Tuesday, September 03, 2013
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 9/2/13):
Thursday, September 2
- 9:00 AM - Indiana Gas Company, Inc. v. Indiana Finance Authority (93S02-1306-EX-407) - The Indiana Utility Regulatory Commission approved a contract between the Indiana Finance Authority and Indiana Gasification, LLC for the purchase of substitute natural gas. The Court of Appeals reversed, concluding the contract defines retail end use customer contrary to statutes authorizing the contract. Indiana Gas Co. v. Indiana Fin. Auth., 977 N.E.2d 981 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted petitions to transfer the case and has assumed jurisdiction over the appeal.
ILB: Transfer was granted for all three appellants - This is the Rockport coal gasification case. Here are links to the Oct. 30, 2012 COA opinion, the briefs for the COA case, plus a link to the 106-page order of the IURC, approved Nov. 22, 2011. Here are links to some of the responses to the petition to transfer.
- 9:45 AM - Howard Justice v. American Family Mutual Insurance Co. (49S02-1303-PL-221) - After Howard Justice was injured in an automobile accident, he received $25,000 from the other driver's insurer, which was the limit of the driver's policy, and more than $70,000 in worker's compensation benefits. Justice then filed a complaint against his automobile insurer, seeking payment under the policy's $50,000 underinsured motorist coverage. American Family contends that after applying the policy's set off provision to the amounts received by the insured, it owes no obligation under its policy. The Marion Superior Court entered summary judgment for American Family. The Court of Appeals reversed. Justice v. Am. Family Mut. Ins. Co. , 971 N.E.2d 1236 (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 7/18/12 COA opinion concluded:
In this case, the trial court’s order granting summary judgment reflects, without opinion, its agreement with AFI that the setoffs should result in a reduction from the UIM policy limits. Under the rationale of Beam, however, this is incorrect as a matter of law. After a determination of liability and damages, Justice’s damages award should be reduced by the $25,000.00 recovery from Wagner and the percentage of worker’s compensation benefits paid to Justice based upon Wagner’s percentage of comparative fault, up to a maximum of $25,000.00. Reversed and remanded with instructions.
- 10:30 AM - Julie Kitchell v. Ted Franklin, et al. (09S00-1307-PL-476) - This case involves a ratepayer’s challenge to the validity of a city ordinance and resolution allowing the City of Logansport to negotiate a public-private agreement that would change certain aspects of how electricity is generated and provided to Logansport residents. On April 10, 2013, the Cass Superior Court, the Honorable Rick A. Maughmer presiding, granted the Defendants’ Motion to Dismiss, and on May 9, 2013, the Plaintiff appealed. On July 2, 2013, the Supreme Court assumed jurisdiction over the appeal by granting a verified motion to transfer filed by the Appellees/Defendants pursuant to App. Rule 56(A).
ILB: This is the Rule 56(A) transfer, one where the Court has determined that "the appeal involves a substantial question of law of great public importance and that an emergency exists requiring a speedy determination," thereby eliminating the need/opportunity for COA review. For background on this case, see this June 16 ILB entry quoting a story from the Pharos-Tribune, headed "Attorney claims Logansport officials falsified documents". Also this July 17th entry.
Next week's oral arguments before the Supreme Court (week of 9/9/13):
Thursday, September 12
- 9:00 AM - Daniel Brewington v. State of Indiana (15A01-1110-CR-550) - Following a jury trial in the Dearborn Superior Court, Brewington was convicted of intimidation, attempted obstruction of justice, and perjury for his conduct with respect to a witness, a judge, and a judge’s wife during and after Brewington’s marital dissolution proceeding. The Court of Appeals affirmed in part and reversed in part. See Brewington v. State, 981 N.E.2d 585 (Ind. Ct. App., Jan. 17, 2013), trans. pending. Brewington has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: Note that one hour has been set aside for this oral argument, characterized by some as the "jailed blogger, free-speech" case. The ILB has many entries on this case, here is a list. See this March 13th post, along with this one from April 4th, to access the briefs in this case.
- 10:05 AM - James T. Mitchell v. 10th and the Bypass, LLC (53S01-1303-PL-222) - In ongoing environmental litigation, one defendant, James Mitchell, was awarded partial summary judgment as to his own individual liability. Over one year later, the plaintiff and another defendant sought to have the interlocutory partial summary judgment award vacated based on new evidence. The trial court granted the motion and vacated its earlier non-final order. On interlocutory appeal, the Court of Appeals affirmed. Mitchell v. 10th and the Bypass, LLC, 973 N.E.2d 606, aff’d on reh’g, 981 N.E.2d 551 (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 an 8/28/12 opinion (the 12/4/12 reh'g reaffirmed) that concluded::
We conclude that the partial summary judgment was interlocutory under Trial Rule 56(C) and subject to revision under Trial Rule 54(B). Thus, we hold that the trial court did not abuse its discretion when it vacated its previously entered partial summary judgment. * * *
In sum, in this case the trial court entered two correct judgments. When the court entered the January Order, the designated evidence did not demonstrate a genuine issue of material fact as to Mitchell’s liability, and the court properly granted partial summary judgment for him as a matter of law. But because the judgment was and remained interlocutory, after the LLC tendered new evidence that established a genuine issue of material fact on the question of Mitchell’s personal liability, the trial court properly exercised its discretion to vacate the January Order and reinstate Mitchell as a defendant. The Order to Vacate was neither against the logic and effect of the facts and circumstances before the court nor contrary to law. Thus, we hold that the court’s Order to Vacate was not reversible error.
- 10:50 AM - Joanna Robinson v. State of Indiana (20S04-1307-CR-471) - At about one o’clock in the morning, a sheriff’s deputy observed Ms. Robinson twice drive onto the “fog line” of a county road. The deputy initiated a traffic stop for unsafe lane movement. Evidence obtained after the stop showed that Ms. Robinson was intoxicated and possessed marijuana. Ms. Robinson moved to suppress this evidence on grounds the deputy lacked reasonable suspicion to have stopped her. After reviewing a videotape of Robinson’s driving that night and the deputy’s testimony, the Elkhart Superior Court denied the motion to suppress, and Ms. Robinson was convicted of several misdemeanor charges. The Court of Appeals reversed concluding that under the circumstances of this case, Robison’s brief contact with the fog line at night on a road with some curves was not sufficient to establish reasonable suspicion that she was impaired. Robinson v. State, 985 N.E.2d 1141 (Ind. Ct. App. 2013), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This April 23, 2013 case involved "the video from Deputy Claeys’s vehicle." See ILB summary here - 3rd case.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 9/2/13):
- No arguments currently scheduled.
Next week's oral arguments before the Court of Appeals (week of 9/9/13):
Tuesday, September 10th
- 1:00 PM - Robert Corbin v. State of Indiana ( 75A03-1209-CR-402) The State filed charging information alleging that Robert Corbin sent Facebook messages of a sexual nature to a sixteen-year-old student who attended the school corporation that employed Corbin. The State alleged that, in these messages, Corbin asked the student to “physically take care of” his sexual arousal, asked what size her breasts were, asked if he could see her breasts in person, and asked if she could sneak out of her house. Corbin subsequently filed a motion to dismiss, claiming that the facts alleged in the charging information did not constitute attempt as a matter of law. The trial court denied Corbin’s motion to dismiss and certified its order for interlocutory appeal. This court assumed discretionary interlocutory jurisdiction of this case to consider whether Corbin’s actions as alleged in the charging information are sufficient as a matter of law to constitute a substantial step toward the crime of child seduction. The Scheduled Panel Members are: Judges Baker, May, and, Mathias.
[Where: Indiana University, Mauer School of Law, Moot Courtroom, Bloomington, Indiana]
- 6:00 PM - Audie Wilson v. State of Indiana (49A02-1210-CR-846) Audie Wilson appeals his conviction, following a jury trial, of Sexual Misconduct with a Minor, as a Class B felony. He contends that a jury instruction given by the trial court improperly shifted to him the burden of proof on the issue of knowledge of the victim’s age. He argues that each element of the charged offense requires proof beyond a reasonable doubt of knowledge and therefore knowledge of the victim’s age was a requirement to prove the charged crime. It is a defense that the defendant reasonably believed the victim was at least 16 years of age. Wilson raised this defense at trial and argues the jury should have been instructed that the State had the burden to disprove this defense beyond a reasonable doubt. The Scheduled Panel Members are: Judges Kirsch, Bailey, and, Pyle. [Where: The Grand, 138 East Market Street, New Albany, 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 September 3, 2013 08:47 AM
Posted to Upcoming Oral Arguments