Monday, September 21, 2009
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 9/21/09):
- None currently scheduled.
Next week's oral arguments before the Supreme Court (week of 9/28/09):
Next Thursday, October 1st
- 9:00 AM - Julie Gardiner v. State of Indiana - The Carroll Circuit Court determined that Gardiner's class A felony sentence could not be suspended below the statutory minimum of twenty years because she had a prior unrelated felony conviction. The prior conviction was a class D felony to which Gardiner had pleaded guilty but which had been reduced to a class A misdemeanor by the time of Gardiner's sentencing on the class A felony. The Court of Appeals affirmed the trial court in Gardiner v. State. 903 N.E.2d 552 (Ind. Ct. App. 6/17/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [Note: Here is the ILB summary of the 2-1 COA opinion.]
- 9:45 AM - Shewanda Beattie v. State of Indiana - A jury found Beattie not guilty of dealing in cocaine and possession of cocaine, but found her guilty of possessing cocaine in a family housing complex, and the Vanderburgh Circuit Court sentenced her accordingly. The Court of Appeals reversed on grounds the verdicts were inconsistent, and ordered a new trial on the possession of cocaine in a family housing complex. Beattie v. State, 903 N.E.2d 1050 (Ind. Ct. App. 4/9/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [Note: Here is the ILB summary of the COA opinion - 6th case.]
- 10:30 AM - Robert E. Carter, Jr. v. Nugent Sand Company - Nugent Sand operates a sand and gravel company on a man-made lake near the Ohio River, and constructed a channel providing access for barge traffic from the lake to the river. The Indiana Department of Natural Resources conditioned permits to construct the channel on Nugent Sand's dedicating the water to public use, relying on Indiana Code section 14-29-4-5(2). Nugent Sand sought declaratory and injunctive relief. The Marion Superior Court held that the statute is unconstitutional to the extent it requires dedication to public use without compensation, and granted relief. In this direct appeal following the trial court's declaration that the statute is unconstitutional, the Department argues that Nugent Sand failed timely to appeal, the statute is not unconstitutional, and that the trial court's judgment should be reversed.
ALL Supreme Court oral arguments are videocast and accessible here, unless otherwise noted.
This week's oral arguments before the Court of Appeals (week of 9/21/09):
Wednesday, September 23rd
- 5:00 PM - Thomas v. FSSA - Thomas and Dausman have brought this action for declaratory judgment and injunctive relief, asking that the state mental health institution where they are both held be ordered to place each man in the least restrictive environment appropriate for his continued care and rehabilitation under Indiana statute, claiming that the institution's failure to do so constitutes a violation of each man's rights under Indiana law and the United States Constitution. The State has responded that this action is not ripe for review because less-restrictive placement has not yet been recommended by state mental health authorities and that the state institution is the least restrictive placement option that offers competency restoration services, that the issuance of a declaratory judgment or injunction is impermissible under the separation of powers doctrine contained in the Indiana Constitution and that the State's actions regarding Thomas and Dausman comply with both Indiana law and the United States Constitution. The Marion Superior Court agreed with the State's position and entered summary judgment for the State and against Thomas and Dausman. The Scheduled Panel Members are: Judges Kirsch, Mathias and Riley.
[Where: Wynne Courtroom at IU-Indy Law - WEBCAST (no, doesn't look like it). Note also that this argument is NOT on the COA's official calendar, but IS on the Clerk's docket.]
The ILB is pleased to post the briefs in this case. They are available here.
Next week's oral arguments before the Court of Appeals (week of 9/28/09):
Next Tuesday, September 29th
- 10:30 AM -
Sheila Perdue, et al v. Anne Waltermann Murphy, et al - In this interlocutory appeal, Plaintiffs-Appellants Sheila Perdue, et al., appeal the trial court's order denying their request for certification of a class of persons pursuant to Indiana Trial Rules 23(A) and (B)(2) in their action against Defendants-Appellees Anne Waltermann Murphy as Secretary of the Indiana Family and Social Services Adminstration, et al., alleging violations of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101, et seq.) and the Rehabilitation Act of 1973 (29 U.S.C. § 701, et seq.). The Scheduled Panel Members are: Judges Crone, Bradford and Brown.
- 1:30 PM - Dewayne Jones v. Housing Authority of South Bend - Note: The COA calendar currently provides no information other than the case name - I obtained the time of the argument and the panel (Baker, Friedlander and Riley) from the Clerk's docket.
Next Wednesday, September 30th
- 1:30 PM - Wurster Construction Co., Inc. v. Essex Insurance Co. - The special administrator of the estate of Christian King ("Estate") filed a wrongful death suit against Wurster Construction Co., Inc. ("Wurster") and Kane Construction, Inc. ("Kane") seeking compensation for King's alleged work-related death. Essex Insurance Company ("Essex") insured Kane under a commercial general liability policy, which named Wurster as an additional insured. The claim on the merits involves an action filed by Essex seeking a declaratory judgment on the issues of coverage and duty to defend. Wurster now appeals the trial court's belated grant of Essex's motion to correct error and, citing to Garrison v. Metcalf, 849 N.E.2d 114 (Ind. 2006), contends that the trial court's belated action is a nullity for the reason that it was entered after Essex's motion was "deemed denied" by operation of Indiana Trial Rule 53.3(A). Essex contends that, pursuant to our Supreme Court's reasoning in Cavinder Elevators, Inc. v. Hall, 726 N.E.2d 285 (Ind. 2000) and HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 97 (Ind. 2008), it is entitled to assert as cross-error the issue presented in its "deemed denied" motion; i.e., whether the trial court erred by declaring that Essex has no insurance coverage for and no duty to defend Kane and/or Wurster in the law suit filed against them by the Estate. On cross-appeal, Wurster contends that summary judgment was improperly granted to Essex because there is a genuine issue of material fact as to whether the insurance policy endorsements, which excluded coverage for Kane's independent contractors, and on which the trial court relied to reach its decision, were, in fact, part of the insurance policy. Wurster argues that the endorsements were a unilateral change, and therefore not part of the policy. Essex responds that the endorsements are part of the policy since they were accepted by an insurance agent acting on Kane's behalf. The Scheduled Panel Members are: Judges Najam, Kirsch and Barnes. [ILB: this summary, as are they all, is from the COA calendar]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.
The past COA webcasts which have been webcast are accessible here, via the calendars
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Posted by Marcia Oddi on September 21, 2009 08:27 AM
Posted to Upcoming Oral Arguments