In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-3118, 09-3221 & 09-3222
G EORGE E NNENGA, individually and as father
and next friend of India Ennenga, a minor,
and INDIA E NNENGA, a minor,
Plaintiffs-Appellants/
Cross-Appellees,
v.
B YRON E. S TARNS, et al.,
Defendants-Appellees/
Cross-Appellants,
and
W OODRUFF A. B URT, et al.,
Defendants-Appellees/
Cross-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Western Division.
No. 06 C 50117—Frederick J. Kapala, Judge.
A RGUED JANUARY 13, 2011—D ECIDED A PRIL 17, 2012
2 Nos. 09-3118, 09-3221 & 09-3222
Before R IPPLE, E VANS , and S YKES, Circuit Judges.
S YKES, Circuit Judge. This case involves claims of legal
malpractice and breach of fiduciary duty stemming
from a dispute about an inheritance. Not normally the
subject of federal litigation, the case is in federal court
based on the parties’ diverse citizenship. Tom and
Ida Lou Ennenga lived in rural northern Illinois and had
three children—Constance (known as “Connie”), Lucie,
and George—and an estate valued at $3 or $4 million.
Connie and Lucie each had three children; George had
one child, a daughter named India. In 2000 Tom and
Ida Lou revised their estate plan with the assistance of
Woodruff Burt, their Illinois lawyer, and Lowell Stortz,
a Minnesota attorney and law partner of Connie’s
husband, Byron Starns. The revised estate plan con-
tained a trust agreement that treated George Ennenga
less favorably than his sisters and India less favorably
than her cousins.
The Ennengas died within a month of each other in
2004. Their estate was probated without challenge in
Illinois state court, although George and India sued to
stop the sale of the family homestead to a third party.
They abandoned that claim and eventually brought this
suit in federal court against the three attorneys—Starns,
Stortz, and Burt—and their law firms. They alleged legal
malpractice and breach of fiduciary duty based on a
Circuit Judge Terence T. Evans died on August 10, 2011, and
did not participate in the decision of this case, which is
being resolved by a quorum of the panel under 28 U.S.C. § 46(d).
Nos. 09-3118, 09-3221 & 09-3222 3
conflict-of-interest theory; a later version of the com-
plaint alleged that the attorneys had not drafted the
estate plan as Tom and Ida Lou intended.
The district court rejected the conflict-of-interest argu-
ment and dismissed most of the claims as untimely or
barred by res judicata. India’s minor status tolled the
statute of limitations, however, so her legal malpractice
claim survived the motion to dismiss. The defendants
moved for summary judgment, arguing that India’s
damages are speculative and might not materialize at
all, and that she lacks factual support for her claim that
the estate plan failed to carry out Tom and Ida Lou’s
intent. The court agreed with the first argument and
dismissed India’s claim as premature, later amending
the judgment to reflect that the dismissal was without
prejudice. George and India appealed. The defendants
cross-appealed, asking that India’s malpractice claim
be dismissed with prejudice.
We affirm and grant relief on the cross-appeal. This
case presents a tangle of procedural and substantive
issues. Simplifying, we hold as follows: (1) although
the district court dismissed India’s claim without preju-
dice, we have appellate jurisdiction because the court
is clearly done with the case; (2) the district court
properly chose Illinois’s statute of limitations over Min-
nesota’s; (3) the court properly rejected George’s waiver
and equitable-tolling arguments, applied the relevant
statute of limitations, and correctly dismissed his legal
malpractice claims as untimely; and (4) the court
properly dismissed the fiduciary-duty claims as barred
4 Nos. 09-3118, 09-3221 & 09-3222
by res judicata. As for India’s legal malpractice claim,
we affirm on a ground raised below but not reached by
the district court: There is no evidence to support
India’s contention that her grandparents intended her
to receive more than the estate-plan documents pro-
vide. Accordingly, that claim was properly dismissed,
but it should have been dismissed with prejudice.
I. Background
Tom and Ida Lou Ennenga lived in Freeport, Illinois, and
had an estate worth between $3 and $4 million. Their
daughters, Connie and Lucie, each have three children;
their son, George, has one child—his daughter, India.
Connie’s husband, Byron Starns, is a lawyer; when the
Ennengas decided to revise their estate plan in the
spring of 2000, they turned first to their son-in-law.
Starns referred them to Lowell Stortz, one of his partners
at the Minneapolis law firm of Leonard, Street and
Deinard, P.A. After an initial meeting in April 2000,
the Ennengas retained Stortz. They asked him to work
with their Illinois lawyer Woodruff Burt of the Free-
port firm of Schmelzle & Kroeger. (Burt later moved
to the firm of Snow, Hunter, Whiton & Fishburn, which
was briefly a defendant in this case.)
On May 5, 2000, Stortz sent Burt a letter relaying
the Ennengas’ request and describing his understanding
of how they wanted their estate plan revised. Stortz
asked Burt to carefully review the terms with the
Ennengas. Burt and Stortz spoke on the phone on May 18,
and later that day Burt sent Stortz a letter covering
Nos. 09-3118, 09-3221 & 09-3222 5
the most important terms of the revised plan. Burt asked
Stortz to reconfirm the details with the Ennengas. He did
so, and on May 20 Tom Ennenga sent a letter to Stortz
confirming that the couple’s intent was as Burt described
in his May 18 letter. He said: “We have reviewed the
W.A. Burt letter to you. We believe it outlines our in-
tentions quite clearly.” Stortz then proceeded to draft
the new estate plan in accordance with these instruc-
tions. He sent a proposed draft, along with a detailed
cover letter explaining the plan’s structure, to the
Ennengas and Burt on July 13.
As relevant here, and simplifying somewhat, a
revocable trust agreement divided the Ennengas’ estate
into thirds—one third for each of their children, Connie,
Lucie, and George. From the beginning the Ennengas
told Stortz they were concerned about George’s money-
management skills and wanted to control his access to
the funds in his trust. To that end, the estate plan
limited George’s access to his share of the estate
proceeds by means of a spendthrift trust. As such,
George could not control the assets in his trust or access
the principal except as specified in the trust agreement.
The Ennengas did not, however, have the same con-
cerns about their daughters. The trust agreement gave
Connie and Lucie unlimited access to their trust funds.
The estate plan also contained directions for the dis-
tribution of any trust-fund assets that remained upon
the death of the primary beneficiaries. When George
dies, the remainder of his trust will be divided into
equal shares among all seven of the Ennengas’ living
6 Nos. 09-3118, 09-3221 & 09-3222
grandchildren, including his daughter India, in a per
capita distribution. In contrast, when Connie and Lucie
die, the remainders of their trusts—provided they do not
designate otherwise in their wills—will be divided
among their own children in a per stirpes distribution.
The Ennengas signed the estate-plan documents on
August 9, 2000. Almost two years later, on April 25, 2002,
Tom asked Burt to videotape him discussing his estate
plan. On the videotape Tom stated that the beneficiaries
of his estate were George in a spendthrift trust, Connie’s
three children, and Lucie’s three children. Inexplicably,
Tom did not say anything about Connie, Lucie, or India.
Burt later testified that this omission was an oversight
because he did not prompt Tom to talk about these
heirs on the videotape.
Ida Lou died on May 19, 2004, and Tom died a month
later on June 20. Four days after Tom’s death, the
Ennengas’ estate entered probate in Stephenson County,
Illinois. George and India did not contest the will and trust
documents. Instead they waited about a year and then
sued Starns and Burt in Illinois state court to prevent
the sale of the family home, alleging that George was
promised an option to buy it. The home was sold to a
third party, George and India abandoned the suit, and
a judgment was entered dismissing their case.
In June 2006 George and India brought this suit in
federal court alleging state-law claims for legal mal-
practice and breach of fiduciary duty against Starns,
Nos. 09-3118, 09-3221 & 09-3222 7
Stortz, Burt, and their law firms.1 All of the claims were
initially premised on a conflict-of-interest theory based
on the law-partner relationship between Stortz, who was
primarily responsible for drafting the estate-plan docu-
ments, and Starns, the husband of one of the estate bene-
ficiaries. The defendants moved to dismiss for failure
to state a claim. The district court granted the motion,
holding that under either Illinois’s or Minnesota’s Rules
of Professional Conduct, the representation was not
prohibited. See ILL. R ULES OF P ROF’L C ONDUCT R. 1.8(c);
M INN. R ULES OF P ROF’L C ONDUCT R. 1.8(c).
The court granted leave to amend, and George and
India filed an amended complaint asserting a claim for
legal malpractice based on allegations that the de-
fendants failed to effectuate the Ennengas’ testamentary
intent. Essentially, they claimed that the lawyers negli-
gently drafted the trust agreement. They also asserted
a claim for breach of fiduciary duty against Starns and a
related “aiding and abetting” claim against Burt and
his law firm. These claims were based on allegations
that Starns, as trustee of the estate, wrongfully sold the
family home without giving George the option to pur-
chase it, and that Burt and his law firm were complicit
in Starns’s actions.
The defendants again moved to dismiss for failure to
state a claim, this time arguing that George’s legal mal-
1
Jurisdiction is premised on diversity of citizenship. 28 U.S.C.
§ 1332. George and India Ennenga are citizens of New York.
Starns, Stortz, and their law firm are citizens of Minnesota.
Burt and his law firm are citizens of Illinois.
8 Nos. 09-3118, 09-3221 & 09-3222
practice claim was untimely, and George and India’s
breach-of-fiduciary-duty and aiding-and-abetting claims
were barred by res judicata. George and India responded
in part by arguing that under Rule 12(g)(2) of the Federal
Rules of Civil Procedure, these defenses were waived
because they were not raised in the first motion to dis-
miss. The district court rejected this argument and dis-
missed George’s legal malpractice claim as untimely
and the fiduciary-duty claims as barred by res judicata.
India’s minor status tolled the statute of limitations,
however, so her legal malpractice claim moved forward.
The case proceeded to the summary-judgment stage.
Burt’s law firm—Snow, Hunter, Whiton & Fishburn—
moved for summary judgment, arguing that India’s
claim against it must be dismissed because Burt did not
join the firm until well after the relevant estate-plan
documents were drafted. The court agreed and granted
summary judgment dismissing the firm from the case.2
The remaining defendants also moved for summary
judgment, arguing that India’s claim failed on the merits
or at the very least was premature because her dam-
ages were uncertain and might not ever arise. The
court granted summary judgment on the latter ground.
In short, the court held that if India dies before her
father and aunts, and has no children, or if her father
and aunts deplete their trust funds before they die, India
will receive nothing regardless of the alleged malprac-
2
The plaintiffs do not challenge this part of the district
court’s summary-judgment ruling.
Nos. 09-3118, 09-3221 & 09-3222 9
tice. In other words, until India can take from the
Ennengas’ estate, any damages are speculative. At
India’s request the court amended the judgment to
clarify that her legal malpractice claim was dismissed
without prejudice.
George and India appealed from the following orders:
(1) the district court’s order dismissing with prejudice
all but India’s malpractice claim; (2) the order granting
summary judgment for Starns, Stortz, their law firm, and
Burt on India’s malpractice claim; and (3) the final order
amending the judgment to clarify that the dismissal of
India’s malpractice claim was without prejudice. The
defendants filed a cross-appeal seeking review of the
last two orders, arguing that India’s malpractice claim
should have been dismissed with prejudice.
II. Discussion
A. Appellate Jurisdiction
Because the district court dismissed India’s legal mal-
practice claim without prejudice, we begin by addressing
appellate jurisdiction. See Mostly Memories, Inc. v. For
Your Ease Only, Inc., 526 F.3d 1093, 1097 (7th Cir. 2008)
(“A court of appeals has an obligation to examine its
jurisdiction sua sponte, even if the parties fail to raise a
jurisdictional issue.” (quotation marks omitted)). “Nor-
mally, a dismissal without prejudice is not a final order
for purposes of appellate jurisdiction under 28 U.S.C.
§ 1291.” Doss v. Clearwater Title Co., 551 F.3d 634, 639
(7th Cir. 2008) (quotation marks omitted). There is a
recognized exception, however, when the district court
10 Nos. 09-3118, 09-3221 & 09-3222
makes it clear that it is “finished with th[e] case once
and for all.” Id.; see also Mostly Memories, 526 F.3d at
1097; Hill v. Potter, 352 F.3d 1142, 1144-45 (7th Cir. 2003).
In its summary-judgment order dismissing India’s
malpractice claim, the court said it was “closing” the
case. The judge explained that the question of India’s
damages may be uncertain for quite some time—essen-
tially, until her father and aunts die. The judge later
amended the judgment to specify that the dismissal was
without prejudice. This order, too, said the case was
“closed” and gives no indication that the judge expects
or would entertain an amended complaint. It’s clear the
district court is “finished with th[e] case once and for
all,” Doss, 551 F.3d at 639, and we have appellate juris-
diction.
B. George Ennenga’s Legal Malpractice Claim
In their amended complaint, George and India alleged
that Starns, Stortz, and Burt committed legal malpractice
by failing to properly effectuate Tom and Ida Lou’s testa-
mentary intent. The defendants moved to dismiss
George’s claim as untimely. (As we have noted, India’s
minority status tolled the statute of limitations.) It is
undisputed that George, an intended beneficiary of the
Ennengas’ estate, is a proper plaintiff here. See McLane
v. Russell, 546 N.E.2d 499, 503-04 (Ill. 1989). The question
for us is whether the district court correctly dismissed
his malpractice claim because it was filed outside the
applicable limitations period. George challenges this
ruling on multiple fronts.
Nos. 09-3118, 09-3221 & 09-3222 11
First, he contends that the defendants waived the stat-
ute-of-limitations defense by not raising it in their
first motion to dismiss. This argument is based on a
misreading of Rule 12(g)(2) of the Federal Rules of Civil
Procedure. That rule requires litigants to consolidate
certain dismissal arguments in a single motion, but it
also contains some important exceptions: “Except as
provided in Rule 12(h)(2) or (3), a party that makes a
motion under this rule must not make another motion
under this rule raising a defense or objection that
was available to the party but omitted from its earlier
motion.” The exception at issue here—contained in
Rule 12(h)(2)—makes it clear that a litigant need not
consolidate all failure-to-state-a-claim arguments in a
single dismissal motion: “Failure to state a claim upon
which relief can be granted . . . may be raised: (A) in any
pleading allowed or ordered under Rule 7(a); (B) by a
motion under Rule 12(c); or (C) at trial.” FED. R. C IV.
P. 12(h)(2).
The district court noted that a motion to dismiss on
statute-of-limitations grounds qualifies as a motion to
dismiss for failure to state a claim. See Small v. Chao,
398 F.3d 894, 898 (7th Cir. 2005) (“[A] district court
may dismiss under Rule 12(b)(6) something that is indis-
putably time-barred . . . .”). As such, the court held that
the Rule 12(h)(2) exception applied and the defendants’
failure to raise the statute-of-limitations defense in
their earlier Rule 12(b)(6) motion was not a waiver.
This ruling was sound. Rule 12(g)(2) does not prohibit
a new Rule 12(b)(6) argument from being raised in
12 Nos. 09-3118, 09-3221 & 09-3222
a successive motion. Stated differently, Rule 12(h)(2)
specifically excepts failure-to-state-a-claim defenses
from the Rule 12(g) consolidation requirement. The
policy behind Rule 12(g) is to prevent piecemeal litiga-
tion in which a defendant moves to dismiss on one
ground, loses, then files a second motion on another
ground. See Pilgrim Badge & Label Corp. v. Barrios, 857
F.2d 1, 3 (1st Cir. 1988). Rule 12(h)(1) enforces this con-
solidation requirement by adding a waiver rule: “A
party waives any defense listed in Rule 12(b)(2)-(5) by . . .
omitting it from a motion in the circumstances described
in Rule 12(g)(2)” or by failing to preserve it “by motion
under this rule” or “in a responsive pleading or in an
amendment allowed by Rule 15(a)(1) as a matter of
course.” FED. R. C IV. P. 12(h)(1). Note the limitation,
however. The Rule 12(h)(1) waiver rule applies only to
the defenses listed in Rule 12(b)(2)-(5) (lack of personal
jurisdiction, improper venue, insufficient process, and
insufficient service of process). Failure-to-state-a-claim
defenses are thus excepted from the Rule 12(g)(2) con-
solidation requirement and not included in the
Rule 12(g)(1) waiver rule.
And on the specific point raised here, we have
held—albeit without much analysis—that a statute-of-
limitations defense is not waived if raised for the first
time in a successive motion to dismiss. Perry v. Sullivan,
207 F.3d 379, 381-83 (7th Cir. 2000). George argues that
Perry is distinguishable because the plaintiff there con-
ceded that the statute of limitations had run. That dis-
tinction goes to the merits of the defense, not whether
the defense is waived.
Nos. 09-3118, 09-3221 & 09-3222 13
George also contends that the statute-of-limitations
defense was not properly raised in a motion to dismiss
because the defense was not plain on the face of the
complaint. The district court rejected this argument,
holding that the issue could be resolved at the motion-to-
dismiss stage based on the allegations in the com-
plaint and a few undisputable facts within its judicial-
notice power—specifically, the date on which the
estate entered probate and the deadline for filing a
claim within the probate proceeding.
This decision, too, was sound. Taking judicial notice
of matters of public record need not convert a motion
to dismiss into a motion for summary judgment. See Doss,
551 F.3d at 640 (citing F ED . R. C IV. P. 12(d)). A court may
take judicial notice of facts that are (1) not subject to
reasonable dispute and (2) either generally known
within the territorial jurisdiction or capable of ac-
curate and ready determination through sources whose
accuracy cannot be questioned. Gen. Elec. Capital Corp. v.
Lease Resolution Corp., 128 F.3d 1074, 1081 (7th Cir. 1997).
Here, the court took judicial notice of the dates on
which certain actions were taken or were required to
be taken in the earlier state-court litigation—facts
readily ascertainable from the public court record and
not subject to reasonable dispute. See Henson v. CSC
Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994) (finding
public court documents judicially noticeable).
Having cleared these hurdles, we now arrive at the
merits of the statute-of-limitations defense. George
first argues that the district court should have applied
14 Nos. 09-3118, 09-3221 & 09-3222
Minnesota’s statute of limitations, not Illinois’s, because
Starns and Stortz reside and practice law in Minnesota,
and their firm is a Minnesota law firm. The district
court evaluated the choice-of-law issue under the
“most significant contacts” test and held that Illinois
law applied.
This holding was correct, although a “significant con-
tacts” analysis was ultimately unnecessary. Illinois
choice-of-law rules apply. Kalmich v. Bruno, 553 F.2d 549,
552 (7th Cir. 1977). The district court correctly noted that
Illinois courts apply the “most significant contacts” test
from the Restatement (Second) of Conflict of Laws, which
involves balancing a number of factors, including the
place where the injury occurred; the place where the
conduct causing the injury occurred; the domicile or
place of business of each party; and the place where
the relationship between the parties is centered.
Wreglesworth ex rel. Wreglesworth v. Arctco, Inc., 738 N.E.2d
964, 971 (Ill. App. Ct. 2000).
However, the Restatement also contains a strong pre-
sumption that the forum state will apply its own statute
of limitations. See R ESTATEMENT (SECOND) OF C ONFLICT
OF L AWS § 142 (“An action will not be maintained if it
is barred by the statute of limitations of the forum, in-
cluding a provision borrowing the statute of limitations
of another state.”). Illinois courts have adopted this
presumption. See Belleville Toyota, Inc. v. Toyota Motor Sales,
USA, Inc. 770 N.E.2d 177, 194 (Ill. 2002); Emp’rs Ins. of
Wausau v. Ehlco Liquidating Trust, 723 N.E.2d 687, 692-93
(Ill. App. Ct. 1999). Thus, even when the substantive law
Nos. 09-3118, 09-3221 & 09-3222 15
of a nonforum state applies, Illinois courts apply the
Illinois statute of limitations “because statutes of limita-
tions are procedural, fixing the time in which the
remedy for a wrong may be sought rather than altering
substantive rights.” 3 Freeman v. Williamson, 890 N.E.2d
1127, 1133 (Ill. App. Ct. 2008). Accordingly, the district
court properly applied Illinois’s statute of limitations
rather than Minnesota’s.
George next argues that the statute-of-limitations
defense could not be decided on a motion to dismiss
because he raised a claim of equitable tolling based on
3
The Illinois “borrowing statute” is an exception to this rule,
but it has very limited application. The borrowing statute
provides that “[w]hen a cause of action has arisen in a state
or territory out of this State, or in a foreign country, and, by
the laws thereof, an action thereon cannot be maintained by
reason of the lapse of time, an action thereon shall not be
maintained in this State.” 735 I LL . C OMP . S TAT . 5/13-210. An
additional judicially created condition narrows the borrowing
statute even further: “[A]ll parties [must] be non-Illinois
residents at the time the action accrued and until the limita-
tions laws of the foreign state runs.” Emp’rs Ins. of Wausau v.
Ehlco Liquidating Trust, 723 N.E.2d 687, 693 (Ill. App. Ct. 1999).
Thus, the Illinois courts have held that the borrowing
statute applies only “where (1) the cause of action accrued
in another jurisdiction; (2) the limitations period of that juris-
diction has expired; and (3) all parties were non-Illinois resi-
dents at the time the action accrued and remained so until
the foreign limitations period expired.” Newell Co. v. Petersen,
758 N.E.2d 903, 908 (Ill. App. Ct. 2001). The Illinois bor-
rowing statute is not relevant here.
16 Nos. 09-3118, 09-3221 & 09-3222
a fraudulent-concealment theory. This argument also
fails. George’s equitable-tolling argument is based on an
email he inadvertently received from Burt on August 8,
2004.4 As we will explain in more detail in a moment,
under the applicable statute of limitations, the limitations
period began to run on June 24, 2004, and ended on
January 1, 2005. Accordingly, George knew the facts on
which he bases his equitable-tolling claim well before
the limitations period expired.
In Illinois, courts will not equitably toll a statute
of limitations based on a claim of fraudulent conceal-
ment “if the plaintiff discovers the fraudulent con-
cealment and a reasonable time remains within the rele-
vant limitations period . . . .” Barratt v. Goldberg, 694 N.E.2d
604, 609 (Ill. App. Ct. 1998) (citing Anderson v. Wagner,
402 N.E.2d 560 (Ill. 1979)). Here, George discovered
the facts underlying his claim of fraudulent conceal-
ment with almost five months left on the limitations
clock. The district court correctly held that this was a
reasonable time within which to comply with the stat-
ute of limitations. We agree that equitable tolling
does not apply.
George brings a claim of legal malpractice arising
from the preparation of an estate plan. Illinois has estab-
lished the following time limit for this particular kind
of professional malpractice claim:
When the injury caused by the act or omission does not
occur until the death of the person for whom the
4
A copy of the email is attached to the amended complaint.
Nos. 09-3118, 09-3221 & 09-3222 17
professional services were rendered, the action may
be commenced within 2 years after the date of the
person’s death unless letters of office are issued or
the person’s will is admitted to probate within that
2 year period, in which case the action must be com-
menced within the time for filing claims against
the estate or a petition contesting the validity of the
will of the deceased person, whichever is later, as
provided in the Probate Act of 1975.735 ILL. C OMP.
S TAT. 5/13-214.3(d).5 Any injury to George occurred
upon the death of his father, “the person for whom
the professional services were rendered.” It was at
this point that the terms of the trust agreement
took effect. The two-year statute of limitations pre-
scribed by section 5/13-214.3(d) therefore displaces
the more generally applicable six-year limitations
period. See id. 5/13-214.3(b)-(d).
However, because Tom Ennenga’s will was admitted
to probate within the two-year statutory period, the time
limit was shortened even further. George was required
5
George suggests that section 5/13-214.3(d) is invalid. The
statute does have an unusual history. The Illinois legislature
repealed it as part of a massive tort-reform effort. But the entire
reform act was later held unconstitutional by the Illinois
Supreme Court. See Best v. Taylor Mach. Works, 689 N.E.2d 1057,
1064 (Ill. 1997). In other words, the tort-reform bill killed
this particular statute of limitations, but the bill’s invalida-
tion brought the limitations provision back to life. The Illinois
Supreme Court enforces the provision in attorney malpractice
cases. See, e.g., Wackrow v. Niemi, 899 N.E.2d 273, 276-77
(Ill. 2008).
18 Nos. 09-3118, 09-3221 & 09-3222
to file his malpractice claim “within the time limit for
filing claims against the estate or a petition contesting
the validity of the will . . . whichever is later.” Id. 5/13-
214.3(d). The statutory period for a will contest is six
months after the will is admitted to probate. 755 ILL. C OMP.
S TAT. 5/8-1(a). Tom Ennenga’s will was admitted to
probate on June 24, 2004, so the will-contest period ex-
tended to December 24, 2004. But the claims notice in
connection with the probate proceeding set a later claim-
filing deadline—January 1, 2005—making that date the
deadline for George’s malpractice claim. George did not
file this suit until June 2006. Accordingly, the district
court correctly held that his malpractice claim was un-
timely.
C. Breach of Fiduciary Duty/Aiding and Abetting
George and India also alleged that Starns, as the
trustee of Tom and Ida Lou’s trust, breached his
fiduciary duty by selling the family home, a piece of trust
property, to a third party without first giving George
the option to buy it. They asserted a derivative claim
against Burt for aiding and abetting this alleged
fiduciary breach. The district court held that these inter-
related fiduciary-duty claims are barred by res judicata.6
6
George and India repeat their waiver argument in connection
with the res judicata defense, claiming that the defendants
waived res judicata by not raising it in their first motion to
dismiss. Again, we disagree. Like a statute-of-limitations
defense, res judicata may be brought in a Rule 12(b)(6) motion
(continued...)
Nos. 09-3118, 09-3221 & 09-3222 19
Res judicata applies if there is (1) a final judgment on
the merits in an earlier action; (2) an identity of the
causes of action; and (3) an identity of parties or their
privies. River Park, Inc. v. City of Highland Park, 703
N.E.2d 883, 889 (Ill. 1998). All three requirements are
satisfied here. The parties are identical. The state-court
suit pitted George and India against Starns and Burt,
and the federal suit pits George and India against
Starns, Burt, and Burt’s law firm, with which he was in
privity at the time the house was sold. See Purmal v.
Robert N. Wadington & Assocs., 820 N.E.2d 86, 94-95 (Ill.
App. Ct. 2004). The causes of action share a common
identity in that they “arise from a single group of opera-
tive facts.” River Park, 703 N.E.2d at 893. Here, as in the
state-court litigation, George and India allege that
Starns had a duty to offer George the option to buy the
Ennenga family home before selling it to a third party.
6
(...continued)
for failure to state a claim, Muhammad v. Oliver, 547 F.3d
874, 878 (7th Cir. 2008), which is exempt from Rule
12(h)(2)’s consolidation requirement and is not subject to
Rule 12(h)(1)’s waiver rule. See, e.g., Diaz-Buxo v. Trias Monge,
593 F.2d 153, 154-55 (1st Cir. 1979) (permitting res judicata
defense raised for the first time in a second motion to
dismiss despite a Rule 12(g) argument where there was no
prejudice to plaintiff). George and India also reiterate their
argument that the defense cannot be resolved on a motion
to dismiss. Like the statute-of-limitations defense, however,
all the facts relevant to the res judicata defense are ascer-
tainable from the second amended complaint and judicially
noticeable records from the state-court case. See Henson v.
CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994).
20 Nos. 09-3118, 09-3221 & 09-3222
Finally, the state court dismissed George and India’s case
for failure to state a claim after the home was sold and
they abandoned their claim. This was a final judgment
on the merits. See ILL. S UP. C T. R. 273 (“Unless . . .
otherwise specifie[d], an involuntary dismissal of an
action, other than a dismissal for lack of jurisdiction,
for improper venue, or for failure to join an indis-
pensable party, operates as an adjudication upon
the merits.”).
George and India insist that their state-court action
for equitable relief cannot preclude this federal action for
money damages because the former did not give them
access to a jury. For support they rely on Weisman
v. Schiller, Ducanto & Fleck, 733 N.E.2d 818 (Ill. App. Ct.
2000), but that case is inapplicable. Weisman involved a
law firm’s petition under the Illinois Marriage and Dis-
solution of Marriage Act to recover fees for services
rendered in a client’s divorce. Id. at 820. To avoid
paying the legal fees, the client alleged that the lawyer
had been negligent. Id. In a later suit for legal malprac-
tice, the Illinois Appellate Court held that although
the elements of res judicata were technically met, the
second suit was not precluded. Id. at 820-21. The
court gave two reasons. First, the client could not
have counterclaimed for legal malpractice in the fee-
petition action because the court lacked subject-matter
jurisdiction to entertain such a claim. Id. at 821. Second,
because the Illinois Marriage Dissolution Act explicitly
bars jury trials, 750 ILL. C OMP . S TAT. 5/103, applying
res judicata would have denied the client a funda-
mental right under the Illinois constitution, Weisman,
733 N.E.2d at 821-22.
Nos. 09-3118, 09-3221 & 09-3222 21
Neither of these reasons applies here. George and
India could have litigated their substantive arguments
in full in the original state-court action. They were free
to assert their claims for breach of fiduciary duty and
seek money damages in that case; had they done so, they
would have had access to a jury. Here, in contrast to
Weisman, there was no jurisdictional impediment to
suit or statutory bar to a jury trial.
Because all the elements of res judicata are met, and
George and India could have raised their fiduciary-
duty claims in their state-court action, the district court
correctly held that they were precluded from doing
so here. See Chi. Title Land Trust Co. v. Potash Corp., 664 F.3d
1075, 1080 (7th Cir. 2011) (“[I]f the three elements
necessary to invoke res judicata are present, res judicata
will bar not only every matter that was actually deter-
mined in the first suit, but also every matter that might
have been raised and determined in that suit.”) (applying
Illinois law).
D. The Cross-Appeal
The district court dismissed India’s malpractice claim
at the summary-judgment stage, holding that because
her damages are speculative and might never arise,
her claim is premature. George and India appealed
from this ruling. At India’s request the court later
amended the judgment to clarify that the dismissal was
without prejudice. The cross-appeal by Starns, Stortz,
their law firm, and Burt challenges this aspect of the
judgment. They argue that the court should have
22 Nos. 09-3118, 09-3221 & 09-3222
dismissed India’s malpractice claim with prejudice
because India has no evidence to support her claim that
they committed legal malpractice. We agree. Accordingly,
we resolve this issue on alternative grounds—fully pre-
served in the district court—and do not address the
district court’s prematurity ruling. See Estate of Suskovich
v. Anthem Health Plans of Va., Inc., 553 F.3d 559, 572 (7th
Cir. 2009) (“[We] can affirm summary judgment on any
non-waived ground, even if the district court did not
address it.”).
“Summary judgment is proper when there is no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Siliven v. Ind.
Dep’t of Child Serv., 635 F.3d 921, 925 (7th Cir. 2011) (citing
F ED. R. C IV. P. 56(c)). To prevail on a legal negligence
claim under Illinois law, India must prove “the existence
of a duty owed by the defendant to the plaintiff, a
breach of that duty, and an injury proximately resulting
from the breach.” 7 Pelham v. Griesheimer, 440 N.E.2d 96,
98 (Ill. 1982).
7
An attorney-client relationship “is not an indispensable
prerequisite to establishing a duty of care between a non-client
and an attorney” as long as “the intent of the client to benefit
the nonclient third party was the primary or direct purpose
of the transaction or relationship.” Pelham v. Griesheimer,
440 N.E.2d 96, 99 (Ill. 1982). It is undisputed that the
Ennengas intended their revised estate plan to benefit their
children and grandchildren, including India. See McLane v.
Russell, 546 N.E.2d 499, 503-04 (Ill. 1989) (finding the Pelham
test met for an intended beneficiary under a will).
Nos. 09-3118, 09-3221 & 09-3222 23
India’s theory of malpractice is that the Ennengas
intended each of their seven grandchildren to take an
equal share of their estate after their primary bene-
ficiaries died, but the lawyers negligently drafted the
estate plan contrary to that intent. Under terms of the
trust agreement, each grandchild will receive one-
seventh of the remainder of George’s trust, but India’s
six cousins might receive more from their mothers’
trusts during their lifetimes or when their mothers die.
The question here is whether this unequal treatment
violates the Ennengas’ testamentary intent.
We begin by “examining the entire trust and . . .
giving . . . the words employed their plain and ordinary
meaning.” Harris Trust & Sav. Bank v. Donovan, 582 N.E.2d
120, 123 (Ill. 1991). The terms of the trust agreement
are clear and unambiguous. Section 8.B.2.c provides:
At GEORGE ENNENGA’s death, or if he prede-
ceases the survivor of my spouse and me, the Trustee
shall divide GEORGE’S TRUST into as many equal
shares as shall be necessary to allocate one trust
share for the benefit of each grandchild of mine who
is then living, and one trust share for the benefit
of the then living issue, collectively, of a deceased
grandchild of mine . . . .
Section 8.B.3.c provides:
Upon the death of [Connie or Lucie], the Trustee
shall distribute the then remaining balance of her
trust as follows:
8.B.3.c.i. The Trustee shall pay to or apply di-
rectly for the benefit of the surviving spouse or
24 Nos. 09-3118, 09-3221 & 09-3222
issue of such child . . . such amounts from the
principal of her trust as such child shall designate
by her Will . . . .
8.B.3.c.ii. After making the distributions, if any,
required under the preceding subparagraph, the
Trustee shall distribute the balance of such
child’s trust to her surviving issue . . . .
The agreement is signed by the Ennengas, and there are
no allegations of undue influence or duress. As such, it is
the clearest and most reliable expression of their intent.
India does not dispute that the terms of the trust agree-
ment are clear. Instead, she relies on extrinsic evidence
to argue that her grandparents intended otherwise. In
most cases extrinsic evidence is admissible only if the
terms of a trust are ambiguous. See Altenheim German
Home v. Bank of Am., N.A., 875 N.E.2d 1172, 1177 (Ill. App.
Ct. 2007). But legal malpractice cases are an exception
under Illinois caselaw. See Ogle v. Fuiten, 445 N.E.2d
1344, 1347 (Ill. App. Ct. 1983) (contrasting will-construc-
tion suits with legal malpractice claims for negligently
drafting a will).
This makes sense. The focus of the inquiry in this kind
of legal malpractice claim is whether the attorney negli-
gently drafted the relevant estate-plan documents. Ex-
trinsic evidence that conflicts with the terms of the agree-
ment will generally form the basis of the plaintiff’s claim.
And because the claim seeks damages from the attorney,
Ogle v. Fuiten, 466 N.E.2d 224, 227 (Ill. 1984), the use of
extrinsic evidence to determine the client’s intent does
not risk “modify[ing] the document or creat[ing] new
Nos. 09-3118, 09-3221 & 09-3222 25
terms” where “the language of a document is clear,”
Peck v. Froehlich, 853 N.E.2d 927, 934 (Ill. App. Ct. 2006).
Extrinsic evidence of the Ennengas’ intent is thus ad-
missible. Even so, India faces a steep hurdle in chal-
lenging the unambiguous terms of the signed trust agree-
ment.
The primary evidentiary battleground is the corres-
pondence between the attorneys and their notes
predating the Ennengas’ execution of the trust agree-
ment. India relies primarily on three specific items
of evidence. The first is a handwritten note by Stortz
from his first meeting with the Ennengas: “Goal = on
children’s Deaths, make sure all grandchildren treated
equally.” The second is a sentence from Stortz’s May 5
letter to Burt: “Because they now have seven grandchil-
dren, they would like each grandchild to ultimately
receive or benefit from 1/7 of the estate (either as a
direct gift if their parents have died, or as an indirect
result of inheritance by their parents).” And the third is
a notation in Burt’s billing records from May 9: “Grand-
children per capita?” India claims that this evidence
demonstrates that her grandparents were considering
an arrangement whereby each grandchild would be
treated equally and would take per capita from his or
her respective parent’s trust.
At first blush, and considered in isolation, these
discrete pieces of evidence might appear to support
India’s theory. But these items of evidence must be con-
sidered in context and in light of other evidence
that convincingly shows the Ennengas’ intent was
precisely as the trust agreement provides. For example:
26 Nos. 09-3118, 09-3221 & 09-3222
• The handwritten notes from Stortz’s initial meeting
with the Ennengas in April 2000 state: “On George’s
Death, Split among grandchildren equally,” and
“George’s Full GST plan; On his death, amount equal
to 1/7 to her (George may have other children).”
• The May 5 letter from Stortz to Burt describing the
initial meeting states:
George has one daughter, India, who according to
Tom and Ida Lou will be well provided for by her
mother’s parents. As a result, Tom and Ida Lou
would like the trust held for George, following
George’s death, to be distributed in part to India
and the balance in equal shares to their other
grandchildren.
• The May 18 letter from Burt to Stortz states:
“George’s share is to remain in trust for his life. . . .
Upon his death, the remaining principal and undis-
tributed net income are to be divided, per capita,
among the Settlors’ grandchildren.”
• The May 20 letter from Tom Ennenga to Stortz
confirms that Burt’s May 18 letter accurately states
his and his wife’s intent.
• Stortz’s June 21 memo to file states: “On George’s
death, his share will be split equally among the
grandchildren of Thomas and Ida Lou Ennenga . . . .”
• Stortz’s July 13 letter to the Ennengas, with the
final will and trust documents attached, sum-
marizes the documents over several detailed pages.
The letter states: “At George’s death, his trust will
Nos. 09-3118, 09-3221 & 09-3222 27
be divided into equal shares, one share for each of
your grandchildren . . . .” It then describes the gifts
to George’s sisters: “For Connie and Lucie’s shares,
any remaining amounts exempt from GST Tax will
be held in trust during their lifetimes. At each child’s
death, their respective GST Trusts will be divided
among their children . . . .”
The trust documents are fully consistent with this
extrinsic evidence of the Ennengas’ intent. And this
evidence also provides important interpretive context
for each of the three specific notations on which India
relies to support her claim. For example, immediately
following Stortz’s notation “Goal = on children’s Deaths,
make sure all grandchildren treated equally” is this
statement: “On his death, amount equal to 1/7 to her
(George may have other children).” The second state-
ment thus qualifies the first and confirms that the
Ennengas’ goal was to treat all grandchildren equally in
the distribution of George’s trust.
Similarly, in Stortz’s May 5 letter, immediately before
his statement that the Ennengas “would like each grand-
child to ultimately receive or benefit from 1/7 of the
estate,” Stortz wrote as follows:
George has one daughter, India, who according to
the Ennengas will be well provided for by her
mother’s parents. As a result, Tom and Ida Lou
would like the trust held for George, following
George’s death, to be distributed in part to India
and the balance in equal shares to their other
grandchildren.
28 Nos. 09-3118, 09-3221 & 09-3222
Again, reading these passages together clarifies that
Stortz was making a record of the Ennengas’ instructions
regarding the distribution of the remainder of George’s
trust. It also explains why the Ennengas were not con-
cerned with giving India only one-seventh of her
father’s trust, while the other grandchildren might even-
tually take more from their mothers—they understood
that she would be well provided for by her other grand-
parents.
Finally, the passage in Burt’s May 18 letter stating
that “[u]pon [George’s] death, the remaining principal
and undistributed net income are to be divided, per
capita, among the Settlors’ grandchildren,” explains the
earlier, cryptic notation in Burt’s billing records that
inquires, “Grandchildren per capita?” Considered
together, and in light of the other evidence of the
Ennengas’ intent, this billing-record notation can only
be understood as a query about how the remainder of
George’s trust was to be distributed.
It’s worth noting that other than asserting that
the Ennengas generally intended each grandchild to
take one-seventh of the estate, India has not been clear
about what precise remainder scheme her grandparents
intended. At times she suggests the Ennengas wanted
any remainder of Lucie’s and Connie’s trusts to be
divided among all the grandchildren. But the record
contains no evidence whatsoever to support that con-
tention. At other times she suggests that her grand-
parents intended her to receive the full remainder of
her father’s trust—that is, that all the trusts were to be
Nos. 09-3118, 09-3221 & 09-3222 29
distributed per stirpes. Although such an arrangement
serves an abstract idea of equal treatment, it does not
align with the goal—the one she supposes her grand-
parents intended—that each grandchild receive one-
seventh of the estate. Indeed, because India is George’s
only child and the spendthrift controls on his trust
make it more likely that trust assets will remain when
he dies, structuring the estate plan in this way would
likely result in India taking much more than a one-
seventh share.
Although India makes much of it, the video of Tom
Ennenga discussing his estate plan adds nothing to
the analysis. On the tape Tom never mentions India
or meaningfully discusses how the grandchildren
would take under the trust scheme. His reference to the
beneficiaries of his estate mentions only George and
Connie’s and Lucie’s children. As importantly, the video
was filmed two years after the execution of the trust
agreement. The temporal focus here is on Tom and Ida
Lou’s intent when they signed the trust agreement. The
video sheds little light on that question.
Finally, the report of India’s expert is not enough to
forestall summary judgment. India emphasizes her
expert’s interpretation of the attorneys’ correspondence
and meeting notes. For example, the expert states: “[W]e
know that Tom and Ida Lou’s goal was rough equality
among all grandchildren, with some grandchildren re-
ceiving their shares directly, while others receiving
them by inheritance from their parents.” This is not a
statement of expert opinion; it is speculation about the
ultimate issue of fact, which is insufficient to avoid sum-
30 Nos. 09-3118, 09-3221 & 09-3222
mary judgment. See Weigel v. Target Stores, 122 F.3d 461,
469 (7th Cir. 1997) (“A party cannot assure himself of a
trial merely by trotting out in response to a motion for
summary judgment his expert’s naked conclusion
about the ultimate issue.” (quotation marks omitted)).
True, India’s expert offers an opinion that the trust agree-
ment was irregular. This is perhaps more squarely
within his role, but it is beside the point. The evidence
establishes that the more unusual elements of the trust
scheme—e.g., the restrictive terms of George’s trust as
compared to those of his sisters, and the distribution of
the remainder of George’s trust among all seven grand-
children—were exactly what the Ennengas intended.
In sum, India lacks evidence to support her claim
that Stortz, Starns, or Burt breached their duty of care
by drafting the Ennengas’ estate plan in violation of
their intent. Accordingly, India’s legal malpractice claim
should have been dismissed with prejudice.
III. Conclusion
For the foregoing reasons, we A FFIRM the district
court’s dismissal of George’s legal malpractice claim
as time-barred. We also A FFIRM the dismissal of the
fiduciary-duty claims as barred by res judicata. Finally,
we A FFIRM the dismissal of India’s legal malpractice
claim on other grounds and R EMAND with instructions
to modify the judgment to reflect that the claim is dis-
missed with prejudice, consistent with this opinion.
4-17-12