Monday, September 28, 2009
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 9/28/09):
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.
Next week's oral arguments before the Supreme Court (week of 10/5/09):
Next Thursday, October 8th
- 9:00 AM - Giovanoni v. Review Bd. of Ind. Dep't of Workforce Dev. and Beckingham v. Review Bd. of Ind. Dep't of Workforce - Both of these appeals involve claimants' eligibility for unemployment benefits following termination of employment for violation of no-fault attendance policies. The Unemployment Insurance Review Board denied the claimants' applications in both of these cases. A divided panel of the Court of Appeals reversed the Board's denial of benefits to Giovanoni, holding he was not terminated for just cause and therefore eligible for benefits. Giovanoni v. Review Bd. of Ind. Dep't of Workforce Dev., 900 N.E.2d 437 (Ind. Ct. App. 1/29/2008), vacated. A different Court of Appeals panel, also divided, affirmed the denial of benefits to Beckingham, holding she was discharged for just cause and therefore not entitled to benefits. Beckingham v. Review Bd. of Ind. Dep't of Workforce Dev., 903 N.E.2d 477 (Ind. Ct. App. 3/20/2009), vacated. The Supreme Court has granted petitions to transfer in both cases and has assumed jurisdiction over the appeals. The Court will hold a forty (40) minute combined oral argument for the two cases, but otherwise has not consolidated the appeals.
[Note: Here is the ILB summary of the 2-1 COA opinion in Beckingham - 4th case; here is the 2-1 opinion in Giovanoni - 3rd case.]
- 9:45 AM - Jimmie C. Smith v. Champion Trucking Co., Inc. - Jimmie Smith was driving a truck in the course of his employment with Champion Trucking when he was struck by another motorist and injured. Jimmie received medical benefits from Champion and then simultaneously pursued additional worker's compensation benefits and a claim against the third-party tortfeasor. After Smith settled his claim against the third-party, the hearing officer granted Champion's motion to dismiss Smith's worker's compensation claim. The Worker's Compensation Board affirmed. The Court of Appeals reversed and remanded. Smith v. Champion Trucking Co., Inc., 901 N.E.2d 620 (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 COA opinion - 2nd case.]
- 10:30 AM - Vanessa Thompson v. State of Indiana - In denying post-conviction relief, the Marion Superior Court rejected Appellant's claim that she was entitled to a new trial because the State had withheld evidence contrary to Brady v. Maryland, two witnesses had testified untruthfully, and Appellant received ineffective assistance of counsel. The Court of Appeals affirmed in Thompson v. State, 4/16/2009, an unpublished Memorandum Decision. Appellant has petitioned the Supreme Court to accept jurisdiction over the appeal.
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 9/28/09):
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. [Where: Court of Appeals Courtroom (WEBCAST)]
- 1:30 PM - Dewayne Jones v. Housing Authority of South Bend - Note: The COA calendar still 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. [Where: Court of Appeals Courtroom (WEBCAST)]
Wednesday, September 30th
- 10:30 AM - Indianapolis City Market Corporation v. MAV, Inc. - Indianapolis City Market Corporation appeals the trial court's declaratory judgment and damage award in favor of MAV, Inc., regarding renovation for said restaurant.
The Scheduled Panel Members are: Chief Judge Baker, Judges Friedlander and Riley. [Where: Court of Appeals Courtroom (WEBCAST)][ILB - new since last week's calendar]
- 1:25 PM - R. H. v. State of Indiana - This case involves an Indianapolis police officer's response to a 911 call about an "unfamiliar car" with concern that "there was something going on." The officer pulled up behind a car matching the description and, although he noticed no criminal activity, he observed that the passenger compartment was full of smoke. He turned on his emergency lights, and approached the vehicle. The officer knocked on the rear right passenger window of the vehicle. When the window was rolled down, smoke billowed out with the recognizable aroma of marijuana. The vehicle was occupied by two adults and two juveniles. The stop resulted in the arrest and adjudication of R.H., the juvenile in the driver's seat, as a delinquent child for possession of marijuana, a Class A misdemeanor if committed by an adult.
The Scheduled Panel Members are: Judges Darden, Robb and Mathias. [Where: Hamilton Southeastern High School, Fishers, Indiana] [ILB - new since last week's calendar]
- 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. [Where: Court of Appeals Courtroom (WEBCAST)] [ILB: this summary, as are they all, is from the COA calendar]
Next week's oral arguments before the Court of Appeals (week of 10/5/09):
Next Monday, October 5th
- 2:00 PM - Newland Resources, LLC., v. The Branham Corporation - Newland Resources, LLC entered into an agreement with The Branham Corporation under which Branham was obligated to provide assistance to Newland in the negotiation of contracts with the City of Indianapolis and the Indianapolis Water Company for the sale of water and acceptance of sewage flow from an area serviced by Boone County Utilities, LLC, a wholly-owned utility operating company formed by Newland to provide water and sewer utilities. The agreement also included provisions for a success fee payable to Branham in the event Boone County Utilities was sold to a third party under certain conditions. Newland appeals from a jury verdict in favor of Branham for $397,853.92 on Branham's complaint for breach of contract against Newland for payment of the success fee. In addition to numerous allegations of procedural errors, both Newland and Branham challenge the interpretation of the contractual provisions triggering the entitlement to and calculation of the success fee. The Scheduled Panel Members are: Judges Friedlander, Najam and Vaidik. [Where: Court of Appeals Courtroom (WEBCAST)]
Next Tuesday, October 6th
- 11:00 AM - Jeremy D. Simpson v. State of Indiana - A jury convicted Jeremy Simpson of voluntary manslaughter and criminal recklessness. On appeal, Simpson raises three issues: (1) that the State failed to rebut his self-defense claim; (2) that the trial court erred in refusing to recall a State's witness after defense counsel discovered that he had written a letter to the trial court requesting a modification of his sentence in another case and expressing concern for his safety; and (3) that the trial court erred in refusing one of his final jury instructions regarding the presumption of innocence. The Scheduled Panel Members are: Chief Judge Baker, Judges Crone and Bradford. [Where: Indiana Wesleyan University, Marion Campus, Marion, Indiana]
Next Wednesday, October 7th
- 1:30 PM - Michael Greer and John Maggi v. Edwin G. Buss, Commissioner of the Indiana Department of Corrections, et al. - Michael Greer and John Maggi filed a proposed class action seeking declaratory and injunctive relief with respect to the Indiana Department of Correction (DOC) policy that individuals convicted of certain sex or violent offenses which required registration for a ten-year period must register for an additional ten-year period upon a subsequent conviction for any criminal offense. According to DOC, such additional registration was required by statute. Greer and Maggi appeal the trial court order that both dismissed their proposed class action and granted summary judgment to DOC thereon.
The Scheduled Panel Members are: Judges Darden, Robb and Mathias. Where: Court of Appeals Courtroom (WEBCAST)]
- 2:30 PM - Dustin Neff v. State of Indiana - In this appeal from the Hamilton Superior Court, Dustin Neff appeals his conviction for one count of Class C felony child solicitation. Neff contends there is insufficient evidence that he committed the offense as charged. He also argues that the State failed to prove venue in Hamilton County where Neff, located in Madison County, chatted online with an individual in Georgia who was posing as a twelve-year-old girl, and Neff drove to a prearranged meeting place in Hamilton County. The Scheduled Panel Members are: Judges Barnes, Crone and Bradford. [Where: Indiana University, South Bend]
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 28, 2009 09:22 AM
Posted to Upcoming Oral Arguments