Lyn Magee v. Brent Welke (mem. dec.) ( 2015 )

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.
Court of Appeals of Indiana | Memorandum Decision 33A01-1409-PL-414 | April 9, 2015 Page 5 of 5