Ray-Hayes v. HEINAMANN.

_______________________________________________________________________
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
NISSAN, ET AL.

Thomas C. Doehrman Wayne C. Kreuscher
Courtney E. McGovern Michael D. Moon, Jr.
Indianapolis, IN Indianapolis, IN
________________________________________________________________________

IN THE
INDIANA SUPREME COURT

SHEILA RAY-HAYES, as Parent and )
Natural Guardian of AMANDA K. )
RAY, )
)
Appellant (Plaintiff below), ) Indiana Supreme Court
) No. 89S05-0201-CV-306
v. )
)
RYAN S. HEINAMANN, NISSAN )
MOTOR COMPANY, LTD., ) Court of Appeals
NISSAN NORTH AMERICA, INC., ) No. 89A05-0007-CV-306
and NISSAN MOTOR )
CORPORATION IN U.S.A., )
)
Appellees (Defendants below). )
________________________________________________________________________

APPEAL FROM THE WAYNE SUPERIOR COURT
The Honorable Gregory A. Horn, Judge

Cause No. 89D02-9807-CT-018

______________________________________________________________________

ON PETITION TO TRANSFER
________________________________________________________________________

January 2, 2002

Per Curiam
We grant transfer to resolve a conflict between the Court of Appeals’
opinion in this case, Ray-Hayes v. Heinamann, 743 N.E.2d 777 (Ind. Ct. App.
2001), and another opinion, Fort Wayne International Airport
v. Wilburn, 723 N.E.2d 967 (Ind. Ct. App. 2000), trans. denied. These two
opinions disagree over whether a civil action is timely commenced if the
plaintiff files a complaint within the applicable statute of limitations
but does not tender the summons to the clerk within that statutory period.
We hold that in such circumstances the action is not timely.
In Wilburn, the plaintiff tendered a complaint and the filing fee to
the clerk within the applicable statute of limitations but did not tender
the summons to the clerk until a few days after the statutory period
expired. 723 N.E.2d at 968. The Court of Appeals held that the lawsuit
was not timely commenced. Id. at 968-69. In so holding, the court relied
on language in Boostrom v. Bach, 622 N.E.2d 175 (Ind. 1993), cert. denied,
513 U.S. 928 (1994). See Wilburn, 723 N.E.2d at 969.
We held in Boostrom that a statute of limitations continued to run,
and was not tolled, where a plaintiff sent her small claims complaint to
the clerk within the statute of limitations but the clerk refused to file
it because it was not accompanied by the prescribed filing fee. 622 N.E.2d
at 175. We described that result as “consistent with the modern notion
that the commencement of an action occurs when the plaintiff presents the
clerk with the documents necessary for commencement of suit.” Id. at 177.
We also referred to the summons as one of the essential documents:
The plaintiff, of course, controls the presentation of all the
documents necessary to commencement of a suit: the complaint,
the summons, and the fee. Boostrom used a standard pre-printed
small claims form, which contains the complaint and the summons
on a single page. She thus filed two of the three items
necessary to commencement of her action.

Id. at 177 n. 2. The Wilburn court treated this language as binding
precedent. 723 N.E.2d at 969.
The Court of Appeals reached the opposite conclusion in the present
case, Ray-Hayes. Here, the plaintiff amended her original complaint to add
product liability claims against new defendants Nissan Motor Company, Ltd.,
Nissan North America, Inc., and Nissan Motor Corporation In U.S.A.
(collectively “Nissan”). The plaintiff filed her amended complaint within
two years after her product liability claims accrued, but she did not
tender summonses for Nissan until over four months later, beyond the two-
year statutory period. See Ray-Hayes, 743 N.E.2d at 778. Nissan moved to
dismiss and argued, among other things, that the product liability claims
should be dismissed under Indiana Trial Rule 12(B)(6). Nissan asserted in
particular that the claims were not commenced within the applicable two-
year statute of limitation because the summonses were not tendered within
that period. The trial court dismissed the claims against Nissan, citing
Wilburn and the plaintiff’s failure to tender summonses for Nissan until
after the statute of limitations expired. Ray-Hayes, 743 N.E.2d at 778-
79.
The Court of Appeals, however, reversed and remanded. Id. at 781. It
held that because the plaintiff filed her amended complaint within the
statute of limitations, she commenced her claims against Nissan timely and
dismissal was error. Id. (citing Ind. Trial Rule 3). The court called
Boostrom distinguishable as a small claims case that should be limited to
its facts, and the court implied that Wilburn had been incorrect for
relying on Boostrom. Id. at 779. Judge Sullivan dissented. He opined
that the passage quoted above from Boostrom, although made in the context
of a small claims case, clearly applies to suits filed under the Indiana
Trial Rules. Id. at 781 (Sullivan, J., dissenting). Consequently, he
expressed the view that Boostrom and Wilburn require that the dismissal
here be affirmed. Id. at 781-82.
We conclude that Wilburn was right and that Judge Sullivan’s dissent
in Ray-Hayes is correct. Wilburn gives effect to what we said in Boostrom.
Requiring that the summons be tendered within the statute of limitations
is also good policy because it promotes prompt, formal notice to defendants
that a lawsuit has been filed. This not only helps to prevent surprise to
defendants, but it also helps to reduce stagnation that might otherwise
occur if claims could be filed only to remain pending on court dockets
without notified defendants.
Moreover, our approval of Wilburn coincides with recent amendments to
the Indiana Trial Rules reinforcing what we said in Boostrom. Pursuant to
an amendment December 21, 2001, and effective April 1, 2002, Indiana Trial
Rule 3 will read, “A civil action is commenced by filing with the court a
complaint or such equivalent pleading or document as may be specified by
statute, by payment of the prescribed filing fee or filing an order waiving
the filing fee, and, where service of process is required, by furnishing to
the clerk as many copies of the complaint and summons as are necessary.”
Also, Indiana Trial Rule 4(B) was modestly amended on December 21, 2001,
effective April 1, 2002, to read, in part, “Contemporaneously with the
filing of the complaint or equivalent pleading, the person seeking service
or his attorney shall furnish to the clerk as many copies of the complaint
and summons as are necessary.”
Having vacated the Court of Appeals opinion in Ray-Hayes by granting
transfer, see Ind. Appellate Rule 58(A), we affirm the trial court’s
dismissal of claims against Nissan.

SHEPARD, C.J., and SULLIVAN and BOEHM, JJ., concur.

RUCKER, J., dissents with separate opinion, in which DICKSON, J., concurs.

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

THOMAS C. DOEHRMAN WAYNE C. KREUSCHER
COURTNEY E. MCGOVERN MICHAEL D. MOON, JR.
Indianapolis, Indiana Barnes & Thornburg
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

SHEILA RAY-HAYES, as Parent and )
Natural Guardian of AMANDA K. RAY, )
)
Appellant-Plaintiff, )
) Supreme Court Cause Number
v. ) 89S05-0201-CV-306
)
RYAN S. HEINAMANN, NISSAN MOTOR ) Court of Appeals Cause Number
COMPANY, LTD., NISSAN NORTH ) 89A05-0007-CV-306
AMERICA, INC., and NISSAN MOTOR )
CORPORATION IN U.S.A., )
)
Appellees-Defendants. )

APPEAL FROM THE WAYNE SUPERIOR COURT
The Honorable Gregory A. Horn, Judge
Cause No. 89D02-9807-CT-018

ON PETITION TO TRANSFER

January 2, 2002

RUCKER, Justice, 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 “[a] civil action is
commenced by filing a complaint with the court or such equivalent pleading
or document 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 (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.”
T.R. 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, 793 (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. denied, 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.