Monday, December 03, 2012
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of (12/3/12):
Friday, December 7th
- 9:00 AM - In Re: Visitation of M.L.B.; K.J.R. v. M.A.B. (41S01-1209-MI-556) - One day before granting Stepfather’s petition to adopt Child, the trial court issued an order granting Paternal Grandfather visitation rights as to Child. On Mother’s appeal of the grandparent visitation order, the Court of Appeals affirmed.Matter of Visitation of M.L.B., No. 41A01-1107-MI-285, slip op. (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 was a June 14, 2012 NFP COA opinion about which the ILB wrote at the time: "This is a 2-1 NFP grandparent visitation rights opinion that might have been classified as 'For Publication' (IMHO).
- 9:45 AM - Brian Scott Hartman v. State of Indiana (68A01-1106-CR-264) - Hartman made incriminating statements while in jail about his involvement with his father’s death. The Randolph Circuit denied Harman’s motion to suppress the statements. The Court of Appeals affirmed in an interlocutory appeal. Hartman v. State, 962 N.E.2d 1273 (Ind. Ct. App. 2012), trans. pending. Hartman has petitioned the Supreme Court to accept jurisdiction over the appeal.
- 10:30 AM - Commissioner of Labor ex rel. Stephen R. Shofstall, et al. v. International Union of Painters and Allied Trades AFL-CIO, CLC District Council 91 (49S02-1205-PL-269) - When three former union employees made claims seeking payment for accrued but unused vacation days, the Marion Superior Court granted the union-employer’s motion for summary judgment. The Court of Appeals reversed. Comm’r of Labor ex rel. Shofstall v. Int’l Union of Painters and Allied Trades, AFL-CIO, CLC Dist. Council 91, 962 N.E.2d 124 (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 2-1, Dec. 20, 2011 COA opinion reversing the trial court. "[From the dissent] I believe the trial court was correct in all respects and therefore respectfully dissent. I will not undertake a detailed summary of what I perceive to be the fallacies in the Majority’s analysis. It suffices to say that, other than on matters of boilerplate law, my views diverge significantly from those of the Majority on virtually all of the positions adopted in route to its conclusions, up to and including the conclusions themselves."
Thursday, December 13th
- 9:00 AM - State of Indiana v. John Doe (49S00-1201-CT-14) - After a jury awarded the plaintiff in a personal injury action $150,000 in punitive damages, the Marion Superior Court declared that the limitations on punitive damage awards set out in IC 34-51-3-4 and 5 violate Article 3, Section 1 and Article 1, Section 20 of the Indiana Constitution. The State of Indiana intervened and initiated this direct civil appeal.
- 9:45 AM - Michael D. Perkinson, Jr. v. Kay Char Perkinson (36S05-1206-DR-371) - A Father who signed an agreement giving up his parenting time rights when child was an infant filed a petition for parenting time. The Jackson Superior Court denied Father's petition. The Court of Appeals reversed and remanded in an unpublished memorandum decision, concluding that there was insufficient evidence for a total denial of parenting time. Perkinson v. Perkinson, No. 36A05-1106-DR-322, slip op. (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 NFP 1/25/12 COA opinion, where the COA reversed the trial court: "While Father’s prior actions do not put his parenting skills and decision making in the best light, we cannot conclude that there was sufficient evidence that his conduct was so egregious as to warrant total elimination of his parenting time under section 31-17-4-2, particularly where Father’s most worrying conduct occurred more than five years prior to the trial court’s decision in this case."
- 10:30 AM - Sharon Wright and Leslie Wright v. Anthony E. Miller, D.P.M., and Achilles Podiatry Group (54S01-1207-CT-430) - The defendants moved to strike the plaintiff’s expert witness and dismiss her medical malpractice complaint due to the plaintiff’s failure to comply with discovery deadlines, and the Montgomery Superior Court granted the defendants’ motions. The Court of Appeals reversed, holding that the trial court abused its discretion by striking the plaintiff’s expert witness and dismissing her complaint. Wright v. Miller, 965 N.E.2d 135 (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 an April 5, 2012 COA opinion holding: "We therefore hold that the trial court abused its discretion in striking Wright’s expert witness under Trial Rule 37(B)."
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 12/3/12):
Monday, December 3rd
- 1:30 PM - Roche Diagnostics Operations, Inc. v. Marsh Supermarkets, LLC. (29A02-1201-PL-4) -Appellant-Defendant, Roche Diagnostics Operations, Inc. (Roche), appeals the trial court’s denial of its cross-motion for summary judgment and its judgment in favor of Marsh Supermarkets, LLC (Marsh), awarding damages for Roche’s breach of its sublease with Marsh. Roche presents this court with three issues: (1) Whether the trial court erred by denying Roche’s cross-motion for summary judgment by a) declining to find as a matter of law that the language of the sublease granted Roche the right to terminate the sublease if it did not receive a subordination, non-disturbance and attornment agreement (SDNA) by a certain date; or, b) by determining that genuine issues of material fact regarding the parties’ cooperation in obtaining the SNDA precluded summary judgment. (2) Whether the trial court erred in granting judgment to Marsh by determining that Roche’s right to terminate the sublease required reasonable prior notice; 2) that Marsh’s delivery of the SNDA to Roche was effective; 3) that Roche had not fulfilled its obligation to cooperate regarding the SNDA; and 4) that Roche had defaulted under the terms of the sublease. (3) Whether the trial court erred in awarding Marsh damages based upon sublease payments under the entire eighteen year term of the sublease rather than awarding damages in light of Roche’s right of early termination upon the fifth anniversary of the sublease. The Scheduled Panel Members are: Judges Riley, Bailey and Crone. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
Monday, December 10th
- 1:30 PM - Duke Energy v. Indiana Utility Regulation Commission (93A02-1111-EX-1042) - On October 5, 2010, Governor Mitch Daniels fired Indiana Utility Regulatory Commission (IURC) Chairman David Lott Hardy. Hardy was aware that one of his administrative law judges, Scott R. Storms, had been communicating with Duke Energy Indiana regarding a position with the company while Storms was presiding over administrative proceedings involving Duke, yet Hardy did not remove Storms from matters involving Duke. This was one such case; Storms was the ALJ, the Indiana Office of Utility Consumer Counselor (OUCC) recommended denying Duke relief, but the IURC found in favor of Duke. The IURC conducted an audit and eventually found that Storms did not exert any undue influence in his decision. Nevertheless, the IURC reopened this case for further review and consideration of the evidence presented. After another evidentiary hearing before a new ALJ and the full Commission, the IURC found against Duke. Duke now appeals, mainly arguing that the IURC did not have the authority to reverse its original decision. The IURC and the OUCC ask us to affirm. The Indiana Energy Association appears as amicus curiae. The Scheduled Panel Members are: Judges Vaidik, Mathias and Barnes. [Where: Indiana Supreme Court Courtroom (WEBCAST)]
- 10:30 AM - Nathan Carl Gilbert v. State of Indiana (10A05-1204-CR-220) - Nathan Carl Gilbert appeals his convictions of and sentence for four (4) counts of Class B felony burglary, arguing the trial court’s entry of his convictions violated the Interstate Agreement on Detainers and the manner in which the trial court conducted his sentencing hearing violated both his right to due process under the Fourteenth Amendment and his right to counsel under the Sixth Amendment. The Scheduled Panel Members are: Judges Baker, Najam and May. [Where: Ivy Tech Community College, 3204 Highway 311, Sellersburg, Indiana ]
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 3, 2012 08:42 AM
Posted to Upcoming Oral Arguments