IN THE INDIANA COURT OF APPEALS

 ROOSEVELT SMITH,                    Appellant- Defendant        v. RUSH STAFFING,                 Appellee- Plaintiff  

Case No: _________________________

 Interlocutory Appeal from the Madison Circuit Court. Trail Court Case Number: 48C04-2 -PL14 The Honorable Judge Happe, David A.                
  APPELLANT’S BRIEF  

                        ROOSEVELT SMITH

15153 BRANTLEY LN

NOBLESVILLE, IN 46060

TABLE OF CONTENTS

ISSUE PRESENTED.. 4

1.    Whether the Court erred when it failed to grant Appellant’s Motion for Continuance. 4

STATEMENT OF THE CASE & FACTS. 4

ARGUMENTS. 5

A.   STANDARD OF REVIEW… 5

B.    THE COURT ABUSED ITS DISCRETION BY FAILING TO GRANT APPELLANT’S MOTION FOR CONTINUANCE. 5

C.   A DENIAL OF APPELLANT’S MOTION FOR CONTINUANCE VIOLATED APPELLANT’S DUE PROCESS RIGHTS. 6

CONCLUSION.. 6

CERTIFICATE OF COMPLIANCE.. 8

CERTIFICATE OF SERVICE.. 9

 

TABLE OF AUTHORITIES

Cases

Allen v. Proksch, 832 N.E.2d 1080, 1102 (Ind. Ct. App. 2005)………………………………………… 5

Avemco Ins. Co. v. State ex rel. McCarty, 812 N.E.2d 108, 115 (Ind. Ct. App. 2004)…………. 5

Bales v. Bales, 801 N.E.2d 196, 198 (Ind.Ct.App. 2004)…………………………………………………. 5

D.L.D. v. L.D., 911 N.E.2d 675, 679 (Ind.Ct.App. 2009)………………………………………………… 6

Mathews v. Eldridge, 424 U.S. 319, 332 (1976)…………………………………………………………….. 6

Pavlovich v. State, 6 N.E.3d 969, 974 (Ind. Ct. App. 2014),…………………………………………….. 5

Trigg v. Al-Khazali, 881 N.E.2d 699, 702 (Ind.Ct.App. 2008)…………………………………………. 6

Rules

Rule 44 of the Indiana Rules of Appellate Procedure……………………………………………………… 8

ISSUE PRESENTED

1.      Whether the Court erred when it failed to grant Appellant’s Motion for Continuance.

STATEMENT OF THE CASE & FACTS

            On or about January 29, 2021, Appellee filed a Complaint against Appellant alleging breach of contract, and that that Appellant should be held liable under the contract.

The said contract was entered between Appellee and Appellant’s company namely, ACS Cleaning Systems, LLC. In Appellee’s caption, Appellee includes Appellant and ACS Cleaning Systems, LLC as Defendants.   

On or about April 12, 2021, Appellant filed a Motion for Continuance requesting supporting video and written evidence from Appellant’s client GTI of Anderson to support Appellant’s claim that the Appellee claimed for billed unskilled cleaning service for Associate Benjamin Williams was in violation of the signed client information terms and conditions information submitted by Appellee. Accordingly, Appellant claimed for a continuance of 120 days to obtain the said evidence. Notably, Appellant contacted GTI Anderson, who agreed to the said continuance request.

On or about April 13, 2021, Appellee filed an Objection to Appellant’s request for Continuation. It is worth noting that Appellee did not provide any argument and/or ground for the objection.

On or about April 15, 2021, the Court gave an Order denying Appellant’s Motion. The Court did not give any reasons for the denial.  

Appellant herein appeals the said Order.

SUMMARY OF ARGUMENTS

            The Court abused its discretion by failing to grant Appellant’s Motion for Continuance.   

            A denial of Appellant’s Motion for Continuance violated Appellant’s due process rights. 

ARGUMENTS

A.    STANDARD OF REVIEW

The Court of Appeal applies a de novo standard of review to the trial court’s conclusions of law. Avemco Ins. Co. v. State ex rel. McCarty, 812 N.E.2d 108, 115 (Ind. Ct. App. 2004).

B.     THE COURT ABUSED ITS DISCRETION BY FAILING TO GRANT APPELLANT’S MOTION FOR CONTINUANCE.

An abuse of discretion occurs only if a trial court’s decision is clearly against the logic and effect of the facts and circumstances. Pavlovich v. State, 6 N.E.3d 969, 974 (Ind. Ct. App. 2014), trans. denied.

An abuse of discretion occurs where the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court. Allen v. Proksch, 832 N.E.2d 1080, 1102 (Ind. Ct. App. 2005). An abuse of discretion also happens if the court has misinterpreted the law. Bales v. Bales, 801 N.E.2d 196, 198 (Ind.Ct.App. 2004).

In the instant action, Appellant reasonably sought to include evidence to support Appellant’s claim that that employees that the Appellee stated were working really did not work. The said evidence was crucial for the success of Appellant’s defense. It follows; the Court’s denial on Appellant’s Motion was against the facts and circumstances of the case. It was also unreasonable and against logic. It follows; the Court abused its discretion in this regard.

C.    A DENIAL OF APPELLANT’S MOTION FOR CONTINUANCE VIOLATED APPELLANT’S DUE PROCESS RIGHTS.        

Article 1, Section 11 of the Indiana Constitution provides that: “all Courts shall be open, and every person … shall have remedy by the due course of law; and right and justice administered without denial or delay.”

The Due process rights can be traced to the U.S. Constitution. The Fifth Amendment’s Due Process Clause provides that no person shall “be deprived of life, liberty, or property, without due process of law.” The Due Process Clause requires that the Government follow adequate procedures before it can deprive a person of certain liberty or property interests—a protection referred to as “procedural due process.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976).

      Notice and opportunity to be heard is precisely what the procedural safeguards of provide. D.L.D. v. L.D., 911 N.E.2d 675, 679 (Ind.Ct.App. 2009). See also Trigg v. Al-Khazali, 881 N.E.2d 699, 702 (Ind.Ct.App. 2008).

      In the instant action, the Court denied Appellant an opportunity to present evidence, which would help Appellant have sufficient evidence for his defense. Also, it is reasonably expected for the Court to give reasons for denial of Appellant’s Motion for Continuance. However, the Court failed to provide reasons for the denial. The Appellee also failed to provide any ground to support Appellee’s objections to Appellant’s request for continuance. In that regard, Appellant lacks any specific reason(s) why the Court denied the Motion for Continuance.

CONCLUSION

            For the foregoing reasons, this Court should hold that the Trial Court erred in failing to consider Appellant’s Motion for Continuance. Notably, the Trial Court abused its discretion by denying the said Motion.

            The Court also violated Appellant’s due process rights by denying Appellant an opportunity to present the evidence, thus denying Appellant an opportunity to be heard.   

In that regard, Appellant respectfully requests this Honorable Court reverses the Trial Court’s Order and remands the case for a fresh hearing. Appellant also prays this Court grant any other relief this Court deems just.

Respectfully Submitted,

Dated: _____________

 ______________________________ROOSEVELT SMITH 15153 BRANTLEY LNNOBLESVILLE, IN 46060

 

CERTIFICATE OF COMPLIANCE

            Pursuant to Rule 44 of the Indiana Rules of Appellate Procedure Appellant certifies that the foregoing brief, which is prepared using a proportional font, is less than 14,000 words (excluding the cover, index, table of authorities, certificate of service, and this certificate of compliance) as reported by the word-processing software on which it was written.

Dated: _____________

 ______________________________ROOSEVELT SMITH 15153 BRANTLEY LNNOBLESVILLE, IN 46060

 

CERTIFICATE OF SERVICE

            The undersigned hereby certifies that he served a copy of the foregoing brief on counsel for the Appellee by mail, email/e-filing or personal delivery a copy of the same to the Appellant or Appellant’s Attorney, addressed as follows:

John G. Garman Jr., #15170-64Garman Law Offices, P.C. 924Meridian Street, Anderson,Indiana 46016 Telephone: 765-642-0454, gpcefile@gmail.co

Dated: _____________

 ______________________________ROOSEVELT SMITH 15153 BRANTLEY LNNOBLESVILLE, IN 46060

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