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 Lewis Wagner LLP 

Indianapolis, Indiana Indianapolis, Indiana 

IN THE 

COURT OF APPEALS OF INDIANA

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MEMORANDUM DECISION - NOT FOR PUBLICATION 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. 
3 

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 firstcome, 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 
4 

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.
5 

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 
6 

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
7 

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. 
8 

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. 

. . . . 
9 

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 
10 

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.