Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
Jul 21 2009, 9:29 am
of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: RANDALL B. STILES Stiles Law Office Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ELIZABETH ROGERS Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
CHANTRICE C. MILLER, Appellant, vs. REVIEW BOARD OF THE INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and A.W. HOLDING LLC Appellee. ) ) ) ) ) ) ) ) ) ) )
APPEAL FROM THE INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT The Honorable Steven F. Bier, Chairperson Cause No. 08-R-3712
July 21, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge
Chantrice C. Miller‟s administrative appeal of the denial of her claim for unemployment insurance benefits was dismissed due to her failure to appear and participate in the telephonic hearing before the Administrative Law Judge (the ALJ). The Review Board of the Indiana Department of Workforce Development (the Review Board) affirmed the Director of Unemployment Insurance Appeals‟ (the Director) denial of Miller‟s motion for reinstatement of her appeal. Miller presents four issues for our review, which we consolidate and restate as follows: Did the Review Board err when it summarily affirmed the Director‟s decision that found Miller had failed to show good cause for reinstatement of her appeal? We affirm. On August 8, 2008, a claims deputy of the Department of Workforce Development (the DWD) determined that Miller was discharged for just cause and denied her claim for unemployment insurance benefits. Thereafter, Miller filed an appeal with the Appellate Division of the DWD. On August 26, the DWD mailed a Notice of Hearing to Miller informing her that the telephonic hearing before the ALJ was scheduled for 9:00 a.m. on September 9. The notice provided Miller with the ALJ‟s address, telephone number, and fax number. With the notice, Miller also received detailed telephonic hearing instructions. Miller was specifically instructed to provide the ALJ with one telephone number at which she could be reached at the date and time of the hearing. The instructions explained further: The [ALJ] will not make repeated attempts to reach you. If you cannot be reached at or near the time scheduled for the hearing you will be considered to have not participated and the [ALJ] will make the appropriate findings, which may include dismissing your case or finding against you. Occasionally, the [ALJ] may be behind in their hearing schedule. Contact the [ALJ]‟s office if you do not receive a call within ten minutes of your scheduled start time to
confirm that you are still participating and that you are available. Appellee’s Appendix – I at 10. On September 4, the ALJ received a written acknowledgment from Miller, indicating her intention to participate in the hearing and listing her telephone number as (260) XXX-0861. At about 9:18 on the morning of the scheduled hearing, the ALJ called Miller at the telephone number listed on her notice of appeal, (260) XXX-9881. There was no answer, so the ALJ left a message. Thereafter, the ALJ found Miller‟s acknowledgment sheet stuck to the notice of appeal and realized that Miller had provided a different number on that form. The ALJ then called Miller at (260) XXX-0861, the number she had listed less than a week earlier on the acknowledgment form. That number was disconnected. Therefore, the ALJ dismissed Miller‟s appeal for failure to participate in the hearing. Two days later, a Notice of Dismissal was mailed to Miller indicating that the dismissal would become final “unless [she] files a written request for reinstatement within seven days…and shows good cause why the appeal should be reinstated.” Appellee’s Appendix – II at 3. Miller timely filed a written request for reinstatement of her appeal. Her request stated: “I would like to reinstate my hearing, because phone number (one of the phone numbers) was dis change [sic] from (260) [XXX]-0861 to (260) [XXX]-5670, after I appealed.” Appellee’s Appendix – I at 19. Miller noted this new number as her home number and (260) XXX-9881 (that is, the number indicated on her notice of appeal and the one at which the ALJ left the message) as her cell number. On November 10, the Director denied Miller‟s request for reinstatement, concluding that she had not shown good cause.
On November 14, Miller appealed the Director‟s decision to the Review Board. In her appeal, she included new information not previously set forth in her request for reinstatement to the Director.1 On December 10, without accepting additional evidence, the Review Board summarily affirmed the ALJ‟s dismissal of Miller‟s appeal for failure to participate and the Director‟s decision not to reinstate the appeal. Miller filed a written request on December 22 asking the Review Board to reconsider her case. In support, she provided a three-page document setting forth additional, detailed facts that had not previously been provided at any time during her administrative appeal. The Review Board responded to Miller‟s request by indicating that it had already issued its final decision and no longer had jurisdiction over the matter. Miller now appeals the Review Board‟s decision. We initially observe that Miller has failed to file an Appendix, as required by our appellate rules. See Ind. Appellate Rule 49(A) (“appellant shall file its Appendix with its appellant‟s brief); Ind. Appellate Rule 50(A) (setting forth purpose and required contents of Appendix). “It is the duty of an appellant to provide this court with a record sufficient to enable us to review the claim of error”. Lenhardt Tool & Die Co., Inc. v. Lumpe, 703 N.E.2d 1079, 1084 (Ind. Ct. App. 1998), trans. denied. Miller has not done so here, in flagrant violation of our appellate rules.
Specifically, Miller claimed that the telephone number changed within one week of the hearing and that she had gone to her local DWD office to update the number. According to Miller, “apparently the information was not place [sic] in the system until after the hearing date, because the judge called the old number.” Id. at 21. What Miller did not claim, however, is noteworthy. She did not claim that she notified the ALJ directly of the change, despite being aware of the ALJ‟s address, telephone number, and fax number. Further, Miller did not claim that she called the ALJ‟s office as directed after not receiving a call within ten minutes of the scheduled start time for the hearing.
While Miller‟s appellate brief certainly has other flaws, there are two that we cannot overlook. First, Miller‟s brief is devoid of any citations to the record.2 In other words, her statement of the case, statement of facts, and argument contain not even one citation to the record. See Ind. Appellate Rule 46(A)(5)-(6) and (8) (requiring page references to the Record on Appeal or Appendix). Even if this was not fatal to Miller‟s appeal, her failure to provide cogent argument on appeal certainly is. App. R. 46(A)(8)(a) requires the argument section of an appellant‟s brief to be supported by cogent reasoning, with each contention “supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on”. Miller does not support her slender, two-page argument with citation to legal authority,3 nor does she provide us with a standard of review as required by App. R. 46(A)(8)(b). Under the circumstances, we find the issues presented by Miller waived. See Marshall v. State, 621 N.E.2d 308, 318 (Ind. 1993) (“[w]ithout citation to legal authority in addition to citation of the record, we cannot determine the merits of the claim and, thus, consider the issue waived”); Ramsey v. Review Bd. of Indiana Dep’t of Workforce Dev., 789 N.E.2d 486, 490 (Ind. Ct. App. 2003) (“because Ramsey‟s noncompliance with the appellate rules substantially impedes us from reaching the merits of this appeal, we are compelled to find the
Although Miller did not provide us with an appendix, the record before us does contain a transcript, with some relevant documents, to which Miller could have cited. 3 Miller makes one general citation to the Indiana Administrative Code for the undisputed proposition that she had seven days from the date her dismissal was mailed to provide the court with good cause for reinstatement. She provides no authority, however, for her assertion that she established good cause for reinstatement. Moreover, her factual assertions are not supported by the record on appeal. In fact, a review of the Appellee‟s Appendix indicates that, in the instant appeal, Miller is primarily relying on information/allegations that were never properly presented to the administrative agency and, consequently, could not have been considered by
issues raised are waived”). See also Keeny v. State, 873 N.E.2d 187, 189-90 (Ind. Ct. App. 2007) (“„A brief is not to be a document thrown together without either organized thought or intelligent editing on the part of the brief-writer. Inadequate briefing is not, as any thoughtful lawyer knows, helpful to either a lawyer‟s client or to the Court.‟”) (quoting Firth v. State, 263 Ind. 100, 325 N.E.2d 186, 189 (1975)). Affirmed. NAJAM, J., and VAIDIK, J., concur.
the Review Board. Her reliance upon these “facts” on appeal of the Review Board‟s decision, therefore, is improper.