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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. Please I need help with my class action lawsuits, im currently in pro-se and im having hard time findiNG A LAWYER TO ASSIST ME

  2. Access to the court (judiciary branch of government) is the REAL problem, NOT necessarily lack of access to an attorney. Unfortunately, I've lived in a legal and financial hell for the past six years due to a divorce (where I was, supposedly, represented by an attorney) in which I was defrauded of settlement and the other party (and helpers) enriched through the fraud. When I attempted to introduce evidence and testify (pro se) in a foreclosure/eviction, I was silenced (apparently on procedural grounds, as research I've done since indicates). I was thrown out of a residence which was to be sold, by a judge who refused to allow me to speak in (the supposedly "informal") small claims court where the eviction proceeding (by ex-brother-in-law) was held. Six years and I can't even get back on solid or stable ground ... having bank account seized twice, unlawfully ... and now, for the past year, being dragged into court - again, contrary to law and appellate decisions - by former attorney, who is trying to force payment from exempt funds. Friday will mark fifth appearance. Hopefully, I'll be allowed to speak. The situation I find myself in shouldn't even be possible, much less dragging out with no end in sight, for years. I've done nothing wrong, but am watching a lot of wrong being accomplished under court jurisdiction; only because I was married to someone who wanted and was granted a divorce (but was not willing to assume the responsibilities that come with granting the divorce). In fact, the recalcitrant party was enriched by well over $100k, although it was necessarily split with other actors. Pro bono help? It's a nice dream ... but that's all it is, for too many. Meanwhile, injustice marches on.

  3. Both sites mentioned in the article appear to be nonfunctional to date (March 28, 2017). http://indianalegalanswers.org/ returns a message stating the "server is taking too long to respond" and http://www.abafreelegalasnswers.org/ "can't find the server". Although this does not surprise me, it is disheartening to know that access to the judicial branch of government remains out of reach for too many citizens (for procedural rather than meritorious reasons) of Indiana. Any updates regarding this story?

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