FILED Apr 27 2020, 7:31 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
APPELLANT PRO SE Gregory Jacob Pendleton, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gregory Jacob, April 27, 2020 Appellant, Court of Appeals Case No. 19A-CT-2719 v. Appeal from the Marion Superior Court Dylan Vigh, The Honorable Gregory L. Miller, Appellee. Judge Trial Court Cause No. 49D03-1906-CT-25450
Najam, Judge.
Statement of the Case [1] Gregory Jacob appeals the trial court’s grant of Dylan Vigh’s motion to dismiss
Jacob’s complaint against him for failure to state a claim upon which relief can
be granted. Jacob presents a single issue for our review, namely, whether the
trial court erred when it granted Vigh’s motion to dismiss. We reverse and
remand for further proceedings.
Court of Appeals of Indiana | Opinion 19A-CT-2719 | April 27, 2020 Page 1 of 6 Facts and Procedural History [2] In 2014, Jacob hired Vigh to represent him in a post-conviction proceeding.
Jacob paid Vigh a $10,000 retainer. After years of filing motions to continue a
final hearing on Jacob’s petition for post-conviction relief, including a motion to
continue filed on June 12, 2018, Vigh moved to withdraw as counsel for Jacob
on June 28, 2018, and the court granted that motion. To date, no hearing has
been held on Jacob’s petition for post-conviction relief, and Vigh has not
returned any of the retainer to Jacob.
[3] In May 2019, Jacob filed a verified complaint against Vigh alleging fraud,
breach of contract, breach of fiduciary duty, and “violation of the rules of
professional conduct[.]” Appellant’s App. Vol. 2 at 3. In his complaint, Jacob
described in detail the factual basis for his claims. After two extensions of time
to answer or otherwise plead, in September, Vigh moved to dismiss Jacob’s
complaint for failure to state a claim upon which relief can be granted under
Trial Rule 12(B)(6).
[4] In his motion to dismiss, Vigh asserted that in his complaint, Jacob
“essentially” alleged that Vigh had “violated certain canons of the Rules of
Professional Conduct (“RPC”),” that “the Supreme Court of Indiana has
exclusive jurisdiction on all issues involving allegations that an attorney
violated the RPC, which it has delegated to the Indiana Supreme Court
Disciplinary Commission,” that the trial court “has no jurisdiction to adjudicate
the claims made by [Jacob] since they are based on finding that [Vigh]
purportedly violated the RPC,” and that Jacob’s claim that Vigh “impermissibly Court of Appeals of Indiana | Opinion 19A-CT-2719 | April 27, 2020 Page 2 of 6 withdrew as his legal counsel” is a collateral attack barred under claim
preclusion. Id. at 8. On September 10, the trial court granted Vigh’s motion
and dismissed Jacob’s complaint. Jacob filed a motion to correct error, which
the trial court denied. This appeal ensued.
Discussion and Decision [5] Jacob appeals the trial court’s dismissal of his complaint pursuant to Trial Rule
12(B)(6). As the Indiana Supreme Court has stated:
A 12(B)(6) motion tests the legal sufficiency of the complaint, requiring that we accept as true all facts alleged in the complaint. We review 12(B)(6) motions de novo and will affirm a dismissal if the allegations are incapable of supporting relief under any set of circumstances. We will also affirm the dismissal if the decision is sustainable on any basis in the record.
Esserman v. Ind Dep’t of Envtl. Mgmt., 84 N.E.3d 1185, 1188 (Ind. 2017) (citations
and quotation marks omitted). We view 12(B)(6) motions “with disfavor
because such motions undermine the policy of deciding causes of action on
their merits.” McQueen v. Fayette Cty. Sch. Corp., 711 N.E.2d 62, 65 (Ind. Ct.
App. 1999), trans. denied.
[6] Initially, we note that Vigh has not filed an appellee’s brief. Where the appellee
fails to file a brief on appeal, we may, in our discretion, reverse the trial court’s
decision if the appellant makes a prima facie showing of reversible error. McGill
v. McGill, 801 N.E.2d 1249, 1251 (Ind. Ct. App. 2004). In this context, prima
facie error is defined as error “at first sight, on first appearance, or on the face of
Court of Appeals of Indiana | Opinion 19A-CT-2719 | April 27, 2020 Page 3 of 6 it.” Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind. Ct. App. 2006). This rule was
established for our protection so that we can be relieved of the burden of
controverting the arguments advanced in favor of reversal where that burden
properly rests with the appellee. McGill, 801 N.E.2d at 1251.
[7] Indiana’s rules of notice pleading do not require the complaint to state all
elements of a cause of action, but the plaintiff must still plead the operative facts
necessary to set forth an actionable claim. State v. Am. Family Voices, Inc., 898
N.E.2d 293, 296 (Ind. 2008). Jacob asserts, and we agree, that his complaint
sufficiently stated claims for relief. In his complaint, Jacob alleged that he paid
Vigh a $10,000 retainer to pursue post-conviction relief, that Vigh did not
perform any work on his behalf, and that Vigh has kept the retainer. Based on
those facts, Jacob alleged claims of fraud, breach of contract, and breach of
fiduciary duty, as well as violations of the Rules of Professional Conduct.
[8] In his motion to dismiss, Vigh characterized Jacob’s complaint as if it were
based entirely upon purported violations of the Rules of Professional Conduct,
and he alleged that such issues are the exclusive province of the Indiana
Supreme Court and, thus, that the trial court did not have jurisdiction over
Jacob’s claims. This court addressed that same argument, and rejected it, in
Alvarado v. Nagy, 819 N.E.2d 520 (Ind. Ct. App. 2004). In Alvarado, we
acknowledged that our Supreme Court is the “exclusive arbiter of matters
involving attorney discipline in this state.” Id. at 523. However, we concluded
that Alvarado’s complaint fell “well outside” the boundaries of “attorney
discipline cases” over which the Indiana Supreme Court has exclusive
Court of Appeals of Indiana | Opinion 19A-CT-2719 | April 27, 2020 Page 4 of 6 jurisdiction, Id. at 524, and held that Alvarado had stated a claim for legal
malpractice. Id. at 525. We described the substance of Alvarado’s complaint as
follows:
Alvarado’s complaint alleges that [his attorney, Sarah Nagy,] signed a contract to represent him in seeking a sentence modification. Nagy did not accomplish that goal and Alvarado charges that he should not have to pay her fee. Obviously, he was dissatisfied with her performance under the contract and seeks return of the contractual fee. Any contract for work includes an implied duty to do the designated work skillfully, carefully, and in a workmanlike manner. INS Investigations Bureau, Inc. v. Lee, 784 N.E.2d 566 (Ind. Ct. App. 2003), trans. denied. The failure to do so is an actionable tort, as well as a breach of contract. Id.
Id.
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FILED Apr 27 2020, 7:31 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
APPELLANT PRO SE Gregory Jacob Pendleton, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gregory Jacob, April 27, 2020 Appellant, Court of Appeals Case No. 19A-CT-2719 v. Appeal from the Marion Superior Court Dylan Vigh, The Honorable Gregory L. Miller, Appellee. Judge Trial Court Cause No. 49D03-1906-CT-25450
Najam, Judge.
Statement of the Case [1] Gregory Jacob appeals the trial court’s grant of Dylan Vigh’s motion to dismiss
Jacob’s complaint against him for failure to state a claim upon which relief can
be granted. Jacob presents a single issue for our review, namely, whether the
trial court erred when it granted Vigh’s motion to dismiss. We reverse and
remand for further proceedings.
Court of Appeals of Indiana | Opinion 19A-CT-2719 | April 27, 2020 Page 1 of 6 Facts and Procedural History [2] In 2014, Jacob hired Vigh to represent him in a post-conviction proceeding.
Jacob paid Vigh a $10,000 retainer. After years of filing motions to continue a
final hearing on Jacob’s petition for post-conviction relief, including a motion to
continue filed on June 12, 2018, Vigh moved to withdraw as counsel for Jacob
on June 28, 2018, and the court granted that motion. To date, no hearing has
been held on Jacob’s petition for post-conviction relief, and Vigh has not
returned any of the retainer to Jacob.
[3] In May 2019, Jacob filed a verified complaint against Vigh alleging fraud,
breach of contract, breach of fiduciary duty, and “violation of the rules of
professional conduct[.]” Appellant’s App. Vol. 2 at 3. In his complaint, Jacob
described in detail the factual basis for his claims. After two extensions of time
to answer or otherwise plead, in September, Vigh moved to dismiss Jacob’s
complaint for failure to state a claim upon which relief can be granted under
Trial Rule 12(B)(6).
[4] In his motion to dismiss, Vigh asserted that in his complaint, Jacob
“essentially” alleged that Vigh had “violated certain canons of the Rules of
Professional Conduct (“RPC”),” that “the Supreme Court of Indiana has
exclusive jurisdiction on all issues involving allegations that an attorney
violated the RPC, which it has delegated to the Indiana Supreme Court
Disciplinary Commission,” that the trial court “has no jurisdiction to adjudicate
the claims made by [Jacob] since they are based on finding that [Vigh]
purportedly violated the RPC,” and that Jacob’s claim that Vigh “impermissibly Court of Appeals of Indiana | Opinion 19A-CT-2719 | April 27, 2020 Page 2 of 6 withdrew as his legal counsel” is a collateral attack barred under claim
preclusion. Id. at 8. On September 10, the trial court granted Vigh’s motion
and dismissed Jacob’s complaint. Jacob filed a motion to correct error, which
the trial court denied. This appeal ensued.
Discussion and Decision [5] Jacob appeals the trial court’s dismissal of his complaint pursuant to Trial Rule
12(B)(6). As the Indiana Supreme Court has stated:
A 12(B)(6) motion tests the legal sufficiency of the complaint, requiring that we accept as true all facts alleged in the complaint. We review 12(B)(6) motions de novo and will affirm a dismissal if the allegations are incapable of supporting relief under any set of circumstances. We will also affirm the dismissal if the decision is sustainable on any basis in the record.
Esserman v. Ind Dep’t of Envtl. Mgmt., 84 N.E.3d 1185, 1188 (Ind. 2017) (citations
and quotation marks omitted). We view 12(B)(6) motions “with disfavor
because such motions undermine the policy of deciding causes of action on
their merits.” McQueen v. Fayette Cty. Sch. Corp., 711 N.E.2d 62, 65 (Ind. Ct.
App. 1999), trans. denied.
[6] Initially, we note that Vigh has not filed an appellee’s brief. Where the appellee
fails to file a brief on appeal, we may, in our discretion, reverse the trial court’s
decision if the appellant makes a prima facie showing of reversible error. McGill
v. McGill, 801 N.E.2d 1249, 1251 (Ind. Ct. App. 2004). In this context, prima
facie error is defined as error “at first sight, on first appearance, or on the face of
Court of Appeals of Indiana | Opinion 19A-CT-2719 | April 27, 2020 Page 3 of 6 it.” Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind. Ct. App. 2006). This rule was
established for our protection so that we can be relieved of the burden of
controverting the arguments advanced in favor of reversal where that burden
properly rests with the appellee. McGill, 801 N.E.2d at 1251.
[7] Indiana’s rules of notice pleading do not require the complaint to state all
elements of a cause of action, but the plaintiff must still plead the operative facts
necessary to set forth an actionable claim. State v. Am. Family Voices, Inc., 898
N.E.2d 293, 296 (Ind. 2008). Jacob asserts, and we agree, that his complaint
sufficiently stated claims for relief. In his complaint, Jacob alleged that he paid
Vigh a $10,000 retainer to pursue post-conviction relief, that Vigh did not
perform any work on his behalf, and that Vigh has kept the retainer. Based on
those facts, Jacob alleged claims of fraud, breach of contract, and breach of
fiduciary duty, as well as violations of the Rules of Professional Conduct.
[8] In his motion to dismiss, Vigh characterized Jacob’s complaint as if it were
based entirely upon purported violations of the Rules of Professional Conduct,
and he alleged that such issues are the exclusive province of the Indiana
Supreme Court and, thus, that the trial court did not have jurisdiction over
Jacob’s claims. This court addressed that same argument, and rejected it, in
Alvarado v. Nagy, 819 N.E.2d 520 (Ind. Ct. App. 2004). In Alvarado, we
acknowledged that our Supreme Court is the “exclusive arbiter of matters
involving attorney discipline in this state.” Id. at 523. However, we concluded
that Alvarado’s complaint fell “well outside” the boundaries of “attorney
discipline cases” over which the Indiana Supreme Court has exclusive
Court of Appeals of Indiana | Opinion 19A-CT-2719 | April 27, 2020 Page 4 of 6 jurisdiction, Id. at 524, and held that Alvarado had stated a claim for legal
malpractice. Id. at 525. We described the substance of Alvarado’s complaint as
follows:
Alvarado’s complaint alleges that [his attorney, Sarah Nagy,] signed a contract to represent him in seeking a sentence modification. Nagy did not accomplish that goal and Alvarado charges that he should not have to pay her fee. Obviously, he was dissatisfied with her performance under the contract and seeks return of the contractual fee. Any contract for work includes an implied duty to do the designated work skillfully, carefully, and in a workmanlike manner. INS Investigations Bureau, Inc. v. Lee, 784 N.E.2d 566 (Ind. Ct. App. 2003), trans. denied. The failure to do so is an actionable tort, as well as a breach of contract. Id.
Id.
[9] Likewise, here, in essence, Jacob’s complaint alleges that Vigh committed legal
malpractice when Vigh kept the $10,000 retainer without performing any work.
See id. In particular, Jacob alleged facts that, if proven, would establish: 1) that
he employed Vigh as his attorney, which created a duty, 2) that Vigh failed to
exercise ordinary skill and knowledge, which constituted breach of that duty,
and 3) that such negligence was the proximate cause 4) of damage to Jacob. See
Rice v. Strunk, 670 N.E.2d 1280, 1283-84 (Ind. 1996). Jacob’s complaint
includes each of those elements, and he specifically avers that Vigh committed
fraud, breach of contract, and breach of fiduciary duty, which “legal theories of
recovery . . . support a legal malpractice action.” See Whitehouse v. Quinn, 477
N.E.2d 270, 273-74 (Ind. 1985).
Court of Appeals of Indiana | Opinion 19A-CT-2719 | April 27, 2020 Page 5 of 6 [10] As we have noted, Vigh contends that the trial court “has no jurisdiction to
adjudicate” any claims related to his alleged misconduct. Appellant’s App. Vol.
2 at 8. Vigh is mistaken. If Jacob’s claims are proven, Vigh may be subject to
sanctions under the Indiana Rules for Admission to the Bar and Discipline of
Attorneys. That is not for us to decide. But we can say that our Supreme
Court’s exclusive jurisdiction over such matters does not preempt or preclude a
tort or contract claim arising from the same facts.
[11] In sum, while Jacob’s complaint includes allegations that Vigh violated certain
canons of the Rules of Professional Conduct, that does not mean the trial court
lacks jurisdiction over his complaint, which alleges claims of fraud, breach of
contract, and breach of fiduciary duty and supports a claim for legal
malpractice. See Alvarado, 819 N.E.2d at 525. Accordingly, we reverse the trial
court’s order dismissing Jacob’s complaint.
[12] Reversed and remanded for further proceedings.
Kirsch, J., and Brown, J., concur.
Court of Appeals of Indiana | Opinion 19A-CT-2719 | April 27, 2020 Page 6 of 6