Lyn Magee v. Brent Welke (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 9, 2015
• Docket: 33A01-1409-PL-414
• Status: Published

Opinion

MEMORANDUM DECISION Apr 09 2015, 9:06 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Lyn Magee Dina M. Cox New Castle, Indiana Neal Bowling Lewis Wagner LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Lyn Magee, April 9, 2015

Appellant-Plaintiff, Court of Appeals Case No. 33A01-1409-PL-414 v. Appeal from the Henry Circuit Court The Honorable Kit C. Dean Crane, Brent Welke, Judge Cause No. 33C02-1401-PL-5 Appellee-Defendant.

Mathias, Judge.

[1] Lyn Magee (“Magee”) filed a complaint pro se in Henry Circuit Court against

Brent Welke (“Welke”) alleging that Welke committed legal malpractice, fraud,

and conversion. The trial court granted Welke’s motion to dismiss Magee’s

complaint for failure to state a claim pursuant to Trial Rule 12(B)(6). Magee

Court of Appeals of Indiana | Memorandum Decision 33A01-1409-PL-414 | April 9, 2015 Page 1 of 5 appeals pro se and argues that the trial court erred when it dismissed his

complaint.

[2] We reverse and remand for proceedings consistent with this opinion.

Facts and Procedural History

[3] In 2006, Magee pleaded guilty to and was convicted of raping his fiancée’s

thirteen-year-old daughter. He was ordered to serve a thirty-year sentence, with

twenty-five years executed in the Department of Correction. Magee appealed

his sentence, which was affirmed on direct appeal. See Magee v. State, 865

N.E.2d 721, No. 49A04-0606-CR-306 (Ind. Ct. App. April 18, 2007).

[4] In November 2011, Magee hired Welke to pursue post-conviction relief of his

rape conviction. Believing that Welke failed to perform the work for which he

was hired and paid, Magee filed a complaint pro se in Henry Circuit Court

against Welke alleging “legal malpractice, negligence, failure to represent client

and fraud . . . and civil conversion.” Appellant’s App. p. 25. Welke’s complaint

also states: “Plaintiff alleges said civil violations against attorney Brent Welke,

surrounding his lack and failure to adequately represent the Plaintiff during

post-conviction relief proceedings, and is seeking damages, compensatory,

declaratory and punitive, against said defendant.” Id.

[5] Magee’s complaint contains the following factual allegations:

1. That on or about November 30, 2011, the defendant, attorney Brent Welke was hired to represent the Plaintiff in the Marion County Superior Court regarding post-conviction relief

Court of Appeals of Indiana | Memorandum Decision 33A01-1409-PL-414 | April 9, 2015 Page 2 of 5 proceedings. The defendant was paid $5,000.00 as his fee, $1500.00 to his para-legal and the remainder $3500.00 to Welke, the defendant. 2. After the failure to litigate this action, the Plaintiff contacted the defendant, on August 28, 2012, and the response was postponed due to his alleged legal evaluation. 3. March, 2013, after no results or progress made by attorney Welke, no pleading filed other than continuances, the plaintiff terminated the representation and demanded a refund of fees less the time and effort of the defendant. 4. The defendant stated that his para-legal had mis-appropriated funds and that he was not responsible for the funds. 5. When asked by the Plaintiff, and his family the progress made on the litigation, the defendant would not reply and amounted to lack of want of prosecution.

Appellant’s App. p. 25.

[6] In response, Welke moved to dismiss Magee’s complaint pursuant to Indiana

Trial Rule 12(B)(6) for failure to state a claim upon which relief may be granted.

On August 26, 2014, the trial court granted Welke’s motion and dismissed

Magee’s complaint. Magee now appeals pro se.

Standard of Review

[7] We review a trial court’s grant of a motion to dismiss under Trial Rule 12(B)(6)

de novo and give no deference to the trial court’s decision. Sims v. Beamer, 757

N.E.2d 1021, 1024 (Ind. Ct. App. 2001). “A motion to dismiss under Rule

12(B)(6) tests the legal sufficiency of a complaint: that is, whether the

allegations in the complaint establish any set of circumstances under which a

plaintiff would be entitled to relief.” Trail v. Boys & Girls Clubs of NW Ind., 845

Court of Appeals of Indiana | Memorandum Decision 33A01-1409-PL-414 | April 9, 2015 Page 3 of 5 N.E.2d 130, 134 (Ind. 2006). “Thus, while we do not test the sufficiency of the

facts alleged with regards to their adequacy to provide recovery, we do test their

sufficiency with regards to whether or not they have stated some factual

scenario in which a legally actionable injury has occurred.” Id. When we review

a Trial Rule 12(B)(6) motion to dismiss, we accept the facts alleged in the

complaint as true and view the pleadings in a light most favorable to the

nonmoving party and with every reasonable inference in the nonmoving party’s

favor. Id. 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 Cnty. Sch. Corp., 711 N.E.2d 62, 65 (Ind. Ct. App. 1999), trans. denied.

[8] Moreover, under Indiana’s notice pleading system, a pleading need not adopt a

specific legal theory of recovery to be adhered to throughout the case. Shields v.

Taylor, 976 N.E.2d 1237, 1244 (Ind. Ct. App. 2012). Indiana’s notice pleading

rules 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).

[9] To state a claim for legal malpractice, Magee was required to allege facts that if

proven would establish: 1) employment of the attorney, 2) failure of the

attorney to exercise ordinary skill and knowledge, 3) proximate cause, and 4)

loss to the plaintiff, i.e. damages. See Flatow v. Ingalls, 932 N.E.2d 726, 729 (Ind.

Ct. App. 2010), trans. denied. Welke argues that Magee’s complaint lacks factual

allegations that, if proven to be true, would establish that Welke breached his

Court of Appeals of Indiana | Memorandum Decision 33A01-1409-PL-414 | April 9, 2015 Page 4 of 5 duty to Magee and/or that Magee suffered damages caused by the breach of

duty. We disagree.

[10] In his complaint, Magee alleged that he paid a fee to Welke to pursue post-

conviction relief, is dissatisfied with Welke’s performance (particularly “his

failure to litigate this action”), and wants part of the fee refunded to him. “[I]n a

contract for work, there is an implied duty to do the work skillfully, carefully,

and in a workmanlike manner. Negligent failure to do so is a tort, as well as a

breach of contract.” INS Investigations Bureau, Inc. v. Lee, 784 N.E.2d 566, 576

(Ind. Ct. App. 2003) (citations omitted); Alvarado v. Nagy, 819 N.E.2d 520, 525

(Ind. Ct. App. 2004) (concluding that Alvarado’s complaint stated a claim for

legal malpractice where he alleged that Nagy agreed to represent him to seek a

sentence modification, Alvarado paid Nagy’s fee but was dissatisfied with her

performance, and wanted the attorney fee refunded).

[11] We conclude that Magee pleaded the operative facts necessary to set forth an

actionable claim for legal malpractice. See Alvarado, 819 N.E.2d at 525.

Whether Magee will prevail on his claim is not the issue presently before us;

those merits will be determined by either a judge or jury. For these reasons, and

considering our well-established policy in Indiana for resolving cases on their

merits, we reverse the trial court’s order dismissing Magee’s complaint.

[12] Reversed and remanded for proceedings consistent with this opinion.

Najam, J., and Bradford, J., concur.

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