                                                                           FILED
                                                                     Apr 27 2020, 7:31 am

                                                                           CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




      APPELLANT PRO SE
      Gregory Jacob
      Pendleton, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Gregory Jacob,                                              April 27, 2020
      Appellant,                                                  Court of Appeals Case No.
                                                                  19A-CT-2719
              v.                                                  Appeal from the Marion Superior
                                                                  Court
      Dylan Vigh,                                                 The Honorable Gregory L. Miller,
      Appellee.                                                   Judge
                                                                  Trial Court Cause No.
                                                                  49D03-1906-CT-25450



      Najam, Judge.


                                         Statement of the Case
[1]   Gregory Jacob appeals the trial court’s grant of Dylan Vigh’s motion to dismiss

      Jacob’s complaint against him for failure to state a claim upon which relief can

      be granted. Jacob presents a single issue for our review, namely, whether the

      trial court erred when it granted Vigh’s motion to dismiss. We reverse and

      remand for further proceedings.

      Court of Appeals of Indiana | Opinion 19A-CT-2719 | April 27, 2020                      Page 1 of 6
                                   Facts and Procedural History
[2]   In 2014, Jacob hired Vigh to represent him in a post-conviction proceeding.

      Jacob paid Vigh a $10,000 retainer. After years of filing motions to continue a

      final hearing on Jacob’s petition for post-conviction relief, including a motion to

      continue filed on June 12, 2018, Vigh moved to withdraw as counsel for Jacob

      on June 28, 2018, and the court granted that motion. To date, no hearing has

      been held on Jacob’s petition for post-conviction relief, and Vigh has not

      returned any of the retainer to Jacob.


[3]   In May 2019, Jacob filed a verified complaint against Vigh alleging fraud,

      breach of contract, breach of fiduciary duty, and “violation of the rules of

      professional conduct[.]” Appellant’s App. Vol. 2 at 3. In his complaint, Jacob

      described in detail the factual basis for his claims. After two extensions of time

      to answer or otherwise plead, in September, Vigh moved to dismiss Jacob’s

      complaint for failure to state a claim upon which relief can be granted under

      Trial Rule 12(B)(6).


[4]   In his motion to dismiss, Vigh asserted that in his complaint, Jacob

      “essentially” alleged that Vigh had “violated certain canons of the Rules of

      Professional Conduct (“RPC”),” that “the Supreme Court of Indiana has

      exclusive jurisdiction on all issues involving allegations that an attorney

      violated the RPC, which it has delegated to the Indiana Supreme Court

      Disciplinary Commission,” that the trial court “has no jurisdiction to adjudicate

      the claims made by [Jacob] since they are based on finding that [Vigh]

      purportedly violated the RPC,” and that Jacob’s claim that Vigh “impermissibly
      Court of Appeals of Indiana | Opinion 19A-CT-2719 | April 27, 2020            Page 2 of 6
      withdrew as his legal counsel” is a collateral attack barred under claim

      preclusion. Id. at 8. On September 10, the trial court granted Vigh’s motion

      and dismissed Jacob’s complaint. Jacob filed a motion to correct error, which

      the trial court denied. This appeal ensued.


                                       Discussion and Decision
[5]   Jacob appeals the trial court’s dismissal of his complaint pursuant to Trial Rule

      12(B)(6). As the Indiana Supreme Court has stated:


              A 12(B)(6) motion tests the legal sufficiency of the complaint,
              requiring that we accept as true all facts alleged in the complaint.
              We review 12(B)(6) motions de novo and will affirm a dismissal if
              the allegations are incapable of supporting relief under any set of
              circumstances. We will also affirm the dismissal if the decision is
              sustainable on any basis in the record.


      Esserman v. Ind Dep’t of Envtl. Mgmt., 84 N.E.3d 1185, 1188 (Ind. 2017) (citations

      and quotation marks omitted). 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 Cty. Sch. Corp., 711 N.E.2d 62, 65 (Ind. Ct.

      App. 1999), trans. denied.


[6]   Initially, we note that Vigh has not filed an appellee’s brief. Where the appellee

      fails to file a brief on appeal, we may, in our discretion, reverse the trial court’s

      decision if the appellant makes a prima facie showing of reversible error. McGill

      v. McGill, 801 N.E.2d 1249, 1251 (Ind. Ct. App. 2004). In this context, prima

      facie error is defined as error “at first sight, on first appearance, or on the face of


      Court of Appeals of Indiana | Opinion 19A-CT-2719 | April 27, 2020            Page 3 of 6
      it.” Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind. Ct. App. 2006). This rule was

      established for our protection so that we can be relieved of the burden of

      controverting the arguments advanced in favor of reversal where that burden

      properly rests with the appellee. McGill, 801 N.E.2d at 1251.


[7]   Indiana’s rules of notice pleading 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). Jacob asserts, and we agree, that his complaint

      sufficiently stated claims for relief. In his complaint, Jacob alleged that he paid

      Vigh a $10,000 retainer to pursue post-conviction relief, that Vigh did not

      perform any work on his behalf, and that Vigh has kept the retainer. Based on

      those facts, Jacob alleged claims of fraud, breach of contract, and breach of

      fiduciary duty, as well as violations of the Rules of Professional Conduct.


[8]   In his motion to dismiss, Vigh characterized Jacob’s complaint as if it were

      based entirely upon purported violations of the Rules of Professional Conduct,

      and he alleged that such issues are the exclusive province of the Indiana

      Supreme Court and, thus, that the trial court did not have jurisdiction over

      Jacob’s claims. This court addressed that same argument, and rejected it, in

      Alvarado v. Nagy, 819 N.E.2d 520 (Ind. Ct. App. 2004). In Alvarado, we

      acknowledged that our Supreme Court is the “exclusive arbiter of matters

      involving attorney discipline in this state.” Id. at 523. However, we concluded

      that Alvarado’s complaint fell “well outside” the boundaries of “attorney

      discipline cases” over which the Indiana Supreme Court has exclusive

      Court of Appeals of Indiana | Opinion 19A-CT-2719 | April 27, 2020          Page 4 of 6
      jurisdiction, Id. at 524, and held that Alvarado had stated a claim for legal

      malpractice. Id. at 525. We described the substance of Alvarado’s complaint as

      follows:


              Alvarado’s complaint alleges that [his attorney, Sarah Nagy,]
              signed a contract to represent him in seeking a sentence
              modification. Nagy did not accomplish that goal and Alvarado
              charges that he should not have to pay her fee. Obviously, he
              was dissatisfied with her performance under the contract and
              seeks return of the contractual fee. Any contract for work
              includes an implied duty to do the designated work skillfully,
              carefully, and in a workmanlike manner. INS Investigations
              Bureau, Inc. v. Lee, 784 N.E.2d 566 (Ind. Ct. App. 2003), trans.
              denied. The failure to do so is an actionable tort, as well as a
              breach of contract. Id.


      Id.


[9]   Likewise, here, in essence, Jacob’s complaint alleges that Vigh committed legal

      malpractice when Vigh kept the $10,000 retainer without performing any work.

      See id. In particular, Jacob alleged facts that, if proven, would establish: 1) that

      he employed Vigh as his attorney, which created a duty, 2) that Vigh failed to

      exercise ordinary skill and knowledge, which constituted breach of that duty,

      and 3) that such negligence was the proximate cause 4) of damage to Jacob. See

      Rice v. Strunk, 670 N.E.2d 1280, 1283-84 (Ind. 1996). Jacob’s complaint

      includes each of those elements, and he specifically avers that Vigh committed

      fraud, breach of contract, and breach of fiduciary duty, which “legal theories of

      recovery . . . support a legal malpractice action.” See Whitehouse v. Quinn, 477

      N.E.2d 270, 273-74 (Ind. 1985).

      Court of Appeals of Indiana | Opinion 19A-CT-2719 | April 27, 2020          Page 5 of 6
[10]   As we have noted, Vigh contends that the trial court “has no jurisdiction to

       adjudicate” any claims related to his alleged misconduct. Appellant’s App. Vol.

       2 at 8. Vigh is mistaken. If Jacob’s claims are proven, Vigh may be subject to

       sanctions under the Indiana Rules for Admission to the Bar and Discipline of

       Attorneys. That is not for us to decide. But we can say that our Supreme

       Court’s exclusive jurisdiction over such matters does not preempt or preclude a

       tort or contract claim arising from the same facts.


[11]   In sum, while Jacob’s complaint includes allegations that Vigh violated certain

       canons of the Rules of Professional Conduct, that does not mean the trial court

       lacks jurisdiction over his complaint, which alleges claims of fraud, breach of

       contract, and breach of fiduciary duty and supports a claim for legal

       malpractice. See Alvarado, 819 N.E.2d at 525. Accordingly, we reverse the trial

       court’s order dismissing Jacob’s complaint.


[12]   Reversed and remanded for further proceedings.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CT-2719 | April 27, 2020       Page 6 of 6
