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The Indiana Tax Court recently examined in Aztec Partners, LLC v. Ind. Dep’t of State Revenue, No. 49T10-1210-SC-00067, 2015 Ind. Tax LEXIS 29 (Ind. Tax Ct. June 23, 2015), whether electricity that Aztec Partners, LLC (“Aztec”), who operates nineteen Qdoba Mexican Restaurants in Indiana, used to power electrical equipment was subject to Indiana sales tax. The Court found it was not and reversed the Department of State Revenue’s (the “Department”) final determination and remanded the case.

At Aztec’s Qdoba Restaurants, employees prepare food items that are ultimately combined and served as entrées. Those food items are held and preserved in electrical equipment, such as food warmers and cooling systems, until they are combined into entrées and sold. The electrical equipment is not used to cook the food. In June 2011, Aztec filed twelve refund claims with the Department for the refund of sales tax paid on the electricity used to power electrical equipment. The Department denied the refunds finding that the electricity was taxable. Aztec protested the refund denial. Thereafter, the Department held a hearing and issued a Memorandum of Decision on August 24, 2012 denying that protest. Aztec initiated an original tax appeal.
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The Indiana Court of Appeals recently revisited the “blue-pencil” doctrine in Clark’s Sales and Services, Inc., vs. John D. Smith and Ferguson Enterprises, Inc., 4 N.E.3d 772 (Ind. Ct. App. 2014), which concerned an employment agreement containing a restrictive covenant/noncompetition provision. Based on the employee’s (“Smith”) fourteen-year career with the former employer and Smith’s access to confidential information, the court found a protectable interest before moving onto the reasonableness of such restrictions.

The court found these particular clauses were unreasonable in both the scope of activities covered and geographic area. The clauses prohibited Smith from “providing services competitive to those offered by [employer], or those provided by Smith on behalf of [employer] to anyone who was a customer of [employer] during the term of Smith’s employment.” This clause was unreasonable because it applied to all customers regardless of whether Smith had any contact with them; applied to Smith’s entire term of employment with the employer; and the prohibited activities were unrelated to what Smith actually performed.
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The Indiana Court of Appeals recently held in City of Evansville v. Magenheimer that the Indiana Tort Claims Act (“ITCA”) does not govern a claim under Indiana Code chapter 35-47-11.1, which prohibits political subdivisions from regulating firearms (“Indiana Firearms Preemption Act” or “IFP Act”).

In September of 2011, Benjamin Magenheimer and his family visited a city park in Evansville, Indiana. While at the park, Magenheimer openly carried a firearm, which he was licensed to do. The police were called and asked Magenheimer to leave the park pursuant to an Evansville municipal code prohibiting firearms in city parks. Magenheimer filed a complaint alleging that Evansville had violated the Indiana Firearms Preemption Act, which provides that “political subdivision[s] may not regulate . . . firearms . . . [their] possession [or] carrying.” The Act also creates a private right of action, which Magenheimer brought suit pursuant to. Evansville argued that it committed a tort by enforcing the ordinance and therefore, Magenheimer’s claim was essentially a tort and barred for failure to comply with the notice requirements of the ITCA.
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“PedalPalooza” promotes bike safety

INDIANAPOLIS, Ind. (April 18, 2015) — Temperatures are rising steadily, which means you’ll soon see more and more bicycles on the roads. The law firm of Parr, Richey, Obremskey, Frandsen & Patterson is hosting “Pedalpalooza,” featuring bike safety tips and event giveaways. Pedalpalooza takes place on April 25th, for more information on the event, head […]

See live interview with Fox 59 and more details:

http://fox59.com/2015/04/18/pedalpalooza-promotes-bike-safety/

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The Indiana Court of Appeals recently interpreted a land developer’s contract with an Indiana town in Carroll Creek Development Company Inc. v. Town of Huntertown, 9 N.E.3d 702 (Ind. Ct. App 2014). The contract provided that the developers could recoup nearly five-hundred thousand dollars of their water main construction costs through connection charges levied against land owners in a defined “excess area” if the land owners chose to directly or indirectly connect to the water main within the subsequent fifteen years.
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OSHA’s final rule revised or implemented eleven provisions in the Construction of Electrical Power Transmission Standard, 29 CFR 1926, subpart V, including provisions regarding: (1) host employers and contractors; (2) training; (3) job briefings; (4) fall protection; (5) insulation and working on or near live parts; (6) minimum approach distances; (7) protection from electric arcs; (8) deenergizing transmission and distribution lines and equipment; (9) protective grounding; (10) operating mechanical equipment near overhead power lines; and (11) working in manholes and vaults. OSHA also adopted a new construction standard on electrical protective equipment, 29 CFR 1926.97, and revised general industry and construction sections 29 CFR 1910.137 and 1910.269 mostly to incorporate the changed standards.

The host employers and contractors provision includes requirements for host employers and contract employers to exchange information on hazards and on the conditions, characteristics, design, and operation of the host employer’s installation. It also includes a requirement for host employers and contract employers to coordinate their work rules and procedures to protect all employees.
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The Indiana Court of Appeals recently interpreted a land developer’s contract with an Indiana town in Carroll Creek Development Company Inc. v. Town of Huntertown, 9 N.E.3d 702 (Ind. Ct. App 2014). The contract provided that the developers could recoup nearly five-hundred thousand dollars of their water main construction costs through connection charges levied against land owners in a defined “excess area” if the land owners chose to directly or indirectly connect to the water main within the subsequent fifteen years.
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The Indiana Court of Appeals recently issued an opinion explaining the difference between two common types of termination clauses in oils and gas leases. The first, known as a “drill or pay” clause, obliges the lessee to either commence production within a certain timeframe or pay advance royalties, but does not operate to automatically terminate the lease in the event of a breach. The second, called an “unless” clause, provides that the lease will automatically terminate if the conditions are not met.
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It is often difficult to discern whether the employee’s conduct online-whether it be posting pictures, writing comments about the work environment or the employer, will constitute protected concerted activity. This determination will determine what actions, if any, an employer may take against an employee when s/he as posted online content, and more broadly, the cases which follow can allow an employer to craft legally permissible policies and handbooks.

No protected concerted activity:

For example, in Karl Knauz Motors, Inc., 358 NLRB 164 (2012), a BMW automobile dealership (the Respondent) discharged a sales representative for photos and comments that he posted to his Facebook page. The first post was about a sales event for a new model and included sarcastic comments about the quality of the food (hot dogs, chips, and bottled water) being served at a marketing event for a luxury automobile.

The second incident involved an accident at an adjacent dealership in which a customer’s 13-year old child was sitting in a vehicle’s driver’s seat when the vehicle accelerated over the customer’s foot and into a pond while the child was inside. The employee posted photos and comments mocking the incident on his Facebook page. A competitor told the Respondent about the posts and the employee was discharged. The Board determined that these comments and photos which led to his termination did not amount to protected and concerted activity under the Act.

Additionally, in Tasker Healthcare Group, d/b/a Skinsmart Dermatology, the employer discharged an employee for her Facebook posts regarding work. After discussing nonwork issues with a private group of 10 current and former coworkers, the employee turned to the conversation to work and wrote: “They [the employer] are full of s**t…They seem to be staying away from me, you know I don’t bite my [tongue] anymore, F***…FIRE ME…Make my day…”

The employer found about this posting the following day. It terminated her, stating that it was “obvious” she was no longer interested in working there and the employer was concerned about having the employee work with customers given her feelings about her job. The Board held that the employee did not engage in protected concerted activity and, therefore, the employer did not violate the Act when it terminated her employment. Although the postings referenced her work situation, her comments amounted to nothing more than individual griping rather than any shared concerns about working conditions.
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On March 3, 2014 the Indiana Court of Appeals clarified that shareholders cannot be held personally liable for attorney fees in a wrongful stop payment of a check under Indiana Code section 26–2–7–5 unless the corporate veil can be pierced. CBR Event Decorators, Inc. v. Gates, 4 N.E.3d 1210 (Ind. Ct. App. 2014). In CBR I, the court held that the corporate veil could not be pierced in this case, but created some confusion in dicta about whether the shareholders were still liable for attorney fees. 962 N.E.2d 1276 (Ind. Ct. App. 2012). The court clarified in CBR II that the shareholders are not personally liable absent successful piercing of the veil, or in cases where the shareholders have otherwise been found personally liable for the wrongful stop payment.

Jeremy Fetty is a partner in the law firm of Parr Richey Obremskey Frandsen & Patterson with offices in Lebanon and Indianapolis. He often advises businesses and utilities (for profit, non-profit and cooperative) on organizational, human resources, and transactional matters and drafts and reviews commercial contracts.

The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.