Monday, October 14, 2013
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 10/14/13):
- No arguments currently scheduled.
Next 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) - When the Department of Child Services petitioned the Marion Superior Court to terminate a mother’s parental rights, the mother moved to dismiss and argued the court denied her due process by failing to appoint counsel for her during a prior case in which her child was declared in need of services; the court denied the mother’s motion to dismiss and terminated her parental rights. The Court of Appeals affirmed, holding that the mother was not denied due process and that sufficient evidence supports the termination of her parental rights. In re G.P., 985 N.E.2d 786 (Ind. Ct. App. 2013), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
This week's oral arguments before the Court of Appeals (week of 10/14/13):
- No arguments currently scheduled.
Next 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]
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 14, 2013 11:45 AM
Posted to Upcoming Oral Arguments