Current Ag Law & Taxation Cases and Rulings

 

Last updated: May 24, 2013

Antitrust

1. Seed Research Equipment Solutions v. Gary W. Clem, Inc., No. 09-01282, 2012 U.S. Dist. LEXIS 181381 (D. Kan. Dec. 20, 2012)(case involves patent dispute surrounding "GPS System to Provide Planter Tripping for Crop Research Plots"; patent in question issued on Jan. 7, 2003, but plaintiff claimed that method claimed in patent created at least one year earlier by unrelated third party who worked with planter manufacturer and Cargill employees to develop software for system utilized in patent, and that such system used to plant Cargill's Seward, NE, research fields in 1998;  summary judgment denied plaintiff on one claim, but granted on eight other claims on basis that plaintiff's system anticipated defendant's patent claim limitations and plaintiff's system in public use before defendant's system).
2. Note:  The U.S. Supreme Court has denied certiorari in the following case:  Delano Farms Co., et al. v. California Table Grape Commission, 655 F.3d 1337 (Fed. Cir. 2011), cert. denied, No. 11-1371, 2012 U.S. LEXIS 9044 (U.S. Sup. Ct. Nov. 26, 2012)(USDA licensed rights in patents of three grapevines that produce table grapes; patents issued under the Plant Variety Protection Act to CA Table Grape Commission; licenses gave Commission right to sublicense patents and retain 60% royalties from sublicensing efforts; plaintiff grape growers purchased grapevines covered by patents, signed licenses and paid fee; plaintiffs brought action challenging validity and enforceability of patents and inequitable conduct of USDA and Commission; federal court held district court correctly held USDA was a necessary party to plaintiff's declaratory judgment claim based on Patent Act; Section 702 of Administrative Procedure Act waives sovereign immunity for non-monetary claims against federal agencies and waiver broad enough to allow plaintiffs' to pursue equitable relief against USDA on patent claims; court upheld district court ruling dismissing antitrust claims and ruling allowing plaintiffs to pursue inequitable conduct claim).

3. Allen, et al. v. Dairy Farmers of America, No. 5:09-cv-230, 2012 U.S. Dist. LEXIS 164718 (D. Vt. Nov. 19, 2012)(court issues order granting plaintiffs' renewed motion for class certification; case involves antitrust action brought on behalf of dairy farmers against milk cooperatives and processors that alleges monopolization and conspiracy to fix milk prices; court discusses extent to which intra-class conflicts of interest bar class certification and whether creation of subclasses remedy such conflicts; court also discusses how defendant avoids class certification by attacking plaintiff's expert). Note:  On Jan. 22, it was reported that the defendant agreed to pay $158.6 million to settle the plaintiffs' claims.

 

Bankruptcy

1. In re Majestic Star Casino, LLC, et al., Nos. 12-3200/3201, 2013 U.S. App. LEXIS 10186 (3d Cir. May 21, 2013)(Chapter 11 case involving issue of whether non-debtor parent company's pre-petition abandonment of subchapter S tax status is void as a post-petition transfer of property of the bankruptcy estate or is avoidable; upon revocation of S election, debtor subsidiary converted to LLC from a qualified Sub-S subsidiary; bankruptcy court ordered reinstatement of S and QSUB statuses respectively; on appeal, court vacated bankruptcy court decision on basis that QSUB status not "property" of bankruptcy estate because such status not "property"; S and QSUB status is not property, and it can be revoked at will by S corporation shareholders; defiinition of "property" contained in 11 U.S.C. Sec. 541(a)(1) not satisfied; as a result, debtors lacked standing to initiate adversary proceeding seeking avoidance of "transfer" of debtor's QSUB status). 
2. In re Clean Burn Fuels, LLC, No. 11-80562, 2013 Bankr. LEDXIS 2009 (Bankr. M.D. N.C. May 16, 2013(debtor was failed ethanol plant that filed Chapter 7 bankruptcy; bankruptcy trustee sought declaration against creditor that contracted corn deliveries were property of debtor's bankruptcy estate and that creditor's security interest in corn was unperfected; creditor claimed that corn was not delivered and that possession and title did not pass until corn actually weighed by debtor; creditor also claimed that it owned corn stored in bins at debtor's plant; court held that corn was property of bankruptcy estate because, under terms of contracts, delivery complete when corn physically changed hands from growers to debtor; under state (NC) law, creditor's reservation of title until corn weighed limited to security interest in corn; creditor did not perfect security interest in corn due to failure to file financing statement, and perfection did not occur via possession of corn in bins at debtor's plant that were leased to creditor; storage bins not marked so as to indicate creditor's collateral (as required by contract), hence no notice to third parties which could perfect security interest).
3. In re Hardy, No. 12-44253-can-13, 2013 Bankr. LEXIS 2008 (Bankr. W.D. Mo. May 16, 2013)(petitioner filed for Chapter 13 and listed certain tax refunds as debts owed to the debtor and claimed an exemption for such refunds; debtor subsequently filed tax return showing no tax liability and certain refundable credits comprising the federal and state refund owed debtor (which included a refundable child tax credit of I.R.C. Sec. 24); court determined that debtor's refund resulted from overpayment of tax rather than the child tax credit; trustee's objection to debtor's claim of 100 percent exemption in child tax credit, to extent not moot, is sustained because child tax credit not property of debtor's bankruptcy estate; additional child tax credit not exempt as "public assistance benefit"). 
4. Bullock v. BankChampaign, N.A., No. 11-1518, 2013 U.S. LEXIS 3521 (U.S. Sup. Ct. May 13, 2013)(plaintiff was trustee of trust established for himself and his siblings by his father which contained father's life insurance policy; plaintiff borrowed from trust on three occasions (as authorized by trust terms) and repaid loans with interest; plaintiff's siblings later sued for breach of fiduciary duty based on self-dealing and obtained judgment with court imposing constructive trust on plaintiff's interest in trust with defendant serving as trustee; after inability to obtain funds to pay court-ordered payment, plaintiff filed bankruptcy and sought discharge of state-court imposed debts to trust; defendant opposed discharge and prevailed at bankruptcy court on basis that debts were within 11 U.S.C. Sec. 523(a)(4) exception to discharge for debts that are a "defalcation" while acting in a fiduciary capacity; appellate court (7th Cir.) affirmed; issue presented was whether "defalcation" requires finding of ill intent or scienter and, if so, what kind of scienter required; Court holds that "defalcation" requires positive fraud, or fraud in fact, involving moral turpitude or intentional wrong or conscious disregard to substantial and unjustifiable risk to known fiduciary duty; appellate court applied standard of "objective recklessness"; appellate court opinion vacated and case remanded). 
5. In re Blankenship, No. 10-14097, 2013 Bankr. LEXIS 1767 (Bankr. S.D. Ohio Apr. 29, 2013)(Chapter 12 case in which debtor motioned to hold bank in contempt for violating automatic stay in attempting to foreclose on property; bank argued that because title to property vested in debtors upon plan confirmation, no stay was in effect; under 11 U.S.C. Sec. 362, stay terminates when discharge is granted or denied; in Chapter 12 case, however, debtor does not receive discharge until all payments under plan have been completed rather than when plan confirmed (as is case in Chapter 11); debtor had not received discharge because all plan payments not completed;  automatic stay remained in effect and bank's filing of foreclosure violated automatic stay). 
6. In re Clark, Nos. 12-1241 & 12-1255, 2013 U.S. App. LEXIS 8112 (7th Cir. Apr. 23, 2013)(district court had held that inherited IRA funds exempt from debtor’s bankruptcy estate under 11 U.S.C. Sec. 522(b)(3)(C) because they are “retirement funds” that are tax-exempt under I.R.C. §408; decedent died about a year after establishing account which named daughter as beneficiary; daughter had own IRA and had balance of decedent’s IRA rolled into hers and then took monthly distributions from it before retiring; over nine years later daughter and husband filed Chapter 7; bankruptcy court (450 B.R. 858 (Bankr. W.D. Wisc. 2011)) ruled IRA not exempt on basis that inherited IRA funds were not "retirement funds" in the hands of the debtor and, therefore, not exempt; on review, district court (466 B.R. 135 (W.D. Wis. 2012)) determined that IRA account funds need not be “retirement” funds of the debtor to qualify for exemption; district court followed majority view that direct transfers of retirement funds from tax-exempt account qualify for exemption, and immaterial that there are differences between traditional IRAs and inherited IRAs due to I.R.C. §408(e)(1); question of whether inherited IRA should be exempt up to the Congress to change the statute; on further review, circuit court reversed on basis that inherited IRAs represent opportunity for current consumption in hands of debtor and are not a fund of retirement savings; court analogized situation to that of debtor inheriting home - home only exempt if debtor lived in it, and is not exempt merely based on how prior owner used the property; court's opinion contrary to Fifth Circuit in In re Chilton, 674 F.3d 486 (5th Cir. 2012)). 
7. In re Thomas, No. 12-13936, 2013 U.S. App. LEXIS 7542 (11th Cir. Apr. 16, 2013)(debtor was real estate "flipper" that entered into option contract that gave debtor right to buy property from another party; mortgage on property was facing foreclosure; parties also signed short sale agreement under which debtor was to use reasonable efforts to negotiate short sale with holder of mortgage from which debtor would profit, otherwise property would proceed to foreclosure; mortgage released for $130,000; post-petition, debtor entered into sales contract to sell property for $179,000; debtor then exercised  option and bought property for $130,000 and then sold it  and received $30,839.13 in cash at closing; trustee sought proceeds of sale and bankruptcy court granted trustee's motion for summary judgment on grounds that sales proceeds were property of debtor's bankruptcy estate; district court affirmed, and appellate court also affirmed). 
8. In re O'Neal, No. 1:11-bk-72792M, 2013 Bankr. LEXIS 1531 (Bankr. W.D. Ark. Apr. 12, 2013)(debtor's Chapter 11 plan for farming operation denied confirmation and debtor given 30 days to file modified plan; plan failed to specify name of any creditor and class to which creditor assigned, did not provide any treatment for some claims, did not provide any treatment for current crop production loan, contained contradictory description of treatment for certain secured claim, provided reorganization plan that was impossible to perform, plan was not proposed in good faith and does not propose to actually pay the Class VII debtors anything). 
9. In re Duckworth, No. 10-83603, 2013 Bankr. LEXIS 1396 (Bankr. C.D.Ill. Apr. 5, 2013)(trustee sought to recover payments as postpetition transfers from the bank account of one of debtor’s unrelated entities to an adult entertainment entity, which is protected by the good faith defense; trustee’s argument that the entity should be deemed the alter ego of debtor rejected by court for same reasons as stated in In re Duckworth, No. 10-83603, 2012 Bankr. LEXIS 4379 (Bankr. S.D. Ill. Sept. 21, 2012)).
10. In re Tanglewood Farms, Inc., No. 10-06719-8-JRL, 2013 Bankr. LEXIS 1372 (Bankr. E.D. N.C. Apr. 4, 2013)(grain operator debtor and the company- also a debtor- stored grain for grain dealer; dealer discovered debtor was selling its grain and removed its grain from debtor’s possession after discovering the theft but before bankruptcy filed; trustee alleged grain seized by dealer was commingled with grain owned by debtor and constituted property of bankruptcy estate; court held because grain was seized by dealer was not in debtor’s possession during bankruptcy and dealer need not account for grain or its value; court also held that dealer was not insider because debtor had stolen more than one million bushels of grain from dealer so there should be no avoidance of a preferential transfer; for similar reasons, court held dealer’s removal of its grain was also not fraudulent; dealer’s motion to dismiss trustee’s complaint allowed).
11. In re Hemann, No. 11-00261, 2013 Bankr. LEXIS 1385 (Bankr. N.D. Iowa Apr. 3, 2013)(Chapter 12 case; debtor and brother formed co-equal farm partnership in 1993 that owned livestock and machinery used in farming; partnership dissolved in late 2010 and debtor continued farming a smaller farming operation; debtor then filed Chapter 12; both IRS and state (IA) Dept. of Rev. (IDOR) filed priority claim for pre-petition taxes arising from partnership dissolution which they treated as sale of "partnership interest" rather than sale of "farm assets" which, therefore, would not be entitled to non-priority treatment in accordance with 11 U.S.C. Sec. 1222(A)(2)(a); debtor's expert witness attempted to characterize debtor's partnership as not a partnership for tax purposes due to the small partnership exception of I.R.C. Sec. 6231(a)(1)(B) and, thus, partnership is treated as non-existent and debtor's income arose from sale of personal interest in farm partnership rather than capital interest in partnership; court rejected testimony of defendant's expert witness as irrelevant and stated, "...the decision here will not rely in any way on his testimony."; court noted that small partnership exception enacted in 1982 as part of TEFRA was enacted to implement unified audit examination and litigation provisions which centralized treatment of partnership taxation issues and ensured equal treatment of partners by uniformly adjusting tax liability of partners;  while court noted that some statutory language may be supportive of position of debtor's expert, expert's position was not dispositive of the issue, given much case law and legislative language contrary to such position including judicial opinions noting the effect of TEFRA and small partnership exception was to keep the old rules in place for small partnerships rather than create new ones; ultimately, court determined that 11 U.S.C. Sec. 1222(A)(2)(a) applied to sale of farm assets in general, including capital assets used in farming; because underlying assets that were sold were farm assets, they are covered by 11 U.S.C. Sec. 1222(A)(2)(a) as determined by Eighth Circuit in Knudsen, et al. v IRS, 581 F.3d 696 (8th Cir. 2009); U.S. Supreme Court decision in Hall v. United States, 132 S. Ct. 1882 (2012) did not overrule Knudsen on issue of definition of "farm assets" for purposes of 11 U.S.C. Sec. 1222(A)(2)(a); debtor's farm partnership interest was "used in" the farm partnership farming operation - debtor farmed by using farm partnership interest; 11 U.S.C. 1222(A)(2)(a) not limited in application to farming operation under the reorganization plan; debtor meets all other requirements for Chapter 12 bankruptcy; defendants' objections to debtor's confirmed Chapter 12 plan overruled). 
12. Diekemper v. Eggman, No. 12-cv-1219-JPG, 2013 U.S. Dist. LEXIS 46489 (S.D. Ill. Apr. 1, 2013)(debtor sought appeal of bankruptcy ruling from prison while serving time for bankruptcy fraud; sought appeal of bankruptcy court’s denial to add exhibits and amend schedules due to attorney’s error; attorney had settled matter with bankruptcy trustee on conspiracy and fraud allegations relating to debtor’s bankruptcy petition; appellate court held bankruptcy court’s conclusion that debtor acted in bad faith in waiting eight years to disclose assets was not clearly erroneous).

Business Planning

1. In re Involuntary Dissolution of Wiles Bros., Inc., No. S-12-769, 2013 Neb. LEXIS 79 (Neb. Sup. Ct. May 17, 2013)(husband and wife brought action for involuntary judicial dissolution of family farming company; company filed motion to dismiss citing fact that husband was not shareholder of company, so had no standing; court held all shares held by limited partnership rather than individuals, so husband was not shareholder; court also held husband and wife were not beneficial owners, so they lacked standing to bring action to dissolve company; on appeal court agreed under language of statute for dissolution, husband must be individual shareholder to bring action; dismissal affirmed).  
2. Vlach v. Comr., T.C. Memo. 2013-116 (petitioner had alternative medicine practice and established trusts purportedly in furtherance of medical practice and asset protection; petitioner's corporation made payments to trusts and claimed deductions for such payments; deductions denied on basis that trusts where shams; trusts lacked independent trustee, taxpayer's relationship to trust property not materially changed after property transferred to trusts, no economic interest in trusts passed to other beneficiaries (except for minor instance), no meaningful restrictions imposed on petitioner, and trusts paid petitioner's personal expenses; trusts disregarded as shams for tax purposes). 
3. Tech. Adv. Memo. 201317010 (Jan. 18, 2013)(two trusts each owned an interest in an S corporation with the balance of the interests in the S corporation owned by taxpayer; S corporation owned another corporation which was a qualified S subsidiary which the individual was the president and was directly involved in daily operations; trusts had income from their interests in the S corporation; individual, spouse, children and grandchildren are beneficiaries of trusts and taxpayer was special trustee of trusts and controlled all decisions regarding disposition of S corporation stock and voting of that stock; taxpayer not able to distinguish between time spent conducting business as corporate president and time spent as special trustee; IRS took position that trusts did not materially participate in S corporation business and, as a result, trusts' share of research or experimental expenses incurred by the S corporation had to be amortized over 10 years by the trusts; IRS claimed that only participation of trustee of trusts in fiduciary capacity counts toward material participation test; IRS ignored interrelated role of taxpayer as special trustee and corporate president for purposes of material participation test; Treasury has never promulgated regulations for trusts for purposes of the material participation test and has lost the only court decision addressing how a trust establishes material participation for purposes of I.R.C. Sec. 469; litigation on issue currently pending in the U.S. Tax Court). 
4. Priv. Ltr. Rul. 201315031 (Jan. 15, 2013)(taxpayer established trust for supporting religious organizations and then converted trust to private foundation; trust acquired ranch property in furtherance of charitable purposes - a retreat property and associated programs for clergy including free room and board; ranch also raised sheep and sheep studies on ranch made available for students in journals with purpose of improving U.S. sheep production; trust sold sheep to farmers and slaughterhouses; significant losses realized; IRS determined that trust not subject to I.R.C. Sec. 4942(a) penalty of 30 percent on undistributed income because ranch property held for use directly in carrying out trust's exempt purpose). 
5. Aries Communications Inc. & Subsidiaries v. Comr., T.C. Memo. 2013-97 (case involves reasonableness of compensation paid to radio executive; over his career in radio and television, executive started to buy radio stations and would become owner/operator/general manager; management style was active involvement overseeing personnel, oversight of programming, negotiating with lenders, participating in sales meetings and communicating with lawyers, accountants and others on behalf of company; ultimately, executive gave himself substantial bonus and company claimed associated deduction; issue was reasonableness of compensation and court gets into detailed mathematical computational process of experts of the parties; court set reasonable compensation level at amount higher than what IRS sought due primarily to executive being compensated for underpayments that occurred in prior years; deduction approximately one-third of amount paid to executive; 20 percent accuracy-related penalty imposed).
6. Three Minnows , LLC v. Cream, LLC, No. 3-128/12-0591, 2013 Iowa App. LEXIS 395 (Iowa Ct. App. Apr. 10, 2013)(plaintiff sued defendant for breach of management contract; defendant moved for directed verdict on basis that party that signed agreement on defendant's behalf had no authority to bind defendant; trial court directed verdict for defendant; on appeal, court affirmed on basis that non-managing member of defendant had no authority to bind defendant to management contract pursuant to defendant's articles of organization which was a publicly filed document; plaintiff made no inquiry into who could bind defendant to contract and plaintiff bore burden of proof the establish agency relationship; no implied agency present; simply having authority to sign one document does not give authority to sign all documents on behalf of LLC). 
7. Barnes v. Comr., No. 12-1284, 2013 U.S. App. LEXIS 6868 (D.C. Cir. Apr. 5, 2013) (petitioners, married couple, filed joint return for 2003; petitioners held partial ownership in S corporation and claimed $279,289 loss as pro-rata share of S corporation's loss; IRS allowed loss to extent of petitioners' basis in S corporation - $153,282.93; issue was whether petitioners’ basis in S corporation reduced by suspended losses in the first year that the basis is adequate to absorb the losses; petitioners, in 1997, did not claim deduction for suspended loss even though, in 1997, they had sufficient basis to absorb the loss, and hence, petitioners claim, there was no basis reduction at that time; court disagreed with petitioners because I.R.C. Sec. 1367 requires basis reduction to occur in first tax year when there is sufficient basis to absorb a loss, and basis is still reduced even if shareholder fails to take deduction for loss; language in I.R.C. Sec. 1367(b)(1) providing that basis is increased by corporate income only to extent of inclusion in shareholder's income bolster's position of IRS because no comparable exception for corporate losses provided; substantial understatement penalty upheld).
8. Gail Vento LLC v. United States, No. 09-03, 2013 U.S. Dist. LEXIS 48472 (D. V.I. Apr. 1, 2013)(case involved transfer of LLC interests; LLC owned stock in closely held corporation; corporation sold its stock on Nov. 24 and LLC owners sold their interests to three corporations in Cayman Islands in exchange for annuities on same day; stock sale publicly announced on Nov. 27 with closing on Jan. 8; court determined that sale of LLC interests subject to assignment of income doctrine such that gains from sale of corporate stock taxable to LLC owners; court based opinion on Ferguson v. Comr., 174 F.3d 997 (9th Cir. 1999); basic principle involved is that appreciated property transferred where transferee sells the property, any resulting gain taxed to original transferor if original transfer is too close in time to date property sold). 

Civil Liabilities

1. Green Ridge Farm, Inc. v. Shipp, No. 2012-CA-000001-MR, 2013 Ky. Unpub. LEXIS 363 (Ky. Ct. App. May 3, 2013)(appeal following jury trial over trees allegedly damaged by application of 2, 4-D herbicide sprayed on neighboring farms; jury found in favor of defendant; plaintiff appealed trial court’s denial of plaintiff’s directed verdict motion on res ipsa loquitor theory and granting of defendant’s motion to dismiss punitive damage; on review, court agreed jury question was generated regarding cause of damage to trees and no evidence submitted regarding bad faith of defendant justifying punitive damages). 
2. Hastings v. Sauve, No. 78, 2013 N.Y. LEXIS 849 (N.Y. Ct. App. May 2, 2013)(appeal of summary judgment in favor of defendants in suit in which plaintiff struck cow with her automobile after cow allowed to wander due to negligence of its owner; court held that strict liability ruling requiring knowledge of vicious tendencies of animals does not apply to domestic agricultural animals that stray from the property; summary judgment reversed and case remanded).
3. Parker v. Obert's Legacy Dairy, LLC, No. 26A05-1209-PL-450, 2013 Ind. App. LEXIS 203 (Ind. Ct. App. Apr. 30, 2013)(defendant expanded existing dairy farm operation from 100-cow dairy to 760-cow dairy by building new milking parlor and freestall barn on tract adjacent to farmstead where plaintiff's family have farmed since early 1800s; plaintiff, neighbor, sued for nuisance; defendant asserted state (IN) right-to-farm statute as defense; court determined that right-to-farm statute barred suit; court determined that expansion of farm does not result necessarily result in loss of statutory protection; expanded farm remained covered under same CAFO permit as original farm; conversion of crop field to dairy facility protected by right-to-farm statute (simply one form of agriculture to another); right-to-farm act applicable to one farmer suing another farmer for nuisance if claim involves odor and loss of property value). 
4. Duffy v. Irons Area Tourist Association, et al., Nos. 309003 and 311023, 2013 Mich. App. LEXIS 720 (Mich. Ct. App. Apr. 18, 2013)(plaintiff was driving ATV on public trail when she lost control and crashed suffering spinal cord injuries and paralysis; plaintiff sued defendant on basis that state (MI) had contracted with defendant to grade and maintain trail and defendant negligently failed to properly maintain trail; defendant moved for summary disposition on basis that trail covered under recreational use act which limited liability to gross negligence; trial court granted defendant's motion; on appeal, court reversed on basis that state recreational use statute applied to "owner, tenant or lessee of land" and court would only enforce the law as written and not give statute a "judicial gloss designed to promote what the court believes to be the Legislature's policy goal in enacting the statute"; defendant entered into "grant agreement" with state DNR to improve trail, but no ownership interest transferred; defendant not an "owner, tenant, or lessee" of land on which plaintiff injured and statute inapplicable). 
5. Sage v. Bird City Dairy, LLC, No. 12-cv-02985-RBJ, 2013 U.S. Dist. LEXIS 51056 (D. Colo. Apr. 8, 2013)(plaintiff brought suit after an automobile accident involving one of defendant’s dairy cows; dairy located close to Colorado border, but is located in Kansas; court determined Colorado lacked personal jurisdiction over defendant due to lack of contact with forum; court transferred case to Kansas rather than dismissing because statute of limitations would have run if plaintiff had to refile, his claims were colorable, and there was an absence of bad faith in choosing the forum; case transferred). 
6. Gerwan Farming, Inc. v. Rehrig Pacific Company, No. 1:11-cv-01273 LJO BAM, 2013 U.S. Dist. LEXIS 50518 (E.D. Cal. Apr. 8, 2013)(ruling on summary judgment motion in patent and ownership dispute between produce grower and manufacturer over plastic containers; court denied defendant’s motion that plaintiff lacked standing to revise patent to include inventor who is alter ego of company, plaintiff had ownership interest in action; court rejected laches argument due to lack of evidence from defendant regarding plaintiff’s knowledge of patent; summary judgment granted on plaintiff’s claim of inventive contribution due to lack of evidence presented by plaintiff; summary judgment also granted on plaintiff’s false promises claims to not use invention in other ways due to lack of evidence; plaintiff’s claim of misuse of invention for second generation product without payment or permission may proceed; court also held plaintiff’s knowledge of sale of second generation product meant suit was timely filed; plaintiff precluded from bringing punitive damage claim but other damage claims allowed as evidence permits). 
7. New York v. Shanks, No. 514029 (N.Y. Sup. Ct. Apr. 4, 2013)(appeal from town court proceedings declaring respondent’s pit bull a dangerous dog under state law; respondent had been walking dog when another dog came loose from its porch where it had been leashed and attacked respondent's dog; owner of loose dog came to try to break up fight and neighbor also helped; attacking dog suffered severe injuries; pit bull never left leashed hold of its owner and never threatened people while inflicting serious damage on dog that started attack; town court held pit bull was dangerous under state statute (Agriculture and Markets Law Sec. 123) and respondent ordered to pay 65% of veterinarian costs to owner of dog that started attack; on appeal, court reversed on basis that pit bull did not display aggressive behavior, it only responded after being attacked which justified dog's reaction and removed dog from definition of "dangerous dog" under statute; dog did not fit definition of "dangerous" solely by virtue of its breed).

 

Contracts

1. Cargill, Inc. v. Hebert Farms Partnership, No. 08-457-FJP, 2013 U.S. Dist. LEXIS 53125 (M.D. La. Apr. 12, 2013)(plaintiff filed motion for attorney fees to enforce its arbitration award arising from a breach of grain contracts; defendant argued that attorney fees were subject to arbitration and that its inability to pay the judgment was justified because it could not pay the award; court held failure to present evidence of inability to pay was no legal justification for failing to pay and granted motion for attorney fees and costs in favor of  plaintiff).
2. 613 Agro Holdings, LLC v. Renick, No. 12-2425-JAR-KMH, 2013 U.S. Dist. LEXIS 35917 (D. Kan. Mar. 14, 2013)(6,682 acres sold at auction via auction company; sale brochure delivered to plaintiff said that defendant seller would convey certain mineral rights along with the real estate; plaintiff relied on representations in brochure and paid $8.9 million for the land and mineral rights advertised in brochure and purchase agreement executed same day; purchase agreement contained integration clause stating that final bids subject to sellers' acceptance or rejection, and that seller warranted that they were selling 100 percent of their ownership in the mineral rights being sold; all real estate sold "as is"; transaction closed and two years later, plaintiff discovered it had not acquired mineral rights; mineral rights were actually owned by separate branch of seller’s family that had transferred them to an LLC which then leased them to another entity in return for bonus lease payments and future royalty payments; buyer’s attorneys did not conduct mineral title search ; plaintiff sued for breach of warranty deed and seisin, breach of purchase agreement, breach of auction sale agreement, fraud, reformation of purchase agreement and specific performance; and defendant moved to dismiss claim based on breach of auction sale agreement and court granted motion because purchase agreement's integration clause was clear and unambiguous and barred separate contract action based on earlier oral or written assurances not incorporated into purchase agreement and neither alleged oral agreement or auction brochure incorporated into purchase agreement; auction brochure stated that purchase agreement controlled terms of sale; plaintiff can pursue contract remedy for breach of purchase agreement; on fraud claim that defendant's held themselves out as owning mineral rights that they promised to convey (plaintiff claimed that the family of sellers represented that actual part of the family that sold the land held mineral rights, but they actually did not (it was the non-contracting members of the family that held the mineral rights)); defendant’s motion to dismiss claim of fraud in inducement denied; defendant's motion for judgment on pleadings with respect to reformation and specific performance of purchase agreement claims denied).  
3. Wojtalewicz v. Pioneer Hi Bred International Inc., No. 8:12CV76, 2013 U.S. Dist. LEXIS 34639 (D. Neb. Mar. 13, 2013)(district court upheld magistrate judge ruling staying proceedings and holding that arbitration required for dispute between seed company and purchasers under terms of contract received and accepted by purchasers; arbitration of non-purchaser plaintiffs complaints also required because purchasers of seed acted as agents for nonpurchasers; nonpurchasers also held to arbitration agreement because they sought to enforce rights under seed sale contract, thus they were estopped from picking and choosing enforcement of provisions in contract).
4. Total E&P USA, Inc. v. Kerr-McGee Oil and Gas Corp., No. 11-30038, 2013 U.S. App. LEXIS 4963 (5th Cir. Mar. 12, 2013)(court overturned grant of summary judgment in favor of oil drillers; "calculate and pay" clause in oil contract was ambiguous regarding whether overriding royalties were suspended along with government's interest under Deep Water Royalty Relief Act; case remanded for factual inquiry regarding intent of parties; dissent filed stating provision was not ambiguous and royalties should be suspended).
   
   

Criminal Law

1. Kansas v. Stevenson, No. 103,508, 2013 Kan. LEXIS 399 (Kan. Sup. Ct. Apr. 12, 2013)(defendant convicted of first degree murder in his father’s death arising from crushing father's head by hydraulic truck bed in battle concerning control over family farm and funds in family trust; defendant claims error entered in trial; prosecutor’s use of "Wheel of Fortune" analogy in discussing reasonable doubt scuffed the line of misconduct but did not cross it and was not improper misstatement of law; requested jury instruction on reasonable doubt expanded from model instruction not legally appropriate; jury instruction informing jury that their job was limited to choosing guilty or innocent not improper; verdict affirmed).
2. State v. Cooper, No. 107,222, 2013 Kan. App. LEXIS 17 (Kan. Ct. App. Mar. 15, 2013)(issue presented to appellate court as a question reserved after prosecution dismissed based on Privileges or Immunities clause of Fourteenth Amendment of U.S. Constitution; Colorado resident who was legally authorized to use marijuana for medical reasons visited family and friends in Kansas and was in possession of marijuana discovered at traffic stop in Kansas, where possession of marijuana is not authorized; appellate court held enforcement of state statute does not violate limited federal rights protected under Privileges and Immunities clause; state argued only right to become a resident of a state and be treated like other citizen of that state is federally protected in clause; because facts of case were inapposite of this right, issue presented is outside scope of a proper inquiry for a question reserved and court declined to comment on additional questions of federal right to travel or other constitutional rights or challenges that might be raised as a defense). 

Environmental Law 

1. Loorz, et al. v. Perciasepe, No. 11-cv-2235, 2013 U.S. Dist. LEXIS 72301 (D. D.C. May 22, 2013(environmental activist organizations sued the Administrator of the federal EPA seeking declaratory and injunctive relief for defendant's alleged failure to reduce greenhouse gas emissions; theory advanced was that, as federal officers, defendant violated fiduciary obligations to protect the atmosphere under the federal public trust doctrine; federal court dismissed action based on finding that claims based on state common law rather than federal law and dismissed case; plaintiffs sought reconsideration under federal rules; court declined motion for reconsideration because plaintiffs failed to present change in law or clear error).  
2. Comer, et al. v. Murphy Oil USA, Inc., et al., No. 12-60291, 2013 U.S. App. LEXIS 9705 (5th Cir. May 14, 2013), aff'g., 839 F.Supp.2d 849 (S.D. Miss. 2012)(lawsuit re-filed by Mississippi Gulf Coast residents and property owners against oil companies for release of by-products that allegedly led to "global warming," which plaintiffs claimed produced conditions that formed Hurricane Katrina; previous suit dismissed by district court, Court of Appeals panel overturned district court dismissal, but review by court en banc could not occur due to lack of quorum; appellate decision lawfully vacated before loss of quorum; motion to dismiss present suit granted by district court based on res judicata and collateral estoppel of district court opinion in first lawsuit; as a precaution court also dismissed for lack of standing, presentation of non-justiciable political question claims; pre-emption of state law claims by federal law; statute of limitations, and failure to state a claim for relief; plaintiffs' claims completely dismissed; plaintiffs again filed suit involving same claims; appellate court noted that district court's judgment had not been disturbed; court denied plaintiffs' claim for equitable exception to res judicata; case dismissed). 
3. Waterkeeper Alliance, Inc., et al. v. Maryland Department of Agriculture, et al., No. 1289, 2013 Md. App. LEXIS 51 (Md. Ct. App. May 2, 2013)(plaintiff, environmental activist group, filed request under Public Information Act to obtain nutrient management plan records of particular farm; request denied by state (MD) department of agriculture; state ag department also denied second request for information on all MD confinement poultry operations; plaintiff then sued to obtain names of confinement poultry farm operators, nutrient records and enforcement records from prior three years; court denied request based on confidentiality of information contained in nutrient management plans; all information contained in nutrient management plan confidential indefinitely; plaintiff received free legal help in filing lawsuits against MD poultry operations by Univ. of MD Environmental Law Clinic; plaintiff ordered to pay court costs). 
4. Mingo Logan Coal Company v. United States Environmental Protection Agency, No. 12-5150, 2013 U.S. App. LEXIS 8121 (D.C. Cir. Apr. 23, 2013)(defendant withdrew coal mining disposal site specifications received pursuant to discharge and fill permits received in accordance with 33 U.S.C. Sec. 1344 which effectively barred plaintiff from discharging into site; trial court granted summary judgment on basis that defendant did not have statutory authority to retroactively disapprove dredge and fill permits issued by U.S. Army Corps of Engineers under Sec. 404 of CWA; on appeal, court held that the Congress, in using the conjunction "whenever" in U.S.C. Sec. 1344(c), intended to grant EPA authority to do anything it wanted to with a specification at any time including broad veto power that extended beyond the issuance of the permit; defendant's authority exists independently of Corps). 
5. Center For Biological Diversity, et al. v. Environmental Protection Agency, et al., No. 11-cv-00293-JCS, 2013 U.S. Dist. LEXIS 57436 (N.D. Cal. Apr. 22, 2013)(plaintiff, endangered species protectionist group and other environmental groups, sued to impose restrictions and bans on 382 registered pesticides they claimed were harmful to more than 200 endangered and threatened species in 49 states and Puerto Rico; plaintiff alleged that defendant violated Sec. 7(a)(2) Endangered Species Act for its failure to consult with U.S. Fish and Wildlife Service and National Marine Fisheries Service over potential effects of subject pesticides; plaintiff also sought order requiring defendant to consult with respect to all pesticides where there could possibly be an impact on an endangered species; court granted defendant's motion to dismiss, but dismissal was with leave to amend complaint within 30 days). 
6. Alt, et al. v. United States Environmental Protection Agency, No. 2:12-CV-42 (W.D. W. Va. Apr. 22, 2013)(defendant, issued order that plaintiff obtain NPDES permit for stormwater discharges from plaintiff's poultry CAFO operation; defendant claimed that regulable discharge occurs when dust, feathers and dander which are released through ventilation fans are contacted by precipitation; defendant claimed that such discharges were not within the exemption for "agricultural stormwater discharges" because such exemption inapplicable to CAFOs other than for "land application areas" where crops grown; plaintiff threatened with fines of $37,500 for each occurrence and separate fines of $37,500 per day for failure to apply for NPDES permit; in response to plaintiff's lawsuit challenging defendant's position, defendant withdrew its order and motioned to dismiss case; court refused to dismiss case on basis that defendant had not changed its regulatory position against other farmers, noting that proceeding on the merits would benefit all parties by clarifying extent of CWA discharge permit liability and whether NPDES permit required for ordinary precipitation from typical farmyard; various environmental activist groups also allowed to intervene on defendant's behalf). 
7. Kentucky Riverkeeper, Inc., et al. v. Rowlette, et al., No. 116083, 2013 U.S. App. LEXIS 7910 (6th Cir. Apr. 22, 2013)(environmentalist groups sued U.S. Army Corps of Engineers (COE) claiming that COE violated Clean Water Act (CWA), National Environmental Policy Act (NEPA) and Administrative Procedure Act (APA) when COE issued two nationwide coal-mining waste-discharge permits in 2007 allowing coal companies to fill sections of streams with rock from blasting projects used to uncover coal seams; trial court granted summary judgment to COE; on appeal, court reversed on basis that COE permit issuance arbitrary and capricious because COE did not properly consider impact of past surface mining in approving permits and did not support its finding that coal companies could mitigate stream issues by paying for projects elsewhere; court determined that COE only considered potential effect of mining from 2007-2012 and didn't account for streams filled before 2007; court's opinion largely mute insomuch as COE had already changed permitting process at issue; court's decision stayed for 60 days to allow federal district court in Kentucky to determine impact of decision on existing projects). 
8. Georgia River Network v. U.S. Army Corps of Engineers, No. 12-12819, 2013 U.S. App. LEXIS 7867 (11th Cir. Apr. 19, 2013)(appeal of summary judgment in favor of Army Corps finding issuance of permit under Clean Water Act for 960-acre fishing lake not arbitrary and capricious; court rejected plaintiffs’ arguments for arbitrariness including failing to independently evaluate studies, failing to fully explain need for lake when contradictory evidence existed, accounting for out of state fishing licenses, and reducing unmet demand by twenty percent; court also rejected plaintiffs’ allegations that Army Corps did not sufficiently account for impact on wetlands beyond those identified by Corps; district court judgment affirmed).
9. Ouachita Riverkeeper, Inc. v. Bostick, No. 12-803, 2013 U.S. Dist. LEXIS 51507 (D.C. Apr. 10, 2013)(plaintiffs, environmental groups, sued Army Corps of Engineers (COE) alleging improper verification of construction of a wastewater pipeline that was authorized under two nationwide discharge permits issued by the Corps under the Clean Water Act for 23.5 mile wastewater pipeline that crossed over 30 wetland areas; utility companies intending to use pipeline intervened; court addressed cross motions for summary judgment; court held plaintiffs had standing to challenge because owned property could be more susceptible to damage from pipeline; claims are not moot simply because pipeline construction has begun; but, court held granting of permits by COE was not arbitrary and capricious and no additional reason given by plaintiffs to challenge permits - disruption of hunting and fishing and exposure of property to leaks insufficient to establish likelihood of injury; COE has no obligation to complete additional environmental impact statement for project; mere conversion of forested wetlands to wetlands with different functions involved; no permanent loss of wetlands present). 
10. Ecological Rights Foundation v. Pacific Gas and Electric Company, et al., No. 11-16042, 2013 U.S. App. LEXIS 6692 (9th Cir. Apr. 3, 2013)(utility company need not obtain NPDES permit or RCRA solid waste disposal permits for the use of utility poles treated with oil-pentaclorophenol mixture; plaintiff claimed that utility poles leached the chemical mixture that found its way into waters of the United States via stormwater drainage or because the poles were already saturated in the water; trial court dismissed case because utility poles are not a point source pollutant under CWA; on appeal, court affirmed and refused to expand definition of "point source" and "discharge"  to cover utility poles and like items such as fence posts and other structures that use pre-treated wood products).  

Estate Planning

1. In re Estate of Allen, No. 11-11-00131-CV, 2013 Tex. App. LEXIS 5675 (Tex. Ct. App. May 9, 2013)(trial court admitted will to probate over objection that will not offered within four-year time period as required by state (TX) probate code;  decadent's surviving spouse met with lawyer shortly after spouse's death and told she had option to probate will or execute affidavit of heirship; spouse believed that either option resulted in her inheriting all of decedent's property; affidavit prepared; at time of death decedent owned two tracts of land as his separate property; surviving spouse had dispute with son who kept livestock on property and he was asked to remove his livestock so the property could be leased; surviving spouse then notified that TX intestate succession law specifies that when surviving children are present (as for property that is not community property), the surviving spouse is entitled to life estate in one-third of land of decedent, with remainder to children; will filed more than four years after decedent's date of death; surviving spouse found not to be in default of four-year rule; spouse elderly at time issue arose and had no training in legal matters and honestly believed that affidavit transferred all property to her as would decedent's will; question of "default" under statute is question of fact and not question of law; trial court's determination allowing admission of will to probate upheld). 
2. Vlach v. Comr., T.C. Memo. 2013-116 (petitioner had alternative medicine practice and established trusts purportedly in furtherance of medical practice and asset protection; petitioner's corporation made payments to trusts and claimed deductions for such payments; deductions denied on basis that trusts where shams; trusts lacked independent trustee, taxpayer's relationship to trust property not materially changed after property transferred to trusts, no economic interest in trusts passed to other beneficiaries (except for minor instance), no meaningful restrictions imposed on petitioner, and trusts paid petitioner's personal expenses; trusts disregarded as shams for tax purposes). 
3. Tech. Adv. Memo. 201317010 (Jan. 18, 2013)(two trusts each owned an interest in an S corporation with the balance of the interests in the S corporation owned by taxpayer; S corporation owned another corporation which was a qualified S subsidiary which the individual was the president and was directly involved in daily operations; trusts had income from their interests in the S corporation; individual, spouse, children and grandchildren are beneficiaries of trusts and taxpayer was special trustee of trusts and controlled all decisions regarding disposition of S corporation stock and voting of that stock; taxpayer not able to distinguish between time spent conducting business as corporate president and time spent as special trustee; IRS took position that trusts did not materially participate in S corporation business and, as a result, trusts' share of research or experimental expenses incurred by the S corporation had to be amortized over 10 years by the trusts; IRS claimed that only participation of trustee of trusts in fiduciary capacity counts toward material participation test; IRS ignored interrelated role of taxpayer as special trustee and corporate president for purposes of material participation test; Treasury has never promulgated regulations for trusts for purposes of the material participation test and has lost the only court decision addressing how a trust establishes material participation for purposes of I.R.C. Sec. 469; litigation on issue currently pending in the U.S. Tax Court). 
4. Priv. Ltr. Rul. 201316011 (Dec. 27, 2012)(decedent's will gave residue of estate to trust for surviving spouse; trust split into two trusts with one trust to pay surviving spouse income for life then to spouse's estate upon death with trust terminating and remaining balance passing to Family Trust that would pay to daughter for life and then to daughter's issue; estate tax return timely filed and estate elected to treat trust property as QTIP, but did not indicate trust was to be severed into exempt and non-exempt trust; no reverse QTIP election made; IRS granted 120 days to sever trust into exempt and non-exempt trust and make reverse QTIP election). 
5. In re Estate of Burnett, No. 309640, 2013 Mich. App. LEXIS 691 (Mich. Ct. App. Apr. 16, 2013)(decedent and spouse married in Michigan in 1984, and moved to PA; in 2003, husband underwent gender reassignment to have female genitalia installed; husband's conduct destroyed marriage relationship with wife and wife taken back to MI in 2005 to live with daughter; children, as mother's guardian, filed for divorce on mother's behalf because she was suffering from dementia (age 79); husband filed motion for summary judgment on basis that children had no authority to file divorce on behalf of incapacitated ward; trial court disagreed and denied husband's motion; husband filed second motion for summary judgment on basis that trial court lacked jurisdiction to grant divorce because husband's conduct made him a "woman" which severed the marital relationship because of MI's constitutional and statutory ban on homosexual marriage; trial court denied husband's second motion; on appeal, court affirmed on both points; nothing in state statutory law or caselaw bars a guardian or conservator from filing complaint for divorce on behalf of incompetent spouse; parties entered into lawful marriage contract at time of marriage that they cannot mutually or unilaterally sever; marriage is more than a civil contract and only a court can terminate the relationship by decree of divorce; in any event, court noted that gender reassignment surgery has no effect in changing gender of person involved because chromosome makeup when person created not impacted and can never be altered). 
6. Priv. Ltr. Rul. 201316004 (Jan. 9, 2013)(decedent's will, executed pre-Sept. 25, 1985, providing for decedent's property to pass to surviving spouse, children and grandchildren and charity; decedent later declared incompetent until death; beneficiaries battled over will interpretation and petitioner court for construction and reformation of will; parties enter into court-approved settlement specifying that amounts distributed pursuant to settlement not subject to GSTT and estate entitled to charitable deduction for amount passing to charity; IRS determined that no GSTT applied because of decedent's mental incompetency (Treas. Reg. Sec. 26.2601-1(b)(3)(i); charitable deduction allowed for amount passing to charity in accordance with Rev. Rul. 89-31, 1989-1 C.B. 277). 
7. Estate of Brourman v. Comr., T.C. Memo. 2013-99 (decedent died in late 2007 and estate tax return filed in early 2009 with "estimated" denoted at top of form; return reported gross estate of $13,810,000, tentative deductions of $550,000 and tentative tax listed as "unknown"; return indicated that litigation was pending between decedent's estate and decedent's surviving spouse that had been purportedly disinherited under decedent's will which impacted the amount, if any, of the marital deduction and, consequently, the estate tax due; IRS assessed over $5 million of estate tax against estate and estate objected noting the pending litigation barred computation of estate tax due; litigation settled in mid-2009 and estate filed two amended returns both reporting no tax due; IRS determined that over $2 million in estate tax due; estate sought IRS issuance of notice of deficiency so that alleged deficiency could be litigated; IRS issued notice of deficiency in late 2011 and estate filed Tax Court petition in early 2012 and IRS moved to dismiss for lack of jurisdiction on the basis that a prior assessment of estate tax eliminates any "deficiency" over which the court has jurisdiction; IRS also claimed its notice of deficiency issued as protective measure if prior assessment found invalid; estate moved for summary judgment on basis that statute of limitations barred issuance of revised notice of deficiency ; court rejected IRS' motion to dismiss, finding that prior assessment was invalid, but determined that notice of deficiency was valid because it had been timely issued and complied with I.R.C. Sec. 6212 and did not violate I.R.C. Sec. 7522; court has jurisdiction and case to proceed to trial).
8. Redstone v. Comr., T.C. Docket No. 008097-13 (filed Apr. 10, 2013)(in 1972, petitioner transferred stock in family corporation to other family members pursuant to settlement of family dispute; no gift tax return filed, and IRS now asserting $1.1 million in unpaid gift tax on basis that transfer constituted gift; petitioner claims that transfers were nontaxable settlement payments; interest on purported gifts anticipated to exceed $1 million; because no gift tax return filed in 1972, statute of limitations for asserting tax never commenced and all tax years remain open).
9. In re Marriage of Reynolds, No., 3-151, 2013 Iowa App. LEXIS 399 (Iowa Ct. App. Apr. 10, 2013)(inherited property used to purchase farmland that was sold after the marriage and proceeds used to purchase marital home with remainder used for household expenses; home was only asset of the parties and so court found inequitable to keep inherited property separate; court ordered equalization payment of half of value; on appeal, court held husband’s wise investment of inheritance allowed couple to live in home debt free; court found equitable distribution to be three-quarters to disabled husband and one-quarter to wife; dissent filed arguing house was purchased for wife and husband intended to sell it anyway and continue to live in farmhouse, so district court order should be affirmed).
10. Gruber v. PPL Retirement Plan, et al., No. 12-2123, 2013 U.S. App. LEXIS 7149 (3d Cir. Apr. 9, 2013)(plaintiff and spouse divorced in 2005 and entered into QDRO designating plaintiff as alternate payee under ex-spouse's qualified retirement plan; QDRO provided that plaintiff to receive 53 percent of ex-spouse's accrued benefit as of 12/20/04, and if payments to plaintiff began while ex-spouse still employed payments to be computed as if ex-spouse had retired on date on which payments to plaintiff began, not accounting for value of play subsidy for early retirement benefits; if ex-spouse retired before age 65, plaintiff's benefit to be recalculated to include 53 percent of any employer subsidy for early retirement; plaintiff elected to begin receiving benefits when ex-spouse turned 55; three years later ex-spouse terminated due to company-wide workforce reduction which made ex-spouse eligible for early retirement benefit equal to 80.7 percent of normal benefit; because purpose of separation benefit to enhance early retirement benefits and because ex-spouse eligible for early retirement, such amount was subsidy for early retirement and was within meaning of "early subsidy for early retirement" as defined by QDRO; plaintiff entitled to 53 percent of early retirement benefit). 
11. Estate of Koons v. Comr., T.C. Memo. 2013-94 (decedent, before death, created LLC and transferred funds to LLC derived from sale of stock in decedent's closely-held business which was undergoing buy-out from Pepsi, Corp.; LLC worth $317.9 million (primarily cash) in net asset value; decedent's children redeemed their interests in LLC before decedent's death resulting in decedent's estate holding 70.42 percent voting interest and 70.9 percent equity in LLC; decedent's estate had liquid assets of over $19 million; anticipated estate and GSTT tax was $26 million, and estate borrowed $10.75 million from LLC in return for installment note with initial payment deferred until 2024 (18 years) with interest set at 9.5 percent (at time when long-term AFR was 4.61 percent); estate claimed discount for decedent's LLC interest of 31.7 percent which court rejected and allowed 7.5 percent discount that IRS conceded - estate's expert based analysis on companies that derived profits primarily from active business operations, unlike decedent's LLC; court noted that while estate tax deduction for estate administration expenses is allowed, prior decision in Estate of Gilman v. Comr., T.C. Memo. 2004-286 which allowed estate tax deduction for interest if loan necessary to raise money to pay estate tax without liquidating estate assets at forced-sale prices inapplicable; in present case, court noted that LLC was cash-rich and that estate had power to require LLC to make pro-rata distribution to members, thus eliminating need to sell assets; court also noted that loan would deplete company's cash similar to distribution; $71.4 million interest deduction disallowed; case also unlike Estate of Duncan v. Comr., T.C. Memo. 2011-255 and Estate of Kahanic, T.C. Memo. 2012-81 in which deduction was allowed in cases where estates were much less liquid). 
12. In re Estate of Stahling, No. 4-12-0271, 2013 Ill. App. LEXIS 209 (Ill. Ct. App. Apr. 3, 2013)(decedent executed a deed transferring several hundred acres to himself and his son as joint tenants with rights of survivorship during a period when his son was acting as the decedent’s medical power of attorney; after decedent’s death, the executor expended funds to investigate whether the son exercised undue influence; the investigation was insufficient; the son petitioned the court to order the estate to expend no further funds in its investigation, which the court granted; the executor appealed and further review was made in which the issue of fiduciary duties under a healthcare power of attorney were reviewed; the question was certified to the state appellate court; on the certified question, the court held under the facts there was no fiduciary duty created because no evidence existed that son accepted agency on healthcare power of attorney; in general fiduciary duty would be limited to scope of the power of attorney and not to matters outside the scope of health care decisions; by itself, the healthcare power of attorney does not create a presumption of undue influence).

Insurance 

1. Leonard L. Tate Orchards v. Rain and Hail, LLC, No. 1:13-cv-691, 2013 U.S. Dist. LEXIS 62052 (M.D. Penn. May 1, 2013)(under federal regulations, apple growers must establish at least 50% of production was sold as fresh apples in one or more of four previous years; plaintiff made claim for crop insurance for 2011 losses of apple crop and designated 2010 as year in which he met the 50% requirement; arbitrator held only 38% of crop was sold as fresh, plaintiff argued it was 58%; plaintiff sought court vacation of arbitration award; court upheld arbitration award because it was not irrational). 
2. Schwab v. Comr., No. 11-71957, 2013 U.S. App. LEXIS 8309 (9th Cir. Apr. 24, 2013), aff'g., 136 T.C. 120 (2011)(petitioners, married couple, participated in trust arrangement known as "multiple-employer welfare-benefit fund - a non-qualified employee-benefit plan that would allow petitioners to obtain life insurance on tax deductible basis; plan adopted in 2001 and trust funded with multi-million dollar life insurance policies and petitioners paid the initial premiums; petitioners were advised that if plan was allowed to terminate, they would be taxed on net cash surrender value of policies; policies had large death benefits, had surrender charges that exceeded their stated values (e.g., no cash received on surrender) and petitioner's wife allowed her policy to lapse; IRS had designated such plans as "listed transactions" in 2000 and issued regulations in 2002 further attacking them; plan's administrator terminated plan in 2003 and life insurance policies distributed to petitioners at time when flexible-premiums policies were not paid up; petitioners did not include stated policy values ($48,667 for husband and $32,576 for wife) in income; IRS asserted deficiency in accordance with Treas. Reg. Sec. 1.402(b)-1(c) and I.R.C. Sec. 402(b) that the full amount of $81,243 (stated policy values combined) should have been reported into income; issue before court was proper valuation of the two variable life insurance policies; court concluded that values to be based on guaranteed cost of insurance to time of termination of first policy and until second policy's premium paid; deficiency ultimately less than $5,000; on appeal court affirmed; court noted that I.R.C. Secs. 419 and 419A limit employer's deductions for contributions to such plans to amount based on cost of benefits provided during year plus additional amount for reserves, and that under I.R.C. Sec. 402(b)(2) amount actually distributed or made available to distributee is taxed to distributee in tax year of distribution or year made available; "amount actually distributed" under I.R.C. Sec. 402(b)(2) means FMV of actual distribution - surrender charges must be considered when determined policy's FMV; total deficiency attributable to both policies was $2,665.95 - the amount "actually distributed" under I.R.C. Sec. 402(b) and includible under I.R.C. Sec. 72). 
3. Three T Nursery v. Rural Community Insurance Agency, Inc., No. 4:11-cv-29, 2013 U.S. Dist. LEXIS 54260 (E.D. Tenn. Apr. 15, 2013)(competing summary judgment motions regarding confirmation of arbitration award; controversy arose from crop insurance for nursery; after claim made, insurance company determined plaintiff did not satisfy requirements for federal crop insurance; company canceled policies and returned premiums; arbitrator held others had risk and interest in crop, but determined award should be equal to plaintiff’s risk, which was his salary and made an award for the same; plaintiff appealed seeking vacatur of the award and additional damages; court confirmed award holding no evidence arbitrator exceeded his powers or interpreted the policy in a way that stepped beyond his scope of authority).

Real Estate

1. Sims v. Daker, No. 39760 2013 Opinion No. 64, 2013 Ida. LEXIS 163 (Ida. Sup. Ct. May 23, 2013)(boundary dispute in which plaintiff claimed fence line constituted boundary by agreement; trial court determined there was lack of evidence concerning when fence was put in, why built or in its location, or who owned property on either side when built, so there was no evidence to disprove fence intended to be boundary; trial court held boundary was uncertain and implied agreement existed that fence to be treated as boundary line; on appeal, decision affirmed based on principle that when fence line treated as boundary for long period in the absence of evidence of circumstances establishing fence, fence is presumed to be boundary). 
2. H&H Farms, Inc., et al. v. Huddle, No. 3:13 CV 371, 2013 U.S. Dist. LEXIS 72501 (N.D. Ohio May 22, 2013)(case involves dispute over farmland that had been owned 100 percent by husband and wife before transfers of undivided fractional interests to defendant, a son; at time of case, mother had died and father owned 6 percent and defendant owned 94 percent; plaintiff was longtime farm tenant (and father's grandson and defendant's nephew); farther, as co-tenant in possession of farmland, executed 11-year recorded rental agreement with plaintiff for $150/acre/year; defendant (and 94 percent owner) did not consent to agreement and claimed that agreement was unenforceable and that plaintiff would be trespassing upon attempting to farm; defendant motioned for dismissal of case; under state (OH) law, each tenant holds title independently of every other tenant, and co-tenant out of possession entitled to receive share of reasonable rental value of property exclusively used by co-tenant in possession; possession of one co-tenant is presumed to be possession of all; defendant made no request to physically possess tillable land or was denied ownership rights in farm; father had duty to account for rents and profits and pay defendant 94 percent of net rental income; father has absolute right of possession; under state law, a lease does not divest co-tenants of their interests in property; defendant retains right of partition and, if exercised, lease would be terminated; defendant's motion to dismiss denied). 
3. EQT Gathering Equity, LLC v. Fountain Place, LLC, No. 12-1730, 2013 U.S. App. LEXIS 10193 (4th Cir. May 21, 2013)(plaintiffs own oil and gas rights to property; defendant owns surface rights; controversy over which party required to bear the cost of relocating two pipelines on property; defendant placed fill dirt over one pipeline, which required plaintiff to relocate pipeline to safer location; defendant wanted to place cell phone tower on property, but second pipeline was in way, so defendant buried pipeline causing safety issues; plaintiff brought suit for injunctive and declaratory relief regarding the excavated pipeline; court denied injunctive relief due to defendant’s secession of excavating,  but granted summary judgment finding defendant upset status quo, so it was required to pay for cost of pipeline relocation; remaining claim went to trial; jury found defendant responsible for depositing dirt on tops of pipeline and court held it responsible for costs; on appeal court held defendant upset status quo because pipelines were in existence at time defendant purchased property; placing fill dirt over top of pipeline was for defendant’s benefit, so it must bear cost of relocation of that pipeline; court stated same conclusion for excavated pipeline; district court judgment affirmed). 
4. Miller v. Jones, No. A147325, 2013 Ore. App. LEXIS 478 (Ore. Ct. App. Apr. 24, 2013)(dispute regarding meaning of irrigation and access agreement drafted by predecessors-in-interest of adjoining landowners; court held agreement created express easement rather than mere license; court also held easement was appurtenant based on state preference for holding easements appurtenant when dominant estate identified unless specific language clearly demonstrates contrary intent).
5. Ellison v. Clackamas County Assessor, TC-MD 120314D, 2013 Ore. Tax LEXIS 73 (Ore. Tax Apr. 23, 2013)(world-class equine facility with proprietary construction plans appeals real property market improvement value of property; two assessments done of property; one used sales approach and both used cost approach; appraisals differed in square footage and price per square foot for each type of improvement; argument is that property has no real market value as personal residence and world class equine facility and should be assessed using cost approach; court held no immediate market for property designed to plaintiff’s exact specifications, so cost approach should be used, but insufficient evidence presented to reconcile appraisers’ differences (one appraisal showed a value of $14,591,127 and the other $18,275,412) to determine property’s real market value, so plaintiff’s appeal denied).
6. Mays v. Porter, No. 2011-CA-000362-MR, 2013 Ky. App. LEXIS 62 (Ky. Ct. App. Apr. 19, 2013)(children brought action against their mother to recover items stored in her garage; mother counter-claimed to set aside deed executed in favor of children; at trial mother testified and argument made without objection that deed was coerced through undue influence of mother’s husband prior to his death; husband refused to let mother ask questions regarding deed and had been violent, so mother signed to avoid an argument; after trial court held deed was result of undue influence; court also limited items in garage to be returned to children based on testimony of grandson regarding which items actually belonged to children; both holdings affirmed on appeal because substantial evidence in record supported findings).
7. Adams v. Kalmar, No. COA12-749, 2013 N.C. App. LEXIS 379 (N.C. Ct. App. Apr. 16, 2013)(dispute regarding spray easement; defendants granted spray easement to plaintiffs; plaintiffs planted Bermuda grass in easement; several years later defendants notified plaintiffs that they would be removing Bermuda grass in easement and replace it with soybeans; plaintiff brought suit; defendants counter-claimed for fraud and negligent misrepresentation; trial court granted summary judgment to plaintiff on defendants’ claims; on appeal, court affirmed dismissal of fraud claim because lack of expansion necessitating large area for easement caused by statutory moratorium rather than plaintiffs’ actions; this fact also permitted dismissal of negligent misrepresentation claim as well; court also affirmed in dismissing request to void easement for lack of meeting of the minds in contract formation because contract allowed for necessary actions in easement to comply with state regulations, which required Bermuda grass be grown for compliance; appellate court also affirmed court’s holding that defendants entitled to hay from grass grown on easement because plaintiffs’ purpose of easement was merely elimination of hog waste).
8. Thornock v. Esterholdt, No. S-12-0138, 2013 Wyo. LEXIS 46 (Wyo. Sup. Ct. Apr. 11, 2013)(land dispute between parties regarding whether appurtenant easement existed from language in deed of land conveyed in 1940s; question concerned effect of easement language from previous deed; district court held language of easement was too vague to be enforceable; evidence showed parties never made use of any easement so intent shows lack of easement granted at that time; on appeal, appellate court agreed under state law that every conveyance of real estate passes the entire estate unless expressly stated otherwise; trial court affirmed no appurtenant easement in dispute land exists).
9. LeBlanc Land Co. v. The Dow Chemical Co., No. 2012 CA 0963, 2013 La. App. Unpub. LEXIS 226 (La. Ct. App. Apr. 10, 2013)(plaintiff filed suit to claim ownership of tract of land via acquisitive prescription; defendant moved for involuntary dismissal for failure to prove claim; motion granted; plaintiff appealed; appellate court affirmed because evidence did not establish boundaries as claimed by plaintiff nor actual location of claimed boundary; further no survey or expert evidence presented to enable court to determine boundary even if plaintiff proved possession; dismissal affirmed). 
10. Warren v. Treet, No. CA12-671, 2013 Ark. App. LEXIS 242 (Ark. Ct. App. Apr. 10, 2013)(partition action among siblings as tenants in common after disputes arose; court held sister entitled to farm home and all buildings on her section of the tract as fixtures; brother appealed claiming he purchased buildings and was entitled to them and underlying land; appellate court found no error in trial court’s factual findings regarding conflicting testimony and affirmed; brother argued he should be indemnified for costs incurred in improving and maintaining buildings; on appeal, court held brother did not request reimbursement in his petition, so no error in failing to award; trial court’s enforcement of tenants in common agreement to division of property was also affirmed).
11. Rohner v. Beets, No. WD75327, 2013 Mo. App. LEXIS 441 (Mo. Ct. App. Apr. 9, 2013)(adverse possession case on appeal; adjacent property owners disputed ownership of a sliver of land between their lots; plaintiff had planted trees and built retaining wall in area; 9 years later plaintiff sought permission from defendant to cross her lot to rebuild retaining wall; defendant later discovered plaintiff’s trees and wall were partially on her property, issue on appeal was whether permission given to cross lot to rebuild wall defeated hostile use of sliver of land; trial court had ruled permission not related to use of sliver and appellate court upheld finding sliver belonged to plaintiff by adverse possession).
12. Niles v. Eldridge, No. 20120294, 2013 N.D. LEXIS 44 (N.D. Apr. 4, 2013)(contiguous landowners entered into an oral agreement to share in the expense and benefits from an artesian well; when one of the parcels changed hands, the new owner denied that an easement for pipe existed; landowner argued the agreement was oral, so Statute of Frauds applied; trial court held that part performance took the agreement out of Statute of Frauds and the agreement granted an easement; on appeal court held that landowner’s claim of a mere license failed because she presented no facts regarding a license; court also held that contract had been fully performed and it was clear an agreement to run pipelines across land to supply water to contiguous landowners existed; trial court affirmed).
13. Milner v. Biggs, No. 12-3526, 2013 U.S. App. LEXIS 6754 (6th Cir. Apr. 1, 2013)(homebuyers brought suit against sellers, realtor, and home inspector after discovering the house purchased “as is” and inspected was full of mold and deteriorating; district court granted judgment on the pleadings and summary judgment to defendants ultimately dismissing all claims; court upheld dismissal of claims under state consumer protection act against realtor and inspector because the actions complained of were taken pursuant to pure real estate transaction not covered by statute; summary judgment of fraud and civil conspiracy claims also upheld because no facts alleged of knowledge of condition by sellers and evidence existed showing buyers provided notice of need to inspect for mold, but did not do it; summary judgment for inspector also upheld because certification of home inspector irrelevant and misrepresentation claim failed because buyers did not review report; claims against seller’s agents filed because no deceptive acts alleged; buyer’s agent claims also dismissed because statements complained of were “puffery”; complaints against title agency also dismissed because title was true and any errors created no loss to plaintiffs).
    
    

Regulatory Law

1. Pandol Associates Marketing, Inc. v. Robinson Company, No. 1:11-CV-01829-LJO-JLT, 2013 U.S. Dist. LEXIS 65173 (E.D. Cal. May 7, 2013)(parties entered into agreement for plaintiff to supply two loads of grapes for shipment from Chile to Brazil; loads were fumigated and prepared for shipping; trucks never arrived to pick up the loads after three weeks due to (allegedly) Feb. 27, 2010 earthquake; loads eventually picked up and some grapes failed inspection upon arrival in Brazil; outstanding balances on invoices remained and PACA violation claimed; PACA violation found). 
2. Minges, et al. v. Ohio Department of Agriculture, No. 12AP-738, 2013 Ohio App. LEXIS 1686 (Ohio Ct. App. May 2, 2013)(defendant disqualified plaintiff's grand champion steer from county fair which required forfeiture of all awards and prizes; disqualification a result of presence of flunixin (Benamine) in steer's urine sample; defendant claimed that it need not prove how the drug was introduced into the steer, and plaintiff's denied any knowledge of how drug introduced into steer; provisions of state administrative code that plaintiff's cited for violating required defendant to prove that plaintiff's took some action that caused drug to be introduced into steer; while separate provision of administrative code allowed defendant to find plaintiff liable without any evidence of plaintiff's conduct, that provision not contained in notice of hearing given to plaintiff; trial court reversed defendant's order; on appeal, court affirmed). 
3. Cenizo Corp. v. City of Donna, No. 13-12-00308-CV, 2013 Tex. App. LEXIS 5124 (Tex. Ct. App. Apr. 25, 2013)(appeal of bench trial verdict in favor of defendant city; plaintiff brought suit against city claiming a takings under state Constitution after blocked drainage pipes caused damage to plaintiff’s soybean crop; trial court held plaintiff did not prove intention of city to cause harm as required for claim; appellate court agreed evidence did not conclusively establish city knew blocking drain would cause identifiable harm or that harm was substantially certain; judgment affirmed). 
4. Center for Food Safety v. Hamburg, No. C 12-4529 PJH, 2013 U.S. Dist. LEXIS 57409 (N.D. Cal. Apr. 22,2013)(cross motions for summary judgment in declaratory and injunctive action regarding failure of FDA to promulgate final regulations by mandatory deadlines contained in Food Safety and Modernization Act of 2010 ("FSMA"); court held because FMSA includes specific deadlines, FDA admittedly failed to comply with mandatory rulemaking schedule, a failure to comply with deadlines constitutes a "failure to act" under Administrative Procedure Act and where Congress has specifically provided a deadline for performance by an agency, "no balancing of factors is required or permitted", so declaratory relief is proper; in order to ensure the issuance of regulations that have been sufficiently considered and  magnitude of task, court ordered parties to prepare joint written statement by mid-May setting forth proposed deadlines in detail sufficient to form basis of injunction; plaintiff’s motion granted).
5. The Blue Mountain Alliance, et al. v. Energy Facility Siting Council, et al., No. S060803, 2013 Ore. LEXIS 269 (Ore. Sup. Ct. Apr. 18, 2013)(defendant issued site certificate in 2009 for wind "farm" to be located on private land in Umatilla County, with construction to begin within three years and completion of project three years later; in 2011, defendant issued amended site certificate approving facility expansion; in early 2012, wind farm project operator applied for site certificate amendment extending construction start and completion dates for another two years; a few days later, Umatilla County adopted ordinance establishing two-mile setback between aerogenerators and rural residences; plaintiff sought compliance of wind farm with 2012 ordinance, but defendant approved second site amendment without requiring compliance with 2012 ordinance; upon review, Court affirmed; state law requires compliance with local ordinances and state law at time application is executed; while provision does not include land use regulations that are public safety measures, ordinance did not establish noise standard and purpose was not conclusive to establish public health and safety measure; thus, provision is land use regulation and version in effect at time wind farm made application applies). 
6. S. 716, signed into law on Apr. 15, 2013 as Pub. L. No. 113-7 (bill eliminates online personal financial disclosure requirements imposed on certain federal government employees by removing mandatory electronic filing by the President and cabinet officials, and elimination of publicly accessible database; provisions eliminated were required by the "Stop Trading on Congressional Knowledge Act of 2012" signed into law on Apr. 4, 2012 as Pub. L. No. 112-105; provisions of 2012 law prohibiting insider trading by Congressional members not removed; financial disclosure requirements will continue to be made on paper and can be available as PDF files). 
7. Kansas Wheat Alliance, Inc., et al v. Thunderbird Seed Conditioning, LLC, et al., No. 12-cv-01171-MEH, 2013 U.S. Dist. LEXIS 53466 (D. Colo. Apr. 15, 2013)(plaintiff, non-profit corporation that promotes research and development of wheat varieties was granted license to sell certain protected varieties of wheat seed; defendant is a seed conditioner that plaintiff claims conditioned protected seed without plaintiff's authorization; issue was adequacy of plaintiff's pleading; court determined that defendant's motion to dismiss should be denied; even though plaintiff's pleading "not a model of clarity, organization or even proof reading,..." the amended complaint passes muster). 
8. In re Wedge Log-Tech, L.L.C./Pioneer Wireline Services, No. 108,119, 2013 Kan. App. LEXIS 24 (Kan. Ct. App. Apr. 12, 2013)(court affirms Court of Tax Appeals decision granting exemption from ad valorem taxation petitioners wireline equipment on basis that such equipment was personal property under Kan. Stat. Ann. Sec. 79-223(b) because it satisfied definition of "commercial and industrial machinery" contained in Article XI, Sec. 1(a) of the Kansas Constitution). 
9. Lakeview Farms, Ltd. v. Dept. of Revenue, No. TC 5041, 2013 Ore. Tax LEXIS 66 (Ore. Tax Ct. Apr. 12, 2013)(case involves taxpayer’s appeal of assessment of taxes on personal property used in pumpkin patch; taxpayer argued boats, trains, and wheelbarrows used by visitors to harvest pumpkins should be exempt as "farm property"; court disagreed that items used by paying patrons of farm were farm equipment; court held such items were used to sell entertainment to patrons; county provided valuation of items and taxpayer did not, so court adopted county’s valuation; court declined to assess penalties because taxpayer’s arguments were objectively reasonable and not brought to delay or frustrate collection).
10. Douglas v. Louisiana Agriculture Commodities Commission, No. 2012 CA 0313, 2013 La. App. Unpub. LEXIS 230 (La. Ct. App. Apr. 10, 2013)(appeal of state agency’s denial of a corn producer’s indemnity claim; producer required to prove the grain dealer became insolvent after January 1, 2008, and as a result of this insolvency the dealer did not fully compensate the producer; producer failed to prove lack of full compensation caused by dealer’s insolvency, so denial affirmed).
11. Pleasant Hill Cemetery Association v. Morefield, No. 4-12-0645, 2013 Ill. App. LEXIS 221 (Ill. Ct. App. Apr. 10, 2013)(suit brought against highway commissioner after road work done altered surface flow of water; defendant moved to dismiss complaint based on government tort immunity; on appeal, court affirmed; plaintiff sought damages sounding in tort, which fell under the auspices of the immunity statute and defendant’s choice to make decisions regarding safety of drivers versus disruption of drainage on plaintiff’s land was not willful or wanton conduct).
12. Martinez v. United States, No. 11-751L, 2013 U.S. Claims LEXIS 251 (Fed. Cl. Apr. 4, 2013)(defendant, U.S. Forest Service, seized and sold 354 head of plaintiff's cattle grazing in Apache-Sitgreaves National Forest in Arizona; plaintiff did not get federal grazing permit on basis that his water and forage rights entitled him to grazing use; defendant issued notice of trespass and ultimately seized the cattle; plaintiff waited until seven years after seizure to sue and defendant claimed six-year statute of limitations applied to bar the suit; if seizure constituted taking, then six-year statute of limitations applied, but defendant's lawyers, at oral argument, argued that defendant's actions were not a taking but an exercise of police power; plaintiff brought suit within six years of sale of cattle; court refused to dismiss case because defendant's position that neither seizure nor sale constituted taking but pursuant to regulatory scheme). 
13. Bureau of Labor Statistics Report (U.S.D.L.-13-0581, Apr. 5, 2013)(March 2013, jobs report; unemployment rate fell to 7.6 percent solely because of a contraction of the laborforce; economy added only 88,000 jobs during March and laborforce participation rate fell to 63.3 percent, the lowest rate since 1979 - thus, unemployment fell while employment did not increase; while civilian population has increased by 2.4 million over past 12 months, only 300,000 persons have entered the laborforce; government payrolls showed virtually no change despite implementation of "sequestration", but economy slowed down due to tax increases beginning in January of 2013; unemployment rate is 49 percent higher than what Administration promised it would be in March of 2013 if 2009 "stimulus" bill passed, and 45 percent higher than what Administration promised it would be in March of 2013 if 2009 "stimulus" bill not passed; if laborforce participation rate would have remained at the rate it was at when President Bush left office and laborforce would not have shrunk, unemployment rate would be 10.98 percent). 

 

Secured Transactions

1. In re Moore, No. 11-11850-JDW, 2013 Bankr. LEXIS 2060 (Bankr. N.D. Miss. May 17, 2013)(adversary proceeding in bankruptcy case in which court asked to what extent plaintiff can enforce it lien on crops grown by debtor and sold to defendant; defendant argued plaintiff did not have a properly perfected interest in crop;  plaintiff did not include on its UCC forms the name or county code for disputed county or any specific parcel of land in disputed county in which crops were grown; court held defendant was liable to plaintiff for bushels purchased directly from counties stated on UCC forms and entered judgment in an amount equal to this crop, but not in the disputed county; plaintiff had no proof of where “washout potatoes” were grown, so no lien was perfected on these potatoes; plaintiff argued transport of the potatoes into the counties in which the lien attached created a lien for potatoes existing in those counties; court disagreed, holding that plaintiff’s description of six specific parcels limited the lien to crops grown on those parcels and not to crops brought into the counties, so plaintiff’s rights were limited to those parcels and no lien attached to “washout potatoes”). 
2. United States v. Harvey Fertilizer and Gas Co., No. 4:11-CV-137-BO, 2013 U.S. Dist. LEXIS 33684 (E.D.N.C. Mar. 12, 2013)(competing summary judgment motions regarding priority in proceeds of liquidation sale; defendant argued collateral owned by individuals as debtors rather than their corporation as debtor; court held for plaintiff because property traced to corporation, signed financial disclosures identified corporation, defendant conceded property owned by corporation, and auction receipt identified corporation as owner of property).
3. State Bank of Cherry v. CGB Enterprises, Inc., 984 N.E.2d 449 (Ill. 2013), aff'g., State Bank of Cherry v. CGB Enterprises, Inc., 964 N.E. 2d 604 (Ill. Ct. App. 2012) (plaintiff claims it was a secured party and substantially complied with § 1631(e) of Food Security Act (FSA) (a.k.a. “The Farm Products Rule”) by providing notice of its security interest in farm products; the notice sent to the defendant left blank the space for a description of the property or county where the farm products that were claimed as collateral may be located; question for the Court was whether an Illinois state case holding that substantial compliance with notice under the UCC was sufficient or whether Illinois should follow the holding of Farm Credit Midsouth, PCA v. Farm Fresh Catfish Co., 371 F3d 450 (8th Cir. 2004), which held that FSA requires strict compliance; the court held that the FSA requires strict compliance with notice given under direct notice exception to the Act; the plaintiff failed to clearly state the location of the farm products in its direct notice to the defendant, so plaintiff did not hold a secured interest in the property; dissent stated that court’s opinion adopting a strict compliance standard under Farm Credit Midsouth leads to an absurd and illogical interpretation of Farm Products Rule because a party can make an error in identifying the secured party, but all parties will be deemed to have constructive notice of the claim, while a creditor can be unsecure where direct notice is given but the notice contains any minor error (even if the party has enough sufficient knowledge of the claim); on further review, state Supreme Court affirmed on basis that federal jurisprudence applied in addressing the issue of whether strict compliance was required to provide direct notice of a security interest in crops under the Food Security Act of 1985; court agreed with appellate court that Farm Credit Midsouth, PCA v. Farm Fresh Catfish Co., 371 F.3d 450 (8th Cir. 2004) was directly on-point with the issue presented and aligned with the Court’s analysis of the statute). 

 

Taxation. 

1. Callahan v. Comr., T.C. Memo. 2013-131 (petitioners, married couple, had debt cancellation that they claimed was capital gain in nature; wife owned two homes that were both mortgaged and both fell into foreclosure; wife got caught up in home equity theft swindle promoted by lawyer and sells both homes to lawyers agents who get new mortgages processed to pay off the defaulted mortgages; short-term lease also obtained with option allowing wife to buy-back properties; state court voided sale but left new mortgage in place; wife paid off new mortgage; IRS not party to state action and not in privity with wife, lawyers or creditors, so not bound by state court action; wife admits to existence of capital gain when mortgage paid-off, but IRS claims additional amount owed on basis that wife had income on each sale to lawyers at full purchase pice; Tax Court disagreed with IRS position noting that wife received only cash to prepay rent on lease, real estate taxes and cancellation of personal liability on mortgage that was in default; Tax Court determines that gain recognized on discharge of debt is ordinary in nature, not capital; none of debt was qualified principal residence debt, but some could be home equity debt entitling wife to interest deduction up to $100,000 limit). 
2. C.C.A. 201321021 (May 1, 2013)(IRS points out that IRS has authority to accept amended returns required by Sec. 4.02 of Rev. Proc. 2011-34 to make late election to treat all interests in rental real estate as a single rental real estate activity by attaching statement required by Treas. Reg. Sec. 1.469-9(g)(3) to the amended return for the most recent tax year). 
3. Ung v. Comr., T.C. Memo. 2013-126 (petitioner received a pre-age 59 and 1/2 distribution from IRA and claimed that the distribution amount was not subject to the 10 percent early withdrawal penalty because the funds were used to acquire a home by a first-time homebuyer; petitioner claimed that funds were used towards downpayment, but only petitioner's brother listed as owner on deed and purchase agreement; petitioner did not execute any separate agreement with brother with respect to her purported ownership interest in house; petitioner did pay warranty fee bills for plumbing repairs and receipts for contractor payments, but such payments not qualified acquisition costs as defined by I.R.C. Sec. 72(t)(8)(C) without any proof of ownership; second IRA distribution also subject to early withdrawal penalty). 
4. PPL Corporation & Subsidiaries v. Comr., No. 12-43, 2013 U.S. LEXIS 3979 (U.S. Sup. Ct. May 20, 2013), rev'g., 665 F.3d 60 (3d Cir. 2011)(U.S. Supreme Court grants certiorari in case to resolve split between U.S. Circuit Courts of Appeal on issue of whether U.K. windfall profits tax paid by plaintiff’s U.K. subsidiary is creditable under I.R.C. §901; Third Circuit held that it was not and Fifth Circuit held that it was; court reversed Third Circuit decision; British utility partly owned by plaintiff U.S. company was privatized between 1984 and 1996 which caused profits and share prices to soar; British Labour party (liberal progressives) imposed windfall profit tax of 23 percent on difference between profit-making value and price at which government sold company; plaintiff claimed credit on 1997 return for "income, war profits, or excess profits taxes" paid to another country pursuant to I.R.C. Sec. 901(b); Tax Court upheld credit and Third Circuit reversed; Court reversed Third Circuit on basis that tax was tax on "excess profits" of privatized utilities; Court noted that U.K. artificially calculated value and tax was nothing more than a tax on profit above a threshold).
5. Hargreaves v. Comr., T.C. Sum. Op. 2013-37 (petitioners, married couple, claimed mortgage deduction for interest paid that had been added to negative amortization loan; loan allowed petitioners ability to pay lower interest rate than stated rate based on adjustable index; difference between interest paid and accrued was bank's margin; petitioners claimed gross interest paid as reported on Form 1098 as deduction; interest shortage also reported  which was amount charged to account but not paid; gross amount was $59,554 and shortage was $33,288, with net interest paid of $26,266; court allowed deduction of $26,266 because petitioners on cash basis and had not yet paid full amount claimed; no accuracy-related penalty imposed).  
6. Heinbockel v. Comr., T.C. Memo. 2013-125 (petitioners, married couple, engaged in plane chartering, grape farming, and money lending; IRS challenged approximately $156,000 in claimed deductions for three years at issue plus interest and penalties; court disallowed cost of failed effort to establish zinfandel vineyard, deductions for private airplane venture and deductions for wife's claimed business expenses associated with spa visit limousine wine-tasting tour and pleasure trips; petitioner failed to maintain contemporaneous logs and trips primarily personal in nature; parties given until August to submit respective assessments of tax due). 
7. IRS Press Conference (May 10, 2013)(In advance of TIGTA report, Administration, via Treasury Department executives in staged Q&A at ABA Taxation Section Meeting, admits that certain conservative groups and Christian organizations were targeted and profiled over three-year period when application for I.R.C. Sec. 501(c)(4) status made and "tea party" or "patriot" appeared in application or group was conservative Christian religious organization; at least 300 groups targeted; IRS also illegally sought list of donors to approximately 75 of those groups; head of IRS tax-exempt organization office responsible for such targeting and profiling also member of Humane Society of United States (HSUS), an anti-agriculture animal liberation organization that has 501(c)(4) status but spends the vast majority of its annual budget on political lobbying activity; IRS refused congressional request to investigate HSUS political activity).
8. Peek v. Comr., 140 T.C. No. 12 (2013)(petitioner acquired C corporation through an IRA followed by loan guarantees to the corporation; court held that such loan violated I.R.C. Sec. 4975(c)(1)(B) which prohibits loan guaranties by petitioner either directly to the IRA or indirectly to the IRA through of an entity owned by the IRA; prohibited transaction rule violated and IRA terminated; accuracy-related penalty upheld). 
9. C.C.A. 201319010 (Dec. 28, 2012)(taxpayer's subsidiary donated land and mineral rights largely located in National Park to National Park Service and claimed charitable deduction; due to restrictions on mining in National Park, FMV of gift must be reduced by cost of removing restrictions on use and time necessary to receive removal of restrictions; if donated property only has value as mine and mining restrictions are significant, then property worthless). 
10. Bohannon v. Comr., T.C. Memo. 2013-122 (petitioner owned various businesses that provided tax return preparation services and leased cars and household items; petitioner also owned farmland that was sharecropped by local farmer on which petitioner also attempted to raise catfish in pond; due to medical condition, petitioner unable to keep up with various businesses and petitioner's wife took over financial and business duties, but made numerous errors; professional tax preparer prepared returns based on faulty information supplied by petitioner's wife; upon audit, IRS determined substantial underpayment of tax for numerous years and asserted fraud penalties; court determined that petitioner reasonably relied on wife to keep accurate books and did not willfully attempt to conceal income and fraudulent intent not present; IRS not entitled to extended statute of limitations under I.R.C. Sec. 6501(c)(1) when fraud involved; determinations and adjustments for tax years at issue time-barred). 
11. Priv. Ltr. Rul. 201318003 (Jan. 22, 2013)(taxpayer owned improved real estate containing I.R.C. Sec. 1250 property that had been depreciated; taxpayer wanted to donate property to charity and claim charitable deduction; issue was whether contribution to be reduced by 20 percent of accumulated depreciation on the property under I.R.C. Sec. 291(a)(1); IRS determined that 20 percent reduction inapplicable if property contributed to charity; basis of property in hands of donee same as taxpayer's basis at time of gift). 
12. F.S.A. 20131802F (Feb. 27, 2013)(taxable cooperative filed Form 1120C that claimed DPAD for patronage income and no DPAD for nonpatronage income; taxpayer simply computed DPAD by aggregating patronage and nonpatronage sourced activities; nonpatronage activities had negative QPAI that would not have produced a DPAD, but by virtue of aggregating patronage and nonpatronage activities, taxpayer converted portion of wages attributable to nonpatronage activity into wages associated with qualified activities; since cooperatives compute gross patronage sourced intome for DPAD purposes without deducting PURPIMS, patronage sourced income is higher than it otherwise would be which gives cooperatives advantage over corporations; while statute does not require separate computations, DPAD is deduction only against patronage sourced income; taxpayer cannot compute DPAD by aggregating patronage and nonpatronage sourced income).
13. Oliver v. Comr., T.C. Memo. 2013-117 (petitioner cared for twin son of petitioner's half brother as one of several persons that provided support for child, but did not substantiate amount of support; court determined that child not qualifying relative of petitioner (or anyone else) because petitioner could not establish provision of more than one-half of child's support; petitioner entitled, however, to dependency deduction because child qualifying child under I.R.C. Sec. 152(a)(1) by virtue of meeting tests contained in I.R.C. Sec. 152(c)(1)(B); on this point, court noted that IRS conceded that child met relationship test, satisfied age requirement and did not provide over one-half of own support; on issue of whether child shared same abode as petitioner, court noted that petitioner had stated on multiple occasions that child lived with petitioner for more than one-half of tax year, and discounted IRS arguments to the contrary). 
14. Vlach v. Comr., T.C. Memo. 2013-116 (petitioner had alternative medicine practice and established trusts purportedly in furtherance of medical practice and asset protection; petitioner's corporation made payments to trusts and claimed deductions for such payments; deductions denied on basis that trusts where shams; trusts lacked independent trustee, taxpayer's relationship to trust property not materially changed after property transferred to trusts, no economic interest in trusts passed to other beneficiaries (except for minor instance), no meaningful restrictions imposed on petitioner, and trusts paid petitioner's personal expenses; trusts disregarded as shams for tax purposes). 
15. Tech. Adv. Memo. 201317010 (Jan. 18, 2013)(two trusts each owned an interest in an S corporation with the balance of the interests in the S corporation owned by taxpayer; S corporation owned another corporation which was a qualified S subsidiary which the individual was the president and was directly involved in daily operations; trusts had income from their interests in the S corporation; individual, spouse, children and grandchildren are beneficiaries of trusts and taxpayer was special trustee of trusts and controlled all decisions regarding disposition of S corporation stock and voting of that stock; taxpayer not able to distinguish between time spent conducting business as corporate president and time spent as special trustee; IRS took position that trusts did not materially participate in S corporation business and, as a result, trusts' share of research or experimental expenses incurred by the S corporation had to be amortized over 10 years by the trusts; IRS claimed that only participation of trustee of trusts in fiduciary capacity counts toward material participation test; IRS ignored interrelated role of taxpayer as special trustee and corporate president for purposes of material participation test; Treasury has never promulgated regulations for trusts for purposes of the material participation test and has lost the only court decision addressing how a trust establishes material participation for purposes of I.R.C. Sec. 469; litigation on issue currently pending in the U.S. Tax Court). 
16. Cole v. Comr., T.C. Sum. Op. 2013-34 (petitioner bought Mercedes in 2001 and wrecked it in 2007; petitioner received $15,376 in insurance proceeds for total loss of car; petitioner claimed casualty loss deduction but did not establish basis in car at time of damage or car's FMV; IRS presumed adjusted basis was zero - precluding any casualty loss deduction). 
17. Field v. Comr., T.C. Memo. 2013-111 (petitioner claimed I.R.C. Sec. 23(a) credit for qualified adoption expenses but petitoner did not file joint return with spouse for tax year in which credit claimed (as required by Sec. 23); IRS denied credit and petitioner claimed denial of credit violated petitioner's equal protection rights under Constitution; court disagreed with petitioner on basis that law clear and reasonable basis existed for requiring joint return to claim credit). 
18. Ugwuala v. Comr., T.C. Memo. 2013-105 (petitioner not entitled to deduction for reasonable and necessary travel expenses (e.g., meals, lodging) while allegedly away from home in pursuit of petitioner's trade or business; tax home determined to be Los Angeles rather than Georgia on basis that petitioner's wife employed in Los Angeles and petitioner's employment indefinite rather than temporary, and petitioner attending college in Los Angeles during applicable timeframe). 
19. Priv. Ltr. Rul. 201315031 (Jan. 15, 2013)(taxpayer established trust for supporting religious organizations and then converted trust to private foundation; trust acquired ranch property in furtherance of charitable purposes - a retreat property and associated programs for clergy including free room and board; ranch also raised sheep and sheep studies on ranch made available for students in journals with purpose of improving U.S. sheep production; trust sold sheep to farmers and slaughterhouses; significant losses realized; IRS determined that trust not subject to I.R.C. Sec. 4942(a) penalty of 30 percent on undistributed income because ranch property held for use directly in carrying out trust's exempt purpose). 
20. Priv. Ltr. Rul. 201316009-10 (Jan. 18, 2013)(taxpayer is 50 percent partner in LLC, and LLC executed loan modification agreement with bank resulting in debt cancellation income to taxpayer which wasn't reported on Form 1065 or Schedule K-1; taxpayer's Form 1040 prepared by different preparer unaware of taxpayer's debt discharge income and, as result, no election made under I.R.C. Sec. 108(c)(3)(C) and Treas. Reg. Sec. 1.108-5(b) to reduce basis of depreciable property and exclude debt discharge from qualified real property business debt; request for extension of time to make election granted; 45-day extension granted). 
21. Martin v. Comr., T.C. Sum. Op. 2013-31 (petitioner got divorced and decree required him to pay $1,000 monthly spousal support; three years later ex-wife fell on financial hard times and sought increased support; petitioner increased support by $1,300 and sought alimony deduction without any modification of divorce decree; ex-wife did provide letter explaining situation a year later; under I.R.C. Sec. 71(b)(1), payment must be received by or on behalf of spouse under divorce or separation instrument; court determined that letters did not demonstrate "meeting of minds" between former spouses to constitute written separation agreement; no deduction allowed and ex-wife did not report increased amount as income).
22. Qwest Corporation v. Iowa State Board of Tax Review, No. 11-1543, 2013 Iowa Sup. LEXIS 38 (Iowa Sup. Ct. Apr. 12, 2013)(plaintiff (recently purchased by CenturyLink) challenged on equal protection grounds the constitutionality of Iowa Code Secs. 476.95-.101 that imposes taxes on equipment of traditional telephone companies, but imposes tax only a portion of some equipment of long-distance providers and practically no equipment of wireless providers; Court upheld statute on basis that plaintiff continued to maintain "monopoly power" and, as such, it was rational for legislature to conclude that taxing plaintiff's personal property was "an appropriate way to capture some of their monopoly rent" while "relieving potential developers of competing infrastructure from a similar burden"). 
23. Lakeview Farms, Ltd. v. Dept. of Revenue, No. TC 5041, 2013 Ore. Tax LEXIS 66 (Ore. Tax Ct. Apr. 12, 2013)(case involves taxpayer’s appeal of assessment of taxes on personal property used in pumpkin patch; taxpayer argued boats, trains, and wheelbarrows used by visitors to harvest pumpkins should be exempt as "farm property"; court disagreed that items used by paying patrons of farm were farm equipment; court held such items were used to sell entertainment to patrons; county provided valuation of items and taxpayer did not, so court adopted county’s valuation; court declined to assess penalties because taxpayer’s arguments were objectively reasonable and not brought to delay or frustrate collection).
24. Boone Operations Co., LLC, et al. v. Comr., T.C. Memo. 2013-101 (petitioner operated landfill adjacent to city landfill; neighboring landowners complained about dust and odors; petitioner and city landfill reached court settlement and negotiated a deal resulting in the closing of the city landfill via a bargain-sale transaction; bargain-sale involved transfer of dirt to city worth $1 million for which city paid slightly over $700,000; city issued Form 8283 to petitioner along with appraisal which was attached to petitioner's return on which charitable contribution claimed; IRS denied charitable deduction due to receipt of significant cash and non-cash consideration in exchange for fill-dirt and for lack of proof that value of fill exceeded value of consideration received; IRS also argued the petitioner didn't receive contemporaneous written acknowledgement (2003 settlement agreement was not contemporaneous written acknowledgment and Form 8283 did not suffice as contemporaneous written acknowledgment because city completed only Part IV of Form 8283 which does not contain statement as to whether any goods or services provided in exchange; court determined that 2003 court settlement agreement only amount of cash city agreed to pay for fill-dirt and did not denote value that petitioner received and Form 8283 insufficient to substantiate deduction for failure to make mention of any benefits petitioner received; accordingly, requirements of I.R.C. Sec. 170(f)(8)(B) not satisfied and deduction denied; Tax Court also questioned appraisal). 
25. Bishop v. Comr., T.C. Memo. 2013-98 (case involves deductibility of business bad debt; petitioner established existence of bona fide debt, but unable to establish worthlessness in 2006 absent testimony from disinterested party or other supportive evidence; court believed petitioner's testimony of poor state of real estate market caused petitioner's business to struggle, but court unable to measure decline based on evidence presented; debt not worthless for year in issue). 
26. In re Marriage of Looney, No. 2-903, 2013 Iowa App. LEXIS 372 (Iowa Ct. App. Apr. 10, 2013)(appeal of child support modification; at trial, wife showed difference in farmer’s income if straight line depreciation used; farmer’s income would have been double; and court adopted these figures and a five-year average; on appeal, modification affirmed). 
27. Aries Communications Inc. & Subsidiaries v. Comr., T.C. Memo. 2013-97 (case involves reasonableness of compensation paid to radio executive; over his career in radio and television, executive started to buy radio stations and would become owner/operator/general manager; management style was active involvement overseeing personnel, oversight of programming, negotiating with lenders, participating in sales meetings and communicating with lawyers, accountants and others on behalf of company; ultimately, executive gave himself substantial bonus and company claimed associated deduction; issue was reasonableness of compensation and court gets into detailed mathematical computational process of experts of the parties; court set reasonable compensation level at amount higher than what IRS sought due primarily to executive being compensated for underpayments that occurred in prior years; deduction approximately one-third of amount paid to executive; 20 percent accuracy-related penalty imposed).
28. The Vancouver Clinic, Inc. v. United States, No. 3:12-cv-05016-RBL, 2013 U.S. Dist. LEXIS 51802 (W.D. Va. Apr. 9, 2013)(plaintiff provides medical treatment at various locations and hires physicians under five-year contracts in exchange for advances during the first two years of employment which must be repaid if employment ceases within five-year term; while advances accrue interest, physicians not required to pay interest; plaintiff did not withhold income or payroll tax on advances and advances not reported on Form W-2 but were reported on Form 1099-Misc. upon date amount no longer needed to be repaid; IRS assessed withholding and FICA tax plus interest for total amount over $600,000; court determined that advances were compensation for services; no intention that repayment be made, but that physicians would work five-year term; no fixed schedule for repayment at time agreements signed; advances were wages subject to withholding of employment and income tax). 
29. McAllister v. Comr., T.C. Memo. 2013-96 (petitioner borrowed $78,849.07 from employer in return for promissory notes; petitioner to repay loans via his compensation incentives with employer also paying taxes on incentives; loan lacked repayment date and did not specify interest; petitioner made no payment on loan; and petitioner within two years, employer sold out to another business and new employer issued petitioner Form 1099-Misc. denoting amount of loan and reporting loan as non-employee compensation; IRS took position that petitioner received constructive bonus that was then used to repay loan; petitioner disagreed with IRS position and claimed loan was either canceled or that he was insolvent at time of cancellation; Tax Court determined that amount reported on Form 1099-Misc. was cancellation of debt income and 1099-Misc. issued in error; petitioner's liabilities exceeded assets by over $20,000 thereby reducing amount of CODI, which was $56,207.65). 
30. HIE Holdings, Inc., et al. v. Comr., No. 10-72588, 2013 U.S. App. LEXIS 6952 (9th Cir. Apr. 5, 2013)(founder and controlling shareholder of plaintiff incurred legal fees for criminal defense against tax fraud and tax evasion charges and plaintiff paid such fees and deducted them as business expenses; plaintiff also omitted refunds from returns for certain years and reported them in later years and claimed an NOL for the income eliminated in earlier years; Tax Court determined that most of legal fees were nondeductible and that NOLs disallowed; on appeal, court determined that legal fees not ordinary and necessary business expense and are not theft losses; NOLs denied). 
31. Barnes v. Comr., No. 12-1284, 2013 U.S. App. LEXIS 6868 (D.C. Cir. Apr. 5, 2013) (petitioners, married couple, filed joint return for 2003; petitioners held partial ownership in S corporation and claimed $279,289 loss as pro-rata share of S corporation's loss; IRS allowed loss to extent of petitioners' basis in S corporation - $153,282.93; issue was whether petitioners’ basis in S corporation reduced by suspended losses in the first year that the basis is adequate to absorb the losses; petitioners, in 1997, did not claim deduction for suspended loss even though, in 1997, they had sufficient basis to absorb the loss, and hence, petitioners claim, there was no basis reduction at that time; court disagreed with petitioners because I.R.C. Sec. 1367 requires basis reduction to occur in first tax year when there is sufficient basis to absorb a loss, and basis is still reduced even if shareholder fails to take deduction for loss; language in I.R.C. Sec. 1367(b)(1) providing that basis is increased by corporate income only to extent of inclusion in shareholder's income bolster's position of IRS because no comparable exception for corporate losses provided; substantial understatement penalty upheld).
32. Adams v. Comr., T.C. Memo. 2013-92 (petitioner was employed as consultant and also operated an interior design business out of her home; no deduction for claimed business expenses - no documentation of purpose of legal fees and lack of substantiation for office expenses; no deduction for home mortgage interest beyond what IRS allowed; while petitioner paid additional amounts for points, petitioner didn't establish that points were for use or forbearance of money as opposed to services performed in connection with loan; no medical expense deduction above amounts allowed due to lack of substantiation). 
33. IRS Notice 2013-26, 2013-18 I.R.B. (transitional relief provided with respect to certain fuel tax credits; taxpayers granted until July 1, 2013, to file refund claims in situations where claimed credits exceed tax liability; claim is timely filed if claim relates to credit under I.R.C. Sec. 6426 or payment under I.R.C. 6427, claim is filed on Form 8849, and claimant has or will not make the claim on any other form or at any other time except for a claim that has been previously rejected by IRS due to untimeliness or was repaid by claimant on amended tax return). 
34. Johnson, et al. v. Comr., T.C. Memo. 2013-90(petitioner claimed deduction for office in the home; court upheld IRS denial of deduction on basis that only evidence of deduction was petitioner's own testimony which was insufficient to establish that office used exclusively for business purposes; court disallowed meal and travel expenses due to lack of substantiation). 
35. Gail Vento LLC v. United States, No. 09-03, 2013 U.S. Dist. LEXIS 48472 (D. V.I. Apr. 1, 2013)(case involved transfer of LLC interests; LLC owned stock in closely held corporation; corporation sold its stock on Nov. 24 and LLC owners sold their interests to three corporations in Cayman Islands in exchange for annuities on same day; stock sale publicly announced on Nov. 27 with closing on Jan. 8; court determined that sale of LLC interests subject to assignment of income doctrine such that gains from sale of corporate stock taxable to LLC owners; court based opinion on Ferguson v. Comr., 174 F.3d 997 (9th Cir. 1999); basic principle involved is that appreciated property transferred where transferee sells the property, any resulting gain taxed to original transferor if original transfer is too close in time to date property sold).   

 

Water Law

1. Miller Foundation v. Big Marsh Intercounty Drain Drainage Board, No. 306272, 2013 Mich. App. LEXIS 576 (Mich. Ct. App. Mar. 26, 2013)(case involves dispute under state (MI) drainage law that authorizes county road commission to petition county drain commission to lay out and designate drainage district, locate and establish drain, clean out, widen, deepen, straighten or extend established drain if it is necessary for construction or maintenance of highway to take surplus water across adjacent lands; petition filed on behalf of county road commission in accordance with statute with county drain commission; trial court invalidated petition on basis that county road commission not property petitioner because most road within proposed project not under commission's jurisdiction and party actually filing petition on behalf of county not authorized; plaintiff's request for injunctive and declaratory relief granted; trial court's ruling affirmed on appeal). 
2. Iowa League of Cities v. EPA, No. 11-3412, 2013 U.S. App. LEXIS 5933 (8th Cir. Mar. 25, 2013)(plaintiff brought suit that agency’s letters regarding Clean Water Act and municipal water systems written to Senator were rulemaking in violation of Administrative Procedures Act (APA); court held plaintiff had sufficient standing to bring claim; court agreed with 9th Circuit precedents that no deference should be granted to agency when determining whether APA has been followed and de novo review should be given in determining whether agency action was legislative rulemaking imposing new rights or duties requiring notice and comment procedures versus interpretive rules which state what the agency thinks the statute means and reminds affected parties of existing duties; court held agency has no preexisting legal norm or lawfully promulgated legislative rule supplying the basis for the agency’s prohibition on bacteria mixing zones, which violated APA in bypassing notice and comment procedures; likewise the agency’s new blending rule was also in violation of APA for same reasons; court also granted plaintiff’s request to strike down agency’s blending rule as exceeding its statutory scope by imposing secondary treatment regulations on flows within facilities even if APA rulemaking followed; issue remanded to agency for further consideration).