Angela Brewer, Individually and as Personal Representative of the Estate of Rickey A. Brewer, Deceased, Appellants,
PACCAR, Inc., d/b/a PETERBILT MOTORS CO., Appellee.
from the Morgan Circuit Court The Honorable Matthew G.
Hanson, Judge Trial Court Cause No. 55C01-1605-CT-691
Attorneys for Appellant John P. Daly, Jr. Jared Harts Golitko
& Daly, P.C. Indianapolis, Indiana
Attorneys for Appellee Jeffrey J. Mortier Maggie L. Smith
Blake N. Shelby Frost Brown Todd, LLC Indianapolis, Indiana
OPINION ON REHEARING
PACCAR, Inc. d/b/a Peterbilt Motors ("PACCAR")
petitions for rehearing following our decision in Brewer
v. PACCAR, Inc., No. 55A05-1709-CT-2168 (Ind.Ct.App.
Mar. 27, 2018). We issue this opinion on rehearing but
reaffirm our original decision in all respects.
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.
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 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.
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.
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
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.
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.
With these comments, we reaffirm ...