                                                                      Aug 15 2013, 5:39 am



FOR PUBLICATION

ATTORNEY FOR APPELLANT:                        ATTORNEY FOR APPELLEE:

LARRY R. CHURCH                                EARL C. MULLINS, JR.
McNeely Stephenson Thopy & Harrold             Masters, Mullins & Arrington
New Albany, Indiana                            Sellersburg, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

NATASHA F. HORTENBERRY,                        )
                                               )
      Appellant-Defendant,                     )
                                               )
            vs.                                )       No. 10A04-1301-CT-17
                                               )
THOMAS PALMER,                                 )
                                               )
      Appellee-Defendant.                      )


                    APPEAL FROM THE CLARK CIRCUIT COURT
                        The Honorable Daniel E. Moore, Judge
                           Cause No. 10C01-1208-CT-136



                                     August 15, 2013


                             OPINION - FOR PUBLICATION


CRONE, Judge
                                       Case Summary

       Thomas Palmer attempted to initiate a negligence action against Natasha F.

Hortenberry, but the check he sent to the clerk along with the complaint was $2 less than the

applicable filing fee. By the time that Palmer realized the mistake and rectified it, the statute

of limitations had run. Palmer filed a motion with the trial court requesting that the

complaint be treated as if it had been timely filed, and the court granted the motion. On the

same day that the motion was granted, an attorney entered an appearance for Hortenberry,

and when he realized that Palmer’s motion had been granted, he filed a motion to set aside

the order. The trial court denied that motion, and Hortenberry now appeals. Because Indiana

Trial Rule 3 and Indiana Supreme Court precedent clearly indicate that paying the filing fee

is required for the commencement of an action, we conclude that the trial court erred by

denying Hortenberry’s motion. Therefore, we reverse and remand.

                               Facts and Procedural History

       On August 23, 2010, Palmer and Hortenberry were in an automobile accident in Clark

County. On August 10, 2012, counsel for Palmer mailed to the clerk of the Clark Circuit

Court a complaint, appearance, summons, and check. Although the cover sheet indicated that

the check was for $139, the applicable filing fee, the check was actually for $137. On

August 22, 2012, the clerk’s office called Palmer’s counsel to inform him that an additional

$2 was needed. Palmer’s counsel mailed a check for $2 the following day.

       The complaint was stamped filed on August 27, 2012. Because the two-year statute

of limitations had run by then, Palmer filed on August 30 a “Motion to Treat the Complaint


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Herein as Filed Prior to August 22, 2012.” Appellant’s App. at 18. Because no attorney had

yet filed an appearance for Hortenberry, Palmer served the motion on Hortenberry. On

September 10, 2012, the trial court granted Palmer’s motion, but the order was not promptly

noted on the chronological case summary.1 The same day, an attorney filed an appearance

for Hortenberry. Not realizing that Palmer’s motion had already been granted, Hortenberry’s

counsel filed a response to the motion on September 14, 2012. After learning that the motion

had been granted, Hortenberry’s counsel filed a “Motion to Set Aside the Court’s Order to

Treat the Complaint as Filed Prior to August 22, 2012 and to Set Hearing” and a

memorandum in support. Id. at 41. The memorandum argued that, pursuant to Trial Rule 3

and supreme court precedent, payment of the filing fee is a prerequisite to the

commencement of an action. On October 24, 2012, Palmer filed a response, and on October

31, 2012, Hortenberry filed a reply.

       The trial court heard arguments on the motion on November 9, 2012. The same day,

the trial court issued an order denying Hortenberry’s motion. Relying on Trial Rule 1’s

provision that the Indiana Trial Rules “shall be construed to secure the just, speedy and

inexpensive determination of every action,” the court concluded that “an inadvertent clerical

error (a $2.00 shortfall of the fee that was only recently increased) should not deprive

Plaintiff of a right to litigate his claim in court.”2 Id. at 69. Hortenberry filed a motion to


       1
          The parties disagree as to whether this order constituted an ex parte order; however, because
Hortenberry does not argue that this is a reason for setting aside the order, we will not address these
contentions.
       2
           The parties had stipulated that the filing fee for a civil action increased by $2 on July 1, 2012.


                                                       3
certify the order for interlocutory appeal, which the trial court granted. On February 22,

2013, we accepted jurisdiction.

                                        Discussion and Decision

         Hortenberry argues that the trial court erred by denying her motion to set aside the

order treating Palmer’s complaint as though it had been filed prior to August 22, 2012.

Although they disagree on the reason, the parties agree that our standard of review is de

novo.3

         Trial Rule 3 provides:

         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.

(Emphasis added.)

         The italicized language was added after our supreme court decided Boostrom v. Bach,

622 N.E.2d 175 (Ind. 1993), cert. denied (1994). Boostrom attempted to commence a small

claims action against Bach on January 12, 1990, the same day that the statute of limitations

was to run. Boostrom sent her complaint to the clerk via certified mail, but did not enclose

payment for the filing fee. The clerk sent Boostrom a letter informing her that she needed to

pay the fee. She complied on February 5, and her complaint was file-marked as of that date.


         3
            Hortenberry asserts that our standard of review is de novo because the case turns on the
interpretation of the Trial Rules. See Gulf Stream Coach, Inc. v. Cronin, 903 N.E.2d 109, 111 (Ind. Ct. App.
2009) (interpretation of a Trial Rule is a question of law reviewed de novo). Palmer argues that Hortenberry’s
motion was in effect a motion to dismiss for lack of subject matter jurisdiction due to the running of the statute
of limitations. When the facts are not in dispute, a ruling on a motion to dismiss for lack of subject matter
jurisdiction is reviewed de novo. GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001).

                                                        4
Bach moved for summary judgment and argued that the action was time-barred. Boostrom

filed a “Motion to Correct Minutes,” whereby she sought to have her complaint marked as

having been filed on January 12. The court denied Boostrom’s motion and granted summary

judgment for Bach.

       Boostrom appealed, and the Court of Appeals reversed on the ground that Boostrom

had complied with Trial Rule 5(E) regarding filing. Our supreme court granted transfer and

concluded that Trial Rule 5(E) “only defines how a required filing may be made” and that an

action was not commenced in the meaning of Trial Rule 3 until the filing fee was paid. Id. at

176-77. The supreme court rejected Boostrom’s reliance on Brady v. Eastern Indiana

Production Credit Association, 396 N.E.2d 335 (Ind. 1978), in which the court had ruled that

failure to tender the filing fee did not deprive the Court of Appeals of jurisdiction to hear an

appeal when the record had been timely filed:

       This holding was grounded on the belief that appeals ought be disposed of on
       the merits whenever possible, Brady, 396 N.E.2d at 335, and that there are
       numerous methods by which to enforce effectively the payment of filing fees
       other than by couching such enforcement in jurisdictional terms. Id.; Brady v.
       Eastern Ind. Prod. Credit Ass’n (1977), Ind. App., 360 N.E.2d 1267, 1269
       (Sullivan, J., dissenting). Hinging commencement of an action under T.R. 3 to
       the payment of filing fees is one such method. Moreover, this Court’s desire
       to dispose of appeals on the merits whenever possible does not displace the
       legislative policy which undergirds the statute of limitations.

               The Brady court rightly concluded that prepayment of the appellate
       filing fee was neither required by the statute then controlling nor central to
       accomplishing the objectives of the rules which govern submission of appeals.
       Those rules exist to facilitate the orderly presentation and disposition of
       appeals and prevent the confusing and awkward situation of having the trial
       and appellate courts simultaneously review the correctness of a judgment.
       Coulson v. Indiana & Michigan Elec. Co. (1984), Ind., 471 N.E.2d 278. The
       filing of a praecipe and subsequent presentation of the record fully safeguard

                                               5
       these interests. On the other hand, the statute of limitations exists not only to
       spare courts from stale claims, Matter of M.D.H. (1982), Ind. App., 437
       N.E.2d 119, but also “to insure that parties are given formal and seasonable
       notice that a claim is being asserted against them.” State ex rel. Young v.
       Noble Circuit Court (1975), 263 Ind. 353, 359, 332 N.E.2d 99, 103.

              Tendering the prescribed court costs fee is relevant as to this latter
       objective. Cf. Ind. Code Ann. § 33-19-3-5 (West Supp. 1992) (costs fee
       include cost of initiating service of process) [recodified as Ind. Code § 33-37-
       3-6].

Boostrom, 622 N.E.2d at 176 (footnote omitted). The court further noted that payment of the

filing fee “is wholly in the hands of the plaintiff.” Id. at 177.

       Trial Rule 3 was later amended to reflect the holding of Boostrom. Boostrom is the

current state of the law and has been followed on a number of occasions. See, e.g., Ft.

Wayne Int’l Airport v. Wilburn, 723 N.E.2d 967, 968-69 (Ind. Ct. App. 2000) (action was not

commenced until plaintiff tendered summons, as required by Trial Rule 3), trans. denied;

Ray-Hayes v. Heinamann, 760 N.E.2d 172, 174-75 (Ind. 2002) (confirming that Boostrom

applies to cases on the plenary docket);4 Webster v. Walgreen Co., 966 N.E.2d 689, 692-93




       4
           The supreme court granted rehearing in Ray-Hayes and made the ruling prospective only. Ray-
Hayes v. Heinamann, 768 N.E.2d 899, 901 (Ind. 2002). Trial Rule 3 was amended on December 21, 2001
(effective April 1, 2002), while transfer was pending in Ray-Hayes.



                                                  6
(Ind. Ct. App. 2012) (relying on Boostrom’s reasoning that payment of the fee is wholly

within the plaintiff’s hands, court concluded that complaint was not mailed within meaning

of Trial Rule 5 unless adequate postage was affixed), trans. denied.

       Palmer argues that the foregoing cases are distinguishable because they involve a

complete failure to comply with one of the requirements of Trial Rule 3, whereas he

“substantially complied” by tendering a payment that, through inadvertent error, was $2

short. He urges us to instead follow the reasoning of Holmes v. Celadon Trucking Services of

Indiana, Inc., 936 N.E.2d 1254 (Ind. Ct. App. 2010), trans. not sought. In Holmes, we held

that an action was timely commenced even though plaintiff’s counsel failed to file an

appearance as required by Trial Rule 3.1. 936 N.E.2d at 1257-58. Despite Palmer’s

protestation that he substantially complied with Trial Rule 3, Boostrom and its progeny,

which dealt with interpretation of Trial Rule 3, are more directly on point than Holmes,

which dealt with interpretation of Trial Rule 3.1.

       In their briefs, the parties also discussed Miller v. Dobbs, which was pending before

our supreme court at the time of briefing. In Miller, a majority of the Court of Appeals panel

held that a medical malpractice action was timely commenced when it was mailed to the

Department of Insurance within the statute of limitations even though the plaintiff had failed

to enclose the required processing and filing fees. Miller v. Dobbs, 976 N.E.2d 91, 98-99

(Ind. Ct. App. 2012), trans. granted (2013). Our supreme court recently issued an opinion in

the case in which it also ruled in the plaintiff’s favor. Miller v. Dobbs, 15S05-1302-CT-91,

2013 WL 3895070 at *2 (Ind. July 30, 2013). The court based its decision on Indiana Code


                                              7
Section 34-18-7-3(b), which states that a proposed malpractice complaint “is considered filed

when a copy of the proposed complaint is delivered or mailed by registered or certified mail

to the commissioner.” Miller, 2013 WL 3895070 at *2. The filing and processing fees, on

the other hand, are set forth in a separate section of the Indiana Code. Id.

       Miller does not overrule Boostrom; in fact, Miller favorably quoted portions of the

Boostrom opinion. Id. Miller turned on a “straightforward statutory ground,” and did not

involve interpretation of Trial Rule 3. Id. at *3. The statute at issue in Miller, unlike Trial

Rule 3, does not specify that payment of the applicable fees is required for the

commencement of the action. Id. at *2. The language of Trial Rule 3, which was

promulgated by our supreme court, see Trial Rule 80 (governing amendment of the Trial

Rules), remains unchanged.

       While we recognize that following Boostrom produces a harsh result in this case,

Boostrom thoroughly considered the competing policy arguments. Boostrom acknowledged

our preference to decide cases on their merits, yet concluded that that preference “does not

displace the legislative policy which undergirds the statute of limitations,” that is, to spare

courts from stale claims and insure that parties are given seasonable notice that a claim is

being asserted against them. 622 N.E.2d at 176. As in Boostrom, payment of the applicable

fee was wholly within the plaintiff’s hands. Although Palmer asserts that substantial

compliance can be judged on a case-by-case basis, he does not suggest any sort of workable

standard for clerks or courts to determine what constitutes substantial compliance. We think

that our supreme court intended to create a bright-line rule for determining when an action


                                              8
has been commenced and has left us with no discretion in the matter. Therefore, we

conclude that the trial court erred by relying on Trial Rule 1 to allow the case to proceed

rather than applying the clear language of Trial Rule 3, and we reverse the ruling of the trial

court and remand for further proceedings consistent with this opinion.

       Reversed and remanded.

BARNES, J., and PYLE, J., concur.




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