Fort Wayne International Airport v. Wilburn

723 N.E.2d 967, 2000 Ind. App. LEXIS 180, 2000 WL 199665

• Court: Indiana Court of Appeals
• Decided: February 22, 2000
• Docket: 02A03-9907-CV-255
• Status: Published

Opinions

OPINION

SULLIVAN, Judge

Appellants-defendants Fort Wayne International Airport and the Fort Wayne/Allen County Airport Authority (the Airport) bring this interlocutory appeal following the 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 1-7, 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-year 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 complaint, 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 lacking 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 three 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 observation 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 not concerned with the failure of the Clerk to issue a summons after its proper tender by the plaintiff. Here, the plaintiff failed to carry out one of the three requisites over which she had total control.

Were it not for the Boostrom decision, we might well focus upon Trial Rule 3 which provides that “[a] civil action is commenced by filing a complaint with the court....” This rule does not seem to contemplate engraftment of other requirements such as filing fee and tender of summons. Nevertheless, such requirements are in place as a matter of binding precedent.

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.

1 . Under Small Claims Rule 3(A) the notice of claim is also "considered to be the summons.” Service of the notice of claim upon defendant is therefore service of the summons. The plaintiff is not required to tender to the Clerk a separate summons; nor is the Clerk required to issue a separate summons.