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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. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  2. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  3. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  4. I totally agree with John Smith.

  5. An idea that would harm the public good which is protected by licensing. Might as well abolish doctor and health care professions licensing too. Ridiculous. Unrealistic. Would open the floodgates of mischief and abuse. Even veteranarians are licensed. How has deregulation served the public good in banking, for example? Enough ideology already!

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