MEMORANDUM DECISION
                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D),                         Aug 17 2016, 5:39 am
this Memorandum Decision shall not be
                                                                    CLERK
regarded as precedent or cited before any                       Indiana Supreme Court
                                                                   Court of Appeals
court except for the purpose of establishing                         and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Paul J. Watts                                            Julie A. Camden
Spencer, Indiana                                         Camden & Meridew, P.C.
                                                         Fishers, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Scott Haywood and Carin                                  August 17, 2016
Haywood (AKA Carin Price)                                Court of Appeals Case No.
DBA Haywood’s Auto Sales &                               67A01-1603-CC-701
Service,                                                 Appeal from the Putnam Circuit
Appellants,                                              Court
                                                         The Honorable Matthew L.
        v.                                               Headley, Judge
                                                         Trial Court Cause No.
Circle Distributing, Inc.,                               67C01-1408-CC-262
Appellee




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 67A01-1603-CC-701 | August 17, 2016   Page 1 of 10
                                          Case Summary
[1]   Circle Distributing, Inc., (“Circle”) brought suit against Scott Haywood

      (“Scott”) and Carin Haywood (collectively, “the Haywoods”), doing business

      as Haywood’s Auto Sales & Services (collectively, “Haywood’s Auto”), for

      breach of contract, unjust enrichment, and failure to pay account on a contract

      for auto parts. Following a bench trial where the Haywoods and their attorney

      failed to appear after a denial of a motion for continuance, the court entered a

      judgment in favor of Circle. Haywood’s Auto now brings this appeal, in which

      it argues the trial court abused its discretion in denying its post-judgment

      motions challenging the court’s denial of Haywood’s Auto’s motion for

      continuance. We affirm.



                            Facts and Procedural History
[2]   On October 13, 2013, Haywood’s Auto and Circle entered into a credit

      agreement for the purchase and payment of automotive products, with a

      starting credit limit of $500.00 set to double every time Haywood’s Auto paid

      its bill in full. (Tr. at 6) For four months, starting in December 2013,

      Haywood’s Auto paid its bill with Circle on the day of each new delivery.

      However, starting in May 2014, Circle made deliveries without payment. After

      several attempts to procure payment from Haywood’s Auto, Circle filed suit

      against Haywood’s Auto in the Putnam Circuit Court, alleging breach of

      contract, unjust enrichment, and failure to pay.



      Court of Appeals of Indiana | Memorandum Decision 67A01-1603-CC-701 | August 17, 2016   Page 2 of 10
[3]   This matter was set to be tried at 9:00 a.m. on January 20, 2016. On January

      19, Haywood’s Auto filed a motion for continuance, citing a weather advisory

      for Putnam County. Haywood’s Auto claimed in its motion that should the

      area receive the anticipated amount of snowfall, it would be impossible for an

      essential witness and Haywood’s Auto’s counsel, Paul Watts (“Watts”), to be

      present at the court at the scheduled time and place. (App. at 39) The court

      advised Haywood’s Auto that it was not inclined to grant this motion. The

      next morning, the Haywoods, Watts, and the essential witness failed to appear

      in court for the trial. However, Circle’s counsel and witnesses were able to

      make it to court despite a longer commute in similar road and weather

      conditions (App. at 66), as were the judge and all court staff. The court denied

      Haywood’s Auto’s motion for continuance and proceeded with the hearing. At

      the conclusion of the hearing, the court entered judgment in favor of Circle.


[4]   After the hearing, Haywood’s Auto filed a second motion for continuance,

      more appropriately characterized as a motion to reconsider, claiming that

      Haywood’s Auto’s counsel and witness were unable to attend due to

      “inclement weather and road conditions.” (App. at 41) Furthermore, Scott

      himself was stuck between two accidents on I-70 and “working an emergency

      tow.” (App. at 41) The court denied this motion as well.


[5]   On February 12, 2016, Haywood’s Auto filed a motion to correct error and,

      alternatively, a motion for relief from judgment. Haywood’s Auto attached

      affidavits from Watts and Scott to its motion to correct error. In Watts’s

      affidavit, he claimed that he was “iced in” at his residence in Monroe County

      Court of Appeals of Indiana | Memorandum Decision 67A01-1603-CC-701 | August 17, 2016   Page 3 of 10
      and was unable to make it to court that day. (App. at 47) Similarly, the

      essential witness, Watts’s paralegal, was facing similar conditions at her

      residence in Owen County. (App. at 47) Watts advised the court of this

      difficulty at 8:00 a.m. on the day of the hearing. (App. at 47) Scott’s affidavit

      states that he was responding to calls from the Putnam County Sheriff’s

      Department for emergency tow services from 7:30 a.m. to 5:00 p.m. on the day

      of the hearing. (App. 53) Haywood’s Auto attached the same documents to

      the motion for relief from judgment, and used the same arguments therein.

      Haywood’s Auto thus alleged the court erred in denying its motion for

      continuance, and moved for this error to be corrected.


[6]   After receiving Circle’s objection to the motions, the trial court denied both the

      motion to correct error and the motion for relief from judgment. Haywood’s

      Auto now appeals from the denial of these motions.



                                 Discussion and Decision
[7]   Haywood’s Auto appeals the denial of its motion to correct errors, which

      challenges the denial of its motion for continuance. At the outset, we note that

      this appeal does not involve a direct challenge to the merits of the trial court’s

      judgment or to the amount of the judgment. Instead, we review only the

      court’s denial of Haywood Auto’s motion to correct error focusing on the

      denial of its motion for continuance for abuse of discretion.




      Court of Appeals of Indiana | Memorandum Decision 67A01-1603-CC-701 | August 17, 2016   Page 4 of 10
[8]   A trial court is vested with broad discretion to determine whether it will grant

      or deny a motion to correct error. Williamson v. Williamson, 825 N.E.2d 33, 44

      (Ind. Ct. App. 2005). Similarly, the decision to grant or deny a continuance is

      within the sound discretion of the trial court. Hess v. Hess, 679 N.E.2d 153, 154

      (Ind. Ct. App. 1997). We thus review these decisions for an abuse of the trial

      court’s discretion. See, e.g., J.P. v. G.M., 14 N.E.3d 786, 789 (Ind. Ct. App.

      2014); Verta v. Pucci, 14 N.E.3d 749, 752 (Ind. Ct. App. 2014). An abuse of

      discretion occurs if the trial court’s decision was against the logic and effect and

      circumstances before the court or if the court has misapplied the law. Walker v.

      Kelley, 819 N.E.2d 832, 836 (Ind. Ct. App. 2004).


[9]   Indiana Rule of Trial Procedure 53.5 states: “Upon motion, trial may be

      postponed or continued in the discretion of the court, and shall be allowed upon

      a showing of good cause established by affidavit or other evidence.” When

      considering a motion for continuance, the moving party must be free from fault

      and show that his rights are likely to be prejudiced by the denial. Scott v.

      Crussen, 741 N.E.2d 743, 746 (Ind. Ct. App. 2000) (quoting Danner v. Danner,

      573 N.E.2d 934, 937 (Ind. Ct. App. 1991)), trans. denied. “A denial of a motion

      for continuance is [considered to be an] abuse of discretion only if the movant

      demonstrates good cause for granting it.” Blackford v. Boone County Area Plan

      Com’n, 43 N.E.3d 655, 664 (Ind. Ct. App. 2015) (quoting Gunashekar v. Grose,

      915 N.E.2d 953, 955 (Ind. 2009)) (internal quotations omitted). Although an

      unavoidable absence of a party is good cause for a continuance, “it is not error

      to deny a continuance when the party fails to show a sufficient reason for his

      Court of Appeals of Indiana | Memorandum Decision 67A01-1603-CC-701 | August 17, 2016   Page 5 of 10
       absence.” Flick v. Simpson, 252 N.E.2d 508, 512 (Ind. Ct. App. 1969), reh’g

       denied. Leaving this decision to the trial court’s broad discretion is consistent

       with its duty to handle its business expeditiously. Id.


[10]   Haywood’s Auto asserts that the impending bad weather at the time of filing

       the first motion constituted good cause for a continuance, and thus, we should

       find the trial court abused its discretion by denying its motion. However, the

       record paints a different picture. When Haywood’s Auto filed its first motion

       for continuance, the trial court indicated that it was not inclined to grant that

       continuance given the current weather and road conditions. (Tr. at 2) Scott

       himself did not make an attempt to attend the hearing in spite of that

       knowledge, choosing instead to go on emergency tow calls from the Putnam

       County Sheriff’s Department. Furthermore, local schools were in session after

       a two-hour delay, and the opposing party and all their witnesses were in

       attendance in spite of longer commutes. (Tr. at 2) With this knowledge, the

       court determined that Haywood’s Auto did not present good cause and failed to

       make arrangements to attend the hearing at its “own peril.” (Tr. at 2) We

       conclude this rationale was not against the logic and effect of the circumstances

       before the court. As such, the trial court did not abuse its discretion in denying

       the motion for continuance, nor did it do so when it denied Haywood Auto’s

       motion to correct error.1




       1
        As previously mentioned, Haywood’s Auto also filed a motion for relief from judgment under Trial Rule
       60(B) that was denied with the motion to correct error; however, it failed to make a separate argument

       Court of Appeals of Indiana | Memorandum Decision 67A01-1603-CC-701 | August 17, 2016        Page 6 of 10
[11]   Affirmed.


       Barnes, J., concurs.
       Riley, J., dissents with separate opinion.




       thereon in its appeal. Haywood’s Auto fails to demonstrate an abuse of discretion, and is thus not entitled to
       the extraordinary relief of T.R. 60(B).

       Court of Appeals of Indiana | Memorandum Decision 67A01-1603-CC-701 | August 17, 2016             Page 7 of 10
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Scott Haywood and Carin                                  Court of Appeals Case No.
       Haywood (aka Carin Price) dba                            67A01-1603-CC-701
       Haywood’s Auto Sales &
       Service,
       Appellants-Defendants,

               v.

       Circle Distributing, Inc.,
       Appellee-Plaintiff.




       Riley, Judge dissenting


[12]   I respectfully dissent from the majority’s decision to affirm the trial court’s

       denial of Haywood’s Auto’s motion for continuance. Generally, “upon a

       showing of good cause established by affidavit or other evidence,” a trial may

       be continued at the discretion of the court. See Ind. Trial Rule 53.5. Here, the

       affidavit submitted by Haywood’s Auto established that during the afternoon

       and night prior to the trial, a winter weather advisory was in effect for a five

       county area, with Monroe and Owen County each receiving 3.5 inches of snow,

       Putnam County getting 2 inches of snow, and with “solid ice on county roads.”


       Court of Appeals of Indiana | Memorandum Decision 67A01-1603-CC-701 | August 17, 2016   Page 8 of 10
       (Appellant’s App. p. 46). That afternoon, Haywood’s Auto’s counsel filed a

       motion requesting a continuance of the bench trial scheduled for the following

       morning, citing hazardous road conditions.


[13]   Early the following morning, I-70 had been sporadically closed. At

       approximately 7:30 a.m. on the morning of the trial, Scott was instructed by the

       Indiana State Police to proceed to the scene of an accident “to provide

       emergency towing services.” (Appellant’s App. p. 52). While on his way,

       Scott’s route was blocked by a collision of two semi-trailers. Scott reported the

       accident and remained on the scene. Haywood’s Auto’s counsel, again, by

       phone notified the trial court of the situation and renewed his request for

       continuance.


[14]   Meanwhile, Scott was instructed by emergency and law enforcement personnel

       to hook his tow truck onto one of the tractor trailers to allow the injured driver,

       who was trapped inside, to breath. The driver was later transported to

       Indianapolis via Life-Line helicopter. After the driver was airlifted, Scott was

       instructed by the Indiana State Police to remain at the scene and to help remove

       the semi-trailers as the interstate was completely blocked and impassable. The

       Indiana State Police continued dispatching Scott to four other accidents until

       after 5:00 p.m. that day.


[15]   Based on these facts, good cause existed to grant Haywood’s Auto’s motion for

       continuance. A weather advisory is not merely an inconvenience; rather, it is

       issued so people can use their best judgment whether to travel on hazardous


       Court of Appeals of Indiana | Memorandum Decision 67A01-1603-CC-701 | August 17, 2016   Page 9 of 10
roads. Requiring Scott to ignore his obligation to provide emergency towing

services and to leave an injured driver trapped in his semi-trailer contrary to the

instructions of law enforcement officers in order to attend his bench trial would

subject him to prosecution for refusing to aid an officer pursuant to Ind. Code §

35-44.1-3-3. Surely, the presumed exigencies of the trial court cannot take

precedence to putting one’s life at risk due to hazardous road conditions or to

helping to save another individual at the request of law enforcement personnel.

Because of the trial court’s denial to continue the bench trial, an important

witness was not able to testify. The absence of this witness led to a judgement

that was not based on the merits of the case. Accordingly, I conclude that the

trial court abused its discretion by refusing to grant a continuance.




Court of Appeals of Indiana | Memorandum Decision 67A01-1603-CC-701 | August 17, 2016   Page 10 of 10
