 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                MEMORANDUM DECISION - NOT FOR PUBLICATION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

                                             3
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.


                                                           4
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

                                              5
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


                                             6
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.

                                      7
      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.

      ....



                                             8
       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

                                              9
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.




                                             10
