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Monday, October 13, 2014
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 10/13/14):
Thursday, Oct. 16
- 9:00 AM - Cornelius Hines v. State of Indiana (52S05-1408-CR-563) Hines struck a correctional officer in the ribs, and he restrained the officer by pinning her against a wall. He was convicted of criminal confinement and battery after a jury trial in the Miami Superior Court. On appeal he argued, among other things, that the “continuous crime doctrine” prohibited the multiple convictions because the actions were so compressed in time, purpose and continuity that they constituted a single transaction. The Court of Appeals rejected all the arguments and affirmed the convictions in Hines v. State, No. 52A05-1312-CR-594 (Ind. Ct. App. Jun. 17, 2014) (Mem. Dec.), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: NOTE: This is a NFP June 17th opinion concluding:
The trial court concluded, “in weighing the two together I think that the prior criminal record and the type of offenses he’s committed outweigh any mitigating factor.” Transcript at 213. We agree with the trial court’s analysis. Hines’s sentence is not inappropriate.
- 9:45 AM - Indiana Restorative Dentistry, P.C. v. The Laven Insurance Agency, et al. (49S05-1407-PL-491) After a fire destroyed the contents of its office, Indiana Restorative Dentistry filed a complaint in the Marion Superior Court alleging its office was underinsured due to Laven Insurance Agency's failure to provide advice and secure additional coverage. The trial court denied the motions for summary judgment filed by Indiana Restorative Dentistry and Laven Insurance Agency and granted the motion for summary judgment filed by ProAssurance Indemnity Company. The Court of Appeals reversed and remanded, holding Laven Insurance Agency had a special duty to advise on coverage and an implied contractual duty to procure coverage. The Court of Appeals also held that genuine issues of material fact preclude summary judgment for ProAssurance. Indiana Restorative Dentistry, P.C. v. Laven Ins. Agency, Inc., 999 N.E.2d 922 (Ind. Ct. App. 2013), vacated. The Supreme Court has denied ProAssurance's petition to transfer, granted Laven Insurance Agency's petition to transfer, and assumed jurisdiction over the appeal.
ILB: Transfer was granted to appellee Laven Ins., and denied to appellee ProAssurance. The COA reversed the trial court, here is the Dec. 17, 2013 ILB summary.
- 10:30 AM - John Study v. State of Indiana (06S04-1407-CR-461) Study was convicted in the Boone Superior Court of four counts of robbery and other offenses. Among other things, Study asserted on appeal that one of the charges was filed too late and should have been dismissed. Indiana Code section 35-41-4-2(h)(2) says the limitation period does not include any period in which the accused “conceals evidence of the offense.” A majority of the Court of Appeals rejected this argument in Study v. State, No. 06A04-1308-CR-391 (Ind. Ct. App. 2014) (NFP memo. dec.), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a 2-1, April 10, 2014 NFP opinion, involving, inter alia, whether the applicable statute of limitations had been tolled in a robbery case.
Thursday, Oct. 23
- 9:00 AM - Donald W. Myers, III v. State of Indiana (76S03-1407-CR-493) Myers had been diagnosed with schizophrenia, and in 2004, he stopped taking medication and shot at motorists. At trial in the Steuben Circuit Court, unanimously the experts opined Myers had been legally insane at the time of the shootings; the State was allowed to present Myers’s post-arrest silence and request for counsel as evidence of sanity. The jury rejected the insanity defense and found Myers guilty of four counts of attempted murder. The Court of Appeals reversed in Myers v. State, No. 76A03-1305-CR-173 (Ind. Ct. App. 2014) (NFP memo. dec.), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was an April 14th NFP opinion where the COA reversed the trial court, holding: "The trial court abused its discretion in admitting evidence of Myers’s refusal to speak with police and his request for counsel and the jury clearly erred in rejecting Myers’s insanity defense."
- 9:45 AM - Dunstin E. McCowan v. State of Indiana (64S03-1408-CR-516) Following a jury trial in the Porter Superior Court, Dustin McCowan was convicted of murdering Amanda Bach. The Court of Appeals rejected McCowan’s appellate arguments, including those relating to an instruction on the presumption of innocence and admission of certain cell phone data, and affirmed the conviction in McCowan v. State, N.E.3d (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 an April 23, 2014 COA opinion regarding the admissibility of cell phone records including the text messages, and the location of the calls that were made.
- 10:30 AM - In the Matter of Dennis Alan Howell (94S00-1405-CQ-321) Pursuant to Indiana Appellate Rule 64, the United States Bankruptcy Court for the Northern District of Indiana certified the following question of Indiana law for the Indiana Supreme Court’s consideration, which the Indiana Supreme Court accepted on May 23, 2014. The question, as framed by the federal court, is: “Under Indiana Code § 27-1-12-14(e), does the phrase ‘dependent upon such person’ modify only ‘any relative,’ or does the phrase modify ‘spouse,’ ‘children,’ and ‘any relative’?”
This week's oral arguments before the Court of Appeals (week of 10/13/14):
Tuesday, Oct. 14
- 10:00 AM - Walgreen Co. v. Hinchy (Case# not provided) In this case, Walgreen Co. is appealing the denial of summary judgment and directed verdict as well as a jury verdict and damages award of $1.8 million. The underlying complaint relates to a Walgreen pharmacist who accessed Hinchy's prescription profile for personal reasons, and the complaint includes counts for invasion of privacy, negligence, and respondeat superior.
The Scheduled Panel Members are: Judges Baker, Kirsh and Robb
[Where: Court of Appeals Courtroom (WEBCAST)]
- 1:00 PM - Clifton v. McCammack (49A02-1404-CT-276) On Aug. 3, 2012, Darryl Clifton was killed in an accident when a vehicle driven by Ruby McCammack pulled out from a shopping center parking lot in Indianapolis and drove into his path. Clifton was on a motor scooter and died at the scene. McCammack admitted fault. Clifton's father, Ray, arrived at the scene shortly after the accident occurred and observed his son's scooter and a body lying in the road next to McCammack's vehicle, covered by a sheet but with shoes visible, which Ray recognized as his son's shoes. Ray claimed he suffered extreme emotional distress and filed a complaint against McCammack for negligent infliction of emotional distress. The trial court granted summary judgment for McCammack and Ray now appeals. The Scheduled Panel Members are: Judges Bailey, May and Brown [Where: Pike Central High School, Petersburg, IN]
Next week's oral arguments before the Court of Appeals (week of 10/20/14):
Monday, October 20
- 10:00 AM - Anonymous Physician, et al v. Rogers (02A03-1401-CT-1) Richard Rogers experienced escalating allergic reactions following cystoscopy procedures performed by the Anonymous Physician and Anonymous Medical Group (the “Providers”) on March 10, 2008; July 14, 2008; and January 7, 2009. After consultation with a different doctor, Rogers discovered on March 5, 2009, that he was allergic to a disinfectant used on the surgical instruments. He filed a proposed complaint for medical malpractice with the Indiana Department of Insurance on March 4, 2011. The Providers filed a motion for preliminary determination and for summary judgment alleging that Rogers’ claim was barred by the statute of limitations. The trial court initially granted the Providers’ motion and dismissed Rogers’ proposed complaint, finding that Rogers discovered the alleged malpractice within the two year statute of limitations, there was no continuing wrong or fraudulent concealment to extend the statute of limitations, and he was therefore required to file his complaint within two years of January 7, 2009-the last occurrence of alleged malpractice. The trial court subsequently granted Rogers’ motion to correct error and vacated its earlier dismissal of his complaint upon finding that there are genuine issues of material fact as to when a reasonably diligent plaintiff would have discovered the allegedly negligent conduct. The Providers now appeal the trial court’s denial of their motion for preliminary determination and for summary judgment. The Scheduled Panel Members are: Judges Baker, Kirsch and Robb.
[Where: Court of Appeals Courtroom (WEBCAST)]
- 11:00 AM - Taylor v. State (55A01-1312-CR-524) In this case, Aaron Taylor is appealing multiple criminal convictions that resulted from an incident in which he held utility employees at gunpoint after they entered his property to shut off his water and remove his water meter. Taylor argues that he should have been permitted to present evidence supporting a citizen's arrest defense and that the evidence supporting one of his intimidation convictions was insufficient.
The Scheduled Panel Members are: Judges Baker, Kirsch and Robb.
[Where: Court of Appeals Courtroom (WEBCAST)]
- 2:00 PM - Rueth Development v. Powers-Rueth & Assoc., et al (45A05-1402-PL-80) Appellant-Plaintiff Rueth Development Company ("RDC") appeals the trial court's order granting summary judgment in favor of Appellees-Defendants Powers-Rueth & Associates, Donald S. Powers, Margaret F. Powers, Frankie L. Fesko, Timothy Fesko, and Joe P. Williamson (collectively, "Appellees"). RDC contends that the award of summary judgment in favor of Appellees was improper because issues of material fact remain that would preclude an award of summary judgment. RDC further contends that the trial court abused its discretion in denying its request to submit supplemental evidence prior to the summary judgment hearing and in denying its motion for leave to amend its complaint. For their parts, Appellees contend that the trial court properly granted summary judgment in their favor, and that the trial court acted within its discretion in denying RDC's request to filed supplemental materials and amend its proceedings. The Scheduled Panel Members are: Not available. [Where: Not available]
Tuesday, October 21
- 1:00 PM - Thomson Inc. v. XL Insurance (49A02-1401-PL-9) In this case, Thomson is appealing the grant of summary judgment in favor of XL Insurance America on Thomson's action seeking indemnification and defense from the insurer. The underlying issues stem from soil and groundwater contamination at manufacturing plants located in Taiwan and Circleville, OH; Thomson's expenses incurred in investigating and remediating the contamination; and whether its insurance covered is barred by the common law known-loss doctrine. The Scheduled Panel Members are: Judges Baker, Kirsch and Robb. [Where:Krannert Center for Executive Education, Purdue University, West Lafayette, IN]
Wednesday, October 22
- 12:00 PM - Sharon Handy v. P.C. Building Materials Inc., et al (22A01-1403-CT-125) Sharon Handy appeals the trial court’s entry of summary judgment in favor of P.C. Building Materials, Inc., PC Properties, LLC, David A. Stemler, and Karen L. Stemler (collectively “PC”) on Handy’s negligence claim against PC. Handy sued PC for an injury she sustained while on property owned by PC. Handy entered onto the P.C. Building Materials store property to look at some granite countertops for sale that were leaning against the outside wall of the store, just to the side of the front entrance. The store was closed at the time. Handy pulled one of the leaning countertops toward her body to measure the second countertop that was behind it, when both countertops fell forward onto her foot, causing an injury to her toe. On appeal, the parties disagree as to Handy’s status on the property at the time of the injury. PC maintains that Handy was a trespasser, or at best a licensee, to whom PC owed only a duty to refrain from willfully or wantonly injuring or acting in a manner to increase her peril. Handy contends that she was an invitee/business visitor with an implied invitation to enter the premises and that PC owed her the duty to exercise reasonable care for her protection. PC responds that even assuming Handy qualified as an invitee, the danger posed by the granite countertops was known or obvious to Handy, and therefore PC breached no duty to her as a matter of law. The Scheduled Panel Members are: Judges Riley, Mathias and Crone. [Where:IU Maurer School of Law, 211 South Indiana Ave., Bloomington, IN]
Thursday, October 23
- 10:30 AM - Miller and Miller v. Danz (49A05-1401-PL-45) Jeffrey M. Miller and Cynthia S. Miller appeal the grant of summary judgment in favor of Kristine C. Danz, on their claims for defamation per se, defamation per quod, invasion of privacy, tortious interference with a business relationship, intentional infliction of emotional distress, and loss of consortium. At issue are (1) whether the claims asserted by the Millers are time-barred as to Danz, (2) whether the defamation claims asserted by the Millers fail on the merits, and (3) whether there remain questions of fact regarding the remaining claims asserted by the Millers. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Friedlander and May. [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. [Note: This may be changing...]
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 13, 2014 09:05 AM
Posted to Upcoming Oral Arguments