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Monday, October 21, 2013
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 10/21/13):
Thursday, October 24th
- 9:00 AM - Ignacio Perez v. State of Indiana (20A03-1206-CR-247) - Police had identified Perez as the owner of a white truck involved in sales of cocaine, and they went to his house to investigate. Perez stepped out onto the porch to speak with the officers. As events unfolded, Perez gave untruthful answers, screamed something in Spanish to his wife who was at the front door, and was nervous, agitated, and belligerent; he “chest bumped” an officer while trying to get back into his house and he resisted attempts to arrest him. Once Perez was arrested and handcuffed, police found cash from a controlled cocaine buy in his pocket. A police dog then conducted a “sniff” of Perez’s front door, and alerted to the presence of illegal drugs. Police obtained a search warrant for the house and discovered more than eighty grams of cocaine. The Elkhart Superior Court denied Perez’s motion to suppress the evidence. The Court of Appeals affirmed in Perez v. State, 981 N.E.2d 1242 (Ind. Ct. App. 2013). Perez has petitioned the Supreme Court to accept jurisdiction over the appeal, arguing that the “dog sniff” was illegal and that officers have no right to encounter and stop a defendant on his own property.
ILB: This is a Feb. 5, 2013 COA opinion.
- 9:45 AM - Deborah A. Cleveland v. Clarian Health Partners, Inc. (49A02-1110-CT-948) - The jury returned a verdict for Clarian Health Partners, Inc. in this medical malpractice action. The patient's estate filed a motion for relief from the judgment, alleging Clarian knew that one of its doctors would change her testimony at trial, and Clarian had failed to supplement the doctor's discovery deposition pursuant to Indiana Trial Rule 26(E)(2). The Marion Superior Court denied the estate's motion. The Court of Appeals affirmed in Cleveland v. Clarian Health Partners, Inc., 976 N.E.2d 748 (Ind. Ct. App. 2012). The estate has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is an Oct. 3, 2013 Court of Appeals opinion that held:
In sum, we hold that Cleveland may argue surprise in a witness’s purported change in testimony for the first time on appeal. But, on these facts, we hold that the trial court did not abuse its discretion when it denied Cleveland’s motion to correct error and for relief from judgment. We cannot say on this record that Dr. Choi’s trial testimony was so different from her deposition testimony that it invoked, as alleged, any duty on the part of Clarian to amend under Trial Rule 26(E)(2) or that Clarian committed misconduct under Trial Rule 60(B)(3). Thus, we affirm the trial court’s denial of Cleveland’s motion to correct error and for relief from judgment.
- 10:30 AM - Matter of E.M.; E.M. v. Indiana Department of Child Services (45S03-1308-JT-557) - The trial court terminated Father’s parental rights with respect to his two children with Mother. Father appealed, and the Court of Appeals reversed, a majority holding that insufficient evidence supports termination of Father’s parental rights. Matter of E.M., No. 45A03-1208-JT-370 (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 was a 12-page, May 8th NFP COA opinion: "E.M. (“Father”) appeals the termination of his parental rights to his son, E.M., and daughter, El.M. Because we conclude that there is insufficient evidence to support the trial court’s judgment, we reverse. * * * And we acknowledge that reversals in termination cases may cause disruptions in a child’s life. However, DCS bore the burden of proving that termination was warranted here, and it failed to do so."
Thursday, October 31st
- 9:00 AM - Christopher Smith v. State of Indiana (18S02-1304-CR-297) - A student at Muncie Central High School told school officials that she had been raped at the school by a fellow student. Smith, the school principal, was charged with failing to immediately report “that a child may be a victim of child abuse or neglect.” See Ind. Code § 31-33-5-4. Following a bench trial in the Delaware Circuit Court, Smith was found guilty of a Class B misdemeanor. A divided Court of Appeals panel reversed in Smith v. State, 982 N.E.2d 348 (Ind. Ct. App. 2013), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: Here is the ILB summary of the January 30th 2-1 ruling (3rd case). The question in the case was whether ex-Central principal Chris Smith failed to immediately report child abuse or neglect. Here is the post linking to Attorney General's petition to transfer.
- 9:45 AM - Derek Asklar, et al. v. David Gilb, et al. (02S03-1305-CT-332) - At issue in this appeal is the amount of underinsured motorist coverage available to the plaintiff, Derek Asklar, under an insurance contract between Empire Fire and Marine Insurance and the company that was leasing Asklar’s services. The trial court awarded partial summary judgment to Empire, concluding the coverage limit was $75,000. The Court of Appeals affirmed in part and reversed in part, holding among other things that the named insured’s rejection of full underinsured motorist coverage complied with Indiana law. Asklar v. Gilb, 979 N.E.2d 664 (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 11/15/12 COA opinion where the court wrote:
Derek and Pauline Asklar (“the Asklars”) appeal the trial court’s decision to grant summary judgment in favor of Empire Fire and Marine Insurance Company (“Empire”). The Asklars contend that the trial court erred in holding that as a matter of law, Georgia law governs this dispute and that Empire’s uninsured/underinsured motorist coverage limit was only $75,000. Finding that Indiana law should apply in this case, but that Empire’s uninsured/underinsured motorist coverage limit is still only $75,000, we affirm in part and reverse in part.
- 10:30 AM - Matter of S.D. (49S05-1309-JC-585) - The Marion Superior Court determined a child with potentially life-threatening medical needs to be a child in need of services. The Court of Appeals affirmed, citing evidence of the mother's inability to meet the child's medical needs. Matter of S.D. (Ind. Ct. App. May 29, 2013) (NFP mem. dec.). The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a 5/29/13 NFP opinion.
This week's oral arguments before the Court of Appeals (week of 10/21/13):
Tuesday, October 22nd
- 1:00 PM - Robert Kuntz, et al, vs. EVI, LLC. (02A03-1301-PL-14) Robert Kuntz owns Kunodu, Inc., which was in the business of selling, repairing, rebuilding, and/or refurbishing electric automobile motors on real property also owned by Kuntz through B-K Interests, LLC. In 2006, Kuntz sold Kunodu’s assets to another business and both Kuntz and Kunodu entered into a covenant not to compete as part of the sale. B-K Interests also entered into a lease agreement with the company for use of the real property. In 2011, the original buyer sold the business assets to EVI, LLC, and also assigned the covenant not to compete and lease. After negotiations to extend the lease of the property failed, EVI moved to a new location and continued its business. In 2012, EVI filed a motion for preliminary injunction alleging Kuntz had been engaging in activities that are substantially similar to the activities engaged in by EVI, both personally and by allowing a similar business on the property. After a hearing, the trial court entered an order enjoining Kuntz, Kunodu, and B-K Interests from any further violations of the covenant not to compete, extending the term of the covenant not to compete, and ordering them to pay EVI’s attorney fees. Kuntz, Kunodu, and B-K Interests now appeal, arguing the trial court erred in granting the preliminary injunction because EVI has not shown a likelihood of success at trial, and further arguing the trial court erred in modifying the terms of the covenant not to compete and entering a judgment for attorney fees The Scheduled Panel Members are: Chief Judge Robb, Judges Najam and Riley. [Where: Purdue University, Krannert Center, Room 124, West Lafayette, Indiana]
Thursday, October 24th
- 1:00 PM - B.R., a Minor by his Guardian Teresa Todd v. IN. Dept. of Child Services, et al (55A05-1212-CT-639) B.R., a minor child suffered a severe brain injury after nearly drowning while placed in respite foster care. The foster care placement was arranged by Adult and Child Mental Health Center (“the Health Center”), which operates under a contract with the Marion County Department of Child Services. B.R., by his court-appointed guardian, filed a complaint against the Health Center arguing that the Health Center owed and breached its duty to use reasonable care in providing and supervising foster care and services to B.R. The Health Center filed a motion to dismiss the complaint pursuant to Trial Rule 12(B)(1) claiming lack of subject matter jurisdiction. Specifically, the Health Center argued that it is a qualified health care provider and B.R.’s claims for his injuries are subject to the medical review panel requirement of the Indiana Medical Malpractice Act. The trial court agreed and dismissed the complaint. B.R., by his guardian, now appeals. The Scheduled Panel Members are: Judges Najam, Bailey, and Mathias. [Where: IU McKinney School of Law, Wynne Moot Courtroom, Indianapolis, Indiana]
- No arguments currently scheduled.
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 October 21, 2013 08:59 AM
Posted to Upcoming Oral Arguments