Elizabeth G. Ruckelshaus v. Gerald L. Cowan

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2770
ELIZABETH G. R UCKELSHAUS,
Plaintiff-Appellant,
v.
G ERALD L. C OWAN, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:17-cv-2009 — James P. Hanlon, Judge.
____________________
A RGUED MAY 18, 2020 — D ECIDED J UNE 26, 2020
____________________
Before WOOD, Chief Judge, and BARRETT and SCUDDER ,
Circuit Judges.
BARRETT , Circuit Judge. Elizabeth Ruckelshaus appeals the
district court’s determination that Indiana’s statute of limita-
tions bars her legal malpractice claim. More than twenty years
ago, she hired the defendants to help her and her brother,
Thomas Ruckelshaus, access assets held in a trust that their
father set up for their benefit. Ruckelshaus contends that she
instructed the defendants to give her a future interest in her

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2 No. 19-2770
brother’s share, subject to a life estate held by his wife. And
she insists that she could not have known that the defendants
failed to follow her wishes until her brother and his widow
died. But if there was an error, Ruckelshaus had ample oppor-
tunity to discover it when the trust was dissolved and the
funds were disbursed, so any claim accrued then. Because the
time for asserting this claim is long past, we affirm the district
court’s judgment.
I.
Conrad Ruckelshaus, the father of Elizabeth Ruckelshaus
and her brother Thomas, set up a trust for the benefit of his
children. Conrad gave the siblings equal interests in the trust
and provided that, if one of the siblings died without children,
the other would receive the remainder of the deceased sib-
ling’s share. According to Elizabeth Ruckelshaus—who is the
plaintiff in this case—Thomas approached her shortly after
Conrad’s death to ask if she would agree to modify the trust
so that he might leave a portion of his share to his wife, Polly,
upon his death. Ruckelshaus alleges that she orally agreed to
modify the trust to give Polly a life estate in Thomas’s share if
he predeceased her.
In 1998, Ruckelshaus retained the defendants to accom-
plish this goal. The retention letter prepared by the defend-
ants stated that the purpose of the representation was to ter-
minate the trust, but the letter made no mention of a life estate
reserved for Polly or a subsequent remainder interest for
Ruckelshaus. Nonetheless, Ruckelshaus signed the retention
letter and the defendants drew up a settlement agreement to
dissolve the trust. Like the retention letter, the settlement
agreement did not mention Polly or a life estate, nor did it re-
strict what either sibling could do with the trust funds after

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No. 19-2770 3
the trust was terminated and the funds were disbursed. The
settlement agreement contained a liability release and a
clause stating that it was the only written or oral agreement
among the parties. In 1999, the defendants sent Ruckelshaus
the settlement agreement and the petition to dissolve the trust
that would be filed in the probate court, both of which she
signed. And in 2000, the probate court granted the petition,
thereby dissolving the trust, and Ruckelshaus and Thomas
each received more than a million dollars.
Thomas died in 2009 without children of his own. It does
not appear that Ruckelshaus read his will at the time or in-
quired into what remained of the former trust funds.
Thomas’s will devised his assets to Polly. And when Polly
died in 2015, she left her estate to her children. When Ruckel-
shaus learned that no assets would pass to her, she initiated
this suit in 2017 for malpractice against the attorneys who
worked to dissolve the trust, alleging that they failed to carry
out her instructions.
The defendants moved for summary judgment and
Ruckelshaus moved for partial summary judgment with re-
spect to the defendants’ affirmative defenses. The district
court granted summary judgment for the defendants, holding
that the applicable two-year Indiana statute of limitations be-
gan running no later than 2000, when the trust was dissolved,
and that if Ruckelshaus had practiced ordinary diligence, she
could have discovered then that her wishes had not been fol-
lowed. It rejected Ruckelshaus’s argument that she could not
have known about the alleged malpractice until Polly died in
2015. Ruckelshaus appeals.

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4 No. 19-2770
II.
The Indiana Code requires that tort actions “be com-
menced within two (2) years after the cause of action accrues.”
IND. C ODE § 34-11-2-4(a). At this stage of the case, the parties’
dispute centers on when Ruckelshaus’s malpractice claim ac-
crued. For a legal malpractice claim to accrue in Indiana, “it is
not necessary that the full extent of damage be known or even
ascertainable, but only that some ascertainable damage has
occurred.” Myers v. Maxson, 51 N.E.3d 1267, 1276 (Ind. Ct.
App. 2016). Actions for malpractice “are subject to the ‘dis-
covery rule’”; that rule “provides that the statute of limita-
tions does not begin to run until such time as the plaintiff
knows, or in the exercise of ordinary diligence could have dis-
covered, that he had sustained an injury as the result of the
tortious act of another.” Id. (citation omitted). “Ordinary dili-
gence” requires the injured party to “act with some prompt-
ness where the acts and circumstances of an injury would put
a person of common knowledge and experience on notice that
some right of his has been invaded or that some claim against
another party might exist.” Id. (citation omitted). Since this is
an appeal from summary judgment, we review the district
court’s decision de novo with all facts construed in favor of
the nonmovant. Hess v. Bd. of Trs. of S. Ill. Univ., 839 F.3d 668,
673 (7th Cir. 2016).
Ruckelshaus received the documents detailing the disso-
lution and disbursement of the trust in 1999. Though she ad-
mits that she read the documents when she signed them, she
nonetheless insists that she could not have known then that
the defendants failed to follow her instructions. According to
Ruckelshaus, she could not have discovered that her wishes
had not been followed until Polly’s death in 2015, when she

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No. 19-2770 5
received no remainder from the life estate that she believed
she had created. And, to the extent that she could have dis-
covered the problem when the trust was dissolved, she argues
that a jury should decide whether she acted with ordinary dil-
igence.
Ruckelshaus is correct that under Indiana law, the jury
sorts out factual disputes that underlie statute of limitations
issues. Cooper Indus., LLC v. City of South Bend, 899 N.E.2d
1274, 1279 (Ind. 2009) (“When application of a statute of limi-
tation rests on questions of fact, it is generally an issue for a
jury to decide.”). But because the defendants have raised a
statute-of-limitations defense, Ruckelshaus bears the burden
of demonstrating that there exists a factual dispute “material
to a theory that avoids the defense.” Myers, 51 N.E.3d at 1276.
Ruckelshaus has not carried that burden, because no rea-
sonable jury could conclude that she exercised “ordinary dil-
igence” and still failed to realize that the defendants had not
created a trust with a life estate for Polly. First, Ruckelshaus
signed the retention letter and trust dissolution documents,
which stated that her father’s trust was being dissolved and
its assets disbursed free and clear. In Indiana, “a person is pre-
sumed to understand the documents which he signs.” Clanton
v. United Skates of Am., 686 N.E.2d 896, 899–900 (Ind. Ct. App.
1997). Ruckelshaus read these documents when she signed
them, and she should have realized then that the documents
did not accomplish her goal. She did not need to wait for
Polly’s death to learn that she would get nothing—that was
apparent from the documents themselves. If the documents
did not accurately describe what Ruckelshaus asked her at-
torneys to accomplish, the time to object was no later than two
years after those documents dissolved the trust.

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6 No. 19-2770
Second, even putting the documents aside, Ruckelshaus
should have been on notice that something was amiss when
she received the disbursed trust funds. She and Thomas re-
ceived the principal outright, which indicated that the trust
had been dissolved. Thomas apparently understood that no
trust or future interests controlled the funds from this dis-
bursement because his will—which Ruckelshaus did not read
until Polly’s death—apparently did not reference a trust or
otherwise acknowledge any restriction on the funds.
Ruckelshaus should have discovered any error by the de-
fendants long before Polly died in 2015. Because Indiana law
requires plaintiffs to bring malpractice actions within two
years of the action’s accrual, Ruckelshaus’s claims are barred.
We AFFIRM the district court’s judgment.

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