Monday, April 28, 2014
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 4/28/14):
Thursday, May 1
- 9:00 AM - First Am. Title Ins. Co. v. Robertson (49S04-1311-PL-732) First American Title Insurance Company petitioned the court for a judgment declaring void the Commissioner of Insurance's decision calling for an investigatory hearing. The Commissioner moved to dismiss the petition. The Marion Superior Court denied both the petition and the motion. The Court of Appeals affirmed in part and reversed in part, concluding the allegation that First American failed to exhaust its administrative remedies raised a procedural rather than a jurisdictional issue; the documents filed by First American, although not the complete agency record, were sufficient to permit judicial review; and the Commissioner's decision was untimely and void. First Am. Title Ins. Co. v.Robertson, 990 N.E.2d 9 (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 is a May 13th COA opinion. From footnote 8:
We note that in many instances, when a court sets aside an agency action, it remands the case to the agency for further proceedings. See Ind. Code § 4-21.5-5-15. Considering our holding that the Commissioner’s failure to comply with the statutory deadline rendered his order void and he can no longer take action on the report that was the subject of the order, remand to the agency would serve no purpose and is, therefore, unnecessary. * * * On remand, the trial court must simply issue an order granting First American’s petition and declaring the Commissioner’s order void.
- 9:45 AM - Natural Resources Defense Council v. Poet Biorefining (49A02-1205-MI-423) The Office of Environmental Adjudication determined the State Implementation Plan ("SIP") required the Indiana Department of Environmental Management to categorize the fuel ethanol facilities as "chemical process plants" for the purpose of regulated air emissions. The Marion Superior Court reversed. The Court of Appeals reversed the trial court, concluding the SIP categorized ethanol fuel facilities as chemical process plants and IDEM could not change its treatment of the facilities without obtaining approval of an amended SIP from the Environmental Protection Agency. Nat'l Res. Def. Council v. Poet Biorefining-North Manchester, 987 N.E.2d 531 (Ind. Ct. App. 2013), reh'g denied, trans. pending. IDEM and Central Indiana Ethanol, LLC have petitioned the Court to accept jurisdiction over the appeal.
ILB: This was an April 30, 2013 COA opinion (7th case) concluding: "The issue before us is whether the State could properly exclude fuel-grade ethanol production plants from the category of “chemical process plants” without Environmental Protection Agency (EPA) approval of a modification to the Indiana State Implementation Plan (SIP). As it could not, the ethanol plants remain “chemical process plants,” and we must reverse the trial court."
- 10:30 AM - Jerry A. Smith v. State of Indiana (15A05-1208-CR-411 & 24A01-1210-CR-469) After Smith pleaded guilty to federal charges relating to an investment scheme, he moved to dismiss charges pending against him in the Franklin Circuit Court and in the Dearborn Superior Court on grounds IC 35-41-4-5 bars the subsequent state-court prosecutions. The trial courts denied his motions to dismiss in part. In the separate appeals that followed, the Court of Appeals affirmed the trial courts’ rulings in part and reversed in part in separate opinions. Smith v. State, 993 N.E.2d 1182 (Ind. Ct. App. 2013), trans. pending, and Smith v. State, 993 N.E.2d 1185 (Ind. Ct. App. 2013), trans. pending. Smith has petitioned the Supreme Court to accept jurisdiction over both of the appeals. The Court will hear a forty-minute combined oral argument, but otherwise has not consolidated the appeals.
Next week's oral arguments before the Supreme Court (week of 5/5/14):
Thursday, May 8
- 9:00 AM - Evansville Courier and Press, et al v. Vanderburgh City Health (82S04-1401-PL-49) When the plaintiffs sued a county health department and sought access to certain death certificate records under Indiana’s Access to Public Records Act, the Vanderburgh Circuit Court granted the county health department summary judgment. The Court of Appeals affirmed. Evansville Courier & Press v. Vanderburgh Cnty. Health Dep’t, 993 N.E.2d 302 (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 is an Aug. 30, 2013 COA opinion. The ILB has had a number of posts about this important public access case, beginning at the trial level. See particularly this post from Dec. 9, 2012, and this one from Jan. 30, 2013.
- 9:45 AM - John Luttrell v. Melinda Luttrell (49A02-1301-DR-85) The Marion Superior Court issued a decree dissolving the parties’ marriage. When the husband appealed and raised issues relating to spousal maintenance, attorney’s fees, and the division of the marital estate, the Court of Appeals affirmed in part and reversed in part. Luttrell v. Luttrell, 994 N.E.2d 298 (Ind. Ct. App. 2013). The husband has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a Sept. 12, 2013 COA opinion (2nd case).
This week's oral arguments before the Court of Appeals (week of 4/28/14):
Wednesday, April 30
- 11:30 AM - Rashawn Speed v. State (35A02-1308-CR-696) A jury found Speed guilty of Class A felony child molesting, Class C felony child molesting, and Class B felony sexual misconduct with a minor. Speed was acquitted of the Class D felony sexual misconduct with a minor charge.
On appeal, Speed argues that the trial court improperly allowed J.A.T.’s counselor to vouch for her credibility. He also claims that the trial court erroneously allowed the prosecutor to ask leading questions of J.A.T., who was 20 at the time of the trial, and allowed a line of questioning that implied that other acts occurred outside of Huntington County. Speed also asserts that there is insufficient evidence to support his convictions because there is no evidence to corroborate J.A.T.’s testimony and her testimony is not credible. Finally, Speed claims his attorneys’ failure to object to certain evidence and to rebut other evidence resulted in ineffective assistance of counsel.
The Scheduled Panel Members are: Judges May, Mathias and Barnes.
[Where: Saint Joseph High School, 453 N. Notre Dame Ave., South Bend, IN ]
- 1:00 PM - Maddox Macy v. State (52A02-1309-CR-808) On August 25, 2012, animal control officers in Miami County received a report that two dogs owned by Maddox Macy bit one of Macy’s neighbors. The next morning, Officer Roger Bowland accompanied two animal control officers to Macy’s residence. Macy was uncooperative. Despite being asked to calm down, Macy was loud and demanded answers from the officers. Officer Bowland threatened to arrest Macy if she did not calm down. Officer Bowland then walked across the street to the bite victim’s house. Macy followed down the sidewalk and began “making a scene.” Officer Bowland arrested Macy and placed her in the front seat of his police car. Macy opened the door of the car and continued to yell. Officer Bowland forced Macy back into the car, but Macy refused to put her feet inside the door. Officer Bowland had to pick up Macy’s feet and place them inside the car. Macy was convicted of disorderly conduct and resisting law enforcement. Macy appeals her conviction for resisting law enforcement, arguing she did not forcibly resist. The Scheduled Panel Members are: Judges Baker, Kirsch and Robb. [Where: Lake County Government Complex Auditorium, 2293 N. Main St., Crown Point, IN ]
Thursday, May 1
- 1:30 PM - Tallman v. State (51A01-1305-PL-241) Richard M. Tallman appeals the trial court’s entry of summary judgment in favor of the State of Indiana, Indiana Department of Natural Resources, and Anthony Mann (collectively “DNR”) on Tallman’s complaint alleging DNR’s negligence. In December 2004, Jerry Tredway hired Tallman to harvest timber on his property for sale. After Tallman harvested more trees than the contract had authorized, Tredway’s daughter contacted DNR. After an investigation, DNR arrested Tallman and transported him to the Martin County Jail. Tallman claims that he sustained injuries as a result of the DNR’s placement of handcuffs around his wrists. Tallman sued DNR for damages, and DNR moved for summary judgment, which the trial court granted. On appeal, Tallman presents a single issue for our review, namely, whether the trial court erred when it concluded that DNR is immune from liability for Tallman’s alleged injuries as a matter of law. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Najam and May. [Where: Salem High School, 700 N. Harrison St., Salem, IN]
Next week's oral arguments before the Court of Appeals (week of 5/5/14):
Monday, May 5
- 1:30 PM - Indiana Insurance Company v. Patricia Kopetsky (49A02-1304-PL-340) Indiana Insurance contends that the trial court erred in granting Patricia summary judgment because (1) no damages were alleged by KB Home that qualify as “property damage” under the Policies; (2) KB Home alleged economic loss only, which does not qualify as “bodily injury” or “property damage” under the Policies; (3) the damages alleged were not the result of an “occurrence” under the Policies; (4) the Policies’ “expected and intended” exclusion barred coverage; (5) the trial court erred in failing to differentiate between Indiana Insurance’s breach of contract and constructive fraud claims; and (6) the trial court erred in concluding that Indiana insurance would have to indemnify Patricia for any judgment rendered in KB Home’s favor. Patricia cross-appeals, claiming that the trial court erred in dismissing her bad faith claim against Indiana Insurance. The Scheduled Panel Members are: Judges Mathias, Bradford and Pyle. [Where: 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 April 28, 2014 09:06 AM
Posted to Upcoming Oral Arguments