dissenting
I respectfully dissent. Although it is true that we recently amended Indiana Trial Rule 3 such that a claim filed after the effective date will require the contemporaneous tender of a summons, complaint, and filing fee, that was not the case at the time Ray-Hayes commenced this action. Rather, the plain language of the current rule provides "[al civil action is commenced by filing a complaint with the court or such equivalent pleading or doeument as may be specified by statute." Ind. Trial Rule 3. There is no same time summons-filing requirement. Also, the majority's view that Boostrom controls the outcome here is based on a footnote. See slip op. at 3, 760 N.B.2d at 174 (citing Boostrom, 622 N.E.2d at 177 n. 2). Because I do not believe this Court decides important issues of law in footnotes, it is my view that the Boostrom footnote is merely obiter dictum and not binding. Further, regardless of the policy considerations, with which I agree, that favor the contemporaneous filing of a summons and complaint, the question here is whether the trial court erred in dismissing Ray-Hayes' complaint on the grounds asserted by Heinamann, namely: Indiana Trial Rule 41(E) for failure to prosecute a civil action and Indiana Trial Rule 12(B)(6) for failure to state a claim upon which relief can be granted.
Concerning Trial Rule 41(E), the Rule itself contemplates remedial action for an alleged violation: "the court, on motion of a party or on its own motion shall order a hearing for the purpose of dismissing such case. The court shall enter an order of dismissal at plaintiff's cost if the plaintiff shall not show sufficient cause at or before such hearing." TR. 41(E). As for Trial Rule 12(B)(6), dismissals are improper unless it appears to a certainty that the plaintiff would not be entitled to relief under any set of facts. Thomson Consumer Elecs., Inc. v. Wabash Valley Refuse Removal, Inc., 682 N.E.2d 792, 798 (Ind.1997). Reading together the Boostrom footnote, the unambiguous language of Trial Rule 3, and the split decision in the Court of Appeals opinion of Fort Wayne International Airport v. Wilburn, 723 N.E.2d 967 (Ind.Ct.App.2000), trans. de-mied, one can only conclude that at the time Ray-Hayes commenced this action, at the very least the question was unsettled whether a party in a non-small claims case was required to file a summons and complaint at the same time. Under those circumstances it is not at all clear to me that Ray-Hayes was entitled to no relief on her complaint. In my view the trial court erred in granting Heinamann's motion to dismiss. I would therefore reverse the trial court's judgment and remand this cause for further proceedings.
DICKSON, J., concurs.