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Monday, December 31, 2012
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of (12/31/12):
Thursday, January 3rd
- 9:00 AM - Tim Berry, et al. v. William Crawford, et al. (49S00-1201-PL-53 & 49S00-1202-PL-76) - This is a consolidated appeal from the trial court’s interlocutory ruling of December 6, 2011, and final judgment of February 6, 2012, pertaining to fines levied by the House of Representatives against members of the House Minority Caucus who absented themselves on certain days during the 2011 and 2012 sessions of the General Assembly. The Supreme Court assumed jurisdiction over these appeals while they were pending in the Court of Appeals, pursuant to Indiana Appellate Rule 56(A).
- 9:45 AM - Anthony Wade v. Terex-Telelect, Inc. (29S05-1209-CT-557) - Wade was injured in a fall from a utility truck’s aerial passenger bucket and filed this product liability claim against the bucket’s maker, Terex-Telelect; a jury returned a verdict for Terex-Telelect, and the Hamilton Superior Court entered judgment on the verdict. The Court of Appeals reversed and remanded for retrial after concluding that the evidence did not support the trial court’s instruction telling jurors they could presume a defendant is not liable if the defendant proves its product was “state of the art” or complied with applicable governmental regulations. Wade v. Terex-Telelect, Inc. , 966 N.E.2d 186 (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 2-1 April 11, 2012 COA opinion reversing the trial court on a jury instruction in a products liability case.
- 10:30 AM - Andrew McWhorter v. State of Indiana (33A01-1202-PC-72) - After McWhorter killed a woman and was convicted of voluntary manslaughter, the Henry Superior Court denied post-conviction relief. The Court of Appeals concluded McWhorter’s attorney had been ineffective for failing to object to the voluntary manslaughter instruction, and that double jeopardy considerations precluded McWhorter from being retried for murder or involuntary manslaughter. McWhorter v. State, 970 N.E.2d 770 (Ind. Ct. App. 2012), trans. pending. The State of Indiana has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: See this July 12, 2012 ILB summary of the 12-page COA opinion; the case has not yet been granted transfer.
Next week's oral arguments before the Supreme Court (week of (1/7/13):
Thursday, January 10th
- 9:00 AM - K.W. v. State of Indiana (49A02-1201-JV-9) - Based on an in-school encounter with a police officer serving as a school liaison officer, K.W. was adjudicated delinquent for an act that would be resisting law enforcement if committed by an adult. The Court of Appeals reversed, holding the officer was not engaged in the execution of the officer’s duties as a law enforcement officer at the time of the encounter. K.W. v. State 976 N.E.2d 61 (Ind. Ct. App. Aug. 28, 2012), trans. pending. The State has petitioned the Supreme Court to accept jurisdiction over the appeal.
- 9:45 AM - Brad W. Passwater v. State of Indiana (48S05-1210-PC-583) - A jury instruction on the insanity defense, given without objection at Passwater’s 2004 murder trial, stated in part that the defendant could be committed to a facility for a period of “not more than ninety (90) days.” The jury found Passwater guilty but mentally ill and he was sentenced to fifty-five years. The Madison Circuit Court later denied post-conviction relief with respect to the instruction. The Court of Appeals affirmed, citing Georgopolus v. State, 735 N.E.2d 1138 (Ind. 2000), in a memorandum decision, Passwater v. State, No. 48A05-1201-PC-17, slip op. (Ind. Ct. App., Jul. 25, 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a 10-page, July 25, 2012 NFP COA opinion involving PCR, concluding: "Indeed, it would seem that his defense counsel chose a sound strategy in requesting the instruction given the apparent misunderstanding of the consequences expressed by a juror during voir dire. Passwater has not shown any deficient performance by his defense counsel, and, therefore, his claim of ineffective assistance of counsel is unavailing."
- 10:30 AM - Dennis Jack Horner v. Marcia (Horner) Carter (34S02-1210-DR-582) - Following a hearing on post-dissolution matters, the trial court held among other things that a provision of the parties’ mediated settlement agreement requiring monthly housing payments was in the nature of a property settlement, as opposed to maintenance. In affirming, the Court of Appeals held in part that the trial court erred in excluding evidence of communications made during mediation, which had been offered to prove that a mistake occurred in drafting the agreement, but held further that the exclusion of this evidence was harmless. Horner v. Carter, 969 N.E.2d 111 (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 12-page, June 13, 2012 COA opinion:
Seven years after Dennis Jack Horner (“Husband”) and Marcia (Horner) Carter (“Wife”) reached a mediated settlement agreement during dissolution proceedings, Husband sought to modify the terms of that agreement on the basis of mistake. The trial court denied his request. Husband now appeals, contending that the trial court should have allowed him to offer extrinsic evidence—specifically, communications that occurred during mediation—to show that there was a mistake in the drafting of the agreement. We conclude that Alternative Dispute Resolution Rule 2.11 and Indiana Evidence Rule 408 allow the introduction of mediation communications to establish traditional contract defenses. We also find that the trial court correctly determined that the agreement in this case provided for a property settlement that survived Wife’s remarriage. We affirm.
This week's oral arguments before the Court of Appeals (week of 12/31/12):
- No oral arguments currently scheduled
Next week's oral arguments before the Court of Appeals (week of 1/7/123):
Wednesday, January 9th
- 11:00 AM - Virginia E. Alldredge, et al, v. The Good Samaritan Home (82A01-1206-CT-249) Nearly three years after being told that Venita Hargis died from complications of a fall at a nursing home owned and operated by appellee-defendant, The Good Samaritan Home, Inc. (“Good Samaritan”), appellants-plaintiffs Virginia E. Alldredge and Julia A Luker learned that Hargis’s death had actually resulted from another patient attacking her. Twenty-three months later, Alldredge and Luker, as co-personal representatives of Hargis’s estate, filed an action against Good Samaritan under Indiana’s Wrongful Death Statute, Indiana Code section 34-23-1-1. Treating Good Samaritan’s motion to dismiss as a motion for summary judgment, the trial court found that Good Samaritan’s fraudulent concealment had equitably tolled the time by which the complaint needed to be filed, but that the action was nonetheless barred because Alldredge and Luker had failed to file their complaint within a reasonable time. On appeal, Alldredge and Luker argue that the two-year timeframe required by Indiana’s Wrongful Death Statute for the filing of claims is a statute of limitations, not a condition precedent, and that Indiana Code section 34-11-5-1 applies to toll the statute of limitations such that the two years begins when the fraudulent concealment is discovered. Furthermore, Alldredge and Luker argue that public policy considerations require this interpretation because the reasonable time standard used by the trial court violates equal protection. The Scheduled Panel Members are: Judges Baker, Riley and Barnes. [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 31, 2012 08:46 AM
Posted to Upcoming Oral Arguments