil Corp. v. Howard Energy Corp., the Indiana Court of Appeals addressed who is the rightful owner of rights to coal bed methane gas (“CBM”) when parties to the relevant lease in 1976 did not contemplate that technological advances would one day make it a valuable material.  The Court acknowledged there are divergent “regional rules” in other states.  The “eastern ...

During the 2009 special session, Governor Steve Beshear signed into law a sweeping economic incentives package which amends existing provisions and creates various new tax breaks for manufacturers and other businesses and individuals in Kentucky.  The new legislation includes key initiatives related to a reinvestment credit for manufacturers and a new plan for economic ...

Posted in Litigation

In Tri-Etch, Inc. v. Cincinnati Insurance Co., the Indiana Supreme Court unanimously concluded that there is a presumption in favor of the insurer with regard to prejudice from an insured’s late notice of a claim, and the Court further concluded that it “[did] not agree that an insurer’s denial of coverage on other grounds as a matter of law rebuts the presumption of prejudice from ...

Posted in Litigation

From the Indiana Court of Appeals' Oral Argument Calendar:

At 1 p.m. on Tuesday, July 21, the Indiana Court of Appeals will hear argument in National Union Fire Insurance Company v. Standard Fussee Corporation.  Standard Fusee Corporation (SFC) is a Delaware corporation headquartered in Maryland that currently manufactures flares at sites in Indiana and Maryland, among other ...

The United States Sixth Circuit Court of Appeals, whose decisions govern the federal courts in Kentucky, Ohio, Tennessee and Michigan, recently rendered an employer-friendly decision in a case involving a mistaken grant of FMLA leave to a FMLA-ineligible employee. The Sixth Circuit held that, despite the employer’s having assured the ineligible employee that he was eligible for ...

The Kentucky Division of Water has reissued its general KPDES permit authorizing the discharge of storm water from construction activities.  The reissued permit which will take effect on August 1, 2009 will apply to construction projects involving one acre or more of surface disturbance but will not apply to projects that discharge to certain special waters that are afforded a higher ...

Posted in Litigation

In Hoop v. State, the Indiana Court of Appeals dealt with an issue of first impression and affirmed a trial court ruling that evidence obtained by officers during the execution of a search warrant resulting from a dog sniff at a private residence is admissible.

In this case, a confidential informant provided the Indianapolis Metropolitan Police Department with information suggesting ...

Posted in Litigation

In a case of first impression, the Indiana Court of Appeals has held that short-term rental properties do not violate a restrictive covenant prohibiting commercial use.

In Applegate v. Colucci, Earl Colucci owned several cottages along the Ohio River that he rented to the public by the night.  The property was subject to a restrictive covenant that prohibited commercial use but did not ...

Posted in Litigation

In a case of first impression, the Indiana Court of Appeals held that a defendant’s prior conviction for conspiracy to deal in cocaine qualified as a conviction for dealing in cocaine, thereby making him eligible for an enhanced sentence under the habitual offender statute.  

In Owens v. State, the defendant Myron Owens was convicted of Class A felony dealing in cocaine within 1,000 ...

Posted in Litigation

At 10 a.m. on Wednesday, July 8, the Indiana Court of Appeals will hear argument in Nealy v. Shadawn Quinn.  In this case, the Nealys were injured in an automobile accident and recovered $17,000 for their medical expenses from Shadawn Quinn, their insurer.  At trial, a jury awarded the Nealys $100,000 for their injuries, but the trial court reduced that amount by the amount already paid for ...

Posted in Litigation

In Jackson v. State, a unanimous Indiana Supreme Court held that a search warrant issued by the Madison Superior Court for Jackson’s home was valid under the good faith exemption to the warrant requirement. 

In August 2006, Detective Blackwell sought a warrant to search a home allegedly owned by George Jackson.  At the suppression hearing, Blackwell testified that he and the Drug Task ...

Posted in Litigation

In State v. Cioch, the Indiana Supreme Court held that the fact that a breath test machine had not been adjusted to reflect Daylight Savings time did not bear on the reliability of the test results and was not a proper basis for excluding evidence from the test. 

The Indiana Supreme Court noted that the officer who administered the test followed the police department’s approved ...

Posted in Litigation

In State v. Pollard, the Indiana Supreme Court ruled that the sex offender residency restriction violated the ex post facto prohibition of the Indiana State Constitution as applied to the defendant. 

The residency restriction statute, Indiana Code section 35-42-4-11, went into effect in 2006.  The statute provides that certain persons convicted of sex crimes are “offenders ...

On July 24, 2009, the federally-mandated minimum wage will increase to $7.25 an hour, up from the $6.55 an hour which took effect this time last year. While an increased minimum wage will clearly benefit the lowest-wage earners, as reported in a recent Wall Street Journal article, experts disagree as to the overall efficacy of the increase during such challenging economic times. Here ...

In April, the United States Supreme Court decided that a mandatory arbitration clause in a Collective Bargaining Agreement (“CBA”) between an employer and a union which “clearly and unmistakably” requires arbitration of certain claims, including civil rights claims, was enforceable as a matter of federal law. This case, 14 Penn Plaza LLC v. Pyett, 555 U.S. __ (2009), could ...

Every day, manufacturers and distributors enter into exclusive distribution relationships with a marked sense of optimism. The manufacturer hopes this arrangement will provide incentives to distributors to vigorously promote their products. The distributor gets to “own” a territory, free from competition. However, these agreements do not always achieve the desired ...

The Worker Adjustment and Retraining Notification Act, more commonly known as WARN, requires certain employers to provide notification to affected employees in advance of a mass layoff or plant closing. Regardless of whether WARN applies to your business or whether you will ever need to comply with it, trends in this area of law during the current economic crisis are illustrative of ...

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