Opinion

Jones v. Review Board of the Indiana Employment Security Division

  • 508 N.E.2d 1322
  • 1987 Ind. App. LEXIS 2754
Court
Indiana Court of Appeals
Filed
Jun 15, 1987
Status
Published
Author
Miller
On the bench
Miller, Ratliffe, Robertson
Cited by
3 cases

The opinion

MILLER, Judge,

concurring and dissenting in part.

I concur in part and dissent in part.

I concur in Judge Robertson's resolution of the issues presented in this case, but disagree with the court's disposition. I would not remand to the Review Board a second time for reconsideration and development of a factual record. Rather, I would reverse for the reasons stated by Judge Robertson and enter final judgment in favor of claimant Ronald Jones pursuant to Appellate Rule 15(N), which provides:

"(N) Order or Relief Granted on Appeal. An order or judgment upon appeal may be reversed as to some or all of the parties and in whole or in part. The court, with respect to all or some of the parties or upon all or some of the issues, may order:

(1) A new trial;

2. Entry of final judgment

3. Correction of a judgment subject to correction, alteration, amendment or modification;

4. In the case of claims tried without a jury or with an advisory jury, order the findings or judgment amended or corrected as provided in Rule 52(B);

(5) In the case of excessive or inadequate damages, entry of final judgment on the evidence for the amount of the proper damages, a new trial, or a new trial subject to additur or remittitur; or

(6) Grant any other appropriate relief, and make relief subject to conditions. The court shall direct final judgment to be entered or shall order the error corrected without a new trial unless such relief is shown to be impracticable or unfair to any of the parties or is otherwise improper; and if a new trial is required it shall be limited only to those parties and issues affected by the error unless such relief is shown to be impracticable or unfair. A judgment may be affirmed on conditions. A verdict, finding, judgment, order or decision shall be reversed upon appeal as not supported by or as contrary to the evidence only when clearly erroneous, and due regard shall be given to the opportunity of the finder of fact to judge the credibility of witnesses." (emphasis added). '

In this case, the claimant's position is strong. Jones is enrolled in a recognized and state supported institution of higher education. He presented evidence showing the increasing availability of jobs in his chosen field of study, criminal justice. Neither the Review Board nor the employer rebutted this showing after two opportunities at hearings to do so. To remand to the Review Board, with instructions to develop a factual record and reconsider, accomplishes nothing 1 except to further delay final resolution of these matters and to harass Jones who is making a commendable attempt to reenter the job market and has already met his burden of proving a prima facie case before the Review Board. I believe it frustrates the purpose of the federal Trade Act of 1974 to remand a second time when these matters have been reviewed twice by our appellate court. In addition, the passage of time is problematic because the job market changes from time to time and may, in fact, be different now than it was at the initial Review Board hearing, potentially prejudicing either party.

For these reasons, I concur in Judge Robertson's opinion with the exception that I would enter final judgment in favor of claimant Ronald Jones pursuant to Appellate Rule 15(N).

. We note that the costs of the proceedings before the Review Board, the first appeal to this court, the second proceedings before the Review Board, and this second appeal likely exceed the amount of money Jones should receive for the cost of his reeducation.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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