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Corrected exhibit slipped by COA; 'disregard’ admonishment

August 15, 2018

The Indiana Court of Appeals, which issued a stern warning to defendants about misrepresenting their case, acknowledged an amended exhibit had been given to the trial court.

In the original case, two semi-tractor trailers driven by Julian Hayes and William Harr collided on Interstate 465 in July 2015. Hayes, who was injured in the accident, filed suit in Marion Superior Court. Harr and his employer, Finster Courier d/b/a Elite Express, tried to transfer the case to federal court but Hayes countered federal court lacked jurisdiction because the amount in controversy did not exceed $75,000.

The case went to trial, where a jury awarded Hayes $187,500. In response, the defendants filed a motion to correct error and asked the judgment be reduced to $75,000. After the Marion Superior Court denied the motion, the defendants appealed.

The Court of Appeals affirmed the trial court, finding it did not err in denying the defendants’ motion to correct error.

However, in a footnote, the appellate court admonished the defendants for not submitting the complete order from the federal district court. The defendants’ Exhibit C was the district court’s six-page order but left out was page five, which contained the discussion of the defendants’ failure to meet their burden of proof.

The Court of Appeals saw the omission as misrepresenting to the trial court the reasoning behind the district court’s order. Namely, the federal court tossed the case because it found the defendants had failed to meet their burden, but the incomplete Exhibit C gave the impression the court dismissed because the of the amount in controversy.

“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,” Judge Margret Robb wrote for the court.

The defendants then returned to the Court of Appeals. They filed a petition for rehearing on the grounds the court failed to acknowledge that Harr and Finster Courier had corrected their omission.

Wednesday, the appellate court issued is ruling on rehearing in William R. Harr and Finster Courier, Inc. d/b/a Elite Express v. Julian Hayes and Tracey Hayes, 49A02-1711-CT-2595.

The COA noted the defendants did file an amended exhibit four days after filing its motion to limit judgment. However, the exhibit was not labeled as being amended and was not identified in the table of contents as a separate filing.

Consequently, the Court of Appeals maintained it was unaware of the document’s significance in relation to the defendants’ earlier filing. In fact, the complete order from the district court was supplied by Hayes in his responsive pleading which was included in the defendants’ corrected appendix, volume one.

“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,” Robb wrote. “To the extent our opinion reflects otherwise, it is to be disregarded.”

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