                                                                               FILED
                                                                        Jul 12 2017, 8:22 am

                                                                               CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




      APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
      James E. Saylor                                         Curtis T. Hill, Jr.
      Carlisle, Indiana                                       Attorney General of Indiana

                                                              Kyle Hunter
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      James E. Saylor,                                        July 12, 2017
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              39A01-1701-MI-90
              v.                                              Appeal from the Jefferson Circuit
                                                              Court
      State of Indiana,                                       The Honorable W. G. Coy, Special
      Appellee-Plaintiff.                                     Judge
                                                              Trial Court Cause No.
                                                              39C01-1609-MI-700



      Najam, Judge.


                                       Statement of the Case
[1]   James E. Saylor appeals the trial court’s order granting the State’s Motion for

      Judgment on the Pleadings. He raises two issues on appeal, which we



      Court of Appeals of Indiana | Opinion 39A01-1701-MI-90 | July 12, 2017                     Page 1 of 8
      consolidate and restate as whether the trial court erred when it granted the

      State’s motion for judgment on the pleadings. We affirm.


                                 Facts and Procedural History
[2]   In 2007, a jury found Saylor guilty of two counts of Class A felony child

      molesting, one count of Class B felony vicarious sexual gratification, and one

      count of Class D felony intimidation. Saylor also pleaded guilty to a habitual

      offender charge. Saylor was sentenced to an aggregate term of 138 years, which

      included a thirty-year term for the habitual offender enhancement. His

      conviction and sentence were affirmed on direct appeal. Saylor v. State, No.

      39A01-0712-CR-574, 2008 WL 4233304 (Ind. Ct. App. Sept. 17, 2008), trans.

      denied (“Saylor I”).


[3]   In 2014, Saylor filed for post-conviction relief, which the post-conviction court

      denied. This Court affirmed the post-conviction court on all counts except for

      Saylor’s habitual offender adjudication, finding that Saylor did not personally

      waive his right to a jury trial on that count. Saylor v. State, 55 N.E.3d 354, 357-

      58 (Ind. Ct. App. 2016) (“Saylor II”). This Court vacated Saylor’s habitual

      offender adjudication and remanded for a new trial on that charge but affirmed

      his convictions on all other charges. Id.


[4]   On September 13, 2016, Saylor filed a Petition for Declaratory Judgment

      challenging the existence of probable cause for his initial arrest. Saylor sought a

      declaratory judgment order “stating that, absent a valid showing of probable

      cause[] pursuant to I.C. § 35-33-7(2)(b), [he] had a right to immediate release.”

      Court of Appeals of Indiana | Opinion 39A01-1701-MI-90 | July 12, 2017     Page 2 of 8
      Appellee’s App. at 4. The State moved for judgment on the pleadings and the

      trial court granted the State’s motion.1 This appeal ensued.


                                      Discussion and Decision
[5]   Our Supreme Court recently discussed our standard of review of a judgment on

      the pleadings:

              A motion for judgment on the pleadings under Trial Rule 12(C)
              tests the sufficiency of a claim or defense presented in the
              pleadings and should be granted “only where it is clear from the
              face of the complaint that under no circumstances could relief be
              granted.” Veolia Water Indianapolis, LLC v. National Trust Ins. Co.,
              3 N.E.3d 1, 5 (Ind. 2014) (quoting Murray v. City of Lawrenceburg,
              925 N.E.2d 728, 731 (Ind. 2010)). Because we “base our ruling
              solely on the pleadings”, id.[,] “we accept as true the material
              facts alleged in the complaint[.]” Id. When, as here, a 12(C)
              motion essentially argues the complaint fails to state a claim
              upon which relief can be granted, we treat it as a 12(B)(6)
              motion. Gregory & Appel, Inc. v. Duck, 459 N.E.2d 46, 49 (Ind. Ct.
              App. 1984). Like a trial court’s 12(B)(6) ruling, we review a
              12(C) ruling de novo. Veolia Water, 3 N.E.3d at 5.


      KS&E Sports v. Runnels, 72 N.E.3d 892, 898 (Ind. 2017).


[6]   As an initial matter, Saylor contends that the trial court erred by granting the

      motion for judgment on the pleadings without first holding an evidentiary

      hearing. However, “[w]hen we consider a motion for judgment on the



      1
        Although Saylor would have been entitled under Indiana Trial Rule 12(C) and (B) to correct his complaint
      by amendment within ten days after service of the court’s order granting judgment on the pleadings, Saylor
      did not do so.

      Court of Appeals of Indiana | Opinion 39A01-1701-MI-90 | July 12, 2017                          Page 3 of 8
      pleadings, we deem the moving party to have admitted all facts well-pleaded

      and the untruth of [its] own allegations that have been denied.” Midwest

      Psychological Center, Inc. v. Ind. Dept. of Admin., 959 N.E.2d 896, 902 (Ind. Ct.

      App. 2011) (internal quotations and citations omitted), trans. denied. Moreover,

      all reasonable inferences are drawn in favor of the nonmoving party and against

      the movant. Id. Under such circumstances, no evidentiary hearing is required.

      As our supreme court stated in Cobb v. Owen, 492 N.E.2d 19, 20 (Ind. 1986)

      (citation omitted):



              There is no requirement in the [12(B)(6)] rule requiring the court
              to conduct a hearing or oral argument upon, or to receive a
              response to[,] a motion to dismiss when the motion is addressed
              to the face of the complaint and not supported by matters outside
              the pleadings. Where[,] as here, material has not been submitted
              in support of the motion, the motion should be granted if it is
              clear from the face of the complaint that under no circumstances
              could relief be granted.


[7]   Here, the State moved for judgment on the pleadings without reference to any

      matters outside the pleadings. Therefore, we accept as true the material facts

      alleged in the complaint, and we treat the State’s Rule 12(C) motion as a Rule

      12(B)(6) motion to dismiss for failure to state a claim upon which relief can be

      granted.2 KS&E Sports, 72 N.E.3d at 898. We look only at the face of the




      2
        Thus, Saylor is incorrect when he contends that the State’s motion should have been treated like a
      summary judgment motion under Indiana Trial Rule 56(a). That trial rule only applies where a motion for
      judgment on the pleadings refers to matters outside the pleadings. Ind. Trial Rule 12(C).

      Court of Appeals of Indiana | Opinion 39A01-1701-MI-90 | July 12, 2017                        Page 4 of 8
       complaint. Cobb, 492 N.E.2d at 20. Thus, the trial court did not err in ruling

       on the State’s Rule 12(C) motion without an evidentiary hearing. Cobb, 492

       N.E.2d at 20.


[8]    Next, Saylor attacks the merits of the trial court’s order granting the State’s

       motion for judgment on the pleadings. We find no error in that order. It is

       clear from the face of Saylor’s complaint that under no circumstances could the

       relief he sought be granted.


[9]    Saylor’s complaint sought declarations as to what his “rights” were under

       various statutory and constitutional provisions, including a declaration that,

       “absent a valid showing of probable cause . . . , [Saylor] had a right to

       immediate release.” Appellee’s App. at 3-6. Indiana’s Uniform Declaratory

       Judgment Act is intended to provide an adequate and complete remedy where

       none before had existed. Ind. Code §§ 34-14-1-1 to -16 (2016); Tramill v.

       Anonymous Healthcare Provider, 37 N.E.3d 553, 557 (Ind. Ct. App. 2015), trans.

       denied. “The primary purpose of declaratory relief is to permit a plaintiff to

       obtain a declaration of its rights and liabilities before proceeding with a course

       of conduct for which it might be held liable, not to declare nonliability for past

       conduct.” Mid-Century Ins. Co. v. Estate of Morris ex rel. Morris, 966 N.E.2d 681,

       688 (Ind. Ct. App. 2012), trans. denied.


[10]   Relief under the declaratory judgment statute cannot be had where another

       established remedy is available.




       Court of Appeals of Indiana | Opinion 39A01-1701-MI-90 | July 12, 2017      Page 5 of 8
               The declaratory judgment statute was not intended to eliminate
               well-known causes of action nor to substitute an appellate court
               for a tribunal of original jurisdiction, where the issues are ripe for
               litigation through the usual processes. Brindley et al. v. Meara et
               al., (1935) 209 Ind. 144, 198 N.E. 301. Such statute was intended
               to furnish a full and adequate remedy where none existed before
               and it should not be resorted to where there is no necessity for
               such a judgment. Rainwater v. Merriman, (1957) 127 Ind. App.
               520, 142 N.E.2d 467; Bryarly v. State, (1953) 232 Ind. 47, 111
               N.E.2d 277. The use of a declaratory judgment is discretionary
               with the court and is usually unnecessary where a full and adequate
               remedy is already provided by another form of action. Brindley, supra.


       Volkswagenwerk, A.G. v. Watson, 390 N.E.2d 1082, 1085 (Ind. Ct. App. 1979)

       (emphasis added). “The test to determine the propriety of declaratory relief is

       whether the issuance of a declaratory judgment will effectively solve the

       problem involved, whether it will serve a useful purpose, and whether or not

       another remedy is more effective or efficient.” Tramill, 37 N.E.3d at 557 (emphasis

       added) (internal quotations and citations omitted). “The determinative factor

       of this test is whether the declaratory action will result in a just and more

       expeditious and economical determination of the entire controversy.” Hood’s

       Gardens, Inc. v. Young, 976 N.E.2d 80, 84 (Ind. Ct. App. 2012).


[11]   Here, Saylor has already challenged his convictions and lost those challenges

       both on direct appeal and in post-conviction proceedings. Saylor I, 2008 WL

       4233304; Saylor II, 55 N.E.3d at 358. Any further challenge to the judgment in

       his criminal case must be taken through a successive petition for post-conviction

       relief. Ind. Post-Conviction Rule 1(12). In order to file such a successive

       petition, Saylor must first obtain authorization from this court. Id. Saylor has
       Court of Appeals of Indiana | Opinion 39A01-1701-MI-90 | July 12, 2017       Page 6 of 8
       not sought or obtained authorization to file the current matter as a successive

       petition for post-conviction relief. Rather, by filing a Petition for Declaratory

       Judgment, he is attempting to circumvent Indiana’s established procedures for

       challenging criminal convictions. The trial court did not err when it refused to

       allow him to do so.


[12]   Saylor contends on appeal that he is only seeking a declaration of his rights, not

       challenging his convictions. First, Saylor clearly was challenging his conviction

       when he asked the trial court for a declaration that, “absent a valid showing of

       probable cause . . . , [Saylor] had a right to immediate release.” Appellee’s

       App. at 3-6. Second, even if Saylor were only seeking a “clarification of the

       law,” under which he was convicted, Appellant’s Br. at 16, it would still be

       clear from the face of his complaint that under no circumstances could he be

       granted relief. Under the Uniform Declaratory Judgments Act, “‘cases which

       may be considered by the courts . . . [must] not [be] moot and . . . [must] not

       call for merely advisory opinions.’” City of Hammond v. Board of Zoning Appeals,

       284 N.E.2d 119, 126 (Ind. Ct. App. 1972) (quoting Rauh v. Fletcher Savings &

       Trust Co., 194 N.E. 334, 336 (Ind. 1935)). An opinion is “advisory” when it

       “would not change or affect legal relations” between the parties. Id. Such cases

       are generally not justiciable. Id.


[13]   Here, even if Saylor had only sought declarations “clarifying the law,” and the

       trial court had granted him such declarations, that remedy would not have

       changed or affected his convictions. Rather, the declarations would have been

       only an advisory opinion, with no effect on Saylor’s legal position. Id.

       Court of Appeals of Indiana | Opinion 39A01-1701-MI-90 | July 12, 2017     Page 7 of 8
       Therefore, to the extent Saylor sought only “clarifications of the law” under

       which he was convicted, his claims were not justiciable.3 The trial court did not

       err in granting the State’s motion for judgment on the pleadings.


[14]   Affirmed.


       Riley, J., and Bradford, J., concur.




       3
         For that reason, we do not address the numerous substantive issues Saylor raised in relation to his petition
       for declaratory judgment.

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