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Monday, July 26, 2010

Ind. Courts - How have the judges fared? Judge Robyn Moberly

As explained in the post headed "How Have the Judges Fared?" the ILB is examining the records on appeal of the four trial judge semi-finalists for the Supreme Court vacancy. This feature on Judge Robyn Moberly's record, from IU Law-Indy Prof. Joel Schumm, is the third of those entries.

Judge Robyn Moberly has served on the Marion County Superior Court since January 1997. She spent the first two years in domestic violence court and then served for two years in Criminal Court 2, which hears major felony cases. Since January 2001 she has presided in a court that hears a wide range of civil cases.

Judge Moberly's application notes she receives about 2,400 new cases each year, including "litigation over non-compete clauses, high conflict and high asset dissolutions of marriage, shareholder disputes and contract disputes." (p. 5) This is borne out by a review of the cases appealed, which are more numerous and often more complex than those from Boone and Johnson counties, as discussed in the entries on Judge David and Judge Emkes.

Of the 71 cases reviewed on appeal, Judge Moberly was reversed in 20 (or 28%).

One high profile case excluded from the analysis is Donovan v. Grand Victoria Casino & Resort, where the Court of Appeals reversed, holding “Donovan is entitled to summary judgment on his request for a declaratory judgment to the effect that Grand Victoria may not exclude him from blackjack because he counts cards.” Transfer was granted on March 1, 2010, and the case was argued before the Indiana Supreme Court on April 7. A decision has not yet been issued, and Governor Daniels recently told the graduating class at Franklin College that he hopes the card-counting Mr. Donovan prevails. If Judge Moberly becomes Justice Moberly, she would surely recuse if the case is still pending.

Supreme Court

Civil cases

Ind. Dep’t of Environmental Mgmt. v. Raybestos Products Co. (2008) - “Because the Agreed Order does not support a claim for damages and was not violated by IDEM's actions, the trial court's orders denying IDEM’s motions to dismiss and for summary judgment are reversed. This case is remanded with instructions to vacate the judgments in favor of Raybestos and dismiss the complaint for lack of subject matter jurisdiction.”

David A. Ryker Painting Co., Inc. v. Nunamaker (2006) - “In this labor wage dispute asserting application of the Indiana Wage Payment Statute, the defendant, David A. Ryker Painting Company, Inc., appeals the trial court's judgment in favor of an employee, the plaintiff, George E. Nunamaker. We reverse.” (3-2 opinion with Justice Sullivan and Justice Rucker dissenting).

Associated Medical Networks, Ltd. v. Lewis (2005) - “This appeal challenges the trial court's determination that the predominance and superiority requirements of Indiana Trial Rule 23(B)(3) were satisfied for purposes of maintaining a class action. Concluding that predominance was not established, we reverse the class certification.”

Criminal cases

Hopkins v. State, 759 N.E.2d 633 (Ind. 2001) - “Here, we find that the trial court clearly erred by failing to instruct the jury on the specific intent necessary to establish accomplice liability for attempted murder. Final instructions 10 and 11 informed the jury of the state of mind that generally is required to convict a defendant of a crime based on accomplice liability. But these instructions did not inform the jury that in order to convict, it was required to find that Defendant intended to kill Martinez when he took the steps that helped Edward to kill him.”

Court of Appeals

Civil cases

Ashby v. Davidson (2010) - In a legal practice case, the Court of Appeals concluded: “It seems to us that the purpose behind the notice provision at issue here has more to do with the ability of the carrier to investigate and defend against claims in a timely manner than with the ability of a carrier to deny coverage because actual notice was supplied by the wrong individual, i.e., ‘gotcha.’ We decide as a matter of law that the actual notice Bar Plan received from the Clients was proper.”

White-Rodgers v. Kindle (2010) - “Consequently, because White-Rodgers had already produced all non-privileged materials pursuant to the underlying discovery orders, the trial court abused its discretion when it imposed sanctions, and we reverse and remand for the continuation of the underlying litigation.”

In re Marriage of Tamika (B.) H. (2010) - “The record supports a finding Mother was in contempt of the May 2007 parenting time order, and therefore, the trial court's judgment is affirmed in that regard. However, the trial court abused its discretion in awarding Father attorney fees. Therefore, we reverse the award of attorney fees and direct the trial court to clarify how the parties are to determine Father's weekend for parenting time.”

Cook v. Ford Motor Co. (2009) - “Although a jury may very well find for Ford with regard to the breach of its duty to warn or the proximate cause of Lindsey's injury, we cannot say that the designated evidence leads to but a single inference so as to render the issues questions of law, not fact. Ford failed to negate an element of the Cooks' failure to warn claim as a matter of law, and summary judgment was therefore inappropriate. Accordingly, the trial court's grant of summary judgment to Ford on the Cooks' failure to warn claim is reversed and this case is remanded for further proceedings.”

Reilly v. City of Indianapolis (2009) - “While Grady argues that it is undisputed that it did not own the truck or place the pile of rocks and debris in the roadway, both of which Mitch claimed obstructed his vision, the designated materials do not establish this fact. Mitch's deposition testimony establishes that he did not know if the pile of rocks was placed there by Grady or if the truck obstructing his view was owned by Grady. Grady bore the burden under Jarboe to demonstrate that Mitch, the party bearing the burden of proof at trial, cannot prevail as to a determinative issue. This Grady has failed to do. The trial court erred in granting Grady's motion for summary judgment.”

Gibson v. Ind. Dep’t of Corrections (2008) - “Therefore, we conclude that the court's preliminary injunction should apply only to members of the subclass represented by Wade. Such members are violent offenders who are or will be more than ten years removed from the later of the date they were released from prison, placed on parole or probation, or placed in a community corrections, and who are not sexually violent predators, were not convicted of an offense while over the age of eighteen against a victim less than twelve, and have not been convicted of two or more unrelated offenses under Indiana Code Section 11-8-8-5 (a). To the extent that the trial court's order would grant a preliminary injunction against lifetime registration for all violent offenders, we reverse and remand with instructions to clarify the preliminary injunction consistent with this opinion. In all other respects, we affirm the trial court.”

Curtis v. Roob (2008) - “In light of the purpose behind the Medicaid fair hearing regulations-to ensure that applicants have an opportunity to present evidence supporting their claims for benefits-and the authority to the effect the ‘de novo hearing’ required by the regulations is one where additional evidence may be received, we cannot say the facts alleged in the complaint are ‘incapable of supporting relief under any set of circumstances.’ The complaint therefore should not have been dismissed and we must accordingly reverse.”

Commissioner of Labor ex rel. Murphy v. Shree Ji Bava, LLC (2008) - “The Commissioner has made a showing of prima facie showing that he is entitled to $1,774.50 in attorney fees and appellate attorney fees. We reverse and remand.”

McDonough v. McDonough (2007) - “The trial court properly entered judgment in favor of the Estate. However, although the trial court's decision to award prejudgment interest to the Estate was proper, we reverse and remand with instructions to recalculate the judgment in a manner consistent with this opinion because the trial court also should have awarded prejudgment interest to Nancy on her claims against the Estate.”

Lane-El v. Spears (2007) - “Overall, we find that Lane-El substantially complied with the requirements of service in Indiana Trial Rule 4.6. Lane-El delivered all necessary documents to the clerk of the court for proper summons to be delivered. As an incarcerated prisoner, he was forced to rely on the clerk to ensure the return receipts were delivered. Whether these receipts were ever returned may not be clear from the record, but the summons was apparently effective because counsel for the Police appeared before the trial court.”

Hecht v. State (2006) - “Thus, until Hecht files a claim for refund with the Department of Revenue, ‘the judiciary of this state lacks subject matter jurisdiction over the cause of action.’ Accordingly, we hereby reverse and remand with instructions to the trial court to dismiss Hecht's case.”

Metropolitan Emergency Communications Agency v. Cleek (2005) - “James Cleek (“Cleek”) and Molly Cleek filed a complaint in Marion Superior Court against the Metropolitan Emergency Communications Agency (“MECA”) and its employee, Eric Wright (“Wright”), alleging that Wright's negligent conduct caused injuries to Cleek. MECA and Wright moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to the exclusivity provision of the Worker's Compensation Act. In response, Cleek, a Marion County Sheriff's Deputy, asserted that MECA is an agency of the City of Indianapolis, and not Marion County. The trial court denied MECA's and Wright's motion to dismiss. Concluding that MECA is an agency of Marion County, we reverse and remand.”

Price v. Freeland (2005) - “In sum, we hold that no genuine issue of material fact exists regarding two elements of Freeland's legal malpractice claim against Price, namely, proximate cause and damages. As such, the trial court erred when it denied Price's summary judgment motion. We reverse and remand with instructions to enter summary judgment in favor of Price.”

Criminal cases

Craun v. State, 762 N.E.2nd 230 (Ind. Ct. App. 2002) - “Even if the challenged testimony was relevant to a matter other than propensity, its negligible probative value was substantially outweighed by the danger of unfair prejudice under Evidence Rule 403. The testimony of E.W. and D.D. served only to demonstrate Craun's criminal propensity and did nothing to assist the jury in deciding a matter at issue vis-à-vis his alleged molestation of H.D.”

Hopkins v. State, 747 N.E.2d 598 (Ind. Ct. App. 2001) - “We find that Hopkins' convictions of robbery as Class A felonies should be reduced, pursuant to double jeopardy grounds, to Class B felonies. We remand to the trial court for reduction of those convictions, and for resentencing consistent with this opinion.”

Taylor v. State, 735 N.E.2d 308 (Ind. Ct. App. 2000)
- “Taylor argues that the trial court's finding of T.'s unavailability was improper because it lacked the statutory requirement of “testimony from a physician, psychiatrist or psychologist stating that [T.] ... would suffer serious emotional distress of being unable to communicate if made to testify in the Defendant's presence.” Taylor contends the erroneous admission of T.'s statement requires the reversal of his conviction for criminal deviate conduct as to T. We agree.”

Posted by Marcia Oddi on July 26, 2010 09:52 AM
Posted to Vacancy on Supreme Ct