Boostrom v. Bach
622 N.E.2d 175
Ind.
1993
Check Treatment

*1 it filing fee is not. We hold that prescribed Boos- Appellant to run. Rebecca continues BOOSTROM, Appellant Rebecca an action attempted to commence (Plaintiff Below), against her former at- small claims court torney Stephen January Bach on BACH, Appellee Stephen same the statute of limitations was Below). (Defendant action. Boostrom right run on her complaint the clerk of the mailed her No. 82S04-9310-CV-1177. Superior by certified Vanderburgh of Indiana. Supreme Court receipt requested. Mail return She U.S. filing fee. not include the small claims did Oct. received, complaint When Instead, file-mark it. the clerk did not on dispatched a letter to Boostrom clerk informing need to January 17th her of the complied on Feb- remit the fee. Boostrom 5th, file- complaint ruary as of that date. marked summary for Defendant Bach moved things arguing among other judgment, by the stat barred Boostrom’s action was responded ute limitations. Boostrom Minutes” where with a “Motion to Correct complaint sought to have her by she January having been filed on marked as February than on 5th. 12th rather motion, ad denied Boostrom’s trial court by the statute of her action barred judged limitations, summary judgment and entered ground. The Court of for Bach on that reversed, action holding that an pur limitations statute of commences for tendered to the poses when filing require court in accordance with Rule ments of Ind.Trial Ind.App., 589 . disagree 867. We limitations, Ind. applicable statute of dictates Ann. 34-1-2-2 Code accrued, an action has that after a cause of peri- action must commenced within Boostrom, pro se. not afterwards. Rebecca od therein 2(A), a small Rule Under Ind.Small Claims Vernon, Bach, H. Stephen Mt. William “by the claims action is commenced Kaiser, Indianapolis, Todd Vobach and J. in a court of claim of an unverified notice appellee. for language This competent jurisdiction.” provides: “A tracks that of PETITION TO TRANSFER ON by filing a com- civil is commenced action SHEPARD, Chief Justice. equivalent such plaint court or specified as pleading grant transfer to consider whether or document or not Accordingly, whether when a statute.” the statute of limitations depends action is saved to the but the Boostrom’s is tendered *2 by couching jurisdic in “filed” the such enforcement whether her notice was Id.; Ind. prescribed period. Brady therefore must de- tional terms. v. Eastern We (1977), Ind.App., Ass’n termine when a notice is filed under S.C.R. Prod. Credit (Sullivan, J., 2(A). dissenting). Hinging an action under commencement of argues that the answer to this filing payment T.R. 3 to the of fees is one 5(E). in is found T.R. Indiana Moreover, such method. this Court’s de govern proceed Trial Rules dispose appeals on the merits sire to of ings they are to the extent that not incon displace possible does not the whenever rules. Mue sistent Small Claims legislative policy undergirds the stat which nich v. Gulden ute of limitations. 5(E), N.E.2d 665. Trial Rule entitled “Fil Defined,” ing provides the that With Brady rightly court concluded that motions, “filing pleadings, the of and other prepayment appellate filing of fee the papers required by with the court as these required by neither the statute then con- may by mailing made to the clerk rules” trolling1 accomplishing nor central to the registered or certified mail return via re objectives govern of the rules which sub- ceipt requested, filings that and so made appeals. of to mission Those rules exist upon mailing.” complete “shall be Boos- orderly presentation facilitate the and dis- rule, argues conjunc in that this read appeals prevent of the confus- and 2(A), tion with S.C.R. leads to the conclu ing having and awkward situation of the sion that a small claims action is com appellate simultaneously trial and courts menced when a notice of claim is mailed to judgment. review the correctness of a the clerk. Michigan v. Indiana Elec. Coulson & Co. (1984), Ind., filing 471 N.E.2d 278. The of misapprehends significance This view the praecipe subsequent presentation a and of 5(E), only of T.R. defines how a fully safeguard the record these interests. required filing may Thus, be made. while hand, other of limita- On the the statute Appeals saying the Court of was correct in only spare tions exists not courts from that the of a notice of claim claims, stale Matter M.D.H. Ind. by receipt occur certified mail return re- of App., 437 N.E.2d also “to insure but quested that complete the parties given are formal and seasona- upon mailing, necessarily it does not follow being ble notice that a claim is asserted by mailing that an action is commenced against Young them.” ex rel. only the notice. Noble Circuit Court attempt posi- to bolster her 332 N.E.2d by drawing analogy holding tion an to our Brady Tendering v. Eastern Ind. the court Prod. Credit costs fee (1978), Ind., objective. Ass’n is not is relevant as to this latter Cf. In Brady well taken. we held that the Supp. Ind.Code Ann. 33-19-3-5 § requisite 1992) (costs failure to tender initiating fee did not cost of include deprive Therefore, jurisdiction process). of service of while we to hear an agree where the record was that “the filing of the will timely limitations,” grounded filed. This on toll the statute of appeals ought disposed belief Comments Trial Rule possible, Brady, merits whenever reprinted Harvey, 1 William F. 396 N.E.2d at and that there are nu- Indiana we also Practice 60 merous methods which to enforce effec- conclude that a notice of claim or tively payment fees other than is not “filed” unless the fee bar, controlling ($30)." 1. The statute in the case at with the Court of (West Supp.1992) Ind.Code Ann. 33-19-5-5 provisions neither this nor the raft of other provides that "for each claims small action the parties dispositive statutes cited of the party filing clerk shall collect from the the ac- issue before us. thirty tion small claims costs fee of dollars See, e.g., Fed.R.Civ.P. 3. Mace by rowed from occurred notice/complaint have (Ala. Sys., 549 So.2d 70 permitted Business any of the means Centel 1989). approach an Such notion that the

modern plaintiff pres- an action occurs when Conclusion *3 neces- the clerk with the documents ents small claims fee The of Boostrom’s suit. sary for commencement of See period until after limitations did not occur Super. Long rel. v. Marion Ct. ex such, not run. As had Former 418 N.E.2d 218. prescribed period and is filed within commencement from practice dated barred. ser- the summons for the sheriff received (1908), 171 Ind. v. Matson

vice. Marshall entering summary judgment in The order 339; Fagan also Jensen v. 86 N.E. see affirmed. of defendant Bach is favor Ind.App. 199 138 (statute of limitations not 719 DICKSON, JJ., concur. “parted with prepares and has DeBRULER until clerk sheriff). mailing it the summons” KRAHULIK, J., concurs in result. out of rule was abandoned The former “significant amount of over the concern GIVAN, J., separate dissents with elapse the com- time” which could between opinion. plaintiffs tasks which pletion of all necessary for the commencement were GIVAN, Justice, dissenting. preparation of the sum- an action and the by the clerk. mons See majority respectfully I dissent from the supra. Payment of the I opinion in this case. do not fee, issuance of summons unlike majority require the cited the rules plain- wholly in the hands of the is to constitute paying of a order tiff.2 limitations. I statute observed Court report- Appeals opinion believe supported by the Boostrom, ed at v. jurisdictions including case law of other 3.3 interpretations some of Fed.R.Civ.P. no statute stating: is correct “[TJhere precedent upon Federal this paid in advance stating that fees must be ” adopted T.R. unsettled at the time we deemed ‘filed.’ complaints will be before however, 2 and continues to be so. See at 869. Id. al., W. Moore et Moore’s Federal James deny in this case. I transfer would 3.04, nn. para. 3-16 & 5-6 Practice 1993). Moreover, principal Supreme upon by federal opinion relied those

cases in accord with the Court of Telechron, Inc., 349 U.S.

is Parissi v. (1955) (per cu 99 L.Ed. 867 S.Ct.

riam). Brady, opinion turned on Like is, think,

perfecting an we distinguishable. Finally, we note

equally today

that our jurisdictions which have bor-

that of other course, presenta- page. three items plaintiff, She thus filed two of the 2. controls necessary action. of her necessary the documents to com- tion of all complaint, the mencement of a suit: the mons, sum- Bowen, F.2d Rodgers and the fee. Boostrom used a standard Jones Behalf of Brown, form, (11th Cir.1986); pre-printed which contains Johnson see also (N.D.Ind.1992). single F.Supp. and the summons on a