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Wednesday, June 17, 2009

Ind. Decisions - Supreme Court posts two today

In Susana Henri v. Stephen Curto, a 15-page, 5-0 opinion, Justice Dickson writes:

Presenting contentions of improper conduct of jury deliberations and insufficient evi-dence, the plaintiff challenges a jury verdict adverse to her civil damage claim for rape and in favor of the defendant's counterclaim for tortious interference with his university contract as a result of his expulsion. Having granted transfer, we affirm the trial court. * * *

The parties presented their evidence to a five-women, one-man jury, which found against Ms. Henri on her claim and in favor of Mr. Curto on his counterclaim, awarding him damages of $45,000. Ms. Henri appealed, and a divided panel of the Court of Appeals, issuing three separate opinions, reversed and remanded for a new trial because of errors during the jury's deliberations. Henri v. Curto, 891 N.E.2d 135 (Ind. Ct. App. 2008). We granted transfer.

Ms. Henri's appellate claims relate to the following: (1) whether the jury received impro-per external communications; (2) whether the trial court failed properly to assist the jury at an impasse; and (3) whether sufficient evidence supports Mr. Curto's counterclaim. Mr. Curto's re-sponse seeks appellate attorney fees.

In Indiana Department of Revenue v. Kitchin Hospitality, LLC, an 11-page, 3-2 opinion, Justice Sullivan writes:
Indiana tax law was amended in 1992 to exempt hotels from paying sales tax on “tangible personal property” purchased by hotels that guests use up or otherwise consume such as soap, shampoo, tissue paper, and plastic cups. Kitchin Hospitality, LLC, a hotel operator, contends that a 2003 amendment to the tax law had the effect of extending this exemption to its purchases of electricity, water, and gas as well. We find that the exemption does not extend to utilities be-cause it is the hotel itself, and not its guests, that uses up and consumes electricity, water, and gas * * *

We hold that the Section 35 Exemption of I.C. § 6-2.5-5-35(2) applies to items used up or otherwise consumed by guests. Because Kitchin, and not its guests, use up or otherwise con-sumed the utilities, Kitchin is not entitled to the Section 35 Exemption for the utilities used in its Indiana hotels.

Conclusion. We reverse the judgment of the Indiana Tax Court and affirm the decision of the Indiana Department of Revenue denying Kitchin exemption from sales tax under I.C. § 6-2.5-5-35.

Shepard, C.J., and Boehm, J., concur.
Dickson, J., dissents with a separate opinion in which Rucker, J., concurs:

I dissent, believing that the facts and law of this case warrant our deferring to the deter-mination of the Tax Court which was created “to consolidate tax-related litigation in one court of expertise.” State v. Sproles, 672 N.E.2d 1353, 1357 (Ind. 1996).

Posted by Marcia Oddi on June 17, 2009 01:52 PM
Posted to Ind. Sup.Ct. Decisions