February 11, 2019

Court Doesn’t Like Simultaneous Notice of Appeal and Motion to Correct Error; Brewer v. PACCAR, Inc.

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The Indiana Court of Appeals made a passing reference to the possibility that an appeal may have been filed prematurely. The Appellee disagreed with this and raised that (and other issues) in a petition for rehearing. This gave the Court the opportunity to explain its thoughts on appellate procedure.

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.” 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.’” 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. … 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.

This opinion has been vacated, as the appellee successfully sought transfer. But the transfer was on a different issue, so we should pay attention to the Court of Appeals’ thoughts on this issue.

Lessons:

  1. The Court of Appeals frowns upon simultaneous filing of a notice of appeal and a motion to correct error.
  2. If you file a motion to correct error and later determine that you want to appeal before that motion is ruled upon or deemed denied, then the Court would like you to formally withdraw the motion to correct error.