Monday, January 10, 2011
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 1/10/11):
Next Thursday, January 13th
- 9:00 AM - Alva Curtis v. State of Indiana (49S02-1010-CR-620) - The Marion Superior Court found that Curtis is incompetent to stand trial on charges of residential entry and battery and that he would never become competent, but the court denied Curtis’s motion to dismiss and did not commit him to the Indiana Department of Mental Health. In this interlocutory appeal, the Court of Appeals reversed the trial court and remanded with instructions to dismiss the charging information. Curtis v. State, 932 N.E.2d 204 (Ind. Ct. App. 2010), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was an Aug. 5, 2010 COA opinion where: "Curtis contends that because he is permanently incompetent to stand trial, the pending criminal charges against him should be dismissed and discharged. We reverse and remand with instructions to dismiss the charging information." The opinion quotes from an earlier COA opinion (Habibzadah - 2009): "Our criminal justice system needs an earlier and intervening procedure to determine competency retroactively to the time of the alleged crime. Perhaps we as a society need to consider the concept of a defendant being unchargeable because of mental illness under Indiana Code section 35-41-3-6, and not just guilty but mentally ill under Indiana Code section 35-36-2-1, et. seq. "
- 9:45 AM - Cedric Lewis v. State of Indiana (49S02-1010-CR-619) - The Marion Superior Court admitted a handgun found during a warrantless search of Lewis's vehicle, and Lewis was convicted of possession of a firearm by a serious violent felon, a class B felony. The Court of Appeals reversed in Lewis v. State, 931 N.E.2d 875 (Ind. Ct. App. 2010), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a 2-1 July 27, 2010 COA opinion (here, 5th case) - Whether the trial court properly admitted the handgun found during a warrantless search of Lewis’ vehicle.
- 10:30 AM - Randy O’Brien, et al. v. Bar Plan Mutual Insurance Company (49S04-1011-CV-635) - In this legal malpractice case, the Marion Superior Court granted summary judgment to the defendant-attorney's professional liability insurance company on its claim seeking a declaration that its policy provided no coverage with regard to the plaintiff-clients' malpractice claims. The Court of Appeals reversed, holding that written notice of the plaintiff-clients' claims, which they themselves provided to the insurance company, satisfied the policy's requirement that the insured provide prompt notice of claims to the company. Ashby v. Davidson, 930 N.E.2d 53 (Ind. Ct. App. 2010), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal
ILB: See summary of COA July 14, 2010 opinion here - 2nd case. From the opinion: "Ashby and O'Brien separately filed complaints each alleging professional malpractice against Davidson. * * * Bar Plan argues that even though it received actual written notice of the Clients' claims, there is no coverage under the policy because Davidson, the Insured, did not supply the written notice to Bar Plan and that Davidson did not receive a demand from the Clients within the policy period. Bar Plan contends that this court's opinion in Paint Shuttle supports its position; however, we conclude that Paint Shuttle does not support Bar Plan's argument."
Next week's oral arguments before the Supreme Court (week of 1/17/11):
Next Thursday, January 20th
- 10:00 AM - State of Indiana v. FreeEats.com (07S00-1008-MI-411) - This case involves the attempted enforcement of the Indiana Autodialer Law, see Indiana Code ch. 24-5-14, by the State of Indiana against the Appellees. On June 10, 2010, the Brown Circuit Court granted in part and denied in part Appellee FreeEats.com, Inc.’s motion for a preliminary injunction. The State appealed the circuit court’s order and sought immediate transfer of the appeal to the Supreme Court pursuant to Indiana Appellate Rule 56(A), which the Court granted.
ILB: Here is a list of a number of ILB entries involving robocalls suits.
- 10:45 AM - City of Greenwood v. Town of Bargersville (41S05-1012-CV-666) - The City of Greenwood filed a declaratory judgment action against the Town of Bargersville, challenging the Town's annexation of land within three miles of the City's corporate boundary. The Johnson Superior Court granted the Town summary judgment. The Court of Appeals reversed on grounds the Town did not have the consent of 51% of the landowners. City of Greenwood v. Town of Bargersville, 930 N.E.2d 58 (Ind. Ct. App. 2010), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is the July 15, 2010 case re annexation of a section of State Road 135. See ILB entry here.
- 11:30 AM - Jeffery McCabe v. Commissioner, Indiana Department of Insurance /
Hematology-Oncology of Indiana, P.C., v. Hadley Fruits (49S02-1010-CV-602) - The Court will hold a combined oral argument in these two cases that address, in part, whether attorney's fees and litigation expenses are recoverable damages under the Adult Wrongful Death Statute. The Court has not otherwise consolidated the appeals under Appellate Rule 38(B). The Court has granted transfer in McCabe v. Commissioner, Indiana Department of Insurance, 930 N.E.2d 1202 (Ind. Ct. App. 2010), vacated, and assumed jurisdiction over the appeal. In Hematology-Oncology Of Indiana, P.C. v. Fruits, 932 N.E.2d 698 (Ind. Ct. App. 2010), Hematology-Oncology has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: Re McCabe, 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. Re Hadley Fruits, see this ILB entry from Aug. 18, 2010, including the footnote, which indicates that McCabe is contrary.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 1/10/11):
Monday, January 10th
- 1:00 PM - Steve Weinreb v. TR Developers, LLC., et al (49A05-1003-CT-152 ) - This 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: 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: Judges Baker, Najam and Mathias. [Where: Court of Appeals Courtroom (WEBCAST)]
Wednesday, January 12th
- 10:00 AM - Jerry Ehman vs. Mary Ehman (48A02-1006-DR-691) - The parties' marriage was dissolved in 2007, and Appellee Mary Ehman was awarded a share of Appellant Jerry Ehman's personal savings plan. The trial court later issued a Qualified Domestic Relations Order regarding Jerry's personal savings plan. Mary subsequently asked the trial court to assist her in enforcing the provision of the divorce decree regarding the personal relations plan, and Jerry filed a motion for relief from judgment regarding the same provision. The trial court entered judgment in favor of Mary, and Jerry appeals. Jerry contends that the trial court should have granted his motion for relief from judgment. He also contends that laches bars Mary's right to recover the entire portion of the personal savings plan that was awarded to her in the divorce decree. The Scheduled Panel Members are: Judge Baker, Judge May and Senior Judge Sharpnack. [Where: Court of Appeals Courtroom (WEBCAST)]
Thursday, January 13th
- 10:00 AM - Hannah Lakes v. Grange Mutual Casualty Company (89A05-1009-CT-549 ) - Appellant, Hannah Lakes, brings this appeal, disputing the trial court's grant of summary judgment in favor of Appellee, Grange Mutual Casualty Company. Lakes presents us with two issues on appeal:
First, she contends that the trial court erred when it found that Indiana Code section 27-7-5-2(a) does not mandate that the per person minimum of underinsured motorist coverage in Indiana is $50,000.00. In response to Lakes' argument, Grange Mutual asserts that the underinsured motorist coverage is not applicable because the vehicle driven by the tortfeasor is not an underinsured motor vehicle within the confines of Lakes' insurance policy or under Indiana's underinsured motor vehicle statute.
Second, Lakes claims that the trial court erred when it found that Lakes was not entitled to underinsured motorist benefits under her insurance policy where the limits of coverage available for payment to Lakes from the tortfeasor's liability insurance was $5,100.00. The Scheduled Panel Members are: Chief Judge Robb, Judges Riley and Brown. [Where: Court of Appeals Courtroom (WEBCAST)]
- 1:30 PM - B&B, LLC., vs. Lake Erie Land Company (45A04-1002-PL-183 ) - Appellant appeals the trial court's grant of judgment on the evidence against Appellee for trespass, nuisance and negligence. The Scheduled Panel Members are: Judge Baker, Judges Darden and Bradford. [Where: Court of Appeals Courtroom (WEBCAST)]
Next week's oral arguments before the Court of Appeals (week of 1/17/11):
Next Tuesday, January 18th
- 10:00 AM - Company v. Review Board of Indiana Department of Workforce Development (93A02-1007-EX-799) - D.Z. sold his business to and entered into an employment contract with Company. Company later terminated D.Z.'s employment, and D.Z. applied for unemployment benefits. After the initial intake deputy denied D.Z.'s application, D.Z. sought review before an ALJ. The ALJ concluded that Company discharged D.Z. for an alleged violation of his employment contract but also concluded that Company did not present evidence that D.Z. had, in fact, violated the terms of the employment contract. Thus, the ALJ concluded that D.Z. was not discharged for just cause and was therefore entitled to unemployment benefits. The Review Board of the Indiana Department of Workforce Development affirmed the ALJ's decision, and Company appeals. On appeal, Company argues that the terms of D.Z.'s employment contract do not preempt the statutory definitions of just cause for discharging an employee and that there was substantial evidence that D.Z. was discharged for just cause. The Scheduled Panel Members are: Judges Friedlander, May and Mathias. [Where: Court of Appeals Courtroom (WEBCAST)]
Next Wednesday, January 19th
- 12:30 PM - Anderson Property Management, LLC, vs. H. Anthony Miller, Jr. (43A03-1003-PL-239 ) - Defendant in this action for declaratory judgment arising from a land sale in 2004 appeals trial court's judgment ordering enforcement of a mediation agreement contending trial court erred in finding that Plaintiff could waive a condition precedent in mediation agreement. The parties argue about a condition precedent to mediation agreement (that encroachment of Defendant's building was three feet on land subject to negative easement). This Court also asks both parties to address the issue of a mutual mistake of fact (amount of the encroachment) that renders the agreement unenforceable. The Scheduled Panel Members are: Chief Judge Robb, Judges Kirsch and Bradford. [Where: Krannert Center for Executive Education, Purdue University, West Lafayette, Indiana ]
Next Thursday, January 20th
- 2:00 PM - County Council of Porter County v. Northwest Indiana Regional Development Authority (37A04-1004-CT-291) - In this case, Porter County held a vote to withdraw itself from being a member of the NW Indiana Regional Development Authority (RDA). Subsequently the Legislature passed two amendments stating that if Porter County ceased to be a member of the RDA, then other municipalities within the county could join and compel the county to pay CEDIT revenues to the RDA. The trial court ruled that Porter County could not withdraw from the NW Indiana RDA and that the subsequent legislation was constitutional under the State constitution. The Scheduled Panel Members are: Judges Friedlander, May and Mathias. [Where: Court of Appeals Courtroom (WEBCAST)]
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 January 10, 2011 06:45 AM
Posted to Upcoming Oral Arguments