Monday, January 09, 2017
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 1/9/17):
Thursday, January 12
- 9:00 AM - Kevin Charles Isom v. State of Indiana (45S00-1508-PD-00508) Isom’s murder convictions and death sentence were affirmed on direct appeal in Isom v. State, 31 N.E.3d 469 (Ind. 2015), reh’g denied. Subsequently, the Lake Superior Court denied Isom’s motion to file a non-compliant petition for post-conviction review, found Isom waived post-conviction review, and denied Isom’s motions to determine competency. In this direct appeal, Isom argues he should receive post-conviction review.
- 9:45 AM - James Rogers v. State of Indiana (49A02-1508-CR-01033) Rogers was charged with crimes including Class A felony child molesting. During discovery, Rogers sought to compel the deposition testimony of an unlicensed social worker at a faith-based community center who had previously assisted the alleged victim. The Marion Superior Court denied Rogers’ motion to compel, finding the alleged victim’s communications with the social worker were privileged under Indiana Code section 25-23.6-6-1. On interlocutory appeal, the Court of Appeals reversed. Rogers v. State, 60 N.E.3d 256 (Ind. Ct. App. 2016), reh’g denied. The State has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This was this was a July 6, 2016 COA opinion, holding "the counselor/client privilege of IC 25-23.6-6-1 does not include communications with unlicensed social workers."
- 10:30 AM - D.B. and V.G. v. Indiana Department of Child Services (54S01-1612-JT-00630) The Montgomery Circuit Court entered a judgment terminating parental rights. The Court of Appeals affirmed, although it found the Department’s petitions were prematurely filed as to some of the children involved. D.B. v. Indiana Dep’t of Child Servs., 61 N.E.3d 364 (Ind. Ct. App. 2016), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was this was a Sept. 15, 2016 COA opinion.
Next week's oral arguments before the Supreme Court (week of 1/16/17):
Thursday, January 19
- 9:00 AM - Royce Love v. State of Indiana (71S03-1612-CR-00641) After a jury trial, Love was convicted in St. Joseph Superior Court of resisting law enforcement and mistreatment of a law enforcement animal. On appeal, a majority of the Court of Appeals reversed, concluding video evidence indisputably contradicted police officer testimony about the events underlying the convictions. Love v. State, 61 N.E.3d 290 (Ind. Ct. App. 2016), 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, Sept. 8, 2016 COA opinion (ILB summary here, 8th case). The ILB posted several news stories at the time, under the heading "Appeals court says video 'indisputably contradicts' South Bend police testimony."
- 9:45 AM - Fresenius USA Marketing v. Indiana Department of State Revenue (49T10-1008-TA-00045)The Indiana State Department of Revenue denied Fresenius’s claim for a refund of sales tax paid on medical supplies it sold to dialysis clinics, finding that the relevant exemption applied only to items sold directly to patients. The Tax Court disagreed, and granted summary judgment to Fresenius. Fresenius USA Marketing, Inc. v. Indiana Dept. of State Revenue, 56 N.E.3d 734 (Ind. Tax Court, July 15, 2016), trans. pending. The Indiana Department of State Revenue has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This was this was a July 18, 2016 Tax Court opinion, which "present[ed] one dispositive issue: whether the Department is bound by its published ruling interpreting the exemption provided by Indiana Code § 6-2.5-5-18(a)." The ruling concluded:
Even though the 1998 Ruling was not issued to Fresenius, it was entitled to rely on it because it demonstrated factual similarity. Because it did not rebut Fresenius’s showing of similarity, the Department is bound by its interpretation in its 1998 Ruling. Consequently, while the Department is not entitled to summary judgment on this basis, Fresenius is.
This week's oral arguments before the Court of Appeals (week of 1/9/17): Tuesday, January 10
- 11:00 AM - Harrison County Sheriff's Department v. Leandra Ayers (Case# not provided on COA calendar) Harrison County Sheriff’s Deputy John Britton was at home with his wife, Christine. They started to argue over John’s lack of tidiness, and Christine began threatening to kill herself. At one point, she reached for John’s off duty weapon that he was wearing. As they continued to argue, John said, “fine,” took his gun off his belt, and threw it on the bed. He walked to the front door but heard a gunshot—Christine had committed suicide with his gun. This case stems from that incident: Christine’s estate won a $1.2 million verdict against John’s employer, the Harrison County Sheriff’s Department, under a theory of respondeat superior. The Sheriff’s Department now appeals, arguing 1) respondeat superior does not apply because John was off-duty; 2) alternatively, John had immunity under the Indiana Tort Claims Act for any alleged negligence in enforcing the law; and 3) Christine was, as a matter of law, contributorily negligent in committing suicide, and her estate should be barred from recovering. The Scheduled Panel Members are: Judges Baker, Mathias, and Pyle. [Where: Court of Appeals Courtroom (WEBCAST)]
- 1:00 PM - Mark Allen Price, Jr. v. State of Indiana (49A02-1607-CR-01665) Mark Price challenges his conviction for unlawful possession of a firearm by a serious violent felon. He argues that the State failed to present sufficient evidence to prove that he actually possessed a firearm. In the alternative, he argues that the trial judge committed fundamental error by allowing the State to present evidence that Price remained silent after being arrested. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Bradford and Altice. [Where: Ben Davis High School, 1200 N. Girls School Rd., Indianapolis, IN]
- 10:00 AM - Flat Rock Wind, LLC v. Rush County Area Board of Zoning Appeals, et al. (70A01-1606-PL-01382) This case arises from Flat Rock Wind, LLC’s effort to develop a 180-megawatt commercial Wind Energy Conversion System (WECS) located on over 29,000 acres of land in Rush and Henry Counties. Flat Rock Wind, LLC appeals the trial court’s decision, affirming the Rush County Area Board of Zoning Appeals’ (BZA) zoning decision. While the BZA nominally granted Flat Rock’s amended zoning application to construct a WECS, the BZA also required Flat Rock to site each industrial wind turbine at least 2,300 feet from a non-participating owner’s property line. Flat Rock now presents this court with 2 issues: 1.) Whether the trial court erred in affirming the BZA’s zoning decision approving Flat Rock’s amended application for a special exception to construct a WECS, subject to a setback requirement that was both greater and measured differently than the zoning ordinance’s minimum setback requirement; and 2.) Whether the trial court abused its discretion in permitting a group of landowners to intervene in these judicial review proceedings pursuant to Indiana Trial Rule 24(A)(2). The Scheduled Panel Members are: Judges Riley, Crone, and Altice. [Where: Court of Appeals Courtroom (WEBCAST)]
Next week's oral arguments before the Court of Appeals (week of 1/16/17):Thursday, January 16
- 10:00 AM - ABC Radiology, P.C., et al. v. Cathy Gearhart (Case# not provided on COA calendar) Cathy Gearhart (Plaintiff) filed a complaint in Marion Superior Court against various defendants following the death of her husband, Kent Gearhart, from renal cancer. The defendants to Counts I and II (Defendants) jointly filed a motion requesting that the trial court sever Counts I and II from Count III and transfer venue of Counts I and II to Vanderburgh County. Plaintiffs responded that Marion County was a county of preferred venue because a necessary defendant to the action – the Indiana Patients Compensation Fund – is a governmental organization with its principal office located there. Plaintiffs argued also that all three counts were properly joined because they arise out of the same transaction or occurrence and have common questions of law and fact. Following a hearing, the trial court denied the motion. Defendants appeal, arguing that Plaintiff’s joinder of the underlying negligence actions with the declaratory judgment action was improper and deprived Defendants of their right to trial in a preferred venue county. The Scheduled Panel Members are: Judges Riley, Crone, and Altice. [Where: Court of Appeals Courtroom (WEBCAST)]
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 January 9, 2017 09:05 AM
Posted to Upcoming Oral Arguments