Monday, December 13, 2010
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 12/13/10):
Thursday, December 16th
- 9:00 AM - Desmond Turner v. State of Indiana (49S00-0912-CR-656) - Having waived a jury trial in consideration for the State’s dismissal of a death penalty request, Turner had a bench trial in the Marion Superior Court. The Court found Turner guilty of seven counts of intentional murder and sentenced him to life imprisonment without the possibility of parole. Turner was also convicted of other charges for which he was sentenced to terms of years. In this direct appeal of the convictions, Turner argues the trial court erred in admitting certain evidence and that the evidence is insufficient to sustain the convictions.
- 9:45 AM - Jeffery McCabe v. Commissioner, Indiana Department of Insurance (49S02-1010-CV-602) - The personal representative of Jean McCabe's estate settled a medical malpractice action against medical providers and then filed a petition to determine the amount recoverable from the Indiana Patient's Compensation Fund. The Marion Circuit Court granted the Fund partial summary judgment on grounds that attorney's fees and administration expenses are not recoverable damages under the Adult Wrongful Death Act. The Court of Appeals affirmed. McCabe v. Commissioner, Indiana Department of Insurance, 930 N.E.2d 1202 (Ind. Ct. App. 2010), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: Here is the ILB summary of this July 20, 2010 COA opinion (3rd case), which involves interpreting the phrase “but are not limited to” included in the AWDS.
[CANCELLED] The Court issued this 12/10/10 Order:
THE COURT GRANTS HEMATOLOGY-ONCOLOGY'S MOTION, IN PART, AS FOLLOWS.
THE COURT HEREBY VACATES ITS ORDER SETTING MCCABE FOR ORAL ARGUMENT ON DECEMBER 16, 2010. AT A LATER DATE, THE COURT WILL SET MCCABE AND FRUITS FOR ONE COMBINED ORAL ARGUMENT. THE TWO CASES ARE BEING COMBINED FOR ORAL ARGUMENT PURPOSES ONLY, AND ARE NOT BEING CONSOLIDATED PURSUANT TO APPELLATE RULE 38(B).
THE COURT DENIES FRUITS' REQUEST THAT BROWN BE CONSOLIDATED WITH MCCABE AND FRUITS.
RANDALL T. SHEPARD, CHIEF JUSTICE
- 10:30 AM - Jeffrey Brunner v. State of Indiana (57S04-1010-CR-603) - Brunner pleaded guilty in 2000 to operating a vehicle while intoxicated as a Class D felony, and judgment was entered accordingly. In 2009, the Noble Superior Court granted Brunner’s request that the conviction be changed to a Class A misdemeanor, citing Indiana Code § 35-50-2-7(b). The Court of Appeals characterized Brunner’s request as one pursuant to the Rules of Post-Conviction Relief, but reversed on grounds the trial court did not have authority to modify the judgment. State v. Brunner, 931 N.E.2d 903 (Ind. Ct. App. 2010), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
Next week's oral arguments before the Supreme Court (week of 12/20/10):
Next Wednesday, December 22nd
- 9:00 AM - Steven Siwinski v. Town of Ogden Dunes (64S03-1010-CV-599) - The Town sued the Siwinskis alleging they violated a zoning ordinance by occasionally renting out their home on a short-term basis, The Porter Superior Court granted the Town summary judgment and injunctive relief and fined the Siwinskis. The Court of Appeals reversed and ordered summary judgment for the Siwinskis. Siwinski v. Town of Ogden Dunes, 922 N.E.2d 751 (Ind. Ct. App. 2010), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: For background see this March 17, 2010 ILB entry headed "Short-term rentals OK in Ogden Dunes."
- 9:45 AM - Cornelius Lacey, Sr. v. State of Indiana and Damion Wilkins v. State of Indiana (02S05-1010-CR-601) - Police executed a search warrant without first knocking on the door to Lacey’s residence. Lacey and Wilkins were charged with possession of a firearm by a serious violent felon and possession of marijuana. The Allen Superior Court denied motions to suppress evidence obtained during the search. The Court of Appeals reversed, holding that the “no-knock” execution of the search warrant was unreasonable under the Indiana Constitution. Lacey v. State, 931 N.E.2d 378 (Ind. Ct. App. 2010), vacated, and Wilkins v. State, 930 N.E.2d 652 (Ind. Ct. App. 2010), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: For background on both these COA opinions from July 27, 2010, see this ILB entry quoting a story headed "No-knock’ entry costly for city police: Court tosses drug-case evidence."
- 10:30 AM - Tom George, et al. v. National Collegiate Athletic Association (94S00-1010-CQ-544) - Pursuant to Indiana Appellate Rule 64, the United States Court of Appeals for the Seventh Circuit certified the following questions of Indiana law for the Indiana Supreme Court’s consideration, which the Indiana Supreme Court accepted on October 29, 2010. The questions, as framed by the circuit court, are:
1. Do the plaintiffs’ allegations about the NCAA’s method for allocating scarce tickets to championship tournaments describe a lottery that would be unlawful under Indiana law?
2. If the plaintiffs’ allegations describe an unlawful lottery, would the NCAA’s method for allocating tickets fall within the Ind. Code § 35-45-5-1(d) exception for “bona fide business transactions that are valid under the law of contracts”?
3. If the plaintiffs’ allegations describe an unlawful lottery, do plaintiffs’ allegations show that their claims are subject to an in pari delecto defense as described in Lesher [ v. Baltimore Football Club], 496 N.E.2d [785,] 790 n.1[ (Ind. Ct. App. 1986)] , and Swain v. Bussell, 10 Ind. 438, 442 (1858)?
ILB: For background, see this Oct. 18, 2010 ILB entry headed "NCAA issues sent by 7th Circuit to the Indiana Supreme Court."
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 12/13/10):
Thursday, December 16th
- 10:00 AM - Robert L. Clark, Jr. and Debra Clark v. Robert L. Clark, Sr. (01A02-1007-CT-759) - Robert L. Clark, Jr. (Junior) was injured when he was struck by a car driven by his father. The trial court granted summary judgment for the father, on the ground that Junior was being transported in or upon the motor vehicle for purposes of the application of the Indiana Guest Statute, Ind. Code § 34-30-11-1. The Scheduled Panel Members are: Judges May, Robb and Vaidik. [Where: Court of Appeals Courtroom (WEBCAST)]
- 2:00 PM - Greenwich Insurance Company v. Pollution Control Industries (45A03-0812-CV-592) - This is a dispute between an insurer and a policyholder regarding coverage for costs incurred by the policyholder for cleanup and removal of environmental waste. The insurer denied coverage based on a pollution exclusion provision in the general liability policy. The trial court found the pollution exclusion to be unenforceable due to ambiguity and granted summary judgment in favor of the policyholder. As part of its summary judgment order, the trial court also granted the policyholder's request for attorney's fees for unreasonable denial of coverage. The insurer challenges the trial court's ruling regarding both the enforceability of the pollution exclusion and the imposition of attorney's fees. The Scheduled Panel Members are: Judges Friedlander, Barnes and Crone. [Where: Court of Appeals Courtroom (WEBCAST)]
Friday, December 17th
- 1:00 PM - Steve Weinreb v. TR Developers, LLC., et al. (49A05-1003-CT-152) - DThis case involves a default judgment entered against Appellant Weinreb and Timber Ridge, LLC. National Consumer Bank obtained a judgment of foreclosure against Timber Ridge, LLC in the amount of nearly $4,000,000 after Timber Ridge defaulted on its loan payments. Weinreb, who had executed a loan guarantee, was found jointly and severally liable with Timber Ridge, LLC for "at least" $2,027,888.50 under his loan guarantee. National Consumer Bank later assigned its judgment to TR Developers. After the default judgment was entered, Timber Ridge, LLC and Weinreb filed a motion for relief for judgment seeking a stay of foreclosure because Weinreb alleged that he did not sign the loan guarantee. The trial court denied the motion, and Weinreb did not appeal the denial of this, his first Trial Rule 60(B) motion. After National Consumer Bank assigned its judgment to TR Developers, Weinreb and Timber Ridge, LLC filed a second motion for relief from judgment, through new counsel. Again, Weinreb argued that the signature on the loan guarantee had been forged. The trial court denied this motion, and Weinreb appeals from that denial arguing that the trial court abused its discretion when it denied his second Trial Rule 60(B) motion. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Mathias. [Where: Court of Appeals Courtroom (WEBCAST)]
- 2:30 PM - JK Harris & Company, LLC, vs. Ronald Sandlin (49A05-1003-CT-184) - In this case, Appellee Ronald Sandlin entered into a contract for professional tax relief services with Appellant JK Harris Co. JK Harris's attempt to resolve Sandlin's issues with the IRS was not successful. Sandlin filed a complaint in Marion Superior Court against JK Harris on behalf of himself and all others similarly situated alleging statutory deception and unjust enrichment as class claims, and negligence and breach of fiduciary duty as individual claims. Sandlin also filed a motion for class certification. JK Harris did not respond to either the complaint or to Sandlin's motion for class certification. The trial court granted Sandlin's motion for class certification. Also, without holding a hearing on the matter, the trial court entered a default judgment against JK Harris. JK Harris appeals the decision of the trial court to certify a class action and entry of default judgment against it. JK Harris also argues that the trial court lacked subject matter jurisdiction because the contract between the parties has a binding arbitration clause. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Mathias. [Where: Court of Appeals Courtroom (WEBCAST)]
Next week's oral arguments before the Court of Appeals (week of 12/20/10):
- No oral arguments currently scheduled.
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.
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 December 13, 2010 09:08 AM
Posted to Upcoming Oral Arguments