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COA affirms on rehearing its ruling against Bloomington dry cleaner

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The Indiana Court of Appeals rejected on rehearing a Bloomington dry cleaner’s request that it reconsider its August ruling that went against him.

An appellate panel granted rehearing in James T. Mitchell v. 10th And The Bypass, LLC, and Elway, Inc., 53A01-1112-PL-593, in which the COA affirmed a Monroe Circuit ruling that vacated partial summary judgment in favor of Mitchell. On Tuesday, the COA issued an opinion affirming its ruling.

“We grant Mitchell’s petition to address his contention that our opinion misunderstands and mischaracterizes his argument. We think not,” Judge Edward Najam wrote for the panel. “After careful consideration, we conclude that on rehearing Mitchell attempts to adjust and supplement his original argument, which he cannot do.”

Mitchell had been sued in an action that claimed environmental damage resulting from a dry cleaning business in which he was involved.

In January 2010, the trial court granted Mitchell’s request for partial summary judgment. The LLC later asked the court to vacate that motion after presenting evidence from a former employee who testified to chemical spills, and the court vacated its earlier order.

Mitchell contended the appellate panel allowed the abuse of discretion standard of review to dictate the outcome and to create “bad law,” and he challenged the COA’s reliance on the plain meaning of Indiana Trial Rule 54(B) regarding judgment upon multiple claims involving multiple parties.

“And Mitchell chides us for not adopting federal practice on how a trial court should handle new evidence when reconsidering a partial summary judgment under federal Rule 54(B),” Najam wrote. The court rejected those and other arguments on rehearing.

“In sum, we understood and decided this appeal based on the facts and argument originally presented by the parties. Our opinion applying Trial Rule 54(B) recognizes the inherent distinction between an interlocutory order and a final judgment and underscores that a party who wants to avoid the risk that an interlocutory order will be revised ‘at any time’ under Rule 54(B) should ask the court to enter the order as a final judgment,” Najam wrote.

“Without reweighing the evidence, we are satisfied that the factors the trial court identified in its decision to set aside the previous interlocutory order are more than sufficient to demonstrate that the court did not abuse its discretion. As such, we affirm our opinion.”


 

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  1. The voices of the prophets are more on blogs than subway walls these days, Dawn. Here is the voice of one calling out in the wilderness ... against a corrupted judiciary ... that remains corrupt a decade and a half later ... due to, so sadly, the acquiescence of good judges unwilling to shake the forest ... for fear that is not faith .. http://www.ogdenonpolitics.com/2013/09/prof-alan-dershowitz-on-indiana.html

  2. So I purchased a vehicle cash from the lot on West Washington in Feb 2017. Since then I found it the vehicle had been declared a total loss and had sat in a salvage yard due to fire. My title does not show any of that. I also have had to put thousands of dollars into repairs because it was not a solid vehicle like they stated. I need to find out how to contact the lawyers on this lawsuit.

  3. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  4. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  5. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

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