Monday, December 05, 2011
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 12/5/11):
Thursday, December 8th
- 9:00 AM - Randall Woodruff, et al. v. Indiana Family & Social Services (29S02-1110-PL-598) -
When a former intermediate care facility for developmentally disabled persons, by its bankruptcy trustee, brought contract and quantum meruit claims against the FSSA to recover expenses for caring for Medicaid patients, and the FSSA counterclaimed for setoff of costs incurred when the facility went into receivership, the Hamilton Superior Court granted summary judgment orders that resulted in no recovery for the facility. The Court of Appeals reversed and remanded. Woodruff v. Indiana Family & Social Servs. Adm., 947 N.E.2d 934 (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 April 11, 2011 COA opinion. See ILB summary here.
- 9:45 AM - Reginald Person, Jr., et al. v. Carol Shipley (20S04-1110-CT-609) - After Shipley's sedan rear-ended Person's eighteen-wheel semi-tractor trailer, Person filed a personal injury action against Shipley in the Elkhart Superior Court. During the trial, over Person's object, expert witnesses called by Shipley testified about the causal relationship between the impact and Person's alleged injuries. The jury returned a verdict for Shipley. The Court of Appeals reversed, concluding the trial court abused its discretion in admitting the expert opinion evidence. Person v. Shipley, 949 N.E.2d 386 (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 May 6, 2011 COA opinion. See ILB summary here.
- 10:30 AM - John Witt, et al. v. Jay Petroleum, Inc. (38S02-1110-CV-608) - John Witt filed a complaint against Jay Petroleum, Inc. and Jack James seeking reimbursement of the cost to remediate environmental damage to land. Jay Petroleum filed a motion for temporary restraining order ("TRO"), contending Witt's remediation work would interfere with Jay Petroleum's testing of the site. The trial court granted the TRO. Thereafter, Jay Petroleum filed a motion for contempt, alleging Witt, his contractor, and his attorney had violated the TRO. The court found Witt and the others in contempt and awarded Jay Petroleum and James attorney's fees and expenses. The Court of Appeals reversed. Witt v. Jay Petroleum, Inc., 948 N.E.2d 824 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted petitions to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a May 13, 2011 COA opinion. See ILB summary here.
Next week's oral arguments before the Supreme Court (week of 12/12/11):
Thursday, December 15th
- 9:00 AM - Tina Whiting v. State of Indiana (38A05-1008-CR-505) -
During voir dire in the Jay Circuit Court, both the State and Whiting challenged a juror for cause. The trial court denied the challenges for cause. Neither party used a peremptory strike, and the juror was seated. The Court of Appeals affirmed in a not-for-publication Memorandum Decision. Whiting v. State, No. 38A05-1108-CR-505, slip op. (Ind. Ct. App. Jun. 30, 2011). Whiting has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This was a June 30, 2011 NFP COA opinion.
- 9:45 AM - John Berry v. State of Indiana (49S04-1110-CR-611) - At a bench trial in the Marion Superior Court, Berry was convicted of attempted murder for assaulting a person with a hammer. Berry’s defense, that he was not responsible by reason of insanity, was rejected on grounds there was evidence he knew the wrongful nature of his actions and his psychotic symptoms were brought on by the voluntary abuse of alcohol. The Court of Appeals reversed, concluding that psychosis resulted from prolonged, habitual, and severe alcohol abuse which was a mental disease or defect that rendered Berry unable to appreciate the wrongfulness of his actions within the meaning of Indiana Code section 35-41-3-6. Berry v. State, 950 N.E.2d 821 (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 a 28-page, July 20th COA opinion that concluded:
We conclude that there is no evidence that Berry was intoxicated when he committed the offense. We adhere to the longstanding principle that a defendant suffering from a mental disease or defect caused by severe, prolonged, and chronic alcohol abuse that renders that person unable to appreciate the wrongfulness of his or her conduct is not responsible for prohibited conduct committed while in that condition. We conclude that the evidence is undisputed that at the time of the offense Berry suffered from psychotic symptoms caused by his prolonged and severe alcohol abuse and that he was unable to appreciate the wrongfulness of his conduct. Accordingly, we conclude that the trial court erred in rejecting his insanity defense. We reverse the judgment of the trial court and remand with instructions to find Berry not guilty by reason of insanity and for further proceedings as required by the Indiana Code.
- 10:30 AM - Mark J. Thatcher v. City of Kokomo, et al. (94S00-1109-CQ-570) - Pursuant to Indiana Appellate Rule 64, the United States District Court for the Southern District of Indiana certified the following questions of Indiana law for the Indiana Supreme Court’s consideration, which the Indiana Supreme Court accepted on October 6, 2011. The questions, as framed by the district court, are: 1. Does Indiana Code section 36-8-4-7(a) apply to a member of the 1977 Fund [a disability and pension fund for police officers and firefighters established by Indiana Code section 36-8-8-4 that is managed by PERF] who is receiving disability benefits and who has been determined to have been recovered pursuant to 35 IAC 2-5-5(c)? 2. If yes, does Indiana Code section 36-8-8-12(e) apply to determinations of eligibility under Indiana Code section 36-8-4-7(a), such that time spent receiving disability benefits counts toward “years of service” as that term is used in Indiana Code section 36-8-4-7(a)?
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 12/5/11):
Tuesday, December 6th
- 10:00 AM - Natalia Robertson, et al. v. Gene B. Glick Company, Inc., et al. (49A05-1104-CT-158) - Natalia Robertson, the personal representative of the Estate of John Lee Cunningham, filed a wrongful death action on behalf of Cunningham’s autistic twelve-year old daughter. The action was dismissed pursuant to Indiana Code section 34-23-1-1 because more than two years had passed since the death of Cunningham. Natalia Robertson challenges the constitutionality of the Indiana General Wrongful Death Act, Ind. Code § 34-23-1-1. She contends its two-year limitations period which does not permit tolling in wrongful death claims involving disabled beneficiaries violates Indiana’s Privileges and Immunities clause, Ind. Const. art 1, § 23, and Due Course of Law clause, Ind. Const. art 1, § 12. The Scheduled Panel Members are: Chief Judge Robb, Judges Barnes and Bradford. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
- 11:30 AM - Utility Center, Inc., v. City of Fort Wayne, Indiana (49A02-1101-PL-27) - The City of Fort Wayne condemned Utility Center, Inc.’s property and the board of public works determined the amount of compensation owed to Utility Center. Utility Center appealed the Board’s determined amount to the trial court. Ruling on motions by the City, the trial court ordered that it will review the Board’s determination under an abuse of discretion standard, and that Utility Center is not entitled to a jury trial. In this interlocutory appeal, Utility Center argues the trial court is not limited to the abuse of discretion standard in reviewing the Board’s determination, and if it is, that limited review violates both the United States Constitution and the Indiana Constitution. Utility Center also argues it is entitled to have a jury determine the value of the condemned property The Scheduled Panel Members are: Chief Judge Robb, Judges Barnes and Bradford. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
- 1:00 PM - Paul K. Ogden v. Stephen Robertson, et al (49A05-1101-CT-45) - Appellant, Paul K. Ogden (Ogden), appeals the trial court’s grant of summary judgment in favor of Appellee, Stephen Robertson, et al., with respect to Ogden’s perceived wrongful termination claim. Ogden presents us with four issues on appeal, which we restate as the following three issues: First, he contends that the trial court erred in determining that he did not have a viable claim under the Indiana Whistleblower Law. Second, Ogden argues that the trial court erred in determining that a memorandum he sent to Commissioner James Atterholt did not constitute protected speech under the Indiana Constitution. Third, Ogden asserts that the trial court erred in determining that he was not entitled to the due process protections afforded to state at-will employees with more than six months experience. The Scheduled Panel Members are: Judges Riley, May and, Mathias. [Where: Rensselaer Central High School, 1106 East Grace Street, Rensselaer, IN 47978]
Next week's oral arguments before the Court of Appeals (week of 12/12/11):
Monday, December 12th
- 1:00 PM - Indiana Newspaper, Inc., D/B/A/ The Indianapolis Star (49A02-1103-PL-234) - Jeffrey Miller is the former president and CEO of Junior Achievement of Central Indiana (“JA”). On March 19, 2010, The Indianapolis Star published an article about JA facing an audit. A reader, known as “DownWithTheColts,” anonymously posted a comment about the story on indystar.com, telling them to look to the former JA president for the missing money. Miller filed a complaint against JA, Central Indiana Community Foundation, and their respective presidents alleging, among other things, defamation. Miller sought non-party discovery from The Indianapolis Star, specifically, the identity of “DownWithTheColts.” The Marion Superior Court granted Miller’s request. Non-Party The Indianapolis Star now appeals this issue of first impression in our state, arguing that the identity of “DownWithTheColts” is protected by Indiana’s Journalist Shield Statute, the First Amendment of the United States Constitution, and Article 1, Section 9 of the Indiana Constitution. The Scheduled Panel Members are: Judges Friedlander, Darden and Vaidik. [Where: Supreme Court Courtroom (WEBCAST)]
Tuesday, December 13th
- 1:30 PM - Bei Bei Shuai v. State of Indiana (49A02-1106-CR-486) - The State charged Bei Bei Shuai with murder and attempted feticide based on Shuai’s ingestion of rat poison when she was thirty-three weeks pregnant and the subsequent death of A.S., who was delivered by caesarean section. Shuai appeals the denial of her Motion to Dismiss the charges against her and the denial of her Petition for Habeas Corpus and Request for Hearing and Reasonable Bail.
The Scheduled Panel Members are: Judges May, Riley and Najam. [Where: Supreme Court Courtroom (WEBCAST)]
- 1:30 PM - Bradley Bradford v. State of Indiana (59A01-1104-CR-215) - Bradley Bradford appeals his conviction for child molesting as a class C felony. On appeal, he argues that testimony from a Department of Child Services worker regarding the conclusion of her investigation into the allegation of sexual abuse constituted improper vouching testimony in violation of Indiana Evidence Rule 704(b). The Scheduled Panel Members are: Judges Vaidik, Darden and Friedlander. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
Thursday, December 15th
- 10:30 AM - CBR Event Decorators, Inc. et al v. Todd M. Gates (49A02-1010-CT-1117) - This case deals with liability for breach of contract. CBR Event Decorators, Inc. was formed for the sole purpose of purchasing assets belonging to the Plaintiff, Todd M. Gates. Shortly after the parties closed on the deal, CBR breached the agreed-upon purchase agreement. Gates brought suit, and the trial court ruled in his favor, holding that Gates had presented sufficient evidence to justify piercing the corporate veil of CBR. On appeal, CBR claims that the trial court erred by imposing personal liability on its shareholders and argues that Gates failed to show detrimental reliance as required in the fraud context. The Scheduled Panel Members are: Judges Friedlander, Darden and Vaidik. [Where: Indiana 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 December 5, 2011 09:21 AM
Posted to Upcoming Oral Arguments