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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. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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