Ray-Hayes v. HEINAMANN.
760 N.E.2d 172
Ind.
2002
Check Treatment

*1 interests; protect a client's practicable of Kevin the Matter Prof.Cond.R., lawyers prohibits which 3.1 B. RELPHORDE. and Prof. complaints, frivolous from 45S00-0009-DI-552. No. 84(c), prohibits lawyers which Cond.R. involving dishon- in conduct engaging from of Indiana. Court Supreme fraud, misrepresentation. deceit or esty, 21, Dec. Discipline: Ninety-day suspension OF STATEMENT APPROVING ORDER conditioned on automatic reinstatement AND CONDI- $3,000 CIRCUMSTANCES paid respondent's refund of FOR DIS- AGREEMENT TIONAL appeal criminal client. by the CIPLINE Court, having considered the sub- The Admission and Disci- to Ind. Pursuant parties, now APPROVES mission the Indiana Su- Section pline Rule discipline. The agreed and ORDERS Disciplinary Commission Court preme begin January suspension of shall period approv- respondent have submitted proceeding of this 2002. Costs and Con- Circumstances al a Statement respondent. assessed stipulat- Discipline Agreement ditional of this Court is directed Clerk agreed discipline and facts ing proposed respon- notice of this order to the forward below. as summarized attorney; dent and his to the Su- in a a client representing Facts: While Commission; to preme Disciplinary claims, the frivolous raising suit some officer; and to all other enti- defendant's to the respond client failed to and Dis- provided ties as Ind.Admission dismiss, in dismissal of resulting motion 28(8)(d). cipline Rule Later, respondent the client's case. calls and lied ignored telephone the client's All Justices concur. also failed respondent

to the client. The petition appeal post-conviction

to file an client. He failed requested by another retainer and to re-

to refund that client's demand for

spond to the Commission's information. RAY-HAYES, Parent Sheila Agreed respondent vio- Violations: Natural of Amanda K. Guardian 1.1, Conduct Rule lated Ind. Professional (Plaintiff below), Appellant lawyers provide requires which 1.2(a), Prof.Cond.R. petent representation; Ryan HEINAMANN, Nissan Motor S. abide a client's requires lawyers which Amer objectives rep- concerning decisions ica, Inc., Corpora 1.8, resentation; which Prof.Cond.R. (Defendants U.S.A., Appellees tion in quires lawyers act with reasonable below). diligence representing promptness client; 14(a), No. 89S05-0201-CV-306. lawyers requires which keep reasonably clients informed their Supreme Court of Indiana. promptly about the status of a matter and 2, 2002. Jan. for infor- comply requests with reasonable mation; 1.16(d), requires Prof.Cond.

lawyers, representa- termination of upon

tion, reasonably steps take to the extent *2 Kreuscher, Moon,

Wayne C. Michael D. Jr., IN, Indianapolis, Attorneys for Appel- al. lees et

ON PETITION TO TRANSFER PER CURIAM. grant transfer

We resolve a conflict of Appeals' between opinion in v. Heina mann, (Ind.Ct.App.2001), 743 N.E.2d 777 and another Fort Interna Wilburn, tional 723 N.E.2d 967 (Ind.Ct.App.2000), trans. denied. These two opinions disagree over whether a civil timely commenced if plaintiff files a within applicable stat ute of limitations does not tender the statutory summons to the clerk within that We hold such cireum- timely. stances the action not Wilburn, tendered fee to the clerk applicable but did not tender the summons to the until days statutory clerk a few after the period expired. 723 N.E.2d at 968. The held that the lawsuit was timely commenced. Id. at 968-69. In holding, so the court relied on Bach, 622 N.E.2d Boostrom 1993), denied, cert. 513 U.S. 115 S.Ct. (1994). 130 L.Ed.2d 279

We held Boostrom that a statute of run, limitations continued was not tolled, where a sent her small to the clerk within the statute of limitations but the clerk refused accompanied to file it because it was not prescribed filing fee. 622 N.B.2d 175. We described that result as "consis- tent with the modern notion Doehrman, Courtney E. Me- Thomas C. of an action occurs when the mencement plaintiff presents the clerk with the doeu- Govern, IN, Indianapolis, Attorneys Appellant. ments for commencement of limita- We also referred to the ed within at 177.

suit." Id. tions, of the essential docu- she commenced her claims as one timely was error. ments: course, Ind. Trial Rule The court controls the plaintiff, *3 distinguishable called Boostrom small necessary documents of all the sentation claims case that should be limited to its of a suit: to commencement facts, implied that the court Wilburn the the fee. Boos- relying had incorrect for on Boos- been pre-printed trom used a standard small TQ. form, which contains the com- claims Judge Id. at Sullivan dissent- trom... single opined passage quoted ed. He the plaint and the summons on thus filed two of the three page. She in although above from made case, clearly context claims the of a small items to commencement applies her action. to suits filed under the Indiana (Sullivan, J., Trial Rules. dis- Id. at 177 n. The Wilburn court treated senting). Consequently, expressed he the binding precedent. Boostrom and Wilburn N.E.2d at 969. that the be dismissal here affirmed. Id. at Appeals oppo- The Court of reached the 781-82. present conelusion in the site Here, right We conclude that Wilburn was Hayes. the amended her in Judge Ray- Sullivan's dissent original product liability to add complaint Hayes gives is correct. Wilburn effect to against claims new defendants Mo- Requiring what we said Boostrom. America, tor the summons tendered within Ine., be the stat- Corporation "Nissan"). good policy ute of limitations is also be- (collectively plain- U.S.A. it promotes prompt, formal notice to complaint tiff filed her amended within two that a defendants lawsuit has been filed. years product liability after her ac- claims erued, only helps This not prevent surprise to but she did not tender summonses defendants, later, helps it also for Nissan until over four reduce months stagnation that beyond might otherwise occur if two-year statutory period. the pend- claims could be filed to remain Ray-Hayes, 748 NE2d at 778. Nissan ing on court moved dockets without notified de- argued, among to dismiss and other fendants. things, product liability should be dismissed under Indiana Trial Moreover, approval our of Wilburn co- 12(B)(6). in particu- Nissan asserted incides with recent amendments to the lar that the claims were not commenced reinforcing Indiana Trial Rules what we applicable two-year said in Boostrom. Pursuant to an amend- limitation because the summonses were 21, 2001, ment December and effective tendered within that 1, 2002, April Indiana Trial Rule 3 will dismissed the claims read, "A by filing civil action is commenced citing plaintiff's Wilburn and the failure to complaint with the court a or equiva- tender summonses for Nissan until after pleading speci- lent or document as be expired. Ray- statute, by by payment fied Hayes, 748 N.E.2d at 778-79. filing filing seribed fee or an waiving order however, fee, and, The Court of Appeals, filing where process service of versed and remanded. Id. at It required, by furnishing held to the clerk as that because many copies filed her amend- of the and sum- necessary." complaint, as are mons here is whether the trial court dismissing Ray- 4(B) modestly amended on Trial Rule Hayes' 21, 2001, 1, 2002, grounds on the asserted April December effective Heinamann, namely: Indiana Trial read, part, "Contemporaneously 41(E) prosecute failure to a civil equivalent of the 12(B)(6) action and Indiana Trial Rule pleading, person seeking service or his failure to state a claim upon which relief attorney many shall furnish to the clerk as can granted. copies and summons as necessary." 41(E), Concerning Trial Rule the Rule itself contemplates remedial action for an Having vacated the Court of *4 alleged court, violation: "the on motion of opinion Ray-Hayes by granting trans- party or on its own motion shall order a fer, 58(A), Appellate see Ind. we af- purpose for the of dismissing such firm court's dismissal of claims case. The court shall enter an order of ‘ against Nissan. at plaintiff's cost if the plaintiff shall not show sufficient cause at or before SHEPARD, C.J., and SULLIVAN and 41(E). such hearing." TR. As for Trial JJ., BOEHM, concur. 12(B)(6), dismissals are improper un RUCKER, J., separate dissents with less it appears certainty to a plaintiff would not be entitled to relief DICKSON, J., concurs. any under set of facts. Thomson Consumer RUCKER, Justice, dissenting lecs., E Valley Inc. Wabash Refuse I respectfully Although dissent. it is Removal, Inc., recently true we amended Indiana 1997). Reading together the Boostrom Trial Rule 3 such that a claim filed after footnote, unambiguous language of Tri the effective date will the contem- al Rule split decision in the poraneous tender of a Appeals opinion of Fort fee, was not the case International Ray-Hayes at the time N.E.2d 967 (Ind.Ct.App.2000), commenced this trans. de- mied, Rather, one can plain action. conclude that at the language of the action, Ray-Hayes time commenced this provides current rule civil "[al very least the was unsettled by filing complaint commenced with the party whether a in a non-small claims case court or equivalent pleading or doeu- required to file a and com summons specified ment as by statute." plaint at the same time. those Under Ind. Trial Rule 3. There is no same time it circumstances is not all clear to me summons-filing requirement. was entitled to no relief majority's Boostrom controls the on complaint. my her view the trial outcome here is based on a footnote. See in granting Heinamann's mo slip op. at 760 N.B.2d at tion to dismiss. I would therefore reverse 622 N.E.2d at 177 n. Be- judgment the trial court's and remand this I do not believe this Court decides proceedings. cause for further footnotes, important issues of law in it is my view that the Boostrom footnote DICKSON, J., concurs. merely binding. obiter dictum and not Further, regardless of the policy consider-

ations, I agree, with which that favor the

contemporaneous filing of a