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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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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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