                                                                         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.




Court of Appeals of Indiana | Opinion 18A-CT-2490 | September 10, 2019                     Page 1 of 8
[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:




      Court of Appeals of Indiana | Opinion 18A-CT-2490 | September 10, 2019           Page 2 of 8
              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

      Court of Appeals of Indiana | Opinion 18A-CT-2490 | September 10, 2019      Page 3 of 8
      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.


      Court of Appeals of Indiana | Opinion 18A-CT-2490 | September 10, 2019      Page 4 of 8
       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).

       Court of Appeals of Indiana | Opinion 18A-CT-2490 | September 10, 2019                                    Page 5 of 8
       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)).




       Court of Appeals of Indiana | Opinion 18A-CT-2490 | September 10, 2019     Page 6 of 8
[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


       Court of Appeals of Indiana | Opinion 18A-CT-2490 | September 10, 2019       Page 7 of 8
       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.




       Court of Appeals of Indiana | Opinion 18A-CT-2490 | September 10, 2019                               Page 8 of 8
