Monday, September 17, 2012
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of (9/17/12):
Tuesday, September 18th
- 9:00 AM - Holiday Hospitality Franchising, et al. v. AMCO Insurance Co. (33S01-1206-CT-312) - When an insurance company sued seeking a declaration that its policy does not provide coverage for liability arising from an assault at a hotel, the Henry Circuit Court granted the insurance company summary judgment. The Court of Appeals reversed, concluding that an “occurrence” within the meaning of the policy took place and that a material issue of fact remains whether the alleged victim was in the hotel’s “care, custody, or control” for purposes of the policy’s abuse/molestation exclusion. Holiday Hospitality Franchising v. AMCO Ins. Co., 955 N.E.2d 827 (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 3-page, 2-paragraph Jan. 18th opinion of the COA on a petition for rehearing:
In our opinion we noted that the reversal of summary judgment only applied as against Holiday Hospitality, not the other defendants in the trial court action, because Holiday Hospitality is the only party that appealed. The Petitioners argue our reversal of summary judgment should apply to Holiday Inn and Megha as well, relying on Appellate Rule 17(A), which provides “[a] party of record in the trial court . . . shall be a party on appeal.” * * *
Thus, while all parties below may be parties to the appeal, the reversal of summary judgment only applies to Holiday Hospitality. The other Petitioners forfeited the right to appeal the trial court’s grant of summary judgment against them.
- 9:45 AM - Margret Kosarko v. William A. Padula, et al. (45S03-1206-CT-310) - In this automobile collision case, a jury found in favor of the plaintiff and awarded damages. The plaintiff then moved for an award of prejudgment interest, which the trial court denied. On the plaintiff’s appeal, a divided panel of the Court of Appeals reversed and remanded with instructions to award the plaintiff prejudgment interest in the amount requested in her motion. Kosarko v. Padula, 960 N.E.2d 810 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: A Dec. 30, 2011 2-1 opinion where the issue is prejudgment interest.
- 10:30 AM - Dustin Tumbleson v. State of Indiana (30S04-1206-CR-372)/ Joey Jennings v. State (53A01-1010-CR-541) / Jesse C. E. Rayford v. State (01A02-1106-CR-554) - These three cases are set for combined oral argument only. The cases have not been consolidated under Appellate Rule 38. (A total of 50 minutes has been allotted)
Dustin Tumbleson v. State of Indiana (NFP) - Dustin Tumbleson pleaded guilty to a Class A misdemeanor, and the Wells Circuit Court sentenced him to a term of one year, with six months suspended and one year of probation. Citing IC 35-50-3-2, the Court of Appeals reversed and remanded with instructions for the trial court to impose a combined sentence of probation and imprisonment not to exceed one year. Tumbleson v. State, No. 90C01-1006-FB-11, slip op. (Ind. Ct. App. Jan. 20, 2012). The State of Indiana has petitioned the Supreme Court to accept jurisdiction over the appeal.
Joey Jennings v. State - A jury found Joey Jennings guilty of a Class B misdemeanor, and the Monroe Circuit Court sentenced him to 180 days, with 30 days executed and 150 days suspended, and 360 days of probation. Citing IC 35-50-3-1, the Court of Appeals reversed and remanded with instructions for the trial court to predetermine the period of probation, not to exceed 185 days. Jennings v. State, No. 53A01-1010-CR-541, slip op. (Ind. Ct. App. Oct. 27, 2011). The State of Indiana has petitioned the Supreme Court to accept jurisdiction over the appeal; Jennings has also filed a transfer petition.
Jesse C. E. Rayford v. State (NFP) - Following a bench trial, Jesse Rayford was found guilty of a Class A misdemeanor, and the Adams Circuit Court sentenced him to 365 days, with 180 days to be executed and 185 suspended, and 365 days of probation. The Court of Appeals reversed and remanded to the trial court to impose a combined term of imprisonment and probation that does not exceed one year. Rayford v. State, No. 01A02-1106-CR-554, slip op. (Ind. Ct. App. Jan. 30, 2012). The State of Indiana has petitioned the Supreme Court to accept jurisdiction over the appeal.
Thursday, September 27th
- 9:00 AM - R.T. Moore Co., Inc., et al. v. Slant/Fin Corporation (49A04-1109-CC-463) - R.T. Moore Company, a subcontractor on two construction projects, filed a complaint against Slant/Fin Corporation, a supplier of materials used in the projects. R.T. Moore sought a declaration that Slant/Fin cannot assert a claim under the Personal Liability Notice Statute against the project owners. The project owners were added as parties. The trial court entered summary judgment for Slant/Fin. The Court of Appeals reversed, concluding that because Slant/Fin supplied materials to another supplier, who then supplied the materials to R.T. Moore, Slant/Fin is a materialman to a materialman and cannot seek the protections of the Personal Liability Notice Statute. R.T. Moore Co., Inc. v. Slant/Fin Corp., 966 N.E.2d 636 (Ind. Ct. App. 2012). Slant/Fin has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This was a Feb. 14th, 2012 COA NFP opinion.
- 9:45 AM - Utility Center, Inc. v. City of Fort Wayne (90S04-1208-PL-450) - Following the City’s condemnation of a portion of Utility Center’s water and sewer utility, the City, by its Board of Public Works, resolved to compensate Utility Center in an amount of approximately $17 million. After Utility Center appealed the Board’s determined amount to the trial court, the court denied Utility Center’s request for jury trial and indicated it would review the Board’s determination under an abuse of discretion standard. The Court of Appeals affirmed these rulings on interlocutory appeal. Utility Center, Inc. v. City of Fort Wayne, 960 N.E.2d 824 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is a Jan. 13, 2012 opinion where the COA concluded:
We conclude that judicial review of an administrative determination of just compensation should be limited to the consideration of whether there is substantial evidence to support the agency’s finding and order and whether the action constitutes an abuse of discretion, is arbitrary, capricious, or in excess of statutory authority as revealed by the uncontradicted facts. As such, judicial review is limited to the agency record and other evidence which suggests the agency lacked authority to render its decision. We further conclude that where a municipality actively seeks to avoid the appearance of impropriety and there is no evidence of actual impropriety, due process rights are not violated when a municipality’s employees serve as advocates and different employees of the same municipality serve as decision-makers in administrative proceedings.
Accordingly, the factual circumstances of this case lead us to affirm the trial court’s order declining to hold a jury trial and stating its intention to limit its review of the Board’s determination for an abuse of discretion.
- 10:30 AM - St. Joseph Hospital v. Richard Cain (02S05-1207-PL-429) - After the Fort Wayne Metropolitan Human Rights Commission entered a final order in favor of Richard Cain, St. Joseph Hospital filed a petition for judicial review pursuant to the Indiana Administrative Orders and Procedure Act. The petition was timely filed, but the petition was not timely verified, contrary to the requirement in Indiana Code section 4-21.5-5-7. The Allen Superior Court dismissed the petition on grounds it lacked subject matter jurisdiction. The Court of Appeals reversed and remanded for instructions for the trial court to consider the hospital's motion to amend the petition to add the verification and whether such an amendment would relate back to the original filing. St. Joseph Hosp. v. Cain, 937 N.E.2d 903 (Ind. Ct. App. 2010), vacated. The Supreme Court has granted a petition to transfer jurisdiction.
ILB: This is a Nov. 14, 2010 COA opinion holding: "Because the trial court had subject matter jurisdiction over St. Joseph's unverified petition for judicial review, it improperly granted the HRC's motion to dismiss and declined to rule on the other outstanding motions, namely St. Joseph's motion to amend. The alleged lack of a quorum, however, was not properly raised in St. Joseph's motion to dismiss. We reverse and remand for consideration of St. Joseph's motion to amend."
This week's oral arguments before the Court of Appeals (week of 9/17/12):
- No arguments currently scheduled.
Next week's oral arguments before the Court of Appeals (week of 9/24/12):
Tuesday, September 25th
- 11:00 AM - Thomson, Inc., et al, v. Continental Casualty Co., et al (49A02-1202-PL-80) - This case involves a dispute between Thomson Inc. n/k/a Technicolor USA, Inc. and several of its insurers. The part of the dispute addressed in this appeal is between Thomson and XL Insurance America. The issues raised are (1) whether the trial court erred in concluding that the full faith and credit clause requires deference to a California decision that California law applies to the interpretation of XL policies with regard to cleanup of certain contaminated sites and (2) whether the trial court erred in concluding that principles of comity required deference to the California decision. The Scheduled Panel Members are: Judges Vaidik, Crone and Bradford. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
- 1:30 PM - Tyler A. White v. State of Indiana ( 90A04-1111-CR-621) - Tyler White appeals his conviction for murder following a jury trial. White presents the following issues for review on appeal: whether Indiana Evidence Rule 804(b)(5) (the “forfeiture by wrongdoing” hearsay exception) permits hearsay evidence only when the State proves by a preponderance of the evidence that the defendant’s purpose in procuring the unavailability of the declarant as a witness was to prevent the declarant’s appearance or testimony at a legal proceeding; whether the trial court abused its discretion when it excluded certain evidence relevant to a defense theory; whether Indiana’s feticide enhancement statute (Indiana Code Section 35-50-2-16) is unconstitutional; and whether the trial court should have “judicially supplied” a mens rea element to the feticide enhancement statute. The Scheduled Panel Members are: Judges Najam, Kirsch and May. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
- 1:30 PM - Richmond Center, LLC v. Deutz Corporation ( 89A01-1109-PL-416) - Richmond Center brought suit against Deutz under the Environmental Legal Action (ELA) statute to recover its cleanup costs. A bench trial was held and the trial court found that Richmond Center failed to prove that the site posed a risk to human health and the environment, that Deutz caused or contributed to the contamination, and that its remediation of the site was reasonable. Richmond Center appeals, arguing that the trial court’s holdings were clearly erroneous because the trial court (1) misinterpreted an element of the ELA to determine whether the site was a risk to human health and the environment; (2) used the wrong legal standard to determine if Richmond Center met its burden in proving that Deutz caused or contributed to the contamination; and (3) used an incorrect standard to determine if Richmond Center was entitled to cleanup costs. The Scheduled Panel Members are: Judges Vaidik, Mathias and Barnes. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
- 10:00 AM - G.B., et al, vs. C.H., et al (79A04-1202-CT-61) - K.L., a minor, her biological father, paternal aunt and uncle, and paternal grandfather (the Plaintiffs) sued the Tippecanoe County Department of Child Services and five employees for events arising out of child in need of services and termination proceedings. All but one of the Plaintiffs’ claims was dismissed by the trial court on the basis of quasi-judicial immunity and lack of standing for the aunt, uncle, and grandfather. The Plaintiffs appeal the trial court’s dismissal, alleging that the actions being challenged were not made pursuant to court authority or supervision and therefore do are not entitled to immunity protection. They also allege that the aunt, uncle, and grandfather have standing to proceed based upon a constitutionally protected liberty interest in their relationship with K.L. The Scheduled Panel Members are: Chief Judge Robb, Judges Bradford and Pyle. [Where: Indiana State University, Hulman Memorial Student Union Building, Terre Haute, Indiana]
- 1:30 PM - C.A.B., vs. J.D.M. and K.L.M. (37A03-1204-AD-149) - In 2008, a trial court terminated C.A.B.’s parental rights as to her two children, C.B.M. and C.R.M. C.A.B. successfully appealed the termination, but in the interim, the trial court granted a foster family’s petition to adopt the children. C.A.B. filed a petition seeking to set aside the adoption, which the trial court denied. C.A.B. now appeals, arguing that the Indiana statutes permitting a trial court to issue a decree of adoption for children concerning whom a parent is appealing the termination of parental rights are unconstitutional as applied in her case. The Scheduled Panel Members are: Judges Baker, Bailey and Vaidik. [Where: Greensgurg High School, 1000 East Central Avenue, Greensburg, Indiana]
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 17, 2012 09:11 AM
Posted to Upcoming Oral Arguments