OPINION ON REHEARING
                                                                           FILED
                                                                      Aug 15 2018, 9:10 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEES
Larry L. Barnard                                           Nathaniel Lee
Grant A. Liston                                            Jennifer Lee
Carson LLP                                                 Lee Cossell & Crowley LLP
Fort Wayne, Indiana                                        Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

William R. Harr and                                        August 15, 2018
Finster Courier, Inc. d/b/a                                Court of Appeals Case No.
Elite Express,                                             49A02-1711-CT-2595
Appellants-Defendants/Cross-Appellees,                     Appeal from the Marion Superior
                                                           Court
        v.                                                 The Honorable John F. Hanley,
                                                           Judge
Julian Hayes and Tracey Hayes,                             Trial Court Cause No.
Appellees-Plaintiffs/Cross-Appellants.                     49D11-1510-CT-35449




Robb, Judge.




Court of Appeals of Indiana | Opinion on Rehearing 49A02-1711-CT-2595 | August 15, 2018        Page 1 of 4
[1]   In Harr v. Hayes, -- N.E.3d ---- (Ind. Ct. App. 2018), we held, in part, that where

      William R. Harr and Harr’s employer, Finster Courier, Inc., d/b/a/ Elite

      Express (collectively, “Defendants”), failed to establish diversity jurisdiction in

      a removal action, under the specific facts presented, the doctrines of judicial

      estoppel, waiver, and/or judicial admission were inapplicable to limit a

      subsequent judgment in state court. Accordingly, we affirmed the trial court’s

      denial of the Defendants’ motion to correct error seeking modification of the

      judgment. The opinion included a footnote noting our dismay at the

      Defendants’ omission of a crucial page of the district court’s order remanding

      the case to state court submitted as Exhibit C to their motion to limit entry of

      judgment. Defendants have filed a petition for rehearing, contending we failed

      to acknowledge that the Defendants had corrected their “inadvertent omission

      of one page of the District Court’s Order filed in connection with its Motion to

      Limit Judgment to $75,000.00.” Petition for Rehearing at 4. We grant

      rehearing for the limited purpose of correcting this error.


[2]   The opinion included the following footnote:


              In Defendants’ motion to limit judgment to $75,000, Defendants
              state that “A true and exact copy of the [district] Court’s Order is
              attached hereto and marked as Exhibit ‘C.’” Appellants’
              Corrected App., Vol. II at 47. Exhibit C, however, contained
              only pages 1-4 and 6 of the district court’s order, omitting page 5
              with the discussion regarding the Defendants’ failure to meet
              their burden of proof. Id. at 54-58. The exhibit therefore
              misrepresented to the trial court the reasoning of the district

      Court of Appeals of Indiana | Opinion on Rehearing 49A02-1711-CT-2595 | August 15, 2018   Page 2 of 4
              court’s order by incorrectly suggesting that the case was
              remanded because of Hayes’ statement of the amount in
              controversy, not the Defendants’ failure to meet their
              burden. We note also that Hayes brought this omission to the
              Defendants’ attention in an email prior to filing his response, id.
              at 72, and yet the Defendants did not amend their motion to
              include the order in its entirety.


              We are deeply troubled by the Defendants’ all too convenient
              omission and we remind counsel of Indiana Professional
              Conduct Rule 3.3(a)(3) requiring candor to the tribunal and
              precluding a lawyer from knowingly providing evidence the
              lawyer knows to be false. “[T]he accuracy of documents and
              instruments utilized by a tribunal in a proceeding is of the utmost
              importance to the administration of justice and . . . fraudulent
              alteration of such documents by an officer of the court is
              therefore severe misconduct.” Matter of Fisher, 684 N.E.2d 197,
              200 (Ind. 1997).


      Harr, -- N.E.3d at ---- n.3.


[3]   The chronological case summary notes that on July 31, 2017, four days after

      filing the Motion to Limit Judgment and three days after receiving an email

      regarding the omission, Defendants filed an “Amended Exhibit “C” to Motion

      to Limit Entry of Judgment to $75,000.00.” Appellant’s Corrected Appendix,

      Volume II at 10. Although the Defendants included the “Amended Exhibit

      “C” to Motion to Limit Entry of Judgment to $75,000.00” in their Appellants’

      Corrected Appendix Volume II at pages 75-80, it was not labeled as an

      amended exhibit, and it was not identified in the table of contents as a separate

      filing. In fact, the Defendants’ table of contents labels pages 63-80 as “[Hayes’]

      Motion to Strike Pleadings.” Appellants’ Corrected Appendix, Volume I at 2.
      Court of Appeals of Indiana | Opinion on Rehearing 49A02-1711-CT-2595 | August 15, 2018   Page 3 of 4
      Accordingly, we were unaware of the document’s significance in relation to the

      Defendants’ earlier filing, as it appeared the order in its entirety had been

      supplied by Hayes in his responsive pleading.


[4]   Accordingly, we grant rehearing solely to acknowledge that Defendants filed an

      amended exhibit in the trial court to reflect the district court’s order in its

      entirety. To the extent our opinion reflects otherwise, it is to be disregarded.

      We reaffirm our earlier opinion in all other respects.


      Najam, J., and Altice, J., concur.




      Court of Appeals of Indiana | Opinion on Rehearing 49A02-1711-CT-2595 | August 15, 2018   Page 4 of 4
