Angela Brewer, Individually and as Personal Representative of the Estate of Rickey A. Brewer v. PACCAR, Inc., d/b/a PETERBILT MOTORS CO.

FILED
OPINION ON REHEARING Jun 15 2018, 9:12 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
John P. Daly, Jr. Jeffrey J. Mortier
Jared Harts Maggie L. Smith
Golitko & Daly, P.C. Blake N. Shelby
Indianapolis, Indiana Frost Brown Todd, LLC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Angela Brewer, Individually and June 15, 2018
as Personal Representative of the Court of Appeals Case No.
Estate of Rickey A. Brewer, 55A05-1709-CT-2168
Deceased, Appeal from the Morgan Circuit
Appellants, Court
The Honorable Matthew G.
v. Hanson, Judge
Trial Court Cause No.
PACCAR, Inc., d/b/a 55C01-1605-CT-691
PETERBILT MOTORS CO.,
Appellee.
Barnes, Judge.
[1] PACCAR, Inc. d/b/a Peterbilt Motors (“PACCAR”) petitions for rehearing
following our decision in Brewer v. PACCAR, Inc., No. 55A05-1709-CT-2168
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(Ind. Ct. App. Mar. 27, 2018). We issue this opinion on rehearing but reaffirm
our original decision in all respects.
[2] In an argument that is relevant to the bar in general and not PACCAR in
particular, PACCAR asserts that we should not have said that Brewer’s notice
of appeal may have been premature because it was filed before the time limit for
the trial court to rule on Brewer’s motion to correct error had passed. It
contends that it is “not unusual” for a party to file both a motion to correct
error and a notice of appeal simultaneously, “or for the same party to first file a
Motion to Correct error, change its mind, and then file a Notice of Appeal
before the thirty-day period expires.” Rehearing Pt’n. p. 7. It also notes
Indiana Appellate Rule 37, which allows a party on appeal to move to stay
appellate proceedings and remand to the trial court for a ruling on a pending
motion to correct error.
[3] We respectfully submit that, in the combined fifty-four years of appellate
experience of the members of this panel, we were unaware of a common
practice of parties filing motions to correct error and then “abandoning” the
motion with the filing of a notice of appeal before the time limit for ruling on
the motion to correct error had passed. With respect to Appellate Rule 37, its
use is encouraged “‘to develop an evidentiary record for issues that with
reasonable diligence could not have been discovered before the time for filing a
motion to correct error or a notice of appeal has passed.’” Peaver v. State, 937
N.E.2d 896, 899 (Ind. Ct. App. 2010) (quoting Schlabach v. State, 842 N.E.2d
411, 418 (Ind. Ct. App. 2006), trans. denied), trans. denied. It should not be used
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to resurrect a motion to correct error previously filed by the party seeking
remand that did not require development of an additional evidentiary record
and was more in the nature of asking the trial court to reconsider its judgment,
such as in the present case.
[4] Even if our trial and appellate rules do not expressly forbid the simultaneous
filings of motions to correct error and notices of appeal by one party—or the
filing of a notice of appeal before a motion to correct error has been ruled on or
deemed denied—we believe it is inadvisable to do so. Or, at the very least, if a
party files both a motion to correct error and a notice of appeal but decides to
“abandon” the motion to correct error, the party should dismiss the motion to
correct error so there is no potential confusion about whether the trial court or
this court is being asked to decide the case. Leaving a motion to correct error
pending after filing a notice of appeal risks judicial inefficiency and the
possibility that the trial court will rule on the motion to correct error after an
appeal has been initiated. Although this is not always a fatal complication, it is
a complication nonetheless and can lead to convoluted procedural wrangling as
outlined in cases such as Cavinder Elevators, Inc. v. Hall, 726 N.E.2d 285 (Ind.
2000), Garrison v. Metcalf, 849 N.E.2d 1114 (Ind. 2006), and HomEq Servicing
Corp. v. Baker, 883 N.E.2d 95 (Ind. 2008). If such wrangling can be avoided, it
is preferable to do so.
[5] Indeed, in the present case, it appears that Brewer filed her notice of appeal
only after believing the trial court had denied her motion to correct error;
although, as noted in our original opinion, it is not entirely clear that the trial
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court had done so. This was not an instance of Brewer intentionally
“abandoning” the motion to correct error. We believe that if a party files a
motion to correct error, ideally it should either wait for a ruling on the motion
(actually granted or denied or deemed denied) before initiating the process of an
appeal, or it should dismiss the motion to correct error.
[6] PACCAR’s other argument on rehearing is directed to certain language in our
opinion that it contends could be taken as conclusively stating that its glider kit
is defective. We did not hold that it is defective as a matter of law—that is a
matter to be litigated below. Our opinion already makes that clear.
[7] With these comments, we reaffirm our original decision.
Vaidik, C.J., and Mathias, J., concur.
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