Opinion
CAUSE NO. IP 00-1125-C H/G
February 22, 2002
ENTRY ON MOTION FOR SUMMARY JUDGMENT
In this diversity action, plaintiff Darla Pope has sued attorney John M. Zanetis and his firm for legal malpractice in preparing and advising Ms. Pope and Harold Pope about a prenuptial agreement. The Popes signed the prenuptial agreement and married in December 1992. They separated in 1998. A final divorce decree was issued on June 12, 2000. Plaintiff filed this action on July 12, 2000. Defendants have moved for summary judgment based on Indiana's two-year statute of limitations. Plaintiff contends that she was not injured by the alleged malpractice until the divorce became final. The court agrees with plaintiff and denies defendants' motion for summary judgment.
The court hereby vacates the Magistrate Judge Assignment Order previously entered in this action, and the initials in the cause number have been reversed to "H/G."
Summary Judgment Standard
A motion for summary judgment should be granted pursuant to Federal Rule of Civil Procedure 56 when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Vitug v. Multistate Tax Comm'n, 88 F.3d 506, 511-512 (7th Cir. 1996). In making this determination, the court must view all of the evidence in the light most favorable to the nonmovant and must draw all reasonable inferences in that party's favor. Schwartz v. State Farm Mut. Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir. 1999); NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 234 (7th Cir. 1995).The moving party bears the initial burden of production to establish "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Devcom Mid-America, 45 F.3d at 234. In response, the opposing party may not rest upon mere allegations, but must, by affidavits, depositions, or other evidence "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Devcom Mid-America, 45 F.3d at 234.
Undisputed Facts
Applying the summary judgment standard, the following facts are undisputed for purposes of defendants' motion. Plaintiff Darla Pope and Harold Pope were involved in a romantic relationship and lived together from 1973 until their marriage in 1992. Defendant John M. Zanetis is a licensed attorney with an emphasis in his practice on estate planning.
In 1992, plaintiff and Harold Pope met with Zanetis on several occasions for purposes of estate planning. At some point during the representation, Zanetis became aware that plaintiff and Harold Pope were not legally married. At that point, Zanetis advised the couple that the proposed estate plan would not be valid unless they were married and that the tax benefits of the estate plan would not accrue unless they were married. Plaintiff and Harold Pope married soon thereafter, on December 13, 1992.
Prior to the couple's 1992 marriage, Zanetis drafted a prenuptial agreement, titled "Property Agreement," which plaintiff and Harold Pope both signed on the day they married. Zanetis sent the Property Agreement to plaintiff and Harold Pope with a letter dated November 25, 1992. Harold Pope informed plaintiff that they had to sign the Property Agreement and that they would not be getting married until she signed it. The Property Agreement sat on the couple's coffee table for approximately two weeks before they signed it, but plaintiff testified she never read it. Plaintiff claims that she and Harold Pope did not discuss the terms of their prenuptial agreement. She claims that she was not present during Harold's discussions with Zanetis regarding the prenuptial agreement. Plaintiff also testified that she never knew that the Property Agreement was a prenuptial agreement until Harold Pope filed for divorce in 1998.
Plaintiff testified, and the court must assume for purposes of defendants' motion, that attorney Zanetis did not advise the couple that a potential conflict of interest had arisen in his dual representation, and that he did not obtain from plaintiff a written consent to the dual representation which acknowledged that he had disclosed the potential conflict of interest. Zanetis never discussed the Property Agreement or its terms with plaintiff until 1998, when she and Harold Pope were contemplating a divorce. Until she was served on August 3, 1998 with a Verified Petition for Dissolution prepared for her husband by Zanetis, plaintiff considered Zanetis to be both her and her husband's attorney.
After divorce proceedings began in 1998, plaintiff discovered the existence of a letter from Zanetis dated October 16, 1992 and addressed solely to Harold Pope. The letter refers to a "pre-nuptial agreement" as part of an overall estate plan.
Section 1.1 of the Property Agreement provides: "The Parties desire to fix and determine their respective rights in the property and estate of the other during their marriage and upon termination of their marriage by dissolution." The Property Agreement further states: "In the event of divorce, legal separation, or other dissolution of marriage, each Party waives any rights he or she may have had with respect to the separate property of the other Party." The Property Agreement also represents that each party has been fully advised as to the nature and consequences of the agreement, and is advised to obtain independent legal counsel.
Notwithstanding these provisions in the signed Property Agreement, plaintiff testified that in fact she was not fully advised as to the nature and consequences of the agreement, and that she was not advised to obtain independent legal counsel. She maintains that at no time did Zanetis counsel her that by signing the Property Agreement she waived, in the event of divorce, her rights to the marital estate, to rehabilitative maintenance, to attorney fees, and to all other claims against Harold Pope, such as for "palimony," for compensation for any joint venture partnerships undertaken, or for unjust enrichment.
In May 1998, the Popes separated. They had discussed the possibility of resolving their situation without the use of attorneys, and Harold Pope apparently never mentioned the existence of a prenuptial agreement to plaintiff. They reached an agreement to "split things." Initially, they intended to use Zanetis to handle the paperwork for the divorce. In a subsequent telephone conversation between plaintiff and Zanetis, the date of which plaintiff cannot recall, Zanetis informed plaintiff that because of the prenuptial agreement, she was not entitled to the division of assets which she had reached with Harold Pope.
Plaintiff testified that she does not know whether the conversation occurred before or after Harold filed for divorce on July 13, 1998. She also testified to that effect in the divorce proceedings. Def. Reply Br. at 4. She states she had several conversations with John Zanetis, and is not sure which one contained the exchange regarding the prenuptial agreement. Pl. Facts ¶ 32. Zanetis has testified unequivocally that the conversation in question occurred on June 24, 1998, and he relies on a billing record to corroborate that date. Def. Facts ¶ 31. Regardless of when the conversation actually occurred, plaintiff states that afterward she and Harold Pope continued to discuss a division of the marital property other than that mandated by the Property Agreement.
Plaintiff claims that, before the telephone conversation with Zanetis, she did not know that the Property Agreement operated as a prenuptial agreement. She believed that it was part of the estate plan discussed in Zanetis' office in 1992. Plaintiff claims that she did not understand until she consulted an independent attorney on August 4, 1998, the day after she was served with the divorce petition, that by signing the Property Agreement she had waived her rights to the marital estate and other rights against Harold.
The distribution of the Popes' marital property was resolved through mediation. The final dissolution decree was issued by the state court on June 12, 2000. One month later, on July 12, 2000, plaintiff filed this action. Plaintiff claims that she was injured by Zanetis' negligence or other malpractice because she "had to incur attorneys fees and costs which she would not have otherwise had to incur and was further damaged in that she was compelled to accept an amount from her husband in settlement of her interest in the marital estate which was substantially less than had the property agreement not been signed." Pl. Facts ¶ 37.
Discussion
Indiana law governs this diversity action. This court's role is to apply Indiana law as the court predicts the Supreme Court of Indiana would apply it to the facts in this case. See, e.g., State Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 669 (7th Cir. 2001). Decisions of intermediate appellate courts also deserve great weight in the prediction of state law unless there are persuasive reasons to believe the state's highest court would disagree with them. Id.
Claims for attorney malpractice in Indiana are governed by the statute of limitations applicable to actions for damages to personal property now codified in Ind. Code § 34-11-2-4. See Shideler v. Dwyer, 417 N.E.2d 281, 286-88 (Ind. 1981); Silvers v. Brodeur, 682 N.E.2d 811, 813 (Ind.App. 1997). The statute of limitations for actions for damages to personal property is two years "after the cause of action accrues." Ind. Code § 34-11-2-4.
A cause of action accrues when all elements of the claim are present. E.g., Wojcik v. Almase, 451 N.E.2d 336, 341 (Ind.App. 1983). "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).'" Douglas v. Monroe, 743 N.E.2d 1181, 1184 (Ind.App. 2001), quoting Bernstein v. Glavin, 725 N.E.2d 455, 462 (Ind.App. 2000), quoting in turn Fricke v. Gray, 705 N.E.2d 1027, 1033 (Ind.App. 1999).
The cause of action thus does not accrue unless and until the plaintiff suffers actual loss, such that damages could be shown. In affirming summary judgment for a lawyer based on the statute of limitations, the Indiana Court of Appeals explained: "The cause of action of a tort claim accrues when the plaintiff knew, or, in the exercise of ordinary diligence, could have discovered that an injury has been borne as a result of the tortious act of another." Diaz v. Carpenter, 650 N.E.2d 688, 691 (Ind.App. 1995), citing Wehling v. Citizens Nat'l Bank, 586 N.E.2d 840 (Ind. 1992). 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." Silvers v. Brodeur, 682 N.E.2d at 813-14, citing Doe v. United Methodist Church, 673 N.E.2d 839, 842 (Ind.App. 1996).
To clarify the issue presented here, the following sequence of key events may be useful:
Dec. 13, 1992 Darla and Harold Pope marry and sign Property Agreement.
May 1998 Darla and Harold Pope separate and begin private discussions about a property distribution.
June 24, 1998 Darla Pope talks with attorney Zanetis, who tells her that the Property Agreement is a prenuptial agreement that is not consistent with the tentative property distribution she had agreed upon with Harold Pope.
July 13, 1998 Harold Pope files a petition to dissolve the marriage.
Aug. 3, 1998 Darla Pope is served with the divorce petition.
Aug. 4, 1998 Darla Pope consults with her own lawyer for the first time.
June 12, 2000 State court enters a dissolution decree approving the Popes' mediated agreement on property distribution.
July 12, 2000 Darla Pope files this action.
Defendants contend that plaintiff suffered an injury when the Property Agreement was signed on December 13, 1992. Defendants also contend that plaintiff should be deemed to have discovered her claim on December 13, 1992, when she signed (and should have read) the Property Agreement, or at the very latest that she discovered her claim during the June 24, 1998, telephone call when attorney Zanetis told her of the prenuptial agreement. If plaintiff's claim accrued at either time, her claim is barred by the two-year statute of limitations.
The court agrees with defendants that the undisputed evidence shows that the telephone conversation occurred on June 24, 1998. Defendants have offered specific evidence from Zanetis to that effect, corroborated by his billing records that show only one telephone call with plaintiff. Plaintiff has responded only that the conversation was sometime after May 1998. Plaintiff's lack of more specific recollection does not create a genuine issue of fact on this point.
Plaintiff contends that she suffered no legally cognizable injury from the alleged malpractice until June 12, 2000, when the state court entered the final divorce decree dividing the Popes' property. In the alternative, she contends she should be deemed to have discovered her claim no earlier than August 4, 1998, when she consulted an independent lawyer for the first time. (Zanetis has not offered evidence that he told plaintiff of any conflict of interest in the June 24, 1998, telephone call.) If plaintiff's claim accrued at either of those times, it is not barred by the statute of limitations.
The undisputed facts show that plaintiff was on notice of some alleged wrongdoing by attorney Zanetis no later than June 24, 1998, when he told her that the prenuptial agreement she had signed would be inconsistent with the agreement she believed she had reached with Harold Pope. However, defendants have not identified any ascertainable injury that plaintiff suffered as a result of the alleged malpractice before the final divorce decree was issued.
The decisive fact here is that plaintiff did not suffer any actual, ascertainable damage until less than two years before she filed this action. "[T]he accrual of a cause of action, it must be remembered, depends upon the uniting of at least two elements — injury and damages. . . . The two-year statute of limitations will not begin to run as a shield against the consequences of wrongful acts until the wrongdoer thereby accomplishes an injury to the person of another, for which the law allows indemnity in the form of damages, that is to say, damages susceptible of ascertainment, for not until then would the cause of action accrue to invoke the statute." Burks v. Rushmore, 534 N.E.2d 1101, 1103 (Ind. 1989), quoting Montgomery v. Crum, 161 N.E. 251, 258-59 (Ind. 1928).
If plaintiff had filed a malpractice action against Zanetis the day after she signed the agreement and was married, Indiana courts would have dismissed her case as not ripe, for lack of any ascertainable injury. In fact, the result would have been the same if she had filed suit the day after her telephone conversation with Zanetis on June 24, 1998 or any other time before the divorce decree was issued dividing the Popes' property.
This result is evident from Judge Shields' decision in Anderson v. Anderson, 399 N.E.2d 391 (Ind.App. 1979). In Anderson an attorney and his wife had obtained a divorce. The husband-attorney had allegedly acted as attorney for himself and his wife in negotiating a property settlement and obtaining a divorce decree. The divorce decree he had obtained was incomplete, though, because it did not include any provisions adopting the property settlement or otherwise dividing the couple's property. Several months after the divorce decree, the wife sued her ex-husband on several grounds, including legal malpractice based on the conflict of interest.
The Court of Appeals affirmed dismissal of the legal malpractice claim because it was not yet ripe. 399 N.E.2d at 401. The wife's remedy, the court said, was to return to the divorce court to have it finish the job — by dividing the couple's property. Until such a division was made, the wife had not suffered any ascertainable injury from the alleged malpractice. Judge Shields explained:
A cause of action for legal malpractice, however, does not accrue until the aggrieved party has suffered both an injury to his property and damages. Shideler v. Dwyer, (1979) Ind. App., 386 N.E.2d 1211.
In her claim for legal malpractice, Jane alleges Robert induced her not to retain an attorney for the negotiations concerning the property settlement agreement, and he acted as her attorney during said negotiations; in rendering services Robert "failed to exercise the degree of skill and care expected and required of an attorney" and "(t)hat as a proximate result of the carelessness and negligence of (Robert), (Jane) received far less by way of division of the property than she would have received had she been adequately represented by counsel." Her claim amounts to this: she had a claim for marital property in the dissolution action and as a result of Robert's negligence she lost the claim (or a portion thereof).
The measure of damages recoverable in such cases is generally the value of the claim lost. See Moorman v. Wood, (1889) 117 Ind. 144, 19 N.E. 739; see generally, Anno. 45 A.L.R.2d 62 (1956); 7 Am.Jur.2d Attorney at Law § 190 (1963); 7 C.J.S. Attorney and Client § 157(F) (1937). However, the dissolution decree did not dispose of the parties' property and, therefore, the damages or loss alleged by Jane are, at this time, nonexistent. The dissolution court may ultimately enter a property disposition more favorable than Jane thought she received; in which case she may not sustain the damages she now claims.399 N.E.2d at 401-02 (emphasis added; footnotes omitted).
Similarly here, defendants have not identified any ascertainable injury that plaintiff suffered from Zanetis' alleged malpractice until the state court issued its divorce decree and gave its final approval to the Popes' property division. If plaintiff had filed this malpractice suit before then, it would have been dismissed for lack of an injury. "Summary judgment for the attorney is appropriate in a legal malpractice case where the plaintiff is not damaged by an attorney's handling of his case." Indianapolis Podiatry, P.C. v. Efroymson, 720 N.E.2d 376, 382 (Ind.App. 2000), citing Sanders v. Townsend, 582 N.E.2d 355, 358 (Ind. 1991); accord, McKnight v. Dean, 270 F.3d 513, 519 (7th Cir. 2001) ("if there is no injury, there is no tort"; affirming summary judgment for defendant-attorney in legal malpractice case where plaintiff failed to show injury).
Defendants point out that the Popes' prenuptial agreement is deemed by statute to be "effective upon marriage." See Ind. Code § 31-11-3-6. The Property Agreement was written so as to have some applications during the Popes' marriage. However, defendants have not identified any specific or ascertainable injury that plaintiff suffered before the divorce. For all the record shows here, if Harold and Darla Pope had never divorced, the agreement would not have had any ascertainable effect on plaintiff, and she would not have had a viable claim for malpractice.
A possible exception to this point is that plaintiff began consulting another lawyer as early as August 4, 1998. Plaintiff seeks damages that include attorney fees and costs she incurred during the course of the divorce proceedings, though presumably some of those expenses would have been incurred in the divorce regardless of Zanetis' alleged errors. Even if plaintiff suffered her first injury on August 4, 1998 in the form of incurring legal fees, however, she filed this action within the two-year limit.
This analysis is consistent with other Indiana cases addressing the accrual of a claim for legal malpractice, whether based upon alleged negligence in drafting a will or other transactional document, or upon alleged negligence in handling a litigated case.
In Shideler v. Dwyer, 417 N.E.2d 281 (Ind. 1981), the Supreme Court of Indiana held that a claim for alleged legal malpractice in drafting a will accrued upon the testator's death. The court unanimously rejected the argument that the claim accrued at the time of the allegedly negligent drafting:
When did damage to Plaintiff result from Defendant's alleged negligence? Not when the Will was drafted or executed, because it had to await the death of Moore before it could have any dispositive effect. But at his death, the instrument was operative; * * * the wrong, if any, set in motion with the drafting of Moore's Will became irremediable with his death.417 N.E.2d at 290.
The issue that divided the Shideler court was whether the claim accrued upon the testator's death or later, when a court held that the intended bequest was invalid. Compare 417 N.E.2d at 289 (majority rejecting theory that "there had been no injury until the Supreme Court said so"), with 417 N.E.2d at 296 (dissenting opinion asserting that "plaintiff could not have known that the particular clause in the will was ineffective until the court determined that it was void").
In the case of a prenuptial agreement in a divorce that generates no appeal, the issue that divided the Shideler court poses no difficulty. The event that gave the Popes' agreement, in the words of the Shideler majority, "dispositive effect," was the legal grant of the divorce by the state court incorporating their agreed property division. Until that decree was issued, the Popes were free to reach voluntarily a different agreement, or even to reconcile without a divorce. Under either scenario, plaintiff would not have been injured. Accord, Davis v. George S. Olive Co., 731 F. Supp. 1380, 1387 (S.D.Ind. 1990) (following Shideler, claim for accountant malpractice in preparing tax return accrued not when return was prepared but when it was filed, when "the document takes on legal, irrevocable significance").
On the merits of this case, plaintiff will need to show that the outcome of the couple's mediated divorce decree was different than it would have been but for the attorney's alleged malpractice. Even that mediated agreement was not final, however, until the divorce court gave its approval. See Anderson, 399 N.E.2d at 398 (settlement agreement is not binding until court approves it and merges it into divorce decree).
Defendants argue that Shideler and Anderson are not controlling here and that Davis is not instructive here because they were all decided before the Supreme Court of Indiana adopted the "discovery rule" for claims for legal malpractice claims. See Def. Reply Br. at 6-9. The discovery rule was extended to legal malpractice claims in Madlem v. Arko, 592 N.E.2d 686 (Ind. 1992).
In Madlem a client sued his attorney for alleged malpractice in falsely notarizing a borrower's forged signature on a note and mortgage to secure a loan. The client did not learn of the supposed forgery until several years later, when he sued to foreclose on the mortgage and the borrower defended on the basis of forgery. That defense prompted the legal malpractice suit. The Supreme Court held that the malpractice claim was not barred by the statute of limitations because the client had no way of knowing of the possible wrong until the forgery defense was raised. 592 N.E.2d at 687. The court went on to affirm a judgment for the attorney on the merits, however, because there was no evidence of an actual forgery. Id.
Madlem does not help defendants in this action because its adoption of the discovery rule did not eliminate the independent need for ascertainable injury before a malpractice claim accrues. The Madlem opinion itself quoted an earlier decision articulating the discovery rule in a way that preserved the injury requirement:
"We now complete the merging of the `discovery' and `ascertainment' rules. We hold that the cause of action of a tort claim accrues and the statute of limitations begins to run when the plaintiff knew or, in the exercise of ordinary diligence, could have discovered that an injury had been sustained as a result of the tortious act of another."592 N.E.2d at 687, quoting Wehling v. Citizens Nat'l Bank, 586 N.E.2d 840, 843 (Ind. 1992). Nothing in Madlem is inconsistent with the analysis of the time of injury contained in Shideler, Anderson, or Davis. The discovery rule provides a basis for delaying the start of the limitations clock on a claim that is otherwise complete. The discovery rule does not accelerate the accrual of the claim to a time before the plaintiff has been injured.
Defendants cite an unpublished Ohio appellate decision, Bandlow v. Schneider, 1998 WL 229537 (Ohio App. 1998), to support their contention that a claim for legal malpractice in preparing a prenuptial agreement accrues when the agreement is signed. The Bandlow court did not explain its reasoning on that point, however, and under Ohio law, such an unpublished decision is not binding authority even in the district that issued the decision. See Ohio Sup. Ct. Rules for Reporting Opinions 2(G)(1). The decision is not a persuasive indicator of Indiana law on the critical issue.
This reasoning is also consistent with the Indiana decisions addressing the accrual of legal malpractice claims arising out of litigated matters. Although there is some uncertainty about whether a claim arises when a trial court takes action against the client or when its decision becomes final on appeal, it is reasonably clear that there must be an adverse result in court before the claim arises. See, e.g., Morgan v. Benner, 712 N.E.2d 500, 503 (Ind.App. 1999) (affirming dismissal of claim for alleged malpractice in property dispute when trial court had dismissed clients' claims more than two years before they filed malpractice suit); Schnell v. Hayes, 710 N.E.2d 208, 210-11 (Ind.App. 1999) (affirming dismissal of claim for alleged malpractice in criminal case where client had been sentenced, had complained of attorney ineffectiveness, and had received affirmance of sentence all more than two years before filing suit); Silvers v. Brodeur, 682 N.E.2d 811, 813 (Ind.App. 1997) (affirming dismissal of claim for alleged malpractice in criminal case where client had been sentenced and had complained of attorney ineffectiveness more than two years before filing suit; statute of limitations had already run when post-conviction relief was ultimately granted); Diaz v. Carpenter, 650 N.E.2d 688, 691 (Ind.App. 1995) (affirming dismissal of claim for alleged malpractice in post-conviction proceeding when malpractice suit was filed more than two years after Supreme Court had affirmed denial of post-conviction relief); Johnson v. Cornett, 474 N.E.2d 518, 519 (Ind.App. 1985) (holding that claim for alleged malpractice in divorce proceeding was timely when filed less than two years after divorce court issued dissolution decree).
Perhaps the strongest Indiana case for defendants is Klineman, Rose and Wolf, P.C. v. North American Laboratory Co., 656 N.E.2d 1206 (Ind.App. 1995). The lawyers in that case had performed services in 1985 by drafting documents for their client's purchase of a business. The documents included an employment agreement with the seller. In 1990 the seller sued the client-buyer. The client-buyer won in the trial court but lost on appeal on January 28, 1993. The very next day, the client-buyer sued its attorneys for legal malpractice in drafting the employment agreement. The trial court in the malpractice case denied summary judgment on limitations grounds, but the Court of Appeals reversed. The appellate opinion addressed only whether the two-year statute for legal malpractice actions applied (as the court held) or whether the ten-year statute for actions on a contract applied (which the court rejected). The appellate court apparently assumed that the cause of action for malpractice had accrued at the time of the alleged negligence in drafting the documents in 1985. The appellate court did not address the issue of when the client-buyer suffered any injury from the negligence. Because the court did not actually address the issue of when ascertainable injury had occurred, the case is not a persuasive indicator of Indiana law on that point.
Decisions from other states show a wide range of answers to the question when a statute of limitations begins to run on a claim for legal malpractice arising from preparation of a prenuptial agreement. See, e.g., Zimmie v. Calfee, Halter Griswold, 538 N.E.2d 398, 402 (Ohio 1989) (legal malpractice claim filed in 1985 for negligent drafting of prenuptial agreement in 1963 would have been timely under one-year limit if filed within one year of trial court decision invalidating agreement, but was untimely when filed only within one year of state supreme court decision holding agreement invalid); Robbat v. Gordon, 771 So.2d 631, 636-37 (Fla.App. 2000) (statute of limitations did not begin to run on legal malpractice claim arising from 1978 prenuptial agreement until final appellate decision in 1994 holding agreement invalid); Radovich v. Locke-Paddon, 41 Cal.Rptr.2d 573, 590 (Cal.App. 1995) (claim against lawyer arising from drafting of prenuptial agreement was untimely when filed after death of other spouse; surviving spouse suffered injury from agreement during marriage); see also In re Crawford, 730 P.2d 675, 680 (Wash. 1986) (on claim against deceased spouse's estate to declare prenuptial agreement void, statute of limitations is tolled until spouse asserts rights under prenuptial agreement during dissolution action). The varied decisions from other states do not provide a reliable guide for predicting the approach that the Supreme Court of Indiana would take to the problem posed by this case.
In light of Shideler and Anderson, and based on the reasons set forth above, this court's best prediction of Indiana law is that the Supreme Court of Indiana would hold that the statute of limitations did not begin to run on plaintiff's claim for legal malpractice until she suffered an ascertainable injury from the alleged malpractice, which occurred when the final divorce decree was entered (or perhaps when she began incurring legal fees that would have been unnecessary but for the alleged attorney errors). In either event, her suit was timely.
Accordingly, defendants' motion for summary judgment is hereby denied. The court will hold a scheduling conference on Thursday, March 28, 2002, at 4:00 p.m. in Room 330, U.S. Courthouse, Indianapolis, Indiana, to set a schedule to bring this action to resolution.
So ordered.