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COA: Food odors don’t support granting preliminary injunctive relief

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In a dispute over smells from a produce business drifting into neighboring businesses, the Indiana Court of Appeals affirmed that the manager of the shopping plaza is not entitled to preliminary injunctive relief for cooking foods without proper ventilation.

In The Novogroder Companies, Inc., v. Michael J. Massaro, 45A03-1303-PL-98, Dyer Plaza manager George Novogroder filed a complaint for injunctive relief against Michael J. Massaro, who leased commercial space in the plaza for his business The Produce Depot. The fruit and vegetable market also baked bread and served soup on the premises. Novogroder alleged that the smells created a nuisance and annoyed the neighboring businesses.

Michael Sena, owner of exercise studio Pro Fit; and Christie Gill, owner of Posh Paws, complained to Novogroder about the cooking smells. Novogroder and Massaro discussed installing ventilation but couldn’t agree as to who had the responsibility for finding a contractor.

In addition to seeking to enjoin Massaro from cooking until he added ventilation, Novogroder’s complaint also sought ejectment for breach of contract.

After hearing testimony from Sena, Gill, Novogroder and others, the trial court decided that the smells from The Produce Depot did not unreasonably annoy the neighboring owners and occupants. The judge pointed out that the smells from Massaro’s business paled in comparison to those of dog waste and urine that came from the pet grooming facility.

The appellate judges noted that no witness claimed to have perceived a foul odor coming from the business; the complaints were more that they could smell the food, which could produce nausea during exercise. In addition, the testimony of Novogroder and Massaro shows the actual dispute is more of a contract issue than a nuisance issue: who should bear the primary responsibility for installing ventilation.




 

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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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