ATTORNEY FOR APPELLANT
Thomas C. Doehrman
ATTORNEYS FOR APPELLEE
Wayne C. Kreuscher
Michael D. Moon, Jr.
SUPREME COURT OF INDIANA
SHEILA RAY-HAYES, As Parent and )
Natural Guardian of AMANDA K. RAY,)
Appellant (Plaintiff Below), )
v. ) Indiana Supreme Court
) Cause No. 89S05-0201-CV-306
RYAN S. HEINAMANN, NISSAN )
MOTOR COMPANY, LTD., and )
NISSAN NORTH AMERICA, INC., )
Appellees (Defendants Below). )
APPEAL FROM THE WAYNE SUPERIOR COURT
The Honorable Gregory A. Horn, Judge
Cause No. 89D02-9807-CT-018
ON PETITION FOR REHEARING
May 29, 2002
On January 2, 2002, this Court issued a per curiam decision resolving a
conflict between the Court of Appeals opinions in this case, Ray-Hayes v. Heinamann,
743 N.E.2d 777 (Ind. Ct. App. 2001) and Fort Wayne Intl Airport v.
Wilburn, 723 N.E.2d 967 (Ind. Ct. App. 2000), trans. denied. The two
opinions disagreed over whether a civil action is timely commenced if a plaintiff
files a complaint within the applicable statute of limitations period, but does not
tender the summons to the clerk within that period. We held that
under these circumstances the action is not timely and affirmed the trial courts
dismissal of Sheila Ray-Hayes claims against Nissan Motor Company, Ltd., Nissan North America,
Inc., and Nissan Motor Corporation In U.S.A (collectively Nissan). Ray-Hayes v. Heinamann,
760 N.E.2d 172, 175 (Ind. 2002). On January 31, Ray-Hayes filed a
petition for rehearing asking this Court to apply that decision only prospectively.
For the reasons that follow, we grant her petition.
Petitions for rehearing are extremely rarely granted. 24 George T. Patton, Jr.,
Indiana Practice, § 12.1 at 226 (3d ed. 2001). Ray-Hayes asks us
to take another very unusual step and apply the decision in her case
only prospectively. Appellate court decisions routinely apply to the parties involved, and
everyone else, even when addressing an unresolved point of law. In Bayh
v. Sonnenburg, 573 N.E.2d 398, 406 (Ind. 1991), this Court followed the three-prong
test employed by the United States Supreme Court to determine when to follow
the unusual course of applying a decision prospectively. First, the decision must
establish a new principle of law, either by overruling clear past precedent on
which litigants may have relied, or by deciding an issue of first impression
whose resolution was not clearly foreshadowed. Id. (quoting Chevron Oil Co. v.
Huson, 404 U.S. 97, 106-07 (1971)). Second, we look at the purpose
and effect of the rule, and whether retrospective operation will further or retard
its operation. Id. Finally, we weigh the inequity imposed by retroactive
Ray-Hayes contends that our holding was a radical departure from prior appellate decisions
and that, when she filed her complaint in September 1999, it was generally
understood among Indiana trial lawyers that the filing of a complaint tolled the
statute of limitations. Nissan argues, as it did in its petition for
transfer, that there was no departure from existing law, citing this Courts opinion
in Boostrom v. Bach, 622 N.E.2d 175, 177 n.2 (Ind. 1993), which referred
to the summons as one of those documents necessary to commencement of a
suit. In support of her petition for rehearing, Ray-Hayes calls to our
attention a recent lecture presented by Professor William F. Harvey, author of a
series of Indiana Practice treatises on the Indiana Rules of Procedure. In
his prepared remarks, Professor Harvey wrote, No attorney in his right mind would
have superimposed Small Claims Rule 3 upon Trial Rule 3, whether after Boostrom
in 1993, or Wilburn in 2000. Although this case and most others
turn on Trial Rule 3, not Small Claims Rule 3, we take this
claim to apply to both.
We do not agree with Ray-Hayes that Professor Harveys remarks conclusively evidence a
common understanding among Indiana attorneys that filing the summons was not necessary to
toll the statute of limitations. Nor, in our experience, was there such
a common understanding. Nevertheless, it is significant that Professor Harvey held this
view and stated as much in his widely used treatise. See 1
William F. Harvey, Indiana Practice, § 3.3 at 74 (3d ed. 1999).
Although Trial Rule 4(B) states that [c]ontemporaneously with the filing of the complaint
or equivalent pleading, the person seeking service or his attorney shall furnish to
the clerk as many copies of the complaint and summons as are necessary,
the treatise tracked the following language of former Trial Rule 3 without qualification
or reference to Rule 4: When the plaintiff files the complaint with the
clerk of the court, the action is commenced. Harvey, supra, § 3.3.
Several judges on the Court of Appeals shared the view that service
of the summons was not needed to toll the statute of limitations, and
it is regrettable that former Trial Rule 3 did not explicitly refer to
the summons. Finally, this Courts mention of the summons in Boostrom came
in a footnote. Under these circumstances, we think the resolution of this
issue was arguably a surprise, at least to some. It was not
The second Sonnenburg factor seems marginally relevant. As explained above, the issue
of whether filing the summons is required to toll the statute of limitations
was arguably unresolved when Ray-Hayes filed her complaint against Nissan. The recent
amendments to Trial Rule 3,
See footnote effective April 1, 2002, essentially do what Ray-Hayes
contends was not done until our January 2 holding, and for the future
this problem is resolved.
The third factor, however, warrants giving relief to Ray-Hayes. Dismissal of her
complaint as a result of her understanding of the rule, which was shared
by some respected authorities on Indiana law, is a particularly harsh result.
Cf. McCullough v. Archbold Ladder Co., 605 N.E.2d 175, 180-81 (Ind. 1993) (where
rule concerning disclosure of rebuttal witnesses was not clearly established, exclusion of expert
testimony too harsh a result). The offsetting unfairness is minimal unless a
defendant can show detrimental reliance on the passage of time between filing the
complaint and the service of summons. The rule of law we announced
in this case did not create new substantive rights. Parties are entitled
to rely on procedural rules, but in this case it appears there may
have been no reliance. If so, the balance of inequity is tipped
heavily in favor of prospective application.
We do not suggest that appellate court opinions concerning the proper operation of
a trial rule are to be prospective frequently or even occasionally. Prospective
application in this case is a product of its very specific circumstances: the
diversity of opinion among legal experts as to the proper application of Trial
Rule 3 when Ray-Hayes complaint was filed, that retrospective application of our decision
to Ray-Hayes case will not further that holdings operation, the harsh result of
dismissal, and the apparent lack of prejudice to the opposing parties from delay
in the service of summonses.
We grant Ray-Hayes petition for rehearing, vacate the trial courts dismissal of her
action against Nissan for failure to tender summonses before the statute of limitations
expired, and remand for further proceedings, including an opportunity for the defendants to
renew their motions to dismiss if they can establish a material detriment in
the presentation of their case or otherwise occurring as a result of the
delay in issuance of summons and notification to them that a claim had
DICKSON and RUCKER, JJ., concur.
SHEPARD, C.J., and SULLIVAN, J., dissenting, would deny rehearing.
Trial Rule 3 now states:
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.