William R. Harr and Finster Courier, Inc. d/b/a Elite Express v. Julian Hayes and Tracey Hayes

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

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 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.
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 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.

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