                                                                                 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




      Court of Appeals of Indiana | Opinion on Rehearing 55A05-1709-CT-2168 | June 15, 2018          Page 1 of 4
      (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

      Court of Appeals of Indiana | Opinion on Rehearing 55A05-1709-CT-2168 | June 15, 2018   Page 2 of 4
      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

      Court of Appeals of Indiana | Opinion on Rehearing 55A05-1709-CT-2168 | June 15, 2018   Page 3 of 4
      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.




      Court of Appeals of Indiana | Opinion on Rehearing 55A05-1709-CT-2168 | June 15, 2018   Page 4 of 4
