Leo MacHine & Tool, Inc. v. Poe Volunteer Fire Department, Inc. , 2011 Ind. App. LEXIS 49 ( 2011 )

940 N.E.2d 384 (2011)

LEO MACHINE & TOOL, INC. and Elmotec Statomat, Inc., Appellants-Plaintiffs,
v.
POE VOLUNTEER FIRE DEPARTMENT, INC., a/k/a Poe Community Volunteer Fire Department, Inc., a/k/a Poe Volunteer Fire Department and Anderson Excavating, Inc., Appellee-Defendants.

No. 02A03-1003-PL-143.

Court of Appeals of Indiana.

January 19, 2011.

Denver C. Jordan, Bradley J. Buchheit, Blume, Connelly, Jordan, Stucky & Lauer, Fort Wayne, IN, Attorneys for Appellant.

Paul T. Fulkerson, Laura C. Bonadies, Indianapolis, IN, Dane L. Tubergen, Codie J. Ross, Fort Wayne, IN, Attorneys for Appellees.

OPINION ON REHEARING

RILEY, Judge.

Appellee, Anderson Excavating, Inc. (Anderson), has filed a petition for rehearing requesting us to reconsider our statement that "[Anderson] is not a party to this appeal." See Leo Machine & Tool, Inc. v. Poe Volunteer Fire Dept., Inc., 936 N.E.2d 855, 855 n. 1 (Ind.Ct.App.2010). We grant Anderson's petition for rehearing for the limited purpose of reviewing this statement.

We acknowledge that the court of appeals' docket reflects that Anderson filed his brief on July 23, 2010. However, upon review, we note that Anderson's appellate brief was never included in the fully transmitted case and as such, this panel did not have Anderson's brief when reviewing Leo Machine's claims.

Nevertheless, as Anderson was Poe Fire Department's agent, we affirm our opinion in full with the addition that we now also affirm the trial court's summary judgment in favor of Anderson on the same legal grounds.

KIRSCH, J., and BAILEY, J., concur.