Monday, October 20, 2014
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 10/20/14):
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’?”
Thursday, Oct. 30
- 9:00 AM - State of Indiana v. International Business Machines Corporation (49S02-1408-PL-513) The State and IBM sued one another for breach of contract following the termination of a contract intended to modernize and improve Indiana’s system for administering welfare benefits. After several partial summary judgment rulings and a six-week bench trial, the trial court entered judgment in favor of IBM and against the State and awarded IBM some, but not all, of the damages IBM had sought. On cross-appeals, a divided Court of Appeals panel affirmed in part, reversed in part, and remanded for further proceedings. State v. Int’l Bus. Mach. Corp, 4 N.E.3d 696 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted petitions to transfer the case and has assumed jurisdiction over the appeal.
- 9:45 AM - Roy Bell v. State of Indiana (25S00-1310-LW-713) Bell was convicted of murder and burglary following a bench trial in the Fulton Superior Court, and was sentenced to life without the possibility of parole pursuant to the parties’ agreement. In this direct appeal, Bell argues the evidence was insufficient to support the murder conviction.
This 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)]
Next week's oral arguments before the Court of Appeals (week of 10/27/14):
Wednesday, Oct. 29
- 1:00 PM - Gentry v. Bloomquist (32A01-1406-CT-226) In May 2012, eighteen-year-old Sean Bloomquist (“Bloomquist”) hosted a party at his father’s home. Bloomquist’s father and stepmother were not at home and were unaware of the party. Bloomquist, eighteen-year-old Nathan Gentry (“Nathan”), and a third teenager gave money to nineteen-year-old Dustin Stamm (“Stamm”) to purchase alcohol. Stamm went by himself to purchase the alcohol and returned to Bloomquist’s home with a case of beer, which was kept in Stamm’s open car trunk during the party. According to seventeen-year-old party guest Christopher Hubbard (“Hubbard”), the beer was already there when he arrived, and Bloomquist told him that he could have some. Hubbard drank some beer, went to bed in Bloomquist’s home between 12:00 and 2:00 a.m., and awoke at 8:00 the next morning. Half an hour later, as Hubbard was driving Nathan and others to another partygoer’s softball practice, his car left the road and hit a tree. Nathan died as a result of the collision. Nathan’s father, Albert C. Gentry, II (“Gentry”), filed a complaint for damages against Bloomquist and others. The complaint alleged that Bloomquist was civilly liable because he violated Indiana Code Section 7.1-5-7-8, which makes it unlawful for a person to “recklessly, knowingly, or intentionally sell, barter, exchange, provide, or furnish an alcoholic beverage to a minor,” as well as Indiana Code Section 7.1-5-10-15, which makes it unlawful for a person to sell, barter, deliver, or give away an alcoholic beverage to another person who he knows is intoxicated. Indiana Code Section 7.1-5-10-15.5 defines “furnish” as including “barter, deliver, sell, exchange, provide, or give away.” Bloomquist filed a motion for summary judgment asserting that he did not “furnish” an alcoholic beverage to Hubbard. The trial court granted Bloomquist’s motion. On appeal, Gentry contends that the trial court erred in granting Bloomquist’s summary judgment motion because genuine issues of material fact exist regarding whether Bloomquist “furnished” an alcoholic beverage to Hubbard. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Barnes and Crone. [Where: Notre Dame Law School, 1100 Eck Hall, Notre Dame, IN]
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 20, 2014 09:32 AM
Posted to Upcoming Oral Arguments