      MEMORANDUM DECISION
                                                                          Apr 09 2015, 9:06 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be 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                                          ATTORNEYS FOR APPELLEE
      Lyn Magee                                                 Dina M. Cox
      New Castle, Indiana                                       Neal Bowling
                                                                Lewis Wagner LLP
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Lyn Magee,                                                April 9, 2015

      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                33A01-1409-PL-414
              v.                                                Appeal from the Henry Circuit Court
                                                                The Honorable Kit C. Dean Crane,
      Brent Welke,                                              Judge
                                                                Cause No. 33C02-1401-PL-5
      Appellee-Defendant.



      Mathias, Judge.

[1]   Lyn Magee (“Magee”) filed a complaint pro se in Henry Circuit Court against

      Brent Welke (“Welke”) alleging that Welke committed legal malpractice, fraud,

      and conversion. The trial court granted Welke’s motion to dismiss Magee’s

      complaint for failure to state a claim pursuant to Trial Rule 12(B)(6). Magee



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      appeals pro se and argues that the trial court erred when it dismissed his

      complaint.

[2]   We reverse and remand for proceedings consistent with this opinion.


                                     Facts and Procedural History

[3]   In 2006, Magee pleaded guilty to and was convicted of raping his fiancée’s

      thirteen-year-old daughter. He was ordered to serve a thirty-year sentence, with

      twenty-five years executed in the Department of Correction. Magee appealed

      his sentence, which was affirmed on direct appeal. See Magee v. State, 865

      N.E.2d 721, No. 49A04-0606-CR-306 (Ind. Ct. App. April 18, 2007).


[4]   In November 2011, Magee hired Welke to pursue post-conviction relief of his

      rape conviction. Believing that Welke failed to perform the work for which he

      was hired and paid, Magee filed a complaint pro se in Henry Circuit Court

      against Welke alleging “legal malpractice, negligence, failure to represent client

      and fraud . . . and civil conversion.” Appellant’s App. p. 25. Welke’s complaint

      also states: “Plaintiff alleges said civil violations against attorney Brent Welke,

      surrounding his lack and failure to adequately represent the Plaintiff during

      post-conviction relief proceedings, and is seeking damages, compensatory,

      declaratory and punitive, against said defendant.” Id.


[5]   Magee’s complaint contains the following factual allegations:

              1. That on or about November 30, 2011, the defendant, attorney
              Brent Welke was hired to represent the Plaintiff in the Marion
              County Superior Court regarding post-conviction relief

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              proceedings. The defendant was paid $5,000.00 as his fee,
              $1500.00 to his para-legal and the remainder $3500.00 to Welke,
              the defendant.
              2. After the failure to litigate this action, the Plaintiff contacted
              the defendant, on August 28, 2012, and the response was
              postponed due to his alleged legal evaluation.
              3. March, 2013, after no results or progress made by attorney
              Welke, no pleading filed other than continuances, the plaintiff
              terminated the representation and demanded a refund of fees less
              the time and effort of the defendant.
              4. The defendant stated that his para-legal had mis-appropriated
              funds and that he was not responsible for the funds.
              5. When asked by the Plaintiff, and his family the progress made
              on the litigation, the defendant would not reply and amounted to
              lack of want of prosecution.

      Appellant’s App. p. 25.

[6]   In response, Welke moved to dismiss Magee’s complaint pursuant to Indiana

      Trial Rule 12(B)(6) for failure to state a claim upon which relief may be granted.

      On August 26, 2014, the trial court granted Welke’s motion and dismissed

      Magee’s complaint. Magee now appeals pro se.

                                            Standard of Review

[7]   We review a trial court’s grant of a motion to dismiss under Trial Rule 12(B)(6)

      de novo and give no deference to the trial court’s decision. Sims v. Beamer, 757

      N.E.2d 1021, 1024 (Ind. Ct. App. 2001). “A motion to dismiss under Rule

      12(B)(6) tests the legal sufficiency of a complaint: that is, whether the

      allegations in the complaint establish any set of circumstances under which a

      plaintiff would be entitled to relief.” Trail v. Boys & Girls Clubs of NW Ind., 845

      Court of Appeals of Indiana | Memorandum Decision 33A01-1409-PL-414 | April 9, 2015   Page 3 of 5
      N.E.2d 130, 134 (Ind. 2006). “Thus, while we do not test the sufficiency of the

      facts alleged with regards to their adequacy to provide recovery, we do test their

      sufficiency with regards to whether or not they have stated some factual

      scenario in which a legally actionable injury has occurred.” Id. When we review

      a Trial Rule 12(B)(6) motion to dismiss, we accept the facts alleged in the

      complaint as true and view the pleadings in a light most favorable to the

      nonmoving party and with every reasonable inference in the nonmoving party’s

      favor. Id. 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 Cnty. Sch. Corp., 711 N.E.2d 62, 65 (Ind. Ct. App. 1999), trans. denied.


[8]   Moreover, under Indiana’s notice pleading system, a pleading need not adopt a

      specific legal theory of recovery to be adhered to throughout the case. Shields v.

      Taylor, 976 N.E.2d 1237, 1244 (Ind. Ct. App. 2012). Indiana’s notice pleading

      rules 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).


[9]   To state a claim for legal malpractice, Magee was required to allege facts that if

      proven would establish: 1) employment of the attorney, 2) failure of the

      attorney to exercise ordinary skill and knowledge, 3) proximate cause, and 4)

      loss to the plaintiff, i.e. damages. See Flatow v. Ingalls, 932 N.E.2d 726, 729 (Ind.

      Ct. App. 2010), trans. denied. Welke argues that Magee’s complaint lacks factual

      allegations that, if proven to be true, would establish that Welke breached his

      Court of Appeals of Indiana | Memorandum Decision 33A01-1409-PL-414 | April 9, 2015   Page 4 of 5
       duty to Magee and/or that Magee suffered damages caused by the breach of

       duty. We disagree.

[10]   In his complaint, Magee alleged that he paid a fee to Welke to pursue post-

       conviction relief, is dissatisfied with Welke’s performance (particularly “his

       failure to litigate this action”), and wants part of the fee refunded to him. “[I]n a

       contract for work, there is an implied duty to do the work skillfully, carefully,

       and in a workmanlike manner. Negligent failure to do so is a tort, as well as a

       breach of contract.” INS Investigations Bureau, Inc. v. Lee, 784 N.E.2d 566, 576

       (Ind. Ct. App. 2003) (citations omitted); Alvarado v. Nagy, 819 N.E.2d 520, 525

       (Ind. Ct. App. 2004) (concluding that Alvarado’s complaint stated a claim for

       legal malpractice where he alleged that Nagy agreed to represent him to seek a

       sentence modification, Alvarado paid Nagy’s fee but was dissatisfied with her

       performance, and wanted the attorney fee refunded).

[11]   We conclude that Magee pleaded the operative facts necessary to set forth an

       actionable claim for legal malpractice. See Alvarado, 819 N.E.2d at 525.

       Whether Magee will prevail on his claim is not the issue presently before us;

       those merits will be determined by either a judge or jury. For these reasons, and

       considering our well-established policy in Indiana for resolving cases on their

       merits, we reverse the trial court’s order dismissing Magee’s complaint.


[12]   Reversed and remanded for proceedings consistent with this opinion.


       Najam, J., and Bradford, J., concur.


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