MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  Feb 09 2016, 8:23 am
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
Larry A. Jones
Pendleton, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Larry A. Jones,                                          February 9, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         82A01-1508-CT-1229
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
John P. Brinson,                                         The Honorable David Kiely
Appellee-Defendant                                       Trial Court Cause No.
                                                         82C01-1506-CT-2816



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1508-CT-1229 | February 9, 2016       Page 1 of 7
                                          Case Summary
[1]   Larry Jones filed a malpractice complaint against his attorney in small claims

      court. His case was dismissed by the small claims court and he appealed.

      While the small claims case was pending on appeal, Jones filed a second

      malpractice complaint for the same cause of action in the circuit court. The

      circuit court reviewed Jones’s second complaint as required by Indiana Code

      section 34-58-1-1, and dismissed it for two reasons: 1) Jones failed to state a

      claim upon which relief can be granted; and 2) Jones’s small claims case was

      pending appeal. Jones appeals the dismissal of his circuit court complaint.

      Where a plaintiff has failed to plead the operative facts underlying the

      complaint, the complaint is properly dismissed with prejudice under Indiana

      Code section 34-58-1-2. Moreover, where a plaintiff has filed the same case in

      more than one court, Trial Rule 12(B)(8) provides for dismissal of the second

      case. We therefore affirm the circuit court’s decision to dismiss Jones’s

      complaint.



                            Facts and Procedural History
[2]   Larry Jones was charged with Class A felony dealing in cocaine and Class B

      felony possession of a firearm by a serious violent felon in May 2011. Attorney

      John P. Brinson represented Jones in this matter. A dispute arose between

      Jones and Attorney Brinson over whether the two counts should be tried

      separately. Attorney Brinson moved to sever the counts, despite Jones’s



      Court of Appeals of Indiana | Memorandum Decision 82A01-1508-CT-1229 | February 9, 2016   Page 2 of 7
      ongoing objection. See Appellant’s App. p. 74. Ultimately, Jones was

      convicted of both counts.

[3]   On January 16, 2015, Jones initiated a malpractice action against Attorney

      Brinson in small claims court. The case was dismissed without prejudice from

      small claims court on April 20, 2015, because Jones did not appear for the

      hearing. On May 19, 2015, Jones filed an appeal of the small claims court’s

      decision.


[4]   On June 8, 2015, while the appeal of the small claims court case was still

      pending, Jones filed the present case, cause number 82C01-1506-CT-2816

      (“CT-2816”), in Vanderburgh County Circuit Court. The circuit court reviewed

      CT-2816, as required by statute, and concluded that the case could not proceed.

      Specifically, the court found “that Plaintiff has already sued Mr. Brinson in

      Small Claims Court for what Plaintiff acknowledged was regarding this matter.

      An appeal is currently pending in the small claims case.” The circuit court also

      found “that Plaintiff’s allegations are very general and not specific enough to

      state a claim upon which relief could be granted.” Accordingly, the circuit

      court dismissed CT-2816 on June 16.

[5]   On July 6, Jones attempted to initiate another suit for the same matter in the

      circuit court. The circuit court filed the complaint under the previous cause

      number, CT-2816, and affirmed its earlier dismissal.

[6]   Two days later, on July 8, Jones attempted to withdraw his appeal of the

      original small claims suit. However, the withdrawal was never filed because

      Court of Appeals of Indiana | Memorandum Decision 82A01-1508-CT-1229 | February 9, 2016   Page 3 of 7
      the notice was faulty. Therefore, the small claims case remained pending until

      September 16, when it was dismissed by this Court because Jones failed to

      timely file an appellant brief. Finally, Jones filed the present appeal of the

      circuit court’s dismissal of CT-2816 on August 11.



                                 Discussion and Decision
[7]   At the outset, we note that a litigant who proceeds pro se is held to the same

      rules of procedure as trained counsel. Smith v. Donahue, 907 N.E.2d 553, 555

      (Ind. Ct. App. 2009), trans. denied. One of the risks a litigant takes when he

      decides to proceed pro se is that he will not know how to accomplish all of the

      things an attorney would know how to accomplish. Id.


[8]   Jones contends that the circuit court erred by dismissing his complaint pursuant

      to Indiana Code section 34-58-1-2. Indiana Code section 34-58-1-1 provides

      that “[u]pon receipt of a complaint or petition filed by an offender, the court

      shall docket the case and take no further action until the court has conducted

      the review required by section 2 of this chapter.” In essence, the trial court

      conducts a sua sponte review of an offender’s complaint promptly upon filing,

      before the defendant even has an opportunity to become involved in the case, so

      that the defendant does not have to expend time and money on a frivolous case.

      Smith v. Wal-Mart Stores E., LP, 853 N.E.2d 478, 482 (Ind. Ct. App. 2006), trans.

      denied.


[9]   Indiana Code section 34-58-1-2, in turn, provides in pertinent part:


      Court of Appeals of Indiana | Memorandum Decision 82A01-1508-CT-1229 | February 9, 2016   Page 4 of 7
               (a) A court shall review a complaint or petition filed by an
               offender and shall determine if the claim may proceed. A claim
               may not proceed if the court determines that the claim:


                        (1) is frivolous;
                        (2) is not a claim upon which relief may be granted; or
                        (3) seeks monetary relief from a defendant who is immune
                        from liability for such relief.

               (b) A claim is frivolous under subsection (a)(1) if the claim:


                        (1) is made primarily to harass a person; or
                        (2) lacks an arguable basis either in:
                                (A) law; or
                                (B) fact.

       Ind. Code § 34-58-1-2.


[10]   If a court determines that a claim may not proceed under Section 2, the court

       must enter an order explaining why the claim may not proceed and stating

       whether there are any remaining claims in the complaint or petition that may

       proceed. Ind. Code § 34-58-1-3. We review a dismissal under Section 34-58-1-2

       de novo. Smith v. Huckins, 850 N.E.2d 480, 484 (Ind. Ct. App. 2006).


[11]   Here, the circuit court stated two reasons for dismissing CT-2816: 1) Jones

       failed to state a specific claim upon which relief could be granted; and 2) the

       complaint violates Trial Rule 12(B)(8). We begin by addressing the finding that

       the complaint failed to state a claim upon which relief could be granted. Like

       the trial court, we look to the well-pleaded facts contained in the complaint, as

       well as the fact that a judicial record dismissing a case exists. Smith v. Huckins,


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       850 N.E.2d at 484. Further, we determine whether the complaint contains

       allegations concerning all of the material elements necessary to sustain a

       recovery under a viable legal theory. Id.


[12]   In the initial complaint Jones filed with the circuit court, Jones alleged no facts

       concerning how Attorney Brinson committed malpractice. Rather, Jones made

       only broad statements that amount to legal conclusions. For example,

       “performance was deficient, constituting ‘legal malpractice,’ causing Plaintiff to

       be unfairly convicted at trial[.]” Appellant’s App. p. 7. Indiana uses notice

       pleading, but “the plaintiff must still plead the operative facts involved in the

       litigation.” Smith v. Donahue, 907 N.E.2d at 555. Jones pleaded none, therefore

       his claim was properly dismissed.1

[13]   Jones argues that he corrected the error by pleading sufficient detail in his filing

       on July 6. However “a dismissal made pursuant to Indiana Code § 34-58-1-2 is

       with prejudice.” Smith v. Huckins, 850 N.E.2d 480, 483 (Ind. Ct. App. 2006).

       Procedurally, the complaint cannot be amended and any subsequent complaint

       on the same issue is barred by res judicata. See id. “To allow amendment after

       dismissal would be counterproductive to the legislative intent of cutting off

       meritless or frivolous lawsuits.” Id. Instead, Jones’s remedy was an appeal of




       1
         Jones attempted to designate his petition for post-conviction relief and the trial record as providing the
       factual basis for the complaint, however neither document was attached to the complaint. Moreover, this
       was not a motion for summary judgment where a review of designated evidence would be appropriate.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1508-CT-1229 | February 9, 2016             Page 6 of 7
       the first order by the circuit court. However, the time for that appeal lapsed on

       July 16, and Jones did not file notice of this appeal until August 11.

[14]   The circuit court also dismissed Jones’s complaint because the same action was

       pending appeal from the small claims court. Indiana Trial Rule 12(B)(8)

       provides for dismissal of an action where the same action is pending in another

       state court. Centex Home Equity Corp. v. Robinson, 776 N.E.2d 935, 945 (Ind. Ct.

       App. 2002), trans. denied. The rule is intended to prevent two courts from

       simultaneously exercising jurisdiction over what amounts to the same case.

       Kozlowski v. Dordieski, 849 N.E.2d 535, 537 (Ind. 2006). Cases are the same “if

       the parties, subject matter, and remedies sought are substantially the same in

       both suits.” Id.


[15]   Here, Jones had the same malpractice case pending appeal from the small

       claims court when he filed his complaint in circuit court. The appeal from the

       initial small claims suit was not dismissed until September 16. Therefore, even

       if Jones had stated a claim upon which the court could grant relief, it would

       have been subject to dismissal under Trial Rule 12(B)(8).


[16]   We conclude that CT-2816 was properly dismissed under Indiana Code section

       34-58-1-1 through -3.

[17]   Affirmed.

       Bailey, J., and Crone, J., concur.




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