FORT WAYNE INTERNATIONAL AIRPORT and The Fort Wayne/Allen County Airport Authority, Appellants-Defendants, v. Cynthia R. WILBURN and Reggie Wilburn, Appellees-Plaintiffs.
No. 02A03-9907-CV-255
Court of Appeals of Indiana
Feb. 22, 2000
Duneland has not shown that it hаs a protectable interest in trade secrets or other confidential information. Further, Duneland has not shown an effect on its customer good will. More importantly, Brunk cannot be limited in utilizing his skills unless Duneland can show an irreparable injury. Duneland has shown no injury as a result of Brunk‘s termination and employment with Unity other than the typicаl expenses incurred when a departing employee has to be replaced. Thus, Duneland has made no showing that it had a protectable interest which would make the restrictions of the non-compete clause reasonable. Consequently, we agree with the trial court that Duneland has failed to show а protectable business interest and therefore the covenant not to compete in the employment agreement at issue is unenforceablе.
Because of our conclusion that the covenant not to compete is unenforceable, we need not address whether the trial court correctly determined that the geographical restrictions of the covenant were reasonable. Furthermore, because the non-competе covenant is unenforceable, Duneland is not entitled to liquidated damages. Accordingly, it is also unnecessary to address whether the liquidated damages provision constituted a penalty and was therefore void.
CONCLUSION
Based on the foregoing, we conclude that the trial court properly granted Brunk‘s Motion for Partial Summary Judgment.
Affirmed.
KIRSCH, J., and SHARPNACK, C.J., concur.
David J. Avery, Avery & Van Gilder, Fort Wayne, Indiana, Attorney for Appellees.
OPINION
SULLIVAN, Judge
Appellants-defendants Fort Wayne International Airport and the Fort Wayne/Allen County Airport Authority (the Airport) bring this interlocutory appeal following thе trial court‘s denial of its motion to dismiss the complaint filed against it by the appellees-plaintiffs, Cynthia and Reggie Wilburn (collectively, the Wilburns). Specifically, the Airport contends that its motion should have been granted because the Wilburns failed to commence their cause of action for negligence within the two-year statute of limitations.
On February 17, 1997, Cynthia allegedly slipped and fell on the floor as she entered the restroom area of the Fort Wayne Airport. On February 16, 1999, the Wilburns submitted their complaint for damages, along with the appropriate filing fee, to the trial court clerk. The summons was not tendered, however, until February 19, 1999.
On March 15, 1999, the Airport moved to dismiss the complaint, alleging that because the summons, complaint and filing fee were not all tendered within the applicable two-yеar statute of limitations, the Wilburns failed to commence their cause of action in a timely fashion. Thus, the Airport contended that the Wilburns’ action was time-barred.
Our decision is controlled by Boostrom v. Bach (1993) Ind., 622 N.E.2d 175, cert. denied, (1994) 513 U.S. 928, 115 S.Ct. 318, 130 L.Ed.2d 279. In that case, our Supreme Court held that the plaintiff was required to tender the filing fee to the Clerk in her small claims action in addition to filing the notice of claim, i.e., the complaint, in order to commence the civil action within the applicable statute of limitations.1
Clearly and unmistakably, our Supreme Court stated in that case:
“The plaintiff, of course, controls the presentation of all the documents necessary to commencement of a suit: the comрlaint, the summons, and the fee.... [Plaintiff] thus filed two of the three items necessary to commencement of her action“. (Emphasis supplied). 622 N.E.2d at 177 n. 2.
In Boostrom, it was the filing fee which was lаcking and here it is the tender of the summons. Still, only two out of the three requisites for commencement of the action have been met. Fulfillment of two of the threе requirements may equate with a Hall of Fame .667 batting average in the major leagues. However, such is not adequate under our rules and case precedent to permit plaintiff to continue compete in this contest.
We would further observe that the dissent inappropriately finds support in the Supreme Court‘s оbservation that “[p]ayment of the filing fee, unlike issuance of summons by the clerk, is wholly in the hands of the plaintiff.” (Emphasis supplied). Id. In the case before us, we are nоt concerned with the failure of the Clerk to issue a summons after its proper tender by the plaintiff. Here, the plaintiff failed
Were it not for the Boostrom decision, we might well focus upon
The denial of Appellant-Defendants’ Motion to Dismiss is reversed and the cause is remanded with instructions to dismiss Appellee-Plaintiffs’ complaint.
STATON, J., concurs with separate opinion.
BAKER, J., dissents with separate opinion.
STATON, Judge, concurring
I concur with Judge Sullivan, but I would like to add some additional rationale which I have gleaned from my forty-five years as a lawyer and judge. If the commencement of an action at law were based solely upon the filing of the complaint, the wheels of justice would quickly become mired down and the judicial system ineffectivе as a means to settling disputes. Requiring the plaintiff to file a summons shifts the burden where it belongs. Initially, the plaintiff should move the complaint along in the judicial process to the extent that he can by providing the necessary complaint, summons and filing fee so that some further action can be taken by the court and the defеndant. Otherwise, the proposed litigation could become stagnant. Clearing court dockets of old, unattended cases is an indispensable adjunct to the quality of justice. The tendency of practicing attorneys to give priority to new cases and immediate attention to inquiries from clients who have pending сases could result in attorneys pursuing a cause of action in segments -e.g. filing only the complaint. This result is especially likely where the location of defendants is in doubt and the number of defendants to be summoned undecided. The result would be a number of cases on the court docket in limbo and some cases develоping a dilatory history.
BAKER, Judge, dissenting
I respectfully dissent. Unlike the circumstances presented in Boostrom v. Bach, 622 N.E.2d 175 (Ind.1993) as discussed in the majority opinion, the Wilburns submitted their filing fee along with the complaint. Both were received by the court clerk and the complaint was file-marked February 16, 1999, which was within the time period prescribed by the statute of limitations. Additionally, I would note that there is no language in