Monday, May 12, 2014
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 5/12/14):
Thursday, May 15
- 9:00 AM - TP Orthodontics, Inc. v. Andrew Kesling, et al. (46A03-1207-MI-324) In litigation between siblings who are shareholders of a closely-held corporation, a special litigation committee (SLC) was formed to investigate and evaluate derivative claims the minority shareholders sought to pursue on behalf of the corporation, and the SLC issued a report that recommended pursuing some claims but not others. The corporation moved to dismiss those claims the SLC recommended be rejected, attaching to its motion a heavily-redacted version of the SLC’s report. The minority shareholders then sought to compel production of the entire report, save one section not at issue. The trial court granted the motion to compel production, and the Court of Appeals affirmed on interlocutory appeal. The corporation, TP Orthodontics, has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This was an Sept. 3, 2013 COA opinion (3rd case) concluding:
We conclude that the corporation’s arguments against production are outweighed by basic considerations of necessity and fairness. Derivative plaintiffs must show that the special litigation committee was not disinterested or did not act in good faith in order to survive a corporation’s motion to dismiss. The best evidence of whether the committee acted in good faith is the committee’s report explaining how it so acted. Not only do derivative plaintiffs need the report in order to challenge the committee’s good faith, our trial-court judges need this report to make informed decisions.
- 9:45 AM - Tin Thang v. State of Indiana (49S04-1402-CR-72) Thang was convicted in the Marion Superior Court of public intoxication as a class B misdemeanor. The Court of Appeals reversed on grounds there was no evidence that he had endangered anyone’s life, breached the peace, or harassed, annoyed or alarmed another person as required by Indiana Code section 7.1-5-1-3(a). Thang v. State, 2 N.E.3d 702 (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 an October 31, 2013 COA opinion (5th case).
- 10:30 AM - Frank Jacobs v. State of Indiana (49S04-1403-CR-162) Following a bench trial in the Marion Superior Court, Jacobs was convicted of criminal deviate conduct and criminal confinement. On appeal, he raised issues about the exclusion of testimony about the victim’s truthfulness and testimony from a proposed sur-rebuttal witness. The Court of Appeals affirmed in Jacobs v. State, 2 N.E.3d 116 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted a petition to transfer the case, and has assumed jurisdiction over the appeal.
ILB: This was a Jan. 27, 2014 COA opinion (5th case).
Next week's oral arguments before the Supreme Court (week of 5/19/14):
Thursday, May 8
- 9:00 AM - Indiana State Ethics Commission v. Patricia Sanchez (49S02-1402-PL-80) Sanchez, a former state employee, petitioned for judicial review of an adverse determination by the Ethics Commission finding Sanchez violated a prohibition on personal use of state property and barring Sanchez from future state employment. The trial court granted Sanchez’s petition and vacated the Commission’s determination. The Court of Appeals affirmed, holding among other things that a prior probable cause determination made by a criminal court had preclusive effect in the subsequent ethics proceedings against Sanchez. Indiana State Ethics Comm’n v. Sanchez, 997 N.E.2d 16 (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 an Oct. 8th, 2013 COA opinion, ruling:
Pursuant to Indiana Code Section 4-2-6-4(b)(2), if the OIG’s ethics complaint is not supported by probable cause the Ethics Commission may either “dismiss the complaint,” I.C. § 4-2-6-4(b)(2)(A)(iii), or “refer the alleged violation for additional investigation by the inspector general,” I.C. § 4-2-6-4(b)(2)(C). But there is nothing left for the inspector general to investigate here. As explained above, the trial court in the earlier criminal action found the information underlying the OIG’s ethics complaint to be stale and the evidence seized based on that information to be without probable cause. Those conclusions are only more true with the ensuing passage of time. Thus, the only option left for the Ethics Commission would be for it to formally dismiss the complaint. But we need not remand for mere formality. We affirm the trial court’s judgment.
- 9:45 AM - Twin Lakes Regional Sewer District v. Richard Ray, et al. (08S04-1402-MI-97) After the property owners failed to pay sewer bills, the Twin Lakes Regional Sewer District placed liens on their properties and sought to enforce the liens through tax sales. The Carroll Circuit Court granted the owners' requests to remove their properties from the tax sale list, finding Indiana Code section 13-26-14-4 prohibits real property from being sold at a tax sale when the only lien against the property is for an unpaid sewer bill. Twin Lakes appealed and sought immediate transfer of the appeal to the Supreme Court pursuant to Appellate Rule 56(A), which the Court granted.
- 10:30 AM - State of Indiana v. Frank Greene (49S02-1403-PC-172) Greene’s conviction for criminal confinement as a class B felony, see Indiana Code section 35-42-3-3, and other offenses was affirmed on direct appeal in a memorandum decision. Greene v. State, No. 49A05-0905-CR-250 (Ind. Ct. App. Feb. 17, 2010). The Marion Superior Court granted post-conviction relief on grounds counsel had been ineffective in failing to challenge the sufficiency of the evidence on the elevated confinement charge. Citing Long v. State, 743 N.E.2d 253 (Ind. 2001), and Redman v. State, 743 N.E.2d 263 (Ind. 2001), the Court of Appeals affirmed the trial court’s judgment granting post-conviction relief in State v. Greene, 2 N.E.3d 737 (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 Dec. 27, 2013 opinion re a petition for post-conviction relief where the COA concluded: "by failing to adequately research and bring a meritorious issue to the attention of the court, both trial and appellate counsels’ representation was inadequate and ineffective."
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 5/12/14):
Monday, May 12
- 1:30 PM - Re: Banks v. Jamison, dba Automotive Hammerart (35A02-1308-CR-696) Appellant, Terry Banks, appeals the trial court’s order granting partial summary judgment to Appellee, Denny Jamison d/b/a Automotive HammerArt, who had previously foreclosed on a mechanic’s lien against Appellant—pursuant to Indiana’s possessory mechanic lien statute—for unpaid work done to Appellant’s car. When granting partial summary judgment to Appellee, the trial court concluded that Appellant was estopped from collaterally attacking Appellee’s mechanic’s lien and the foreclosure sale of Appellant’s vehicle.
Pursuant to Indiana Appellate Rule 41, Automobile Dealers Association of Indiana, Inc. has filed an appearance in this case as amicus curiae and has filed an appellate brief substantively aligned with Appellee. The Scheduled Panel Members are: Judges Mathias, Bradford and Pyle. [Where: Court of Appeals Courtroom (WEBCAST)]
Tuesday, May 13
- 11:00 AM - Brill, Alan R., et al. v. Regent Communications Inc., et al. (82A01-1304-PL-174) Brill appeals a summary judgment in favor of Regent in Brill’s action for breach of contract and fraud stemming from the parties’ execution of two confidentiality agreements during negotiations for the sale of Brill’s radio stations and newspapers. Brill also challenges the trial court’s rulings on Regent’s motions to strike certain designated evidence and Brill’s motion to strike parol evidence. Regent cross-appeals the trial court’s denial of its motion to dismiss, claiming that a choice of law provision contained in the contract renders Brill’s action untimely under Virginia’s statute of limitations.
The Scheduled Panel Members are: Judges Baker, Najam and Crone.
[Where: Court of Appeals Courtroom (WEBCAST)]
- 1:30 PM - Jeffrey Miller, et al, v. Central Indiana Community Foundation (49A04-1309-PL-451) Appellants-Plaintiffs Jeffrey M. Miller and Cynthia S. Miller (collectively, "Appellants") appeal the trial court's order granting Appellees-Defendants Central Indiana Community Foundation, Inc. and Brian Payne's (collectively, "Appellees") motion for summary judgment. In arguing that the trial court erred in granting Appellees' motion for summary judgment, Appellants contend that an issue of material fact remains as to whether (1) Appellees tortiously interfered with Mr. Miller's business relationship with the City of Indianapolis, (2) Appellees' statements were defamatory per se, (3) Appellants' lawsuit against Appellees was meritless, (4) statements made by Appellees were protected by qualified privilege, (5) Appellees were involved in a civil conspiracy to injure the Appellants, (6) Appellees caused intentional infliction of emotional distress to Mr. Miller, (7) Mr. Payne's published statements placed Mr. Miller in a false light, and (8) Mrs. Miller has suffered a loss of consortium because of Appellees' actions. Appellees, for their part, contend that the trial court properly granted their motion for summary judgment. The Scheduled Panel Members are: Judges Baker, Najam and Crone. [Where: Court of Appeals Courtroom (WEBCAST)]
Wednesday, May 14
- 1:00 PM - Randolph Kelly v. State (02A03-1308-CR-329) The Appellee was ordered to pay restitution of $60,000 to the victim of a DUI accident. The Appellant obtained a civil judgment of $50,000. The Appellant challenges the criminal court’s determination that the Appellee will be able to credit the $50,000 civil judgment towards the $60,000 restitution order.
The Scheduled Panel Members are: Judges Friedlander, Kirsch and Bailey.
[Where: Shortridge Magnet High School for Law and Public Policy, 3401 N. Meridian St., Indianapolis]
- 1:30 PM - Gonzalez v. Evans (29A02-1311-DR-984) Gonzalez appeals an order directing her to pay over $8,000 in attorney fees to Evans, which arose from Gonzalez's nonparty subpoena asking Evans to produce business records related to Gonzalez's ex-husband and their divorce. The trial court ordered the payment of attorney fees based on Evans's alleged "reasonable resistance" to Gonzalez's subpoena, as permitted by Indiana Trial Rule 34(C)(3). Gonzales claims there is insufficient evidence of "reasonable resistance" where the trial court eventually granted her motion to compel production of the records. Gonzalez also argues that the trial court erred in failing to award her any attorney fees in granting her motion to compel, pursuant to Indiana Trial Rule 37. The Scheduled Panel Members are: Judges Baker, Barnes and Crone. [Where: Court of Appeals Courtroom (WEBCAST)]
Next week's oral arguments before the Court of Appeals (week of 5/19/14):
- No oral 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 May 12, 2014 08:55 AM
Posted to Upcoming Oral Arguments