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

OPINION ON REHEARING

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

I N T H E

COURT OF APPEALS OF INDIANA

Angela Brewer, Individually and 

as Personal Representative of the 

Estate of Rickey A. Brewer,

Deceased,

Appellants,

v.

PACCAR, Inc., d/b/a

PETERBILT MOTORS CO.,

Appellee.

June 15, 2018

Court of Appeals Case No.

55A05-1709-CT-2168

Appeal from the Morgan Circuit 

Court

The Honorable Matthew G. 

Hanson, Judge

Trial Court Cause No.

55C01-1605-CT-691

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 2 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 3 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 
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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.