Monday, August 22, 2011
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 8/22/11):
- No oral arguments currently scheduled.
Next week's oral arguments before the Supreme Court (week of 8/29/11):
Next Thursday, September 1st
- 9:00 AM - Henry Howard v. United States (94S00-1106-CQ-333) -
Pursuant to Indiana Appellate Rule 64, the United States Court of Federal Claims certified the following question of Indiana law for the Indiana Supreme Court's consideration, which the Indiana Supreme Court accepted on June 23, 2011. The question, as framed by the federal court, is:
"Under Indiana law, are railbanking and interim trail use pursuant to 16 U.S.C. § 1247(d) uses that are within the scope of the easements acquired by the railroad companies either by prescription, condemnation, or the deed at issue; and if either is not within the scope of the easements originally acquired, is railbanking with the interim tr[ai]l use a shifting public use?"
- 9:45 AM - K.D., et al.; S.S. v. Indiana Department of Child Services (49S02-1107-JC-416) - After a mother admitted to allegations that her children were in need of services ("CHINS") but their stepfather denied the allegations, the trial court adjudicated the children to be CHINS without a fact-finding hearing. The Court of Appeals reversed, holding that the stepfather was denied due process. Matter of K.D., 942 N.E.2d 694 (Ind. Ct. App., Feb. 15 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a Feb. 15, 2011 2-1 opinion reversing the trial court. The dissent begins: "I do not believe the trial court violated Stepfather‘s right to due process when it declared his step-children to be in need of services based on their Mother‘s admission to the allegations in the amended CHINS petition, without hearing evidence from Stepfather following his denial of the CHINS allegations."
- 10:30 AM - The Presbytery of Ohio Valley, Inc. v. OPC, Inc. (82S02-1105-MF-314) - The Vanderburgh Circuit Court granted summary judgment to OPC, concluding that it is the owner of certain church property. The Court of Appeals reversed and remanded with instructions to enter judgment for the Presbytery, with a declaration that OPC has no right to the property and with a constructive trust on that property in favor of the Presbytery. The Presbytery of Ohio Valley, Inc. v. OPC, Inc., 940 N.E.2d 1188 (Ind. Ct. App., Dec. 14, 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 opinion here.
- Roy Lee Ward v. State of Indiana (74S00-0907-PD-320) - CANCELLED
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 8/22/11):
Wednesday, August 24th
- 1:30 PM - Natalie A. Miller, et al. v. Morton Grove Pharmaceuticals, et al (39A05-1009-PL-546) - Natalie Miller, et al., sued Morton Grove Pharmaceuticals, Inc., and CVS Pharmacy, Inc., claiming their defective manufacturing and distribution of a prescription drug led to the death of Miller's four-year-old daughter. The trial court granted summary judgment to Morton Grove and CVS. On appeal, Miller argues the trial court erred by: finding that Morton Grove was entitled to a rebuttable presumption that the drug was not defectively manufactured, finding a lack of causation from manufacture and distribution of the drug to the child's death, and excluding an expert's opinion in support of Miller's claims. Morton Grove and CVS cross-appeal the denial of their motion to exclude additional expert testimony in support of Miller's claims. The Scheduled Panel Members are: Chief Judge Robb, Judge Riley and Sr. Judge Sullivan. [Where: Court of Appeals Courtroom (WEBCAST)]
Thursday, August 25th
- 1:00 PM - Angela K. Farno v. Ansure Mortuaries of Indiana, LLC, et al. (41A05-1002-PL-104) - Appellant Angela K. Farno pre-paid for a burial space and funeral services and merchandise from Forest Lawn Memory Gardens in Greenwood. She filed a putative class action lawsuit asserting numerous claims against numerous defendants (including Ansure Mortuaries of Indiana, LLC, and appellees Smith Barney, Craig R. Bush, Forethought Federal Savings Bank, and Forest Lawn Memory Gardens, Inc.) that allegedly were involved in the purchase of four Indiana cemeteries and the subsequent looting of their trust funds. The trusts had been established pursuant to Indiana law to ensure the delivery of the "pre-need" funeral services and merchandise and the perpetual care of the burial spaces. The trial court dismissed the claims regarding the perpetual care trust funds but upheld most of the remaining claims.
Pursuant to Indiana Trial Rule 23, Farno filed a motion requesting the certification of a litigation class of plaintiffs who all share claims based on the alleged looting of the "pre-need" trust funds. Farno asserted that "a class action is the most fair, efficient, and economical method of resolving the customers' claims to restore the pre-need trust funds and to ensure that customers' pre-paid burial services and merchandise will be provided when they pass away." The trial court denied Farno's motion, concluding that her class action was "not superior to other available methods for the fair and efficient adjudication of the issues in controversy," as would be required for class certification under Trial Rule 23. According to the trial court, those "other available methods" included lawsuits that had been filed by the Indiana Securities Commissioner and a court-appointed receiver for Ansure Mortuaries, as well as a pending sale of the cemeteries.
In this interlocutory appeal, Farno first contends that the trial court erroneously considered and resolved the merits of contested issues in ruling on her motion for class certification. Farno also contends that the trial court erroneously considered the pending sale of the cemeteries and other lawsuits involving different claims and parties in determining whether her class action is "superior to other available methods for the fair and efficient adjudication of the controversy" pursuant to Trial Rule 23. The Scheduled Panel Members are: Chief Judge Robb, Judges Najam and Crone. [Where: Supreme Court Courtroom (WEBCAST)]
- 3:00 PM - Matthew Goldberg, et al. v. Angela K. Farno, et al. (41A01-1007-MF-348) - Appellants Matthew Goldberg and Indiana Investment Corporation, LLC, were named as defendants in a putative class action lawsuit filed by appellee Angela K. Farno against Ansure Mortuaries of Indiana, LLC, and others regarding the alleged looting of cemetery trust funds. Farno filed a motion for certification of a litigation class of plaintiffs who all share claims based on the alleged looting of certain trust funds. The trial court denied Farno's motion, concluding that her class action was "not superior to other available methods for the fair and efficient adjudication of the issues in controversy," as would be required for class certification under Indiana Trial Rule 23. Farno requested and received a stay of the proceedings pending an appeal from that ruling. Farno then asked the trial court to lift the stay so that she could seek preliminary approval of a class action settlement agreement that she had reached with various defendants, including appellee Forest Lawn Memory Gardens, Inc. She also asked the trial court to grant preliminary approval of the settlement agreement and to certify the plaintiff class for settlement purposes, stating that the settling defendants had stipulated for settlement purposes that the "superiority" requirement of Trial Rule 23 was met. Over Goldberg's objection, the trial court granted preliminary approval of the settlement agreement and certified the plaintiff class for settlement purposes. In this interlocutory appeal, Goldberg and Indiana Investment first contend that the trial court did not have jurisdiction to certify the settlement class while the court's prior ruling on the litigation class was being appealed. They also contend that the trial court's certification of the settlement class was improper, claiming that Farno presented no additional evidence to support certification of the same class for settlement purposes. The Scheduled Panel Members are: Chief Judge Robb, Judges Najam and Crone. [Where: Supreme Court Courtroom (WEBCAST)]
Next week's oral arguments before the Court of Appeals (week of 8/29/11):
Next Tuesday, August 30th
- 10:30 AM - Continental Insurance Company, et al, v. Wheelabrator Technologies, Inc., et al (49A02-1010-PL-1110) - This interlocutory appeal is a consolidated appeal from two orders issued by the Marion Superior Court denying insurers' motions for summary judgment. In their motions, the insurers claimed that appellees are not entitled to insurance coverage for pre-1986 claims under assignments made without their consent of various policies of insurance issued by the insurers to named insured who were predecessors in interest to the appellees. At issue is whether the trial courts' decisions contravene Travelers Casualty & Surety Co., Inc. v. United States Filter Corp., 895 N.E.2d 1172 (Ind. 2008). The Scheduled Panel Members are: Judges Kirsch, Vaidik, and, Mathias. [Where: Supreme Court 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 August 22, 2011 08:56 AM
Posted to Upcoming Oral Arguments