Monday, September 19, 2011
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 9/19/11):
Monday, September 19th
- 9:00 AM - Marion County Auditor, et al. v. Sawmill Creek, LLC (49S02-1106-CV-364) -
The Marion Circuit Court granted Sawmill Creek's motion to set aside a tax deed issued after its real property was sold in a tax sale. The Court of Appeals affirmed and held that Sawmill Creek was not provided constitutionally adequate notice of the tax sale. Marion County Auditor v. Sawmill Creek, LLC, 938 N.E.2d 778 (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 a COA opinion from 12/10/2010 where the panel concluded: "We are constrained by the holding of the U.S. Supreme Court in Jones to agree with the trial court that the owner of the Lot at issue before us was not provided constitutionally adequate notice of the tax sale. Therefore, the trial court did not err in setting aside the tax deed issued to McCord."
- 9:45 AM - Hunt Construction Group, et al. v. Shannon Garrett (49S02-1106-CT-365) - Hunt Construction Group was the construction manager for Lucas Oil Stadium. Shannon Garrett was employed by a contractor on the project. After Garrett was injured on the job, she filed a complaint for negligence against Hunt Construction. The Marion Superior Court entered summary judgment for Garrett on the issue whether Hunt Construction owed Garrett a duty of care. The Court of Appeals affirmed in part and reversed in part. Hunt Constr. Group, Inc. v. Garrett, 938 N.E.2d 794 (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 a 2-1 COA opinion from 12/14/10.
- 10:30 AM - Phyllis Hardy, et al. v. Mary Jo Hardy (51S01-1106-PL-366) - After the policyholder's death, plaintiffs filed a complaint seeking a constructive trust over the proceeds of a Federal Employees' Group Life Insurance ("FEGLI") policy. A divorce decree ordered the policyholder to maintain the policy and designate plaintiffs as the beneficiaries, but he thereafter designated the defendant as the beneficiary. The Martin Circuit Court entered summary judgment for the defendant. The Court of Appeals affirmed, concluding the FEGLI Act preempts plaintiffs' state law claims. Hardy v. Hardy, 942 N.E.2d 838 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB - This is a 1/25/11 COA opinion.
Next week's oral arguments before the Supreme Court (week of 9/26/11):
Wednesday, September 28th
- 9:00 AM - Indiana Department of Revenue v. United Parcel Service, Inc. (49S10-1107-TA-417) -
The Department of State Revenue denied UPS’s claim for a corporate income tax refund for tax year 2000 and assessed UPS with additional tax liability for tax year 2001. On UPS’s original tax appeal, the Tax Court issued an unpublished order granting summary judgment to UPS. United Parcel Service, Inc. v. Indiana Dep’t of State Revenue, No. 49T10-0704-TA-24 (Ind. Tax Ct. 2010). The Supreme Court has granted a petition for review.
ILB: This was a Dec. 30, 2010 opinion by Judge Fisher, where the issue was: "whether, during the years at issue, UPS properly excluded from its Indiana corporate income tax returns the income of two of its affiliates because they were “subject to” the gross premium privilege tax (premiums tax) under Indiana Code § 27-1-18-2." The Tax Court reversed the DOR's "denial of UPS's claim for refund of corporate income tax for 2000 and its assessment of additional corporate income tax against UPS for 2001."
- 9:45 AM - Indiana Department of Revenue v. AOL, LLC (49S10-1108-TA-514) - The Department of State Revenue denied AOL’s claim for a refund for use tax paid on its in-state use of certain promotional materials sent to prospective and existing customers. On AOL’s original tax appeal, the Tax Court issued an unpublished order granting summary judgment to AOL. AOL, LLC v. Indiana Dep’t of State Revenue, No. 49T10-0903-TA-7 (Ind. Tax Ct. 2010). The Supreme Court has granted a petition for review.
ILB: This was a Dec. 29, 2010 Tax Court NFP opinion that concluded: "Therefore, the Department’s final determinations, denying AOL’s two claims for refund are REVERSED. The Department is ordered to refund to AOL the use taxes it paid during the tax periods at issue."
- 10:30 AM - Troy R. Smith v. State of Indiana (35S02-1106-CR-369) - Smith pleaded guilty to non-support of a dependent child, and was placed on probation. Later, the Huntington Superior Court revoked probation when Smith did not continue paying the full amount of support. The Court of Appeals reversed on grounds the State had not proved Smith’s ability to pay and the trial court abused its discretion in revoking probation in full. Smith v. State, 945 N.E.2d 740 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB - This was a March 23, 2011 COA opinion.
Thursday, September 29th
- 9:00 AM - Sheila Perdue, et al. v. Michael Gargano, et al. (49S02-1107-PL-437) - Plaintiffs brought a class action against FSSA seeking declaratory and injunctive relief with respect to the administration of Medicaid, Temporary Assistance to Needy Families (“TANF”) and Supplemental Nutrition Assistance Program (“SNAP”) benefits. Sheila Perdue also brought an individual disability discrimination claim. The trial court granted summary judgment to FSSA on Plaintiffs’ claim that their procedural due process rights were violated, but granted summary judgment to Perdue individually and to the class of SNAP applicants/recipients whose benefits were denied or terminated for failure to cooperate. On cross-appeals, the Court of Appeals affirmed the trial court’s judgment as to Perdue and as to those whose SNAP benefits were denied or terminated for failure to cooperate, and reversed the award of summary judgment to FSSA, holding the procedures at issue did not afford Plaintiffs due process. Perdue v. Murphy, 938 N.E.2d 766 (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 Dec. 3, 2010 COA decision in a class action where the COA ruled: "Adverse action notices lacking specificity as to missing or allegedly missing eligibility documents do not comport with the requirement of procedural due process. Accordingly, the Recipients established their entitlement to injunctive relief and summary judgment in favor of the FSSA is reversed. The FSSA has demonstrated no substantial harm from an injunction to refrain from denying or terminating public welfare benefits in contravention of federal law." For background, start with this ILB entry from April 1, 2010, headed "Disputed welfare practices don't hold up in [trial] court," which includes a link to the trial court opinion.
- 9:45 AM - Harold J. Klinker v. First Merchants Bank (01S04-1107-PL-438) - The Adams Circuit Court entered summary judgment for the Bank on its claims against Klinker, including a fraud claim, and ordered Klinker to pay treble damages. The Court of Appeals affirmed after concluding that Klinker’s affidavit denying fraudulent intent and opposing summary judgment failed to show a genuine issue of material fact. Klinker v. First Merchants Bank, N.A., 938 N.E.2d 846 (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 Dec. 17, 2010 opinion where the COA ruled "The trial court erred in excluding Klinker's affidavit, but summary judgment was proper because even with Klinker's affidavit, there was no genuine issue of material fact."
- 10:30 AM - Rodney Nicholson v. State of Indiana (55S01-1107-CR-444) - In the Morgan Superior Court, a jury found Nicholson guilty of stalking, a class C felony. The Court of Appeals reversed, finding insufficient evidence to support the conviction. Nicholson v. State, 948 N.E.2d 820 (Ind. Ct. App. 2011), 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 April 29, 2011 COA ruling where the majority reversed the trial court: "The single phone call on November 1, 2008, is insufficient to support Nicholson's stalking conviction."
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 9/18/11):
- No arguments currently scheduled.
Next week's oral arguments before the Court of Appeals (week of 9/26/11):
Wednesday, September 28th
- 2:00 PM - Geneva-Roth Ventures, Inc., et al vs. Akeala Edwards (49A02-1101-PL-43) - In this case of first impression, Geneva-Roth Ventures, Inc. appeals from the trial court’s denial of its Motion to Compel Arbitration on the basis of impossibility of performance because the organization identified by the parties to administer the arbitration, the National Arbitration Forum, was unavailable, but where Geneva-Roth applied to the trial court to appoint an alternate arbitrator pursuant to Section 5 of the Federal Arbitration Act, which provides that where the chosen arbitrator is unavailable, “upon the application of either party to the controversy the court shall designate and appoint an arbitrator.” The Scheduled Panel Members are: Judges Brown, Bailey and Friedlander. [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 September 19, 2011 08:08 AM
Posted to Upcoming Oral Arguments