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.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEES:
JAMES A. GEIGER JOHN C. TRIMBLE
MATTHEW W. CONRAD NEAL BOWLING
Geiger Conrad & Head LLP
Indianapolis, Indiana
Lewis Wagner LLP
Indianapolis, Indiana FILED
Oct 12 2012, 9:29 am
IN THE CLERK
of the supreme court,
court of appeals and
COURT OF APPEALS OF INDIANA tax court
LAWRENCE A. SMITH, )
)
Appellant, )
)
vs. ) No. 06A01-1201-CT-20
)
DENNIS A. WILLIAMS and )
GIDDINGS, WHITSITT & WILLIAMS, P.C., )
)
Appellee-. )
APPEAL FROM THE BOONE CIRCUIT COURT
The Honorable Matthew C. Kincaid, Special Judge
Cause No. 06C01-1002-CT-145
October 12, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Lawrence A. Smith (Smith) appeals from the trial court’s order granting summary
judgment in favor of Dennis A. Williams (Williams) and Giddings, Whitsitt & Williams, P.C.
(the Firm) in Smith’s legal malpractice action against Williams and the Firm. Lawrence
presents three issues for our review, the following of which is dispositive: Was Smith’s
lawsuit untimely filed?
We affirm.
Smith was arrested in Boone County on November 11, 2001, and was charged with
one count of operating a vehicle while intoxicated in a manner endangering a person, one
count of felony operating a vehicle while intoxicated with a prior conviction in the past five
years, one count of public intoxication, and one count of driving while suspended. Two and
a-half months after the arrest, the Indiana Bureau of Motor Vehicles (BMV) deemed Smith to
be a habitual traffic violator and suspended his driver’s license for ten years effective March
1, 2002. Williams was appointed to represent Smith on the charges on September 27, 2005,
after Smith’s arrest for failure to appear for a court date on these charges in January of 2002.
Williams is an employee and shareholder of the Firm.
During the course of Williams’s representation of Smith, he advised Smith to accept a
plea agreement, the terms of which called for him to plead guilty to one count of felony
operating a vehicle while intoxicated with a prior conviction and operating a motor vehicle
while suspended as a habitual traffic violator (HTV). Smith relied upon Williams’ advice
and accepted the plea offer. As a result of his guilty plea, Smith received a three-year
sentence on each count, to be served consecutively.
While incarcerated, Smith filed a pro se petition for post-conviction relief on May 3,
2006. Two consecutive attorneys with the State Public Defender’s Office filed appearances
on Smith’s behalf, but simultaneously filed notices of their inability to investigate and
perform substantive work on Smith’s petition due to a heavy caseload and the office’s first-
come, first-served policy. In the meanwhile, Smith wrote to the BMV and inquired about the
status of his driver’s license. In a letter dated March 14, 2008, the BMV informed Smith that
his HTV suspension had taken effect on March 1, 2002. Thus, at the time of Smith’s arrest in
November of 2001, he was not committing the crime of driving while under an HTV
suspension.
Smith completed the sentence for his convictions and was released from prison on
December 18, 2008. In May of 2009, the Boone County Prosecutor’s Office agreed that
Smith had not committed the HTV offense and his HTV conviction was vacated.
Smith filed his legal malpractice action against Williams, the Firm, and Boone County
on February 12, 2010. In particular, the complaint alleged legal malpractice by Williams and
vicarious liability on the part of the Firm and Boone County. Smith contended that Williams,
while serving as court-appointed defense counsel, erroneously advised Smith to plead guilty
to the HTV offense, a crime he had not committed. Smith was sentenced to three years in
prison for the HTV offense, of which he served eighteen months with the application of good
behavior credit.
The trial court granted Boone County’s motion to dismiss and the case proceeded
against Williams and the Firm. Williams and the Firm filed a motion for summary judgment,
which was ultimately granted by the trial court. Williams and the Firm argued that Smith’s
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lawsuit was untimely under the statute of limitations for legal malpractice actions, and that
Smith suffered no harm as a result of Williams’s representation because his sentencing
exposure for a habitual substance offender (HSO) conviction, for which Smith would have
been eligible, was three to eight years.
Smith deposed Williams and J. Jeffrey Edens (Edens), the deputy prosecutor who
negotiated Smith’s plea agreement and who now serves as the judge of the Boone Circuit
Court.1 After the depositions, Smith filed a cross-motion for partial summary judgment on
the issue of liability. Smith also filed a motion to strike the affidavit of Edens, which was
used by Williams and the Firm in support of their motion for summary judgment.
On December 23, 2011, the trial court granted limited summary judgment in favor of
Smith on the elements of duty and breach, and denied his motion to strike Edens’s affidavit.
The trial court granted Williams’s and the Firm’s motion for summary judgment, which
disposed of the lawsuit. This appeal ensues.
Our standard of review for a summary judgment order is well settled. Summary
judgment is appropriate if the “designated evidentiary matter shows that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of
law.” Ind. Trial Rule 56(C). The moving party bears the burden of making a prima facie
showing that there are no genuine issues of material fact and that it is entitled to judgment as
a matter of law. Huntington v. Riggs, 862 N.E.2d 1263 (Ind. Ct. App. 2007), trans. denied.
If the moving party meets these two requirements, the burden shifts to the nonmovant to set
1
Edens recused himself from the case and a special judge was appointed in this action.
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forth specifically designated facts showing that there is a genuine issue of material fact for
trial. Id. “A genuine issue of material fact exists where facts concerning an issue which
would dispose of the litigation are in dispute or where the undisputed material facts are
capable of supporting conflicting inferences on such an issue.” Id.
“On appeal, we are bound by the same standard as the trial court, and we consider
only those matters which were designated at the summary judgment stage.” Id. We do not
reweigh the evidence, and we will liberally construe all designated evidentiary material in the
light most favorable to the nonmoving party to determine whether there is a genuine issue of
material fact for trial. Huntington v. Riggs, 862 N.E.2d 1263.
“To prove a legal malpractice claim, a plaintiff-client must show: (1) employment of
an attorney (duty); (2) failure by the attorney to exercise ordinary skill and knowledge
(breach); (3) proximate cause (causation); and (4) loss to the plaintiff (damages).” Oxley v.
Lenn, 819 N.E.2d 851, 855 (Ind. Ct. App. 2004). It is appropriate for a trial court to grant a
defendant summary judgment on a legal malpractice claim if the designated evidence negates
at least one of these elements. Flatow v. Ingalls, 932 N.E.2d 726, 729 (Ind. Ct. App. 2010),
trans. denied (2011).
Smith argues that the trial court erred by granting summary judgment to Williams and
the Firm on the ground that his claim was barred by the statute of limitations. The statute of
limitations for a legal malpractice action is two years. Ind. Code Ann. §34-11-2-4 (West,
Westlaw current with all 2012 legislation). “[L]egal 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
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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) (citing
Morgan v. Benner, 712 N.E.2d 500 (Ind. Ct. App. 1999)).
The trial court found as follows:
11. The Court, while it pursued one question on this subject when [Smith],
as the criminal defendant stated that he did not know his license was
suspended, concluded the factual basis to have been met when he
acknowledged that his mailing address had not changed—apparently
concluding that the issue was one of constructive notice versus actual
knowledge.
12. [Smith], by his answer at the plea hearing was on notice at that time,
that there was a problem with the plea of guilty to driving while
suspended as an HTV.
13. [Smith] did not speak up and there is a very good reason he did not.
14. If [Smith] had spoken up, then the plea agreement would have failed
and instead of facing three years for drunk driving and three for driving
while suspended he would have faced three years for drunk driving and
three to eight years for being a habitual substance offender.
15. It is a fact that Williams missed this defect.
16. It is also a fact however, that Williams’ missing of this defect was
known or should have been known to [Smith] on February 7, 2006
when he plead guilty.
17. [Smith] filed a pro-se Petition for Post Conviction Relief May 3, 2006,
where he complained of poor work done by Williams, --ineffective
assistance of counsel a recognized basis to overturn a conviction.
18. The Indiana Public Defender was appointed for Mr. Smith and gave
notice of present inability to investigate on May 15, 2006. Then
another attorney from the Indiana Public Defender entered an
appearance on April 16, 2007.
LEGAL CONCLUSIONS
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1. As a matter of law, the statute of limitations for an attorney malpractice
claim is two years. The period runs from the date the cause is
discovered. A cause is discovered when an aggrieved person knows or
should know that he had a claim.
2. [Smith] filed suit on February 12, 2010.
3. Where there is no genuine issue of material fact necessitating trial by
jury and a movant is entitled to judgment as a matter of law, summary
judgment is appropriate.
4. As a matter of law, the receipt of the document from the BMV in
March of 2008 is not the triggering date for discovery.
5. As a matter of law, a reasonable person in Mr. Smith’s position would
have or should have known about the problems with his plea well
before that.
6. There are at least three events that mark the discovery of this cause
before two years prior to the date of filing suit.
7. First, [Smith] admitted to the charge even though he did not know his
license was suspended.
8. Second, [Smith] filed a PCR asserting ineffective assistance of counsel
almost four years before he sued Williams. All claims of ineffective
assistance of counsel necessarily aver that an attorney committed
malpractice. Put another way, as a matter of law, all claims of a breach
of a professional duty by a lawyer (even by a criminal defense lawyer)
are not necessarily ineffective assistance of counsel. But any time a
litigant claims his attorney was ineffective under the 6th Amendment[,]
that litigant is necessarily claiming that the lawyer committed an act
that would be malpractice if proximate cause and damages were also
met.
9. Third, Mr. Smith had a lawyer charged with pursuing his PCR in May
of 2006.
10. That means as a matter of law [Smith] had discovered his cause in the
Spring of 2006[.]
11. There is no genuine issue of material fact that the statute of limitations
has run, before filing.
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12. It was a failure by Mr. Williams to exercise ordinary care to not notice
the lack of a suspension of Plaintiff’s license at the time he was driving
drunk.
13. But, there is no genuine issue of material fact that Mr. Smith’s
incarceration for three years (excluding good time) on the driving while
suspended conviction was not proximately caused by Mr. Williams’[s]
oversight because the State gave up and [Smith] gained the concession
that an HSO enhancement would not be sought.
JUDGMENT
WHEREFORE, for either and both reasons that [Smith] missed the
statute of limitations to sue Williams and [the Firm] or that any
negligence by Williams was not the proximate cause of [Smith’s]
damages, Williams and [the Firm] are entitled to and are now
GRANTED Summary Judgment in their favor and against [Smith] on
all theories in [Smith’s] Complaint.
[Smith] is GRANTED a partial summary judgment on the limited issue
that Mr. Williams breached a duty not to correctly ascertain Mr.
Smith’s license status.
Appellant’s Appendix at 7-9 (emphasis in original).
We have previously stated the following about statutes of limitation:
In Indiana, statutes of limitation are favored because they afford security
against stale claims and promote the peace and welfare of society. They are
enacted upon the presumption that one having a well-founded claim will not
delay in enforcing it. The defense of a statute of limitation is peculiarly
suitable as a basis for summary judgment.
....
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.
....
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Specifically, statutes of limitation are designed to encourage the prompt
presentation of claims and to assure fairness to defendants. The limitations
period also ensures that defendants receive formal, seasonable notice of
claims. However, the harshness of rules which limit a party’s time to bring a
claim has been softened by the discovery rule, which tolls the running of the
statute of limitations until a party either knows, or should have known, about
his injury.
Silvers v. Brodeur, 682 N.E.2d 811, 813-17 (Ind. Ct. App. 1997) (internal citations omitted).
We agree with the trial court that Smith knew or should have known of his claim at
the latest when he filed his petition for post-conviction relief on May 3, 2006. In his pro se
petition, Smith stated the following in pertinent part as grounds for relief:
My [attorney] said [I] could not change my plea to not guilty. . . . I wanted a
Jury [Trial], misdemeanor was used to enhance habitual traffic[] violator. On
4-10-01, I was told by my [attorney] I have already [entered] a guilty plea.
Befor[e] I read my pre-sentence investigation. . . . I would have never[] [taken
a] 2-3 year sent[ence] running wild or [separate]. . . . All my other D.W.I.
[convictions were] drop[ped] to class A misde[]meanors I did my time in the
county jail. 120 days, on all my D.W.I.s or work re[lease] 90 days.
Appellant’s Appendix at 110-11. Thus, Smith was challenging the convictions used to
support his HTV plea in his petition for post-conviction relief. His cause of action for legal
malpractice is barred by the statute of limitations because it was not brought until 2010.
Smith did submit a sworn declaration in support of his opposition to Williams’s and
the Firm’s motion for summary judgment, in which he claimed that the March 14, 2008 letter
from the BMV was the first time he discovered that he had not been deemed a HTV at the
time of his arrest. He argues on appeal that this at a minimum establishes a question of fact
precluding summary judgment. The crucial issue here, though, is when he first was aware
that there was a problem with his guilty plea to the HTV offense, an offense to which he
pleaded guilty based upon Williams’s advice. The petition for post-conviction relief shows
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that Smith first alleged a problem with that conviction in 2006. Further, Smith stated during
his guilty plea hearing on February 7, 2006, that he “knew [his driving privileges] were
suspended but not as a traffic violator.” Appellant’s Appendix at 61. Smith’s legal
malpractice action against Williams and the Firm was barred by the statute of limitations.
The trial court did not err by entering summary judgment in favor of Williams and the Firm
on this basis.
Judgment affirmed.
BROWN, J., and PYLE, J., concur.
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