James E. Saylor v. Allan W. Reid

FILED
Sep 10 2019, 8:36 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE APPELLEE PRO SE
James E. Saylor Allan W. Reid
Carlisle, Indiana Zionsville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James E. Saylor, September 10, 2019
Appellant, Court of Appeals Case No.
18A-CT-2490
v. Appeal from the Jefferson Superior
Court
Allan W. Reid, The Honorable Michael J.
Appellee. Hensley, Special Judge
Trial Court Cause No.
39D01-1806-CT-562
Brown, Judge.
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[1] James E. Saylor appeals the trial court’s grant of attorney Allan Reid’s motion
to dismiss. Saylor raises one issue which we revise and restate as whether the
trial court erred by granting Reid’s motion. We affirm.
Facts and Procedural History
[2] Saylor was convicted of molesting his stepdaughter, pled guilty to being an
habitual offender, and was sentenced to 138 years. Saylor v. State, 55 N.E.3d
354, 357 (Ind. Ct. App. 2016), reh’g denied, trans. denied. At some point, Saylor
paid Attorney Reid $5,000.
[3] On April 15, 2014, Saylor filed a petition for post-conviction relief in the
Jefferson Circuit Court under cause number 39C01-1404-PC-315, and raised
numerous issues, including that his trial counsel was ineffective for conceding
his guilt to two counts of class A felony child molesting during closing
argument and that his guilty plea to the habitual offender charge was not
knowing, voluntary, and intelligent because he did not personally waive his
right to a jury trial. On its final page, the petition states: “Petitioner has
retained an attorney to represent him in this proceeding. Allan W. Reid, 155 E
Market Street, Indianapolis, Indiana, 46204.” Id. at 17. That same page
includes a line for “Signature of Petitioner” at the end of the facts in support of
the petition. Id. at 17. A handwritten “James E. Saylor / ar” is written above
the signature line. Id. The following appears under that signature:
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State of Indiana )
) SS:
County of Johnson )
I, James E. Saylor, being duly sworn upon my oath, depose and
say that I have subscribed to the foregoing petition; that I know
the contents thereof; that it includes every ground known to me
for vacating, setting aside or correcting the conviction and
sentence attacked in this motion; and that the matters and
allegations therein set forth are true.
Id. Under the foregoing, another signature line appears with a handwritten
“James E. Saylor / ar.” Id. The signatures on the petition were notarized by
Reid’s paralegal naming James E. Saylor as the signatory and the notarization
was dated April 8, 2014.
[4] The post-conviction court denied Saylor’s petition. 55 N.E.3d at 358. On
appeal, we vacated his habitual offender adjudication and remanded for a new
trial with respect to the habitual offender allegation because he did not
personally waive his right to a jury trial when he pled guilty to being an habitual
offender. Id. at 357. We affirmed the post-conviction court on all other issues.
Id.
[5] On June 19, 2018, Saylor filed a complaint against Reid for damages alleging
“fraud, forgery, fraudulent misrepresentation, negligence res ipsa loquitor legal
malpractice and claim for compensatory, actual and punitive damages.”
Appellant’s Appendix Volume II at 28. Saylor asserted that he did not
authorize Reid to sign his name to the petition for post-conviction relief, that
Reid forged his signature and filed the petition without his consent, and that
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Reid then forged a letter on January 22, 2015, in Saylor’s name advising the
court that Saylor would proceed pro se. He argued that Reid forfeited his
constitutional right to seek redress of his conviction. He requested actual
damages in the amount of $5,000 paid for services that were not fulfilled and
$250,000 in punitive damages.
[6] On July 2, 2018, Reid filed a verified motion for change of venue and requested
that the court transfer the cause to Marion County. That same day, Reid also
filed a motion to dismiss and argued that Saylor “failed to plead allegations of
fraud with particularity as required under the rules” or “to show the six year
statute of limitations under I.C. 34-11-2-7 applies to his claim.” Id. at 35.
[7] On September 10, 2018, the court held a hearing. 1 On September 28, 2018, the
court entered an order denying Reid’s motion for change of venue. That same
day, the court dismissed Saylor’s complaint with prejudice.
Discussion
[8] The issue is whether the trial court erred by granting Reid’s motion to dismiss.
A motion to dismiss for failure to state a claim tests the legal sufficiency of the
claim, not the facts supporting it. Thornton v. State, 43 N.E.3d 585, 587 (Ind.
2015). “When ruling on a motion to dismiss, the court must ‘view the
pleadings in the light most favorable to the nonmoving party, with every
1
The record does not contain a copy of the transcript of the hearing.
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reasonable inference construed in the non-movant’s favor.’” Id. (quoting
Kitchell v. Franklin, 997 N.E.2d 1020, 1025 (Ind. 2013)). We review a trial
court’s grant or denial of a Trial Rule 12(B)(6) motion de novo. 2 Id. “We will
not affirm such a dismissal ‘unless it is apparent that the facts alleged in the
challenged pleading are incapable of supporting relief under any set of
circumstances.’” Id. (quoting City of E. Chicago, Ind. v. E. Chicago Second Century,
Inc., 908 N.E.2d 611, 617 (Ind. 2009)). We will affirm the trial court’s ruling if
it is sustainable on any basis found in the record. Bonner ex rel. Bonner v. Daniels,
907 N.E.2d 516, 518 (Ind. 2009).
[9] Saylor argues that the trial court erred in dismissing his complaint with
prejudice and that he should have been allowed to amend his complaint as a
matter of right. He contends that he also raised claims of forgery, fraudulent
misrepresentation, negligence, and legal malpractice, that Reid never made any
argument about those claims, and the trial court never addressed those claims
but merely dismissed all of them.
[10] Reid asserts that, when he signed Saylor’s name to the petition for post-
conviction relief, he placed his own initials next to each signature to make
known that he was the one who signed Saylor’s name as his agent and there
was no attempt to conceal that fact or to perpetrate a fraud on any of the parties
2
Saylor states he “is assuming arguendo that the trial court must have interpreted the defendant’s motion to
dismiss pursuant to T.R. 12(B)(6[)] because the motion for change of venue was denied; thus, ruling out the
court’s dismissal of Saylor’s claim vis-à-vis Ind. T.R. 12(B)(3) . . . .” Appellant’s Brief at 11 (citations omitted).
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or the court. He contends that Saylor has not demonstrated how he might have
been injured by Reid signing his name. He argues that Saylor waived any claim
that his actions amount to fraud upon the court because he raises the issue for
the first time on appeal and that he did not commit fraud on the court. He also
asserts that Saylor cannot now seek to amend his complaint months after the
time period to do so has closed.
[11] The statute of limitations for a claim of legal malpractice is two years. Ind.
Code § 34-11-2-4. For a cause of action to accrue, it is not necessary that the
full extent of damage be known or even ascertainable, but only that some
ascertainable damage has occurred. Doe v. United Methodist Church, 673 N.E.2d
839, 842 (Ind. Ct. App. 1996), trans. denied. “Further, legal malpractice actions
are subject to the ‘discovery rule,’ which provides that the statute of limitations
does not begin to run until such time as the plaintiff knows, or in the exercise of
ordinary diligence could have discovered, that he had sustained an injury as the
result of the tortious act of another.” Biomet Inc. v. Barnes & Thornburg, 791
N.E.2d 760, 765 (Ind. Ct. App. 2003), trans. denied. For purposes of the
discovery rule, reasonable diligence “‘means simply that an injured party must
act with some promptness where the acts and circumstances of an injury would
put a person of common knowledge and experience on notice that some right of
his has been invaded or that some claim against another party might exist.’”
Perryman v. Motorist Mut. Ins. Co., 846 N.E.2d 683, 689 (Ind. Ct. App. 2006)
(quoting Mitchell v. Holler, 311 S.C. 406, 429 S.E.2d 793, 795 (1993)).
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[12] While Saylor mentioned fraud, forgery, fraudulent misrepresentation, and
negligence, these allegations, as pled by Saylor, substantively constitute or are a
part of his claim of legal malpractice. Accordingly, the two-year statute of
limitations is applicable to Saylor’s claims. See Myers v. Maxson, 51 N.E.3d
1267, 1277 n.10 (Ind. Ct. App. 2016) (noting that allegations of constructive
fraud and intentional infliction of emotional distress were substantively part of
the legal malpractice claim), trans. denied; Keystone Distribution Park v. Kennerk,
Dumas, Burke, Backs, Long, & Salin, 461 N.E.2d 749, 751-752 (Ind. Ct. App.
1984) (treating a claim for constructive fraud as, substantively, one for legal
malpractice for purposes of a statute of limitations analysis).
[13] The record reveals that the alleged malpractice occurred in 2014, this Court
issued its opinion on May 23, 2016, following the denial of Saylor’s petition for
post-conviction relief, and Saylor did not file his complaint until June 19, 2018.
The trial court did not err in dismissing Saylor’s complaint. To the extent
Saylor contends that the trial court erred in dismissing his complaint with
prejudice, we note that while Trial Rule 12(B)(6) provides that when a motion
to dismiss is sustained for failure to state a claim the pleading may be amended
once as of right, Saylor has not shown on appeal how he would have amended
his complaint to avoid dismissal. We find any error harmless. See Baker v.
Town of Middlebury, 753 N.E.2d 67, 74 (Ind. Ct. App. 2001) (holding that the
trial court erred in dismissing a complaint “with prejudice,” noting that the
plaintiff had not shown on appeal how he would have amended his complaint
to avoid dismissal under Rule 12(B)(6), concluding that the trial court’s error
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was harmless, and affirming the trial court’s dismissal), reh’g denied, trans.
denied. 3
[14] Affirmed.
Riley, J., and Tavitas, J., concur.
3
While we affirm the dismissal of Saylor’s complaint, we express concern about the practice of an attorney
signing a client’s name. Ind. Post-Conviction Rule 1(3)(b) provides that “[t]he petition shall be made under
oath and the petitioner shall verify the correctness of the petition, the authenticity of all documents and
exhibits attached to the petition, and the fact that he has included every ground for relief under Sec. 1 known
to the petitioner.” (Emphases added). We also note that the standard form appended to Post-Conviction Rule
1 asks whether the petitioner has retained an attorney to represent him in the post-conviction proceeding and
lists the “Signature of Petitioner” and “Signature of Affiant” under the statement that the petition includes
every ground known to the petitioner for vacating, setting aside, or correcting the conviction and sentence
attacked in the petition.
To the extent Reid asserts that “the fact that [he] signed the PCR that was filed with and acted on by the trial
court does not foreclose Saylor’s right to file another PCR without the need for seeking permission to file a
successive PCR,” Appellee’s Brief at 11, we observe that Saylor filed a petition for post-conviction relief
under lower court cause number 39C01-1902-PC-191 in the Jefferson Circuit Court on February 15, 2019, he
appealed the post-conviction court’s denial of the petition, and this Court entered an order on July 29, 2019,
concluding that Saylor did not obtain authorization to file his February 15, 2019 petition for post-conviction
relief and that the petition was an unauthorized successive petition for post-conviction relief and dismissing
the appeal with prejudice. See Appellate Cause No. 19A-PC-857.
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