                                  2016 IL App (1st) 160672



                                                                             FIRST DIVISION
                                                                            December 29, 2016


No. 1-16-0672



GUARANTEE TRUST LIFE INSURANCE CO.,                     )
                                                        )             Appeal from the
       Plaintiff-Appellant,                             )             Circuit Court of
                                                        )             Cook County.
v.                                                      )
                                                        )             No. 13 L 2143
ROBERT KRIBBS, KEITH LINDVIG, and                       )             (Renumbered as:
LARRY GRAVES,                                           )             15 L 11262)
                                                        )
       Defendants,                                      )             Honorable
                                                        )             John. C. Griffin,
(Keith Lindvig and Larry Graves, Defendants-Appellees). )             Judge Presiding.
                                                        )

       JUSTICE MIKVA delivered the judgment of the court, with opinion.
       Justice Harris and Justice Simon concurred in the judgment and the opinion.


                                          OPINION

¶1     This is an appeal from an order dismissing claims against certain defendants as untimely.

Plaintiff Guarantee Trust Life Insurance Company (Guarantee) entered into a reinsurance

agreement with Somerset Reinsurance, Ltd. (Somerset), a company formed by an independent

insurance producer for the sole purpose of reinsuring policies issued by Guarantee. Under the

agreement, Guarantee forwarded premium payments to Somerset to hold in a custodial account

for the payment of claims. Guarantee initially sued the founder of the reinsurance company,

Robert Kribbs, alleging that he acted in concert with “an employee” inside Guarantee’s

organization both to secure the agreement and later to improperly obtain authorization for the
No. 16-0672

release of funds from the account to Mr. Kribbs for his own use. Nearly six years after filing its

initial complaint, while taking discovery depositions in the case, Guarantee discovered the

identity of two of its own employees, Keith Lindvig and Larry Graves, who it claims participated

in the scheme and sought to name them in the suit. Mr. Graves and Mr. Lindvig moved to

dismiss the claims against them as untimely and the circuit court granted their motion. For the

reasons that follow, we affirm the judgment of the circuit court.

¶2                                         BACKGROUND

¶3     Reinsurance is a contract of indemnity in which one insurer agrees to protect another

insurer from a risk it has already assumed. Vial v. Norwich Union Fire Insurance Society of

Norwich, England, 257 Ill. 355, 358 (1913). The original policyholder is generally not a party to

such an agreement. In re Liquidations of Reserve Insurance Co., 122 Ill. 2d 555, 561 (1988). In

this case, plaintiff Guarantee entered into a reinsurance agreement with Somerset, a reinsurance

company formed by licensed insurance producer Robert Kribbs to reinsure credit life and

disability policies issued by Guarantee.

¶4                              A. Guarantee’s Initial Lawsuit

¶5     On December 12, 2006, Guarantee brought a five-count complaint against Mr. Kribbs for

unjust enrichment, conversion, constructive fraud, concert of action, and civil conspiracy (the

2006 Complaint). Guarantee alleged that it entered into the reinsurance agreement with Somerset

to reinsure policies sold by Mr. Kribbs and others, pursuant to which it agreed to deposit

premiums paid on the policies into a custodial account controlled by Somerset and Mr. Kribbs.

Guarantee further alleged that, “[w]ithout regard to the contractually and statutorily mandated

reserve requirements applicable to both [Guarantee] and Somerset, [Mr. Kribbs] authorized and

requested the release of the ceded premiums to be paid directly to [Mr. Kribbs],” leaving


                                                 2
No. 16-0672

insufficient remaining funds to pay claims on the policies. As a result, Guarantee alleged that it

was forced to indemnify policyholders, using its other reserves and premiums, for claims that

should have been paid by Somerset from the custodial account.

¶6     Although Mr. Kribbs was the only individual defendant originally named in this case,

Guarantee specifically alleged in count IV of the 2006 Complaint, entitled “Concert of Action,”

that Mr. Kribbs could not have unilaterally withdrawn funds from the custodial account.

According to count IV of the 2006 Complaint, “[t]he approval of an employee of Guarantee was

required for Kribbs to allow the premium funds to be paid personally to Kribbs” and “[b]oth

Kribbs and the employee of Guarantee knew that the release of funds directly to Kribbs

constituted a breach of the employee’s duty of loyalty to [Guarantee] and its duty to protect its

policyholders.”

¶7     On January 8, 2008, Mr. Kribbs disclosed in his responses to Guarantee’s interrogatories

the names of five individuals with knowledge of the losses allegedly suffered by Guarantee as a

result of the transactions described in the 2006 Complaint, including Guarantee employees Larry

Graves, Keith Lindvig, and Arthur Fess.

¶8     In the fall of 2012, nearly six years after originally filing the lawsuit, Guarantee took the

discovery depositions of Mr. Kribbs, Mr. Fess, and Mr. Lindvig. Mr. Kribbs testified that he and

Mr. Lindvig were both working for Guarantee—Mr. Kribbs as an insurance agent and Mr.

Lindvig as a sales manager—when they were approached by vice president Larry Graves about

forming Somerset. Mr. Kribbs stated that Mr. Graves explained how Mr. Kribbs could request

“dividends” from the custodial account. During discovery, Mr. Kribbs produced copies of letters

signed by both Mr. Graves and Guarantee’s senior vice president of finance, Arthur Fess,

instructing the bank to disburse funds from the custodial account directly to Mr. Kribbs.


                                                3
No. 16-0672

¶9     Mr. Fess was also deposed and described how Mr. Graves prepared the letters and

supporting documentation for Mr. Fess’s signature.

¶ 10   Mr. Lindvig, who was at the time of his deposition the national sales manager for

Guarantee’s credit life division, testified that, at Mr. Graves’s direction, it was he who initially

approached Mr. Kribbs regarding forming a reinsurance company. Mr. Lindvig confirmed that,

as the line-of-business manager, Mr. Graves was the one who reviewed quarterly statements to

determine if sufficient excess was available in the custodial account to make a distribution. Mr.

Lindvig also disclosed during his deposition that he had been receiving commissions from Mr.

Kribbs “for many, many years back and forth.”

¶ 11                                 B. The Re-Filed Action

¶ 12   On October 2, 2012, the circuit court granted Guarantee’s request for a voluntary

dismissal of the 2006 Complaint and, on February 7, 2013, Guarantee re-filed the action, this

time naming both Mr. Kribbs and Mr. Lindvig as defendants and Mr. Graves as a respondent in

discovery.

¶ 13   Guarantee filed a first amended complaint on July 31, 2013, in which it detailed Mr.

Graves’s involvement in the alleged scheme to wrongfully withdraw funds from the custodial

account. On October 16, 2013, the circuit court granted Guarantee’s motion to convert Mr.

Graves from a respondent in discovery to a party defendant.

¶ 14   On January 6, 2014, Mr. Graves moved to dismiss the first amended complaint against

him pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (see 735 ILCS

5/2-615, 2-619 (West 2012)), a motion that was later joined by Mr. Lindvig. The two argued that

each of Guarantee’s claims against them was barred by the five-year limitations period set out in

section 13-205 of the Code (735 ILCS 5/13-205 (West 2006)), which they contended began to


                                                 4
No. 16-0672

run when Guarantee first learned of its injury, something that could have happened no later than

the filing of the 2006 Complaint.

¶ 15   In response, Guarantee argued that its awareness of one cause of its injury—wrongdoing

by Mr. Kribbs—did not trigger the statute of limitations for claims based on other causes—i.e.,

wrongdoing by Mr. Graves and Mr. Lindvig—that it did not and could not have discovered

sooner. Guarantee additionally argued that its claims were tolled because it alleged that Mr.

Graves and Mr. Lindvig were fiduciaries as a matter of law who not only failed to disclose their

involvement in the scheme, as they were bound to do, but engaged in acts of fraudulent

concealment preventing Guarantee from discovering that it had claims against them. Attached to

the motion to dismiss was the affidavit of Guarantee’s general counsel, Robert Baluk, who stated

that, before the deposition of Mr. Lindvig, no one at Guarantee besides Mr. Graves and Mr.

Lindvig “had any knowledge that the defendant Lindvig was involved or received money from

defendant Kribbs in connection with the facts alleged in the complaint.” According to Mr. Baluk,

it was only “after reviewing the deposition transcript of Kribbs” that he “began suspecting that

Larry Graves may also have been involved in and received financial benefit from the scheme

described in the Complaint.”

¶ 16   On March 27, 2014, the circuit court dismissed each of Guarantee’s claims against Mr.

Graves and Mr. Lindvig. The court concluded that Guarantee could have discovered that it had

claims against these defendants within the statutory period for bringing those claims because

Guarantee already knew that one of its own employees was involved in the alleged scheme,

received information as to persons with knowledge who worked at Guarantee in early 2008 as a

part of interrogatory responses provided by Mr. Kribbs, and chose to wait six years after filing its

lawsuit to take any depositions. The court likewise rejected both the notion that Guarantee’s


                                                 5
No. 16-0672

conclusory allegations of fraudulent concealment were sufficient to toll the claims against Mr.

Graves and Mr. Lindvig and Guarantee’s argument that the two were fiduciaries who

fraudulently concealed information simply by remaining silent. According to the court, there was

“no factual support” for the existence of a fiduciary relationship and the fiduciary exception did

not apply.

¶ 17   Guarantee moved for reconsideration of the dismissal, arguing that Mr. Graves and Mr.

Lindvig were fiduciaries as a matter of law because Mr. Graves was employed as a vice

president of Guarantee and Mr. Lindvig was an insurance producer who was alleged to have

misappropriated insurance premiums it received from Guarantee. Guarantee insisted that its

allegations of fraudulent concealment should be taken as true for purposes of the section 2-619

motion and that what it knew about the involvement of these two individuals during the

limitations period was a question of fact for the jury.

¶ 18   On July 2, 2014, the circuit court denied the motion for reconsideration, finding that

Guarantee had failed to present any new evidence, changes in the law, or errors in the court’s

application of the law. The court reiterated its view that, “in order for the statute of limitations to

be extended under [the fraudulent concealment statute], the cause of action must have been

concealed, not the identity of the tortfeasor.”

¶ 19                                      JURISDICTION

¶ 20   On February 10, 2016, after two unsuccessful attempts by Guarantee to bring this appeal

which failed because there was no proper order made pursuant to Illinois Supreme Court Rule

304(a) (eff. Feb. 26, 2010), the following order was issued:

                       “IT IS HEREBY ORDERED that the Court finds that its

               March 27, 2014 order dismissing Keith Lindvig and Larry Graves


                                                  6
No. 16-0672

               is final and appealable and that there is no just cause for delaying

               either enforcement or appeal of the March 27, 2014 order.”

This appeal was then timely filed on March 8, 2016.

¶ 21   Rule 304 states that the finding necessary to confer appellate jurisdiction over a final

order disposing of some but not all of the claims in a case “may be made at the time of the entry

of the judgment or thereafter on the court’s own motion or on motion of any party.” Ill. S. Ct. R.

304(a) (eff. Feb. 26, 2010). Accordingly, the circuit court’s order of February 10, 2016, properly

conferred appellate jurisdiction over this matter.

¶ 22                                       ANALYSIS

¶ 23   On appeal, Guarantee challenges the circuit court’s March 27, 2014, order dismissing as

time-barred the claims against Mr. Graves and Mr. Lindvig asserted in Guarantee’s first

amended complaint. With the exception of equitable arguments raised by Guarantee in the

alternative, which are addressed later in this opinion, the parties agree that the relevant

limitations period is the five-year period set out in section 13-205 of the Code for conversion and

“all civil actions not otherwise provided for.” 735 ILCS 5/13-205 (West 2006). The parties

disagree as to when the limitations period began to run.

¶ 24   Mr. Graves and Mr. Lindvig contend that the statute of limitations was triggered no later

than the filing of Guarantee’s 2006 Complaint—in which Guarantee specifically alleged that the

scheme could not have been carried out without the assistance of one of its own employees—and

expired on December 13, 2011, more than a year before Guarantee took any legal action against

Mr. Graves or Mr. Lindvig.

¶ 25   Guarantee, on the other hand, relies on caselaw applying the discovery rule and section

13-215 of the Code governing fraudulent concealment (735 ILCS 5/13-215 (West 2012)) to


                                                 7
No. 16-0672

argue that its claims against Mr. Graves and Mr. Lindvig did not accrue until September 26,

2012, when it first learned that Mr. Kribbs was paying kickbacks to Mr. Lindvig, a revelation

that Guarantee claims first caused it to become suspicious of Mr. Graves. Guarantee contends

that it was not required to allege affirmative acts of fraudulent concealment or establish that it

acted diligently in discovering its causes of action against Mr. Graves and Mr. Lindvig because

these defendants were fiduciaries. Guarantee further argues that principles of equitable tolling

and estoppel prevent application of the statute of limitations in this case.

¶ 26   In response, Mr. Graves and Mr. Lindvig contend that Guarantee’s conclusory allegations

were insufficient to establish fraudulent concealment. They further insist that Guarantee could

not, as a matter of law, establish fraudulent concealment beyond the filing of its initial complaint

on December 12, 2006, because that complaint demonstrated on its face that Guarantee knew

that one or more of its own employees was involved in the alleged scheme. Mr. Graves and Mr.

Lindvig further argue that Guarantee forfeited its arguments based on equitable principles by

failing to raise them in the circuit court and that, even if it did not, those arguments lack merit.

¶ 27   A motion to dismiss filed pursuant to section 2-619 of the Code “admits the legal

sufficiency of a plaintiff’s complaint but raises defects, defenses, or other affirmative matters

that appear on the complaint’s face or that are established by external submissions acting to

defeat the complaint’s allegations.” Burton v. Airborne Express, Inc., 367 Ill. App. 3d 1026,

1029 (2006). One such defense is “[t]hat the action was not commenced within the time limited

by law.” 735 ILCS 5/2-619(a)(5) (West 2012). Although “[t]he point at which [an] injured

person becomes possessed of sufficient information concerning his injury and its cause to trigger

the running of the limitations period is usually a question of fact,” it becomes an issue of law

where “the facts are undisputed and only one conclusion may be drawn from them.” Janetis v.


                                                   8
No. 16-0672

Christensen, 200 Ill. App. 3d 581, 586 (1990). A motion made pursuant to section 2-619 should

be granted where “a plaintiff’s claim can be defeated as a matter of law or on the basis of easily

proven issues of fact.” Gadson v. Among Friends Adult Day Care, Inc., 2015 IL App (1st)

141967, ¶ 14. We review a circuit court’s ruling on a section 2-619 motion de novo. Freeman v.

Williamson, 383 Ill. App. 3d 933, 936 (2008).

¶ 28                                A. The Discovery Rule

¶ 29   At common law, the discovery rule postpones the starting of the statute of limitations

until the injured party knows or should have known of his injury. Knox College v. Celotex Corp.,

88 Ill. 2d 407, 414 (1981). The purpose of the rule is to “ameliorate the potentially harsh effect

of a mechanical application of the statute of limitations that would result in it expiring before a

plaintiff even knows of his cause of action.” Henderson Square Condominium Ass’n v. LAB

Townhomes, LLC, 2015 IL 118139, ¶ 52. Pursuant to the rule, “the event which triggers the

running of the statutory period is n[either] the first knowledge the injured person has of his

injury” nor “at the other extreme *** the acquisition of knowledge that one has a cause of action

against another for an injury he has suffered.” Knox College, 88 Ill. 2d at 415. Instead, “the

statute starts to run when a person knows or reasonably should know of his injury and also

knows or reasonably should know that it was wrongfully caused.” Id. (citing Witherell v.

Weimer, 85 Ill. 2d 146, 156 (1981)). As our supreme court has noted, “[a]t some point the injured

person becomes possessed of sufficient information concerning his injury and its cause to put a

reasonable person on inquiry to determine whether actionable conduct is involved. At that point,

under the discovery rule, the running of the limitations period commences.” Id. at 416.

¶ 30   Guarantee overstates the discovery rule when it suggests that “the identity of the party

who caused [the plaintiff’s] injury is a prerequisite to the commencement of the running of the


                                                9
No. 16-0672

statute of limitations.” (Internal quotation marks omitted.) This proposition has been repeatedly

rejected by our courts. See, e.g., McCormick v. Uppuluri, 250 Ill. App. 3d 386, 390 (1993)

(rejecting the notion that the plaintiff’s ignorance of a doctor’s role in his injury tolled the

running of the limitations period where the doctor was identified in the plaintiff’s medical

records and “[a]ny reasonable discovery attempts should have included ascertaining [the

doctor]’s involvement”); Guebard v. Jabaay, 65 Ill. App. 3d 255, 257-59 (1978) (holding the

limitations period commenced when the plaintiff knew her injury was caused by an improperly

performed operation, not when the plaintiff discovered the identity of the doctor who performed

the operation).

¶ 31   Guarantee relies on a refinement of the discovery rule expressed in Mitsias v. I-Flow

Corp., 2011 IL App (1st) 101126, which held that the statute of limitations is tolled when the

alleged injury is the result of multiple causes but the plaintiff has only discovered one of the

causes. In Mitsias, the plaintiff sued her doctor for injuries she suffered as a result of surgery that

he performed on her shoulder. Id. ¶ 2. Several years later, the plaintiff’s expert testified at his

discovery deposition that new medical literature published after the plaintiff filed her case

suggested a link between the plaintiff’s condition and the use of continuous infusion devices

known as “pain pumps.” Id. The plaintiff voluntarily dismissed the case and re-filed it against

both the doctor and the manufacturers of the pain pump used in her surgery. Id. ¶ 3. The circuit

court dismissed the claims against the manufacturers as untimely but the appellate court reversed

Id. ¶ 4. Noting that the discovery rule “is intended to encourage diligent investigation on the part

of potential plaintiffs without foreclosing claims of which plaintiffs could not have been aware”

(id. ¶ 21), the court held that a statute of limitations is tolled “when a plaintiff is aware that her

injury might have been wrongfully caused by one source but is unaware that [it] might have been


                                                  10
No. 16-0672

caused by another source and, in fact, could not be aware of that source because the causal link

was as yet unknown to science” (id. ¶¶ 19, 43).

¶ 32   For the first time in its reply brief Guarantee also argues that, because it alleged Mr.

Graves and Mr. Lindvig breached their fiduciary duties, it is “entitled to restitution from Graves

and Lindvig independent of the injury caused by the misappropriation of funds,” i.e., forfeiture

of the salaries these defendants received from Guarantee for the period during which they

breached their fiduciary duties. Guarantee makes no mention of this remedy in its amended

complaint. In any event, we disagree that the existence of such a remedy, which is based on the

same breaches of fiduciary duty alleged in the 2006 Complaint, constitutes a separate and

unknowable cause of Guarantee’s injury like the one at issue in Mitsias.

¶ 33   Even in the absence of such a remedy, Guarantee maintains that Mitsias applies because

the wrongful conduct of Mr. Graves and Mr. Lindvig in this case constituted a separate source of

Guarantee’s injuries; a source that Guarantee was not aware of when it filed its initial complaint

against Mr. Kribbs. We assume that the identity of a new defendant—as opposed to the existence

of a different causal mechanism as in Mitsias—could in some instances be considered a distinct

“source” of a plaintiff’s injury. However, the point the court underscored in Mitsias was that the

plaintiff not only was not aware, but could not have been aware of the second cause of her injury.

Id. ¶ 19. Here, by contrast, Guarantee knew when it filed its 2006 Complaint that one of its own

employees was involved in the wrongdoing that it alleged caused its injuries and was provided in

2008 with discovery responses disclosing a short list of potential witnesses that included Mr.

Graves and Mr. Lindvig. Guarantee has provided no reason why it could not have discovered its

claims against Mr. Graves and Mr. Lindvig sooner through “reasonable diligence.” Id. at ¶ 43.

Thus, even assuming that Mitsias applies to situations involving undiscoverable defendants, as


                                                  11
No. 16-0672

well as to undiscoverable causal mechanisms, the holding in Mitsias is of no assistance to

Guarantee in this case.

¶ 34                             B. Fraudulent Concealment

¶ 35   Guarantee next argues that, pursuant to section 13-215 of the Code (735 ILCS 5/13-215

(West 2012)), its claims against Mr. Graves and Mr. Lindvig are tolled by fraudulent

concealment. That section applies if “a plaintiff pleads and proves that fraud prevented discovery

of the cause of action.” DeLuna v. Burciaga, 223 Ill. 2d 49, 76 (2006). Mr. Graves and Mr.

Lindvig note that “Illinois courts have consistently interpreted section 13-215 to apply only to

fraudulent concealment of causes of action” and not to the identity of a defendant. Levine v. EBI,

LLC, 2013 IL App (1st) 121049, ¶ 21; see also Pratt v. Sears Roebuck & Co., 71 Ill. App. 3d

825, 830 (1979) (noting that the predecessor section “applie[d] to fraudulent concealment of

causes of action; it d[id] not apply to fraudulent concealment of the identity of tort-feasors”);

Guebard, 65 Ill. App. 3d at 260 (“ ‘[u]nder the Limitations Act, the only concealment which

postpones the running of the statute of limitations is fraudulent concealment by the defendant of

the cause of action[;] *** [c]oncealment of the identity of a party liable is not deemed the

same’ ”) (quoting 25 Ill. L. & Prac. Limitations s 92 (1956)). Guarantee would apparently have

us create an exception to this rule, perhaps by reading Mitsias in conjunction with section 13-

215. However, we need not entertain this suggestion because Guarantee failed to adequately

allege even that Mr. Graves’s and Mr. Lindvig’s identities, much less its claims against them,

were fraudulently concealed from Guarantee.

¶ 36   Generally, affirmative acts of fraud must be alleged to support allegations of fraudulent

concealment. Hagney v. Lopeman, 147 Ill. 2d 458, 462 (1992). Here, Guarantee alleged in its

most recent complaint that “[Mr. Lindvig] and upon information and belief [Mr. Graves],


                                               12
No. 16-0672

provided false information to [Guarantee]’s senior management and accountants to facilitate the

release of the monies” from the custodial account and “assured [Guarantee]’s management that

the transfers of monies directly to [Mr. Kribbs] were appropriate and that the distributions would

not jeopardize Somerset’s ability to reinsure claims.” Guarantee further alleged that it “was

prevented from learning of the actions of [Mr. Kribbs], [Mr. Lindvig] and [Mr. Graves] because

[Mr. Kribbs], [Mr. Lindvig] and upon information and belief [Mr. Graves], falsified and

destroyed documentation and repeatedly assured [Guarantee] that their actions were proper.”

These allegations are unsupported by details regarding any specific false statements made by

defendants or examples of documents that were falsified or destroyed. Lacking factual support,

such conclusory statements are not taken as true in connection with a 2-619 motion to dismiss.

Buckner v. O’Brien, 287 Ill. App. 3d 173, 176 (1997).

¶ 37   Guarantee asserts, however, that it need not allege specific acts of fraud where it has

established that Mr. Graves and Mr. Lindvig were fiduciaries who owed Guarantee a duty of

candor. Our supreme court has held that a fiduciary enjoying the trust and confidence of another

is under a duty to reveal material facts to his principal “and that his silence when he ought to

speak, or his failure to disclose what he ought to disclose, is as much a fraud at law as an actual

affirmative false representation or act.” Chicago Park District v. Kenroy, Inc., 78 Ill. 2d 555,

560-61 (1980). A fiduciary relationship may arise as a matter of fact, “where one party reposes

special trust and confidence and thereby gains superiority and influence over the subservient

party.” (Internal quotation marks omitted.) Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564,

585 (2011). A fiduciary relationship may also arise as a matter of law, such as between a

securities broker and his customer (id. at 592) or a lawyer and his client (In re Imming, 131 Ill.

2d 239, 252-53 (1989)).


                                                13
No. 16-0672

¶ 38   Guarantee contends that the circuit court erroneously faulted it for failing to allege facts

establishing a fiduciary relationship when the relationship it relied on was one arising as a matter

of law between an employer and its employees. As an initial matter, it is not clear from

Guarantee’s allegations exactly when Mr. Graves and Mr. Lindvig were employed by Guarantee.

The allegations merely state that “[Mr. Graves] was formerly employed by [Guarantee] as a Vice

President” and “[Mr. Graves] hired [Mr. Lindvig] to work at [Guarantee] as a sales manager.”

Moreover, the caselaw suggests that employees owe duties of fidelity and loyalty to their

employers; not necessarily a duty of candor. See, e.g., Corroon & Black of Illinois, Inc. v.

Magner, 145 Ill. App. 3d 151, 160 (1986) (“While acting as an agent or employee of another,

one owes the duty of fidelity and loyalty. Accordingly, a fiduciary cannot act inconsistently with

his agency or trust; for example, an employee cannot solicit his employer’s customers for

himself.”).

¶ 39   But there is a more significant problem with Gaurantee’s argument. Even if we were to

accept as true that, at all relevant times, Mr. Graves and Mr. Lindvig were fiduciaries who owed

Guarantee a duty of candor and that this duty, together with their failure to come forward and

admit involvement in the alleged scheme, established the affirmative acts of fraud necessary for

fraudulent concealment, Guarantee has failed to show any causal connection between that breach

and Guarantee’s failure to discover the alleged fraud. For fraudulent concealment to apply, a

plaintiff must include allegations that “ ‘attribute the failure to discover to the trust and

confidence placed in the fiduciary.’ ” Kheirkhahvash v. Baniassadi, 407 Ill. App. 3d 171, 180-81

(2011) (quoting Hagney, 147 Ill. 2d at 464). This is an “essential element” that our supreme

court has held “must be alleged in [the] plaintiff’s pleadings.” Hagney, 147 Ill. 2d at 464.

¶ 40   The closest Guarantee comes to establishing such a causal connection is its assertion on


                                                14
No. 16-0672

appeal that it was not until Mr. Lindvig’s deposition in 2012 that Guarantee first learned that Mr.

Lindvig (and likely Mr. Graves as well) had accepted kickback payments in exchange for his

participation in the alleged scheme. Guarantee insists that, by failing to disclose the kickbacks,

Mr. Graves and Mr. Lindvig prevented Guarantee from discovering its claims against them. This

is not a link that is specifically alleged in Guarantee’s amended complaint. Even if it were,

Guarantee has not established how concealment of the alleged kickbacks, which are merely one

detail of the alleged scheme, prevented Guarantee from learning of the scheme itself.

¶ 41   Indeed, any causal connection between the silence of Mr. Graves or Mr. Lindvig and

Guarantee’s failure to timely assert its claims against them is simply incompatible with

Guarantee’s primary allegations. Guarantee alleged in the 2006 Complaint both that improper

withdrawals were depleting the custodial account established in connection with the reinsurance

agreement with Somerset and that one of Guarantee’s own employees had improperly authorized

the withdrawals. Silence by a fiduciary does not relieve a plaintiff from acting on knowledge that

it already possesses. As the court made clear in Melko v. Dionisio, 219 Ill. App. 3d 1048, 1062

(1991), “although the existence of a fiduciary relationship may excuse a plaintiff's failure to

investigate diligently to ascertain facts that would put her on notice of possible injury, there is

plainly a difference between the failure to ascertain facts through diligent inquiry and the failure

to act upon facts of which the plaintiff already has actual knowledge.” (Emphasis in original.)

¶ 42   Guarantee’s reliance on Ostendorf v. International Harvester Co., 89 Ill. 2d 273 (1982),

for the proposition that Guarantee’s failure to investigate its claims is somehow excused because

of the conduct of Mr. Graves and Mr. Lindvig during discovery is also misplaced. In Ostendorf,

the plaintiff was injured while operating a tractor and brought a products liability suit against the

manufacturer. Id. at 278. When asked in written discovery requests if certain tests had been


                                                 15
No. 16-0672

conducted on the product in question or if the defendant’s employees had ever stated certain

opinions, the defendant responded, respectively, that “[d]etailed records concerning specific tests

[we]re no longer available” and “[n]ot to our knowledge.” Id. at 280-81. The jury found in favor

of the defendant and, several years later, the plaintiff filed a petition to set aside the judgment. Id.

at 278. The filing was not made within the two-year time limitation for such petitions but the

plaintiff argued that evidence not considered at trial had been fraudulently concealed from him.

Id. at 278, 281. The plaintiff attached responsive internal documents of the defendant’s which

were obtained by the plaintiff’s counsel during his representation of another client in similar

litigation. Id. at 281. Upon reviewing these documents, our supreme court concluded that the

defendant’s discovery responses were “if not outright falsehoods, half-truths *** hav[ing] the

effect of affirmative concealment, since they impl[ied] that there [wa]s no information or

evidence to be sought.” Id. at 282.

¶ 43    Ostendorf is distinguishable because Guarantee points to no discovery responses in this

case that were deceptive or misleading. When asked in 2008 who had knowledge of the

transactions at issue, Mr. Kribbs provided a list of individuals that included both Mr. Graves and

Mr. Lindvig and, in the fall of 2012 when Mr. Lindvig was deposed, he was asked and confirmed

that he had long received payments directly from Mr. Kribbs. Guarantee’s observation that “it

was only after the limitation periods against Lindvig & Graves expired that they came forward

and admitted that they had personally benefitted and had personally participated in the

misappropriations” is no doubt true. It is equally true, however, that it was not until after the

limitations period had expired that Guarantee—long possessing both the knowledge that one or

more of its own employees was involved in the scheme and a short list of witnesses that included

both Mr. Graves and Mr. Lindvig—bothered to depose either of these individuals regarding their


                                                  16
No. 16-0672

involvement. There was no fraudulent concealment during discovery in this case that tolled the

statute of limitations.

¶ 44                                C. Equitable Arguments

¶ 45    Guarantee makes three additional arguments based on equitable principals, contending

that (1) the statute of limitations is a purely legal defense that does not apply to actions in equity,

(2) Mr. Graves and Mr. Lindvig should be equitably estopped from deriving any benefit from

their fraud, and (3) equitable tolling applies because Mr. Graves and Mr. Lindvig caused an

“extraordinary barrier” to bar Guarantee’s assertion of its right. We agree with Mr. Graves and

Mr. Lindvig that Guarantee forfeited these arguments by failing to raise them in the circuit court

(see Helping Others Maintain Environmental Standards v. Bos, 406 Ill. App. 3d 669, 695 (2010)

(“a party who does not raise an issue in the trial court forfeits the issue and may not raise it for

the first time on appeal”)), an argument that Guarantee declined to address in its reply brief.

¶ 46    Forfeiture aside, Guarantee’s equitable arguments also lack merit. It is generally true that

statutes of limitation apply to actions at law and the doctrine of laches applies to actions in

equity. Sundance Homes, Inc. v. County of DuPage, 195 Ill. 2d 257, 270 (2001). However, the

relief Guarantee sought in connection with each of its claims was a money judgment, which is

legal in nature, not equitable. See In re Estate of O’Donnell, 8 Ill. App. 2d 348, 352 (1956)

(where relief sought was a money judgment, the action was one at law; the fact that the claim

was asserted against a trustee for a breach of trust “d[id] not convert the claim into a suit in

equity”), abrogated on other grounds as recognized in Prodromos v. Everen Securities, Inc., 389

Ill. App. 3d 157, 174 (2009).

¶ 47    Moreover, to invoke the doctrine of equitable estoppel, a “plaintiff must have relied on

acts or representations of the defendant which caused the plaintiff to refrain from filing suit


                                                  17
No. 16-0672

within the applicable statute of limitations.” (Internal quotation marks omitted.) Kherkhahvash,

407 Ill. App. 3d at 182. The doctrine does not apply, however, “if [the] defendant’s conduct

terminated within ample time to allow the plaintiff an opportunity to file a cause of action within

the limitation period.” Id. Here, Guarantee fails to allege anything Mr. Graves and Mr. Lindvig

said or did after the filing of the 2006 Complaint that could reasonably have been relied on by

Guarantee as a basis for not investigating their involvement in the alleged scheme.

¶ 48   Equitable tolling is likewise inapplicable. A limitations period may be equitably tolled

where “extraordinary barriers” prevent the plaintiff from asserting its rights in a timely fashion,

such as “legal disability, an irredeemable lack of information, or situations where the plaintiff

could not learn the identity of proper defendants through the exercise of due diligence.” Thede v.

Kapsas, 386 Ill. App. 3d 396, 403 (2008). Guarantee provides no reason that it could not have

learned about the involvement in the alleged scheme of Mr. Graves and Mr. Lindvig within the

five-year limitations period. Far from suffering from an “irredeemable lack of information,”

Guarantee knew that one of its own employees approved the withdrawals from the custodial

account as early as December 2006 when it filed its initial complaint. Mr. Kribbs then disclosed

to Guarantee during discovery in early 2008 a short list of individuals with knowledge of the

transactions described in the complaint. And yet Guarantee elected not to depose any witnesses

until the fall of 2012. The record indicates that the only thing preventing Guarantee from sooner

discovering the purportedly revelatory information it learned in those depositions was its own

lack of diligence. Under these circumstances, Guarantee’s equitable arguments must fail.

¶ 49                                   CONCLUSION

¶ 50   For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 51   Affirmed.


                                                18
