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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. I'm not sure what's more depressing: the fact that people would pay $35,000 per year to attend an unaccredited law school, or the fact that the same people "are hanging in there and willing to follow the dean’s lead in going forward" after the same school fails to gain accreditation, rendering their $70,000 and counting education worthless. Maybe it's a good thing these people can't sit for the bar.

  2. Such is not uncommon on law school startups. Students and faculty should tap Bruce Green, city attorney of Lufkin, Texas. He led a group of studnets and faculty and sued the ABA as a law student. He knows the ropes, has advised other law school startups. Very astute and principled attorney of unpopular clients, at least in his past, before Lufkin tapped him to run their show.

  3. Not that having the appellate records on Odyssey won't be welcome or useful, but I would rather they first bring in the stray counties that aren't yet connected on the trial court level.

  4. Aristotle said 350 bc: "The most hated sort, and with the greatest reason, is usury, which makes a gain out of money itself, and not from the natural object of it. For money was intended to be used in exchange, but not to increase at interest. And this term interest, which means the birth of money from money, is applied to the breeding of money because the offspring resembles the parent. Wherefore of an modes of getting wealth this is the most unnatural.

  5. Oh yes, lifetime tenure. The Founders gave that to the federal judges .... at that time no federal district courts existed .... so we are talking the Supreme Court justices only in context ....so that they could rule against traditional marriage and for the other pet projects of the sixties generation. Right. Hmmmm, but I must admit, there is something from that time frame that seems to recommend itself in this context ..... on yes, from a document the Founders penned in 1776: " He has refused his Assent to Laws, the most wholesome and necessary for the public good."

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