Monday, February 28, 2011
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 2/28/11):
Thursday, March 3rd
- 9:00 AM - Anne Waltermann Murphy, et al. v. William Curtis, et al. (49A04-0909-CV-503) - In this class action, Medicaid applicants filed a complaint alleging that, in appeals from the denial of benefits, administration law judges violated their due process rights by considering only evidence of disabilities listed in their initial applications and not evidence of other disabilities. The Marion Superior Court entered summary judgment for the Medicaid applicants. A majority of the Court of Appeals reversed. Murphy v. Curtis, 930 N.E.2d 1228 (Ind. Ct. App. 2010). The Medicaid applicants have petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a July 21, 2010, 2-1 COA opinion where the dissent wrote: "While I join the majority with respect to the Class' waiver and law of the case argument, I part ways with the majority's conclusion that an ALJ's refusal to consider evidence of conditions not disclosed on a Medicaid disability application does not violate federal Medicaid law and the Due Process Clause of the Fourteenth Amendment."
- 9:45 AM - Steven Spangler v. Barbara Bechtel (49S05-1012-CV-703) - When parents of a stillborn baby sued the midwife and hospital for wrongful death and negligent infliction of emotional distress, the Marion Superior Court granted the defendants summary judgment. The Court of Appeals reversed, holding that the parents have a valid claim for negligent infliction of emotional distress and should be allowed to proceed on it. Spangler v. Bechtel, 931 N.E.2d 387 (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 24-page July 27, 2010 COA opinion, reversing the trial court. The COA: "We therefore hold that Brown's direct involvement in the stillbirth allows Parents to proceed on their negligent infliction of emotional distress claim against Midwife, and we conclude that the trial court erred in granting Midwife's motion for summary judgment."
- 10:30 AM - Matter of C.G.; Z.G. v. Indiana Department of Child Services (49A04-1002-JV-75) - The Marion Superior Court terminated an incarcerated mother's parental rights. The Court of Appeals affirmed; holding that irregularities in the CHINS proceeding and the denial of the mother's request to be transported to the final hearing did not warrant reversal. Matter of C.G., 933 N.E.2d 494 (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. 26, 2010 COA opinion - here is the ILB summary.
Next week's oral arguments before the Supreme Court (week of 3/7/11):
- 9:00 AM - Joseph Matthews v. City of Indianapolis (49A02-1002-CT-110) - Matthews alleges personal injury when his motorcycle collided with a truck at an intersection. Matthews’s complaint alleges the City is liable because it failed replace a stop sign at the intersection. The Marion Superior Court entered summary judgment for the City, but the Court of Appeals reversed in an unpublished memorandum decision. Matthews v. City of Indianapolis, No. 49A02-1002-CT-110 (Ind. Ct. App. 2010), trans. pending. The City has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a July 16, 2010, NFP COA opinion, holding: "In sum, we hold that the trial court erred when it granted summary judgment to the City. Genuine issues of material fact exist on the questions of the City’s constructive notice of the missing stop sign, whether the missing stop sign proximately caused Matthews’s injuries, and whether Matthews was contributorily negligent. Hence, we reverse and remand for further proceedings."
- 9:45 AM - D.M. v. State of Indiana (49S02-1101-JV-11) - In juvenile court proceedings, D.M. objected to the admission of his confession on grounds he did not have an opportunity for meaningful consultation with his mother. The Marion Superior admitted the confession and found D. M. delinquent for committing acts that would have constituted burglary and theft. The Court of Appeals affirmed in a not-for-publication Memorandum Decision, D. M. v. State, No. 49A02-1005-JV-551 (Ind. Ct. App. Nov. 12, 2010), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is a Nov. 12, 2010, NFP COA opinion where the COA wrote: "D.M. argues that the juvenile court erred by admitting his statement to police officers into evidence because he did not have an opportunity for a meaningful consultation with his mother before waiving his rights and that neither the waiver nor his subsequent statement were voluntarily made. Finding no error, we affirm."
- 10:30 AM - David Hopper v. State of Indiana (13S01-1007-PC-399) - Hopper pleaded guilty to operating a vehicle while intoxicated, and later petitioned for post-conviction relief on grounds he had not been adequately advised on waiving his right to counsel incident to the plea negotiations. The Crawford Circuit Court denied relief, the Court of Appeals reversed, and this Court held that certain advisements should be given. Hopper v. State, 934 N.E.2d 1086 (Ind. 2010). The State has petitioned for rehearing.
ILB: This will be interesting. ILB readers likely will recall the Sept. 28, 2010 3-2 opinion in David Hopper v. State of Indiana, where then-Justice Boehm wrote the majority opinion, and CJ Shepard wrote an impassioned dissent. Now J. Boehm has retired and been replaced by J. David, and the Court will hear argument on a petition for rehearing. The ILB wrote about this in more detail in a Jan. 22, 2011 entry.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 3/7/11):
Tuesday, March 1st
- 11:00 AM - In the Matter of the Trust of Harrison Eiteljorg (49A02-1005-TR-485) - The issue on appeal is whether the probate court properly determined that the trustees of the trust breached their duty to administer according to its terms mandating distrubutions. The Scheduled Panel Members are: Judges Baker, Vaidik, and Barnes. [Where: Court of Appeals Courtroom (WEBCAST)]
- 2:00 PM - Liberty Mutual Fire Insurance Company v. Gloria Tussey (45A03-1005-CT-234) - Liberty Mutual Fire Insurance Company ("Liberty Insurance") appeals, following a jury trial, from the award of $100,000.00 in underinsured motorist benefits to its insured, Gloria D. Tussey. Tussey suffered injuries in an automobile collision with tortfeasor, Derek Mish. Mish's insurer, State Farm, ultimately settled with Tussey for its policy limit of $100,000.00. In the Mish litigation, Tussey had deposed her orthopedic surgeon, who testified, in pertinent part, that a future knee replacement may be necessary and may be related to the accident. Liberty Mutual was not a party to Tussey's litigation against Mish, and did not receive notice of the deposition or have an opportunity to cross-examine the surgeon. Subsequently, Tussey filed suit against Liberty Mutual, alleging that because Mish was an underinsured motorist, Liberty Mutual was responsible for her damages in excess of $100,000.00. Before trial, Liberty Mutual moved to exclude the surgeon's deposition, pursuant to Indiana Trial Rule 32; or, in the alternative, to strike, as speculative and unduly prejudicial, that portion of the surgeon's testimony regarding Tussey's possible need for knee replacement surgery in the future. The trial court denied both motions. During Tussey's case-in-chief, in lieu of the surgeon's live testimony, the deposition transcript was published to the jury. On appeal, Liberty Mutual argues that the trial court's admission of the deposition in lieu of live testimony violated Indiana Trial Rule 32; and that assuming arguendo that the transcript was admissible on that ground, that the evidence was inadmissible as speculative, unduly prejudicial, and misleading or confusing to the jury. Tussey counters that Liberty Mutual has waived failed its Trial Rule 32 claim by failing to properly preserve it for appeal. Tussey also denies that the deposition transcript was otherwise inadmissible. The Scheduled Panel Members are: Judges Darden, Bailey, and Bradford. [Where: Court of Appeals Courtroom (WEBCAST)]
Wednesday, March 2nd
- 11:00 AM - Arnaldo Trabucco v. Pamela A. Trabucco (03A05-1003-DR-195 ) - Arnaldo Trabucco ("Husband") and Pamela Trabucco ("Wife") were married in 1988 and two children were born of the marriage. At all relevant times, Husband has been a board-certified urologist. Wife suffers from a painful, chronic nerve disorder, and during the marriage, she smoked marijuana as a form of pain management with Husband's approval. In early 2005, Husband and Wife were charged with felony possession of marijuana for growing marijuana in their home, and both subsequently pleaded guilty to a lesser-included misdemeanor. Husband claims his criminal conviction has had a significant negative impact on his medical career and that he has been unable to maintain his previous level of employment because of the conviction. As a result, Husband decided to open a private practice in Sparks, Nevada in March 2007, where he earns substantially less than he did in previous years.
Wife filed a petition for dissolution of marriage on December 12, 2007, and the trial court entered its final decree of dissolution in September 2009. Husband raises three issues on appeal: 1) whether the trial court abused its discretion by averaging his gross annual incomes from 2005, 2006, and 2007 to determine his gross weekly income for child support purposes, 2) whether the trial court erred in including certain assets as part of the marital estate, and 3) whether the trial court abused its discretion in valuing certain marital assets. The Scheduled Panel Members are: Judges Friedlander, May and Mathias. [Where: Court of Appeals Courtroom (WEBCAST)]
- 1:00 PM - Connie Brumley, et al v. Commonwealth Business College Education Corp., d/b/a Brown Mackie College (45A04-1002-CT-66) - Two sets of plaintiffs sued Commonwealth Business College Education Corporation d/b/a Brown Mackie College in two different Lake Superior Courts alleging, among other things, that Brown Mackie fraudulently represented that its surgical technology program was accredited, thereby inducing them to join the program. Because Brown Mackie lacked accreditation, students completing the program were ineligible to sit for the NBSTSA certification exam. The cases were eventually consolidated before Judge Gerald N. Svetanoff. Brown Mackie filed a motion to compel arbitration, arguing that plaintiffs executed an Enrollment Agreement containing a provision requiring that any dispute be submitted to arbitration. A hearing was held, at which evidence was presented that all plaintiffs except one also executed an Arbitration Agreement separate from the Enrollment Agreement. Unlike the Enrollment Agreement, the Arbitration Agreement did not contain any representations concerning Brown Mackie's accreditation. Judge Svetanoff reasoned that although Brown Mackie's alleged fraud may have affected the enforceability of the arbitration provision in the Enrollment Agreement, it did not affect the enforceability of the separate Arbitration Agreement because that agreement did not contain any of the representations at issue. Accordingly, Judge Svetanoff granted the motion to compel arbitration as to all plaintiffs except the one who did not execute the separate Arbitration Agreement. Plaintiffs appeal arguing that they should be entitled to seek relief through a court of law and not through arbitration. The Scheduled Panel Members are: Judges Baker, Vaidik and Barnes. [Where: Court of Appeals Courtroom (WEBCAST)]
Friday, March 4th
- 12:00 PM - Rebecca D. Kays v. State of Indiana (42A05-1007-CR-504 ) - Appellant appeals the trial court's order that she pay restitution as a term of her probation for conviction of a Class B Misdemeanor - Battery. The Scheduled Panel Members are: Chief Judge Robb and Judges Riley and May. [Where: Culver Cove Resort and Conference Center, 319 East Jefferson, Culver, Indiana]
Next week's oral arguments before the Court of Appeals (week of 3/7/11):
Wednesday, March 9th
- 10:00 AM - Robert L. Clark 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. [Rescheduled from 02/01/2011] The Scheduled Panel Members are: Chief Judge Robb and Judges May and Vaidik. [Where: Court of Appeals Courtroom (WEBCAST)]
- 11:00 AM - Mario Brown v. State of Indiana (49A02-1008-CR-905) - In 2009, Mario Brown was convicted for operating a vehicle after his driving privileges were forfeited for life, and the trial court sentenced him to three years on home detention. On July 15, 2010, Marion County filed a Notice of Community Corrections violation. Brown admitted that he violated the terms of his placement by testing positive for marijuana, and the trial court ordered his sentence to be served in the Department of Correction. The court credited Brown for the 412 days served on home detention but denied his motion to award good time credit for those days. In this appeal, Brown argues that IC 35-38-2.6-6, amended effective July 1, 2010 to permit good time credit for home detention, is remedial in nature and should be applied to him. He also contends that the denial of retroactive application of the amended statute violates his equal protection rights. The Scheduled Panel Members are: Judges Najam, Darden and Bailey. [Where: Jeffersonville High School, Jeffersonville, Indiana]
ILB: I'm sorry to read the Brown argument will be in Jeffersonville and thus not webcast. It looks to be a fascinating issue.
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 February 28, 2011 09:36 AM
Posted to Upcoming Oral Arguments