Monday, February 06, 2012
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 2/6/12):
Tuesday, February 7th
- 9:00 AM - An-Hung Yao & Yu-Ting Lin v. State of Indiana (35S02-1112-CR-704) - The Huntington Circuit Court dismissed counterfeiting charges against the defendants, but denied motions to dismiss charges of theft and corrupt business influence. The Court of Appeals directed dismissal of all charges on grounds the defendants committed no purposeful conduct in or directed to Indiana, and therefore, Indiana lacked territorial jurisdiction. Yao v. State, 953 N.E.2d 1236 (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 Sept. 22nd COA opinion that concluded:
Concluding the trial court lacked territorial jurisdiction because there is no evidence any conduct that is an element of the alleged offenses occurred in Indiana, we affirm that part of the trial court's order dismissing the counterfeiting charges and reverse and remand with instructions for the trial court to dismiss the remaining charges.
- 9:45 AM - Douglas Cottingham v. State of Indiana (06S01-1112-CR-703) - The Boone Superior Court revoked Cottingham’s community corrections placement in 2010. The Court of Appeals held that Cottingham was entitled to good time credit for the time spent on home detention, thus applying the 2010 amendment to Indiana Code section 35-38-2.6-6. Cottingham v. State, 952 N.E.2d 245 (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 July 19th COA opinion where the Court wrote: "Based on our holding in Renfroe, we apply the doctrine of amelioration to the issue of good time credit for Cottingham while he was on home detention."
- 10:30 AM - Robert L. Smith v. State of Indiana (49S02-1109-CR-529) - At a hearing on whether Smith had violated the terms of his community corrections placement, certain laboratory results were admitted on the foundation of an affidavit from a lab supervisor who had not performed the testing. The Marion Superior Court revoked Smith’s placement. The Court of Appeals dismissed the appeal on procedural grounds in an unpublished order. Smith v. State, No. 49A02-1010-CR-1075 (Ind. Ct. App. Apr. 8, 2011). The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
- 11:15 AM - James C. Purcell v. Old National Bank (49S02-1201-CT-4) - During jury trial of several claims brought by Purcell against Old National Bank, the trial court granted Old National’s motion for judgment on the evidence as to all claims. The Court of Appeals affirmed in part as to some claims but reversed and remanded in part as to other claims, holding that conflicting evidence warranted jury resolution of those other claims. Purcell v. Old National Bank, 953 N.E.2d 527 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: In this Aug. 12, 2011 opinion (4th summary) the COA concluded:
The trial court did not abuse its discretion when it granted judgment on the evidence in favor of ONB regarding Purcell's negligence and constructive fraud claims, because ONB did not owe Purcell any duty as a subordinate creditor. However, the trial court abused its discretion when it granted judgment on the evidence on Purcell's other claims, because Stein's answers to an earlier interrogatory present a genuine issue of material fact regarding those claims. Finally, the trial court properly denied ONB?s motion for attorney's fees and costs because Purcell's claims were not groundless.
Next week's oral arguments before the Supreme Court (week of 2/13/12):
Monday, February 13th
- 9:00 AM - State of Indiana v. International Business Machines Corporation (49S00-1201-PL-15) - In this action arising from the State's cancelation of a contract with IBM under which IBM was to improve and modernize Indiana's welfare system, the Marion Superior Court issued an order granting IBM's motion to compel the Governor to testify at a deposition. The State filed an emergency motion to accept the interlocutory appeal and a motion under Appellate Rule 56(A) for immediate transfer to the Supreme Court. The Supreme Court granted both motions and has assumed jurisdiction over the appeal.
ILB: Here is a list of earlier ILB entries re IBM.
- 9:45 AM - Anthony H. Dye v. State of Indiana (20S04-1201-CR-5) - The Elkhart Superior Court denied Dye’s Batson challenge, entered judgment on the jury’s verdict finding Dye was an habitual offender, and sentenced Dye to a term of 50 years. The Court of Appeals affirmed in Dye v. State, 956 N.E.2d 1165 Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: Here is a link to the 2-1, Nov. 10, 2011 COA opinion.
- 10:30 AM - Jacqueline Wisner, M.D., et al. v. Archie L. Laney (71S03-1201-CT-7) - The jury returned a verdict for the plaintiff on her medical malpractice complaint. The St. Joseph Superior Court entered judgment consistent with the verdict, denied plaintiff’s request for prejudgment interest, and denied defendants’ motion for a new trial. The Court of Appeals affirmed the denial of a new trial, but reversed the denial of prejudgment interest finding plaintiff’s offer of settlement complied with the prejudgment interest statute, IC 34-51-4-6. Wisner v. Laney, 953 N.E.2d 100 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: Here is a link to the July 21, 2011 COA opinion.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 2/6/12):
Wednesday, February 8th
- 11:00 AM - Jack Messer vs. New Albany Police Department (22A05-1104-MI-179) - Jack Messer was a New Albany police officer who was fired after he made a racially charged remark while with other officers after roll call. The comment was leaked to the press. The Police Merit Commission found his statement was conduct unbecoming an officer and suspended him without pay. On judicial review, the trial court granted new Albany summary judgment. On appeal, Messer argues his statement was protected by the First Amendment. The Scheduled Panel Members are: Judges Baker, Najam and May. [Where: Silver Creek High School, Sellersburg, Indiana ]
- 10:30 AM - Mary E. Santelli vs. Abu M. Rahmatullah, et al (22A05-1104-MI-179) - After the trial court belatedly granted the Santelli Estate’s motion to correcterror, both the Santelli Estate and Rahmatullah filed notices of appeal. Among the questions presented in this consolidated appeal are: 1) whether the trial court’s belated order is void; and, if so, whether the merits of the motion to correct error may be addressed on appeal; and 2) if the Indiana Comparative Fault Act abrogated the common law “very duty” doctrine, should Indiana adopt §14 of the Restatement (Third) of Torts. The Scheduled Panel Members are: Judges Friedlander, Darden and Vaidik. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
Next week's oral arguments before the Court of Appeals (week of 2/13/12):
Wednesday, February 15th
- 10:00 AM - City of Evansville v. United States Fidelity & Guaranty Company (49A02-1104-PL-375) - The City of Evansville filed a declaratory judgment action in 2007 against numerous insurance companies that sold insurance policies to the City. The action relates to the City’s sewer system, which discharges diluted, untreated sewage into area streams and rivers at peak flow periods. In 2009, the United States and the State of Indiana filed a complaint against the City in federal court related to violations of the Clean Water Act and the National Pollutant Discharge Elimination system because of the sewer system. In the declaratory judgment action, the City sought coverage for projects to improve the sewer system that it alleges are remedial measures. The trial court granted summary judgment for the insurance companies, concluding that City’s claim was not covered by the insurance policies because the claim was based on proposed improvements and upgrades to its sewer system, rather than remediation of past pollution. The trial court relied on our supreme court’s opinion in Cinergy Corp. v. Associated Elec. & Gas Ins. Services, Inc., 865 N.E.2d 571 (Ind. 2007). On appeal, the City argues that genuine issues of material fact exist regarding whether the improvements are, in fact, remedial and that this situation is distinguishable from Cinergy.
The Scheduled Panel Members are: Judges Kirsch, Barnes and Bradford.
[Where: Indiana Court of Appeals Courtroom (WEBCAST)]
- 11:30 AM - Sharon K. Wilson vs. Heritage House Convalescent Center (93A02-1106-EX-567 ) - Counsel for Appellant-Plaintiff Sharon K. Wilson appeals the decision of the Full Worker’s Compensation Board (“Board”) awarding her former attorney, Kenneth Heider, $6000 for work completed during his representation of Wilson in the underlying matter. Appellant contends that the Board erred in not applying the doctrine of quantum meruit to its determination regarding the value, if any, of the legal representation provided to Wilson by Heider. The Scheduled Panel Members are: Judges Kirsch, Barnes and Bradford. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
- 2:00 PM - Kenneth T. Akers vs. State of Indiana (49A05-1106-CR-313) - Kenneth Akers was convicted following a jury trial of battery, resisting law enforcement, and possession of paraphernalia, all Class A misdemeanors. The trial court sentenced Akers to one year for each conviction, with the sentences for battery and resisting law enforcement to be served concurrently with each other, and consecutively to the sentence for possession of paraphernalia, for a total sentence of two years. Akers appeals his sentence, arguing that he is a person who committed non-violent crimes as part of a single episode of criminal conduct. IC 35-50-1-2 limits the total of consecutive sentences for multiple non-violent felony convictions arising out of an episode of criminal conduct to the advisory sentence for a felony which is one class of felony higher than the most serious felony for which the person is convicted. Akers argues that the lack of a similar statute limiting consecutive sentencing for multiple non-violent misdemeanor convictions denies him equal protection under the United States and Indiana constitutions, and that the statute should be applied to limit his sentence to one and one-half years. The Scheduled Panel Members are: Chief Judge Robb, Judges Kirsch and Bradford. [Where: Supreme Court of 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 February 6, 2012 09:18 AM
Posted to Upcoming Oral Arguments