A convicted child molester who was previously admonished for attempting to circumvent appellate procedures has again lost a case at the Indiana Court of Appeals, this time for legal malpractice allegations against his trial counsel.
James Saylor was convicted of two counts of Class A felony child molesting, pleaded guilty to being a habitual offender and received a 138-year sentence that was previously affirmed by the Court of Appeals. His petition for post-conviction relief was initially denied in 2014, and the appellate court affirmed in all respects except on his habitual offender finding. That adjudication was vacated, and Saylor received a new trial on that count after he was found to not have personally waived his right to a jury trial when he pleaded guilty to being a habitual offender.
During the proceedings, Saylor had paid Zionsville attorney Allan Reid $5,000 to represent him, but later alleged Reid had been ineffective trial counsel for conceding Saylor’s guilt of his convictions during closing argument.
Saylor sued Reid for damages, alleging “fraud, forgery, fraudulent misrepresentation, negligence res ipsa loquitor legal malpractice and claim for compensatory, actual and punitive damages.” According to Saylor, Reid had forged Saylor’s signature, did not have authorization to sign Saylor’s name on the post-conviction relief petition and ultimately filed it without Saylor’s consent.
Additionally, he alleged that Reid also forged a letter in Saylor’s name advising the court that Saylor would proceed pro se. Saylor asserted that Reid forfeited his constitutional right to seek redress of his conviction, requesting actual damages in the amount of $5,000 paid for services that were not fulfilled and $250,000 in punitive damages.
Reid filed motion a to dismiss, stating Saylor had “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.” Although the trial court denied Reid’s motion to change venue, it granted his motion to dismiss Saylor’s complaint.
The Indiana Court of Appeals found no error in that decision, rejecting Saylor’s appeal arguing that the trial court abused its discretion in dismissing the complaint and that he should have been allowed to amend his complaint as a matter of right.
Noting the two-year statute of limitations for legal malpractice, the appellate court found Saylor had filed his complaint on June 19, 2018 — more than two years after its opinion was published in May 2016.
“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,” Judge Elaine Brown wrote for the panel.
Dismissal was therefore affirmed in James E. Saylor v. Allan Reid, 18A-CT-02490.