                        Illinois Official Reports

                                Appellate Court



                  Toushin v. Ruggiero, 2015 IL App (1st) 143151



Appellate Court    STEVEN TOUSHIN, Plaintiff-Appellee, v. GINA RUGGIERO,
Caption            Defendant-Appellant (First Merit Bank, a National Banking
                   Institution, Trustee Under Trust Numbers 78-03-2431 and
                   88-03-5438, Defendant).



District & No.     First District, First Division
                   Docket No. 1-14-3151



Filed              August 3, 2015



Decision Under     Appeal from the Circuit Court of Cook County, No. 13-CH-10090; the
Review             Hon. Mary L. Mikva, Judge, presiding.



Judgment           Reversed and remanded.



Counsel on         Torshen, Slobig, Genden, Dragutinovich & Axel, Ltd., of Chicago
Appeal             (Robert J. Slobig, of counsel), for appellant.

                   Goldwater & Associates, of Chicago (Ben Goldwater, of counsel), for
                   appellee.



Panel              JUSTICE HARRIS delivered the judgment of the court, with opinion.
                   Presiding Justice Delort and Justice Cunningham concurred in the
                   judgment and opinion.
                                                 OPINION

¶1       Plaintiff, Steven Toushin, brought a declaratory judgment action against defendants, First
     Merit Bank (First Merit)1 and Gina Ruggiero (defendant), in which he asked the circuit court
     to declare that he had a 50% beneficial interest in two Illinois land trusts in which First Merit
     served as trustee and defendant possessed the remaining beneficial interest. Plaintiff based
     his claim on two assignments of beneficial interest, both dated February 16, 1994, in which
     he claims defendant assigned 50% of the beneficial interest in each trust to him. First Merit
     refused to lodge the assignments when plaintiff first presented them in April of 2013, citing
     the age of the assignments and noting that a dispute existed between plaintiff and defendant
     regarding the validity of the assignments.
¶2       After a bench trial, the circuit court found in plaintiff’s favor and entered a declaratory
     judgment finding that plaintiff may lodge, and First Merit shall accept, the assignments of
     beneficial interest. Defendant presented numerous affirmative defenses to plaintiff’s action,
     including that the cause of action was barred by the five-year statute of limitation period
     provided for in section 13-205 of the Illinois Code of Civil Procedure (Code). 735 ILCS
     5/13-205 (West 2012). In rejecting defendant’s statute of limitation affirmative defense, the
     circuit court found that no events adverse to plaintiff’s interests occurred until he attempted
     to lodge the assignments of beneficial interest in April of 2013, well within the five-year
     limitation period of section 13-205.
¶3       Defendant raises the following issues for our review: (1) whether the circuit court erred in
     entering a declaratory judgment against her; (2) whether plaintiff’s claims are time-barred
     pursuant to section 13-205 of the Code (id.); (3) whether plaintiff’s claims are barred by the
     doctrine of res judicata; (4) whether the circuit court should have dismissed plaintiff’s claim
     pursuant to the doctrine of collateral estoppel; (5) whether the circuit court failed to apply the
     doctrine of judicial estoppel; (6) whether plaintiff’s evidence of a prior adjudication defeats
     his claim; (7) whether the circuit court erred in denying defendant’s motion to dismiss
     pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2012)); and (8) whether
     the circuit court erred when it denied defendant’s motion for summary judgment. Due to our
     conclusion in this matter, however, we only need to address defendant’s contention that
     plaintiff’s claim is time-barred pursuant to the statute of limitations period provided for in
     section 13-205 of the Code. 735 ILCS 5/13-205 (West 2012). Accordingly, we hold
     plaintiff’s cause of action in this case is time-barred because the evidence at trial showed that
     plaintiff knew, or at the very least should have known, of the existence of his injuries outside
     of the five-year limitation period provided for in section 13-205 of the Code.

¶4                                       JURISDICTION
¶5      On October 14, 2014, the circuit court entered a declaratory judgment in plaintiff’s favor.
     The court reserved ruling on defendant’s counterclaims, and, regarding its entry of a
     declaratory judgment, found “no just reason for delaying either enforcement or appeal or
     both” pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) (allowing this court

         1
          Despite filing an appearance before the circuit court, First Merit Bank did not actively participate
     in the proceedings and has not participated in this appeal. We will refer to defendant Gina Ruggiero as
     defendant and defendant First Merit Bank as First Merit.

                                                     -2-
     to review judgments as to fewer than all of the claims or parties when such a finding is made
     by the circuit court). On October 15, 2014, defendant timely appealed. Accordingly, we have
     jurisdiction pursuant to Illinois Supreme Court Rule 304(a). Id.

¶6                                          BACKGROUND
¶7       On April 15, 2013, plaintiff filed a verified complaint against defendants. Relevant to this
     appeal, plaintiff asked for declaratory relief based on two assignments of beneficial interest
     he possessed that he alleged assigned him 50% of the beneficial interest in two Illinois land
     trusts that held title to property commonly known as 1349 and 1365 North Wells Street in
     Chicago, Illinois. First Merit, as trustee, held title to the properties in the trusts as follows: in
     trust number 78-03-2431, created March 16, 1978, it held title to 1349 North Wells Street;
     and in trust number 88-03-5438, created March 5, 1988, it held title to 1365 North Wells
     Street. Plaintiff alleged that defendant acquired 100% of the beneficial interest to the trusts in
     1978 and 1988 “by virtue of the [p]laintiff providing her and her husband, Angelo Ruggiero,
     with ownership of said beneficial interests, in a fiduciary capacity since the [p]laintiff, for
     reasons well known to the individual [d]efendant, were not intended to be made permanent.”
     Plaintiff alleged that Angelo Ruggiero, in turn, transferred his interest in the trusts to
     defendant, Angelo’s wife. Plaintiff alleged that the transfer documents, as well as the trust
     documents creating the trusts, were lost or misplaced.
¶8       In his complaint, plaintiff further alleged that “[f]rom their inception, [he] paid all the
     expenses in connection with the properties held in the said [t]rusts, including the debt service
     on the mortgage, real estate taxes, insurance and maintenance and/or improvements to the
     property.” Plaintiff and defendant own the Festival Theater Corporation which operates the
     Bijou Theater. Plaintiff alleged defendant later assigned him 50% of the beneficial interest in
     the trusts as consideration for plaintiff’s expenditures, maintenance, and expenses related to
     the properties. Plaintiff alleged that “[f]or reasons best known to the individual parties ***
     the [a]ssignments were not submitted to the [t]rustee for acceptance until April 1, 2013.” On
     that date, plaintiff’s attorney sent the assignments to First Merit for acceptance, which First
     Merit declined to honor on April 5, 2013. Plaintiff alleged that “[o]n information and belief
     *** [defendant] has found a prospective purchaser for the properties held in said [t]rusts; that
     she intends to convey the property to said purchaser without disclosing or recognizing [his]
     interest in said properties.” Accordingly, plaintiff asked that the circuit court enter a
     declaratory judgment pursuant to section 2-701 of the Code (735 ILCS 5/2-701 (West 2012))
     declaring the February 16, 1994, assignments giving him a 50% beneficial interest in both
     trusts are valid, have full force and effect, and were made with adequate consideration.
     Plaintiff asked that the circuit court direct and order First Merit to recognize his interest, as
     well as for damages “as the Court may deem appropriate.”
¶9       In support of his complaint, plaintiff attached the two assignments, a letter from his
     attorney to First Merit, and a letter in response from First Merit. The letter from plaintiff’s
     attorney indicates that plaintiff attempted to lodge the assignments with First Merit on April
     1, 2013. First Merit, however, refused to accept the assignments, stating the assignments
     “bear a date from nearly 20 years ago and are the subject of a heated dispute between the
     original beneficiary and your client.” First Merit did indicate, however, that it would accept
     the assignments “[u]pon provision of a court order resolving the legitimacy of the assignment
     or consent from the current beneficiary.”

                                                   -3-
¶ 10        The single page assignments of beneficial interest are both dated February 16, 1994, and
       with the exception of the name of the individual trust involved, are nearly identical.
       Specifically, the first assignment provides as follow:
                   “For value received I hereby sell, assign, transfer and set over unto [plaintiff]
               Fifty (50%) per cent [of] my rights, powers, privileges and beneficial interest in and
               under that certain trust agreement dated the 5th day of March *** 1988, and known as
               the The Midwest Trust Services, Inc. Trust Number 88-03-5438, including all interest
               of the undersigned in the property held subject to said trust agreement.
                   The power of direction under this trust hereafter shall be exercised by [plaintiff],
               [defendant].”
¶ 11        The second assignment is nearly identical to the first, except for that the trust listed is
       “Trust Number 78-03-2431” and is from March 16, 1978. Defendant signed the assignments,
       and plaintiff signed under a section titled “Acceptance.” On both assignments, the section
       titled “Trustee’s Receipt” is blank.
¶ 12        On September 27, 2013, defendant filed a motion to strike and dismiss plaintiff’s
       complaint pursuant to section 2-619.1 of the Code. 735 ILCS 5/2-619.1 (West 2012).
       Relevant here, defendant sought dismissal of plaintiff’s declaratory judgment action pursuant
       to the five-year statute of limitations period provided for in section 13-205 of the Code. 735
       ILCS 5/13-205 (West 2012). On January 16, 2014, the circuit court denied defendant’s
       motion to dismiss plaintiff’s claim for declaratory relief.
¶ 13        Defendant filed a four-count counterclaim, seeking that her own declaratory judgment be
       entered regarding her claim to possess 100% of the beneficial interest in both trusts.
       Defendant also alleged slander of title, sought an action for possession, and asked the circuit
       court to order an accounting be performed.
¶ 14        On March 7, 2013, defendant filed an answer to the complaint. Relevant here, she argued,
       as an affirmative defense, that plaintiff’s claim was time-barred pursuant to section 13-205 of
       the Code. Id.
¶ 15        On May 23, 2014, defendant filed a motion for summary judgment and a motion to
       appoint a receiver. On July 3, 2014, the circuit court denied defendant’s motion for summary
       judgment and ordered that the motion for an appointment of a receiver be taken with the
       case.

¶ 16                                                Trial
¶ 17       At trial, plaintiff testified on his own behalf and called defendant, defendant’s husband
       Angelo Ruggiero, and Roseann Dupass, the vice president and trust officer at First Merit, as
       witnesses.
¶ 18       Plaintiff testified that he gained ownership of the property at 1349 North Wells Street as a
       result of litigation against his business partners in the late 1970s. Angelo Ruggiero,
       defendant’s husband and a licensed attorney, represented plaintiff in the litigation. In 1983,
       plaintiff received 11 subpoenas from the Internal Revenue Service. Angelo advised plaintiff
       that it would be in his best interest to transfer some of his interest in the property located at
       1349 North Wells Street to him. Angelo told plaintiff that in order to protect the property
       from the imposition of a tax lien, he should transfer 50% of his beneficial interest in the land
       trust holding title to 1349 North Wells Street. Accordingly, plaintiff assigned 50% of the

                                                   -4-
       beneficial interest in the land trust holding title to 1349 North Wells Street to Angelo.
       Plaintiff successfully entered into evidence an assignment dated April 4, 1983, which
       assigned a 50% interest in trust 78-03-2431 to Angelo.
¶ 19       Plaintiff testified that in January or February of 1984, Angelo told him that as his partner
       in Festival Theatre Corporation, he would purchase the property located at 1365 North Wells
       Street on his behalf because plaintiff could not obtain a mortgage. Plaintiff explained that
       “Angelo said, you can’t get a mortgage. I could help with you *** later on. I’ll purchase the
       building. It’s your building. I’ll purchase it. That’s exactly what transpired.” Angelo
       purchased the building around April 1, 1984.
¶ 20       Plaintiff testified he moved his business into 1365 North Wells Street, where he has
       remained since that time. Plaintiff testified that he and Angelo prepared leases for the
       property, which “were drawn up for the bank’s purposes because they held the mortgage and
       then they were–moneys that paid the mortgages came through me.” Specifically, they came
       “[t]hrough the payments of corporation, tenants of the building.”
¶ 21       Regarding the assignments at issue here, plaintiff testified that on February 16, 1994, he
       spoke with defendant and Angelo in the kitchen of their home at around eight at night.
       According to plaintiff, defendant handed him the assignments, and he observed defendant
       sign the assignments. The assignments, however, were not dated, did not indicate the power
       of direction, did not acknowledge the collateral assignee, or include his name, address, or
       social security number. In 2013, plaintiff added the above information to the assignment,
       including the language indicating that he and defendant possessed the power of direction.
       Plaintiff explained that when he went to lodge the assignments in 2013, the trustee, First
       Merit, refused to accept them.
¶ 22       Plaintiff testified that Angelo represented him in numerous legal matters, including tax
       disputes. He denied owing Angelo fees for his legal work. Plaintiff pled guilty to various tax
       charges, and was incarcerated for a period of 18 months. Plaintiff also lost a civil tax case in
       the 1990s, in which Angelo was involved in his representation, and was assessed a penalty of
       “7 or $800,000.” The government never collected and did not try to levy his assets. Plaintiff
       testified that in 1988, he faced a potential 45-year prison term when Angelo advised him that
       he should transfer the remaining 50% beneficial interest in the land trust holding title to 1349
       North Wells Street to him. Plaintiff explained that Angelo told him “if you don’t get out of
       this alive, if you don’t get out of this, you have lost everything. If you turn the remaining
       50% over to me of what you owe, depending on the conviction, you get convicted, I could
       sell the assets and I could set something up for your children.” Plaintiff agreed to Angelo’s
       arrangement to transfer the remaining 50% of his interest in 1349 North Wells Street to
       Angelo for legal fees. Angelo then drew up documents giving plaintiff back the property with
       defendant’s signature on it. By 1988, he had given up 100% of the beneficial interest in 1349
       North Wells Street. Plaintiff was also a party to two divorce proceedings. Plaintiff explained
       that, based on Angelo’s advice, he testified during the divorce proceedings that he did not
       have an interest in either trust.
¶ 23       Plaintiff testified that he “sat down in 2006 with Angelo and just said here’s money that
       is owed us, what have you been doing for the building. Here are all these loans that have
       been going on. Number one, I realized I was not in a good situation. I hadn’t filed the
       [assignments of beneficial interest].” Plaintiff testified that he had other assignments from
       defendant giving him 100% of the beneficial interest in the trusts, but, as a compromise, he

                                                  -5-
       was only going forward on the 1994 assignments giving him a 50% beneficial interest in the
       trusts.
¶ 24        In 2013, plaintiff had a series of meetings with Angelo and defendant regarding selling
       the property. He also had meetings with defendant’s children who “indicated to me that the
       paper that the [assignments of beneficial interest] was written on was not worth a penny, had
       no value whatsoever.” The children, however, did not deny the existence of the assignments
       or indicate that the signatures were not legitimate.
¶ 25        On cross-examination, defense counsel asked plaintiff if he remembered being sued in a
       2000 mortgage foreclosure matter, No. 2000 CH 07074, concerning both trusts, to which he
       first responded “I didn’t get sued.” He later stated that he did not remember being sued.
       When shown a document showing that a summons was returned with his name on it, plaintiff
       answered, “If it says I got it, I got it.” When shown that the return of service was filed on
       June 2, 2000, plaintiff responded, “[t]hen I received it then.” When asked “[w]ould you agree
       with me that if that case were not successfully resolved, that you and your companies could
       have lost your interest in the property?” to which he responded, “[e]veryone would have lost
       their properties, yes.”
¶ 26        Defendant successfully entered into evidence both the mortgage foreclosure summons
       and the mortgage foreclosure complaint. The summons, dated May 9, 2000, lists plaintiff as a
       defendant. The mortgage foreclosure complaint indicated that it was filed on May 9, 2000,
       against the following defendants: Angelo Ruggiero; defendant; Midwest Bank and Trust
       Company, as Trustee under Trust Agreement dated March 16, 1978 and known as Trust No.
       78-03-2431; Midwest Bank and Trust Company, as Trustee under Trust Agreement dated
       March 5, 1988, and known as Trust No. 88-03-5438; plaintiff; Festival Theatre Corp.;
       Images of the World, Ltd.; unknown owners and non-record claimants. The mortgages and
       the notes are attached to the complaint, and are dated June 22, 1999. The amount of original
       indebtedness secured by each mortgage is listed as $725,000. The complaint lists the trusts as
       mortgagors but Angelo and defendant as personally liable for a deficiency because they
       signed the notes securing the mortgages. The mortgages were signed by the trustee.
¶ 27        Plaintiff also admitted that “between 2004, 2005” he learned about a new mortgage taken
       out by defendant in 2003. He was “[a]nnoyed” by the mortgage. He explained, “I expressed
       to them that I was annoyed. If you’re going to take out a loan, why don’t you come to me,
       why don’t you talk to me. Restructure it differently, instead of putting everything on
       mortgages and keep paying a large sum of money over a long period of time. It’s much easier
       way to pay back loans than do that.”
¶ 28        On redirect examination, plaintiff’s counsel brought up the foreclosure action in the
       following exchange:
                    “Q. what happened to the foreclosure action which is defense exhibit Number 30?
                    A. I don’t know because I wasn’t involved in that. I must have received it. I was
                not brought into the case.
                    After–when I looked at the document, my questioning was at a certain point in
                time that the money was put into the account, so I have no idea what happened to the
                money from that account or whether there should be a foreclosure at that point in
                time.
                    Q. Were the properties foreclosed upon?


                                                  -6-
                    A. No, they were not.”
¶ 29        Defendant testified that plaintiff had been to her home five or six times and that he went
       to her daughter’s wedding. When asked whether the signatures on the February 16, 1994,
       assignments were hers, she responded “I don’t know. It looks like my signature, but, again, I
       don’t know.” Defendant could not remember if plaintiff came to her home on February 16,
       1994. She denied assigning any interest in the trusts to plaintiff, stating they were gifts from
       her husband that she would never give to plaintiff. On cross-examination, she testified she is
       not actively involved in the management of the buildings and Angelo did not tell her about
       his clients. She both denied that the alleged February 16, 1994, meeting occurred and
       testified that she could not remember if plaintiff came to her home on that date.
¶ 30        Roseann Dupass testified she worked at First Merit. In 2013, plaintiff presented her with
       an assignment. The assignment, however, had “nothing filled in other than [plaintiff’s]
       signature.” She informed plaintiff that all parties had to sign the document. Plaintiff later
       brought her a signed assignment, but defendant’s family had informed her that they disputed
       the assignments. She testified that the blank assignment had defendant’s signature on it.
¶ 31        Angelo Ruggiero, defendant’s husband, testified that he represented plaintiff, who he
       described as both a friend and a client, in a 1975 dispute. As a result of a settlement, plaintiff
       received the real estate commonly known as 1349 North Wells Street, $150,000 worth of
       film, and a property in Indianapolis. Angelo placed the real estate at 1349 North Wells Street
       in a land trust with plaintiff owning 100% of the beneficial interest. Angelo denied meeting
       with plaintiff on February 16, 1994. Subsequently, plaintiff assigned him half of the
       beneficial interest in the property at 1349 North Wells Street, half of the Indianapolis
       property, and half of $150,000 worth of film. Angelo testified he bought the property located
       at 1365 North Wells Street himself. Angelo testified that as a tenant, plaintiff’s lease
       provided that he pay all mortgages, taxes, and maintenance. Angelo denied that he ever
       advised plaintiff to conceal his ownership interest in the trusts. Angelo admitted that 10 years
       prior to trial, he had been suspended from the practice of law for one year.
¶ 32        At the close of evidence, defendant moved for judgment as a matter of law. Relevant
       here, defendant argued that plaintiff’s claim was barred by the statute of limitations. The
       court denied the motion, finding the statute of limitations did not run until First Merit refused
       to lodge the assignments.
¶ 33        Defendant presented testimony from plaintiff, and her son Michael Ruggiero. During
       defendant’s case, plaintiff testified that he never tried to lodge the 1994 assignments at issue
       “[b]ecause [he] never thought of it.” He later testified both that he never thought “it was
       necessary,” and that he had an agreement with defendant and her husband. Regarding the
       foreclosure action, plaintiff testified that “I got served with something, and then it went back
       to Angelo, and he took care of it. No money was paid into those mortgages. What he did with
       the money I don’t know.” He explained that “the Ruggieros *** were taking care of the
       problem.” In response to questioning from the court, plaintiff admitted that he knew about
       the mortgages and he knew that he did not sign the mortgages. When the court asked if “the
       Ruggieros ha[d] your permission to take out the mortgages,” plaintiff answered, “[n]ot to
       refinance them, no.” He clarified that he and Angelo took out the original mortgage.
       Regarding the refinancing, he testified he “was not privy to any information until 2004.” He
       later testified that he did not file his 1994 assignments because “I didn’t feel I had to. I had it.
       I felt comfortable with it. I didn’t file it until I felt threatened, and that was now.”

                                                    -7-
¶ 34       Michael Ruggiero testified he met with plaintiff who showed him blank assignment
       forms.
¶ 35       The circuit court found plaintiff to be a more credible witness than defendant and her
       husband as to what occurred with the assignments of beneficial interest. Specifically,
       plaintiff’s testimony “matched better” with his documented divorce and tax litigation than the
       defendant’s claims regarding legal fees. The circuit court found defendant to be incredible.
       The court found that it was her signature on the assignments, and noted that she did not
       dispute the validity of her signature. Regarding the statute of limitations defense, the court
       found that it did “not think that anything adverse to [plaintiff’s] purported interest occurred
       until he tried to lodge the assignments, the trustee refused and the Ruggieros apparently
       instructed the trustee not to accept the assignments.”
¶ 36       On October 14, 2014, the circuit court entered its judgment order finding in favor of
       plaintiff and against defendant and First Merit. The court entered a declaratory judgment
       finding that plaintiff may lodge the assignments of beneficial interest dated February 16,
       1994, and that First Merit shall permit the lodging. Pursuant to Illinois Supreme Court Rule
       304(a), the court found no just reason to delay enforcement or appeal of its declaratory
       judgment.

¶ 37                                            ANALYSIS
¶ 38       Defendant argues that plaintiff’s claim for declaratory relief is barred by section 13-205
       of the Code (735 ILCS 5/13-205 (West 2012)) because plaintiff knew, or should of known,
       of his claim more than five years before he filed the present action in April of 2013.
       According to defendant, plaintiff’s cause of action can be characterized as either an action
       regarding personal property or “civil actions not otherwise provided for” under section
       13-205 of the Code. Id. Defendant points to the following facts in the record in support of her
       argument: plaintiff was a defendant in a 2000 mortgage foreclosure action; plaintiff testified
       he learned in 2004 that defendant placed a mortgage on the property; and plaintiff met with
       defendant’s husband in 2006 in an attempt to reconcile the parties’ disagreement over the
       ownership of the property. Accordingly, defendant argues that the five-year limitation period
       of section 13-205 of the Code bars plaintiff’s cause of action for declaratory relief. Id.
¶ 39       In response, plaintiff argues that any statute of limitation here could only begin to run
       against him when he attempted to lodge the assignments of beneficial interest in the trusts
       with the trustee in 2013, a time within the statute of limitations. Plaintiff disputes the
       relevance of the 2000 mortgage foreclosure proceeding against him, arguing that no harm fell
       upon him, he was only named in the proceedings because he resided at the property, and the
       mortgages at issue were subsequently reinstated. Plaintiff stresses that defendant failed to cite
       any authority that would require him to lodge his assignments of beneficial interest within a
       certain time frame. In distinguishing authority relied upon by defendant, plaintiff maintains
       that “[t]he case at bar involved neither tort issues [n]or breach of contract issues.”
¶ 40       An Illinois land trust is a “unique” type of trust “created by the Illinois bar, with the aid
       and acceptance of the Illinois bench, in the nineteenth and early twentieth centuries.” Stable
       Investments Partnership v. Vilsack, 775 F.3d 910, 912 (7th Cir. 2015). Land trust agreements
       are widely used in real estate transactions and allow for both secrecy of ownership and ease
       of transferability. People v. Chicago Title & Trust Co., 75 Ill. 2d 479, 488 (1979). Under
       such an agreement, the true ownership of the land in question remains with the beneficiary

                                                   -8-
       despite the trustee holding both legal and equitable title. Podvinec v. Popov, 168 Ill. 2d 130,
       137 (1995). A trustee of an Illinois land trust acts only as a representative of the beneficiary,
       and only when directed to do so by the beneficiary, for the beneficiary’s benefit. Id.
       Therefore, “[o]utside of relationships based on legal title, the trustee’s title has little
       significance.” Id.
¶ 41       It is well established that a beneficiary of an Illinois land trust possesses an interest in
       personal, not real property. In re Estate of Alpert, 95 Ill. 2d 377, 382 (1983). Therefore, “[a]n
       assignment of a beneficial interest does not give the assignee a direct interest in the realty res
       of the trust.” Id. Outside of holding title, however, the beneficiary exercises and manages all
       rights of ownership. 23-25 Building Partnership v. Testa Produce, Inc., 381 Ill. App. 3d 751,
       755 (2008). Specifically, “[t]he ‘owner of a beneficial interest in a land trust is accorded four
       basic powers: (1) to possess, manage and physically control the real estate; (2) to receive all
       income generated by the property; (3) to direct the trustee in dealing with title to the real
       estate; and (4) to receive the proceeds of any sale of the property made pursuant to the power
       of direction.’ ” La Salle National Bank v. 53rd-Ellis Currency Exchange, Inc., 249 Ill. App.
       3d 415, 429-30 (1993) (quoting Patrick v. Village Management, 129 Ill. App. 3d 936, 939
       (1984)).
¶ 42       Statutes of limitation “discourage the presentation of stale claims and *** encourage
       diligence in the bringing of actions.” Sundance Homes, Inc. v. County of Du Page, 195 Ill. 2d
       257, 265-66 (2001). They “represent society’s recognition that predictability and finality are
       desirable, indeed indispensible, elements of the orderly administration of justice.” Id. at 266.
       A defendant, therefore, may invoke a particular statute of limitations as an affirmative
       defense to a cause of action. Doe A. v. Diocese of Dallas, 234 Ill. 2d 393, 413 (2009). The
       appropriate statute of limitations to apply to a cause of action “is determined by the nature of
       the plaintiff’s injury rather than the nature of the facts from which the claim arises.” Id.
       Stated differently, the nature of the liability determines the appropriate statute of limitations.
       Travelers Casualty & Surety Co. v. Bowman, 229 Ill. 2d 461, 469 (2008). Accordingly, we
       must “look behind the allegations in a complaint to discover the true character of plaintiffs’
       cause of action.” Armstrong v. Guigler, 174 Ill. 2d 281, 290 (1996). Therefore, type of injury,
       and not the pleader’s designation of the nature of the action, controls our determination. Id. at
       286.
¶ 43       Illinois courts “have held that a statute of limitation begins to run when the party to be
       barred has the right to invoke the aid of the court to enforce his remedy.” Sundance Homes,
       Inc., 195 Ill. 2d at 266. “Stated another way, a limitation period begins ‘when facts exist
       which authorize one party to maintain an action against another.’ ” Id. (quoting Davis v.
       Munie, 235 Ill. 620, 622 (1908)). Under the discovery rule, however, the commencement of
       the applicable statute of limitations is delayed “ ‘until the plaintiff knows or reasonably
       should know that he has been injured and that his injury was wrongfully caused.’ ”
       Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 77 (1995) (quoting Jackson
       Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 249 (1994)). When a plaintiff knows,
       or should know, such information, “the statute begins to run and the party is under an
       obligation to inquire further to determine whether an actionable wrong was committed.”
       (Internal quotation marks omitted.) Id. at 86. The discovery rule developed in order to avoid
       harsh results due to the literal application of statutes of limitation. Id. at 77. Whether a statute



                                                    -9-
       of limitations applies to a cause of action is a legal question subject to de novo review.
       Travelers Casualty & Surety Co., 229 Ill. 2d at 466.
¶ 44        In this matter, plaintiff filed a declaratory judgment action pursuant to section 2-701 of
       the Code, which allows the circuit court to, “in cases of actual controversy, make binding
       declarations of rights, having the force of final judgments.” 735 ILCS 5/2-701 (West 2012).
       “The essential requirements of a declaratory judgment action are: (1) a plaintiff with a legal
       tangible interest; (2) a defendant having an opposing interest; and (3) an actual controversy
       between the parties concerning such interests.” Beahringer v. Page, 204 Ill. 2d 363, 372
       (2003). Section 2-701 “is strictly remedial” and “does not create substantive rights or duties,
       but merely affords a new, additional, and cumulative procedural method for the judicial
       determination of the parties’ rights.” Id. at 373. Its purpose “is to allow the court to address a
       controversy one step sooner than normal after a dispute has arisen, but before the parties take
       steps that would give rise to a claim for damages or other relief.” Universal Underwriters
       Insurance Co. v. Judge & James, Ltd., 372 Ill. App. 3d 372, 379 (2007). Plaintiff, therefore,
       alleged that defendants’ failure to recognize his interest in the trusts “causes [him] irreparable
       damage.” Accordingly, he asked the circuit court to declare that the February 16, 1994,
       assignments giving him a 50% beneficial interest in each trust “are valid, are in full force and
       effect and were made for a full and adequate consideration.” He further asked the court to
       order First Merit to recognize his interest and for damages “as the Court may deem
       appropriate.”
¶ 45        In response, defendant invoked section 13-205 of the Code as an affirmative defense to
       plaintiff’s declaratory judgment action. 735 ILCS 5/13-205 (West 2012). Section 13-205
       provides, in relevant part, that “actions on unwritten contracts, expressed or implied, or on
       awards of arbitration, or to recover damages for an injury done to property, real or personal,
       or to recover the possession of personal property or damages for the detention or conversion
       thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years
       next after the cause of action accrued.” (Emphasis added.) Id. Specifically, defendant argued
       that plaintiff’s action is barred because it is an action for personal property and because it is a
       civil action “not otherwise provided for” as stated in section 13-205. Id.
¶ 46        Initially, we hold that section 13-205 of the Code is the appropriate statute of limitations
       to apply in this matter based on the nature of plaintiff’s alleged injury in this case. The nature
       of plaintiff’s alleged injury is that defendant’s actions prevented him from receiving the
       benefits of owning a percentage of the beneficial interests in the land trusts at issue here. As a
       beneficiary of the land trusts, plaintiff would be entitled: “ ‘(1) to possess, manage and
       physically control the real estate; (2) to receive all income generated by the property; (3) to
       direct the trustee in dealing with title to the real estate; and (4) to receive the proceeds of any
       sale of the property made pursuant to the power of direction.’ ” La Salle National Bank, 249
       Ill. App. 3d at 429-30 (quoting Patrick, 129 Ill. App. 3d at 939). Furthermore, plaintiff’s
       beneficial interest is personal property. In re Estate of Alpert, 95 Ill. 2d at 382. The evidence
       in the record shows that defendant and her husband directed the trustee to enter into
       mortgage agreements, and later, they attempted to sell the property. These actions infringe
       upon plaintiff’s personal property rights as an owner of 50% of the beneficial interest in the
       trusts because plaintiff’s ownership rights would allow him to share the power of direction
       with defendant in determining how to direct the trustee actions regarding the mortgage
       agreements and potential sale of the properties. Furthermore, the end result of both actions


                                                   - 10 -
       would be that plaintiff, as a beneficiary, would be entitled to a percentage of either the
       mortgage proceeds or the proceeds of sale. Section 13-205 of the Code provides for a
       five-year statute of limitations in “actions *** to recover damages for injury done to
       property, real or personal, or to recover possession of personal property or damages for the
       detention or conversion thereof.” 735 ILCS 5/13-205 (West 2012). Accordingly, we hold that
       section 13-205 of the Code is the appropriate statute of limitations to apply here based on the
       nature of plaintiff’s alleged injury.
¶ 47       Applying section 13-205 of the Code to the evidence presented at trial, we hold that
       plaintiff’s claim for declaratory relief is barred because he knew, or at the very least should
       have known, of the existence of his cause of action outside of the five-year limitation period.
       Id. According to the assignments of beneficial interest possessed by plaintiff, he had a 50%
       beneficial interest in both trusts, with a shared power of direction with defendant, since
       February 16, 1994. He filed his complaint for declaratory relief in this matter in April of
       2013. The evidence at trial showed that in 2000, plaintiff was served as a defendant in a
       mortgage foreclosure action based on mortgages entered into by the trustee with promissory
       notes signed by defendant and her husband. Although plaintiff’s testimony regarding the
       foreclosure suit was initially evasive, he later admitted that he “got served with something.”
       The foreclosure suit threatened his ownership interest and put him on notice that defendant
       had directed the trustee to enter into mortgages secured by the properties held in the trusts.
       Absent from the record is any indication that plaintiff received any of the proceeds from the
       mortgages, despite his ownership interest in the proceeds of the trust. Furthermore, it shows
       that plaintiff could easily have filed his present declaratory action in 2000 in order to secure
       his share of any potential proceeds from the impending foreclosure sale.
¶ 48       Regardless of the 2000 foreclosure suit, plaintiff provided further testimony showing that
       he knew, or should have known, that his ownership interest in the land trusts was threatened
       by defendant’s actions outside of the five-year limitation period of section 13-205 of the
       Code. Id. First, plaintiff testified that “between 2004, 2005” he learned about a new mortgage
       taken out by defendant in 2003. This “[a]nnoyed” him. He testified that “I expressed to them
       that I was annoyed. If you’re going to take out a loan, why don’t you come to me, why don’t
       you talk to me. Restructure it differently, instead of putting everything on mortgages and
       keep paying a large sum of money over a long period of time. It’s much easier way to pay
       back loans than do that.” As plaintiff’s testimony shows, defendant’s actions in taking out a
       mortgage in 2003 infringed upon his ownership rights because plaintiff, as owner of 50% of
       the beneficial interest in both trusts, had 50% of the power to direct the trustee to enter into
       the 2003 mortgage and had the right to a portion of the proceeds of the mortgage. Most
       importantly for our purposes here, plaintiff knew of this information in a time period outside
       of the five-year statute of limitations provided for in section 13-205 of the Code. Id.
¶ 49       Additionally, defendant testified at trial that in 2006, he met with defendant’s husband
       regarding the property. Plaintiff explained that he “sat down in 2006 with Angelo and just
       said here’s money that is owed us, what have you been doing for the building. Here are all
       these loans that have been going on. Number one, I realized I was not in a good situation. I
       hadn’t filed the [assignments of beneficial interest].” Accordingly, the above testimony
       shows that plaintiff knew as early as 2006, another time period outside of the five-year
       limitation period provided for in section 13-205 of the Code, that he “was not in a good
       situation” because he had not lodged the assignments of beneficial interest. Plaintiff’s


                                                  - 11 -
       testimony regarding the time period of 2004 to 2006 show that he knew, or should have
       known, of his injury and its cause. Therefore, he had an obligation of inquiring further into
       the situation. See Hermitage Corp., 166 Ill. 2d at 86 (“We hold, therefore, that when a party
       knows or reasonably should know both that an injury has occurred and that it was wrongfully
       caused, the statute begins to run and the party is under an obligation to inquire further to
       determine whether an actionable wrong was committed.” (Internal quotation marks
       omitted.)). Plaintiff, however, did not do so. Accordingly, his cause of action is barred
       pursuant to section 13-205 of the Code. 735 ILCS 5/13-205 (West 2012).
¶ 50       We disagree with plaintiff’s contention, and the circuit court’s finding, that the statute of
       limitations did not begin to run until plaintiff attempted to lodge the assignments of
       beneficial interest in 2013. The nature of a land trust agreement is that the trustee acts only
       when directed to do so by the beneficiary and for the benefit of the beneficiary. Podvinec,
       168 Ill. 2d at 137. Accordingly, the trustee in this matter did not accept the assignment based
       on the dispute between the parties, as shown by Roseann Dupass’s testimony. Plaintiff’s
       theory of the case is that defendant assigned him the beneficial interests on February 16,
       1994. Based on the assignments, plaintiff and defendant agreed that they would each have
       50% of the beneficial interest in each trust. In a dispute regarding ownership rights of
       beneficial interest holders, the relevant parties are the beneficial interest holders, not the
       trustee who is merely a representative of the beneficiaries. See id. (“Outside of relationships
       based on legal title, the trustee’s title has little significance.”). Therefore, the relevant parties
       to this dispute, plaintiff and defendant, were allegedly in agreement in regard to sharing the
       power of direction of the trusts since 1994. The 1994 assignment would then give the parties
       equal say in how to direct the trustee to act. It follows that plaintiff was put on notice in
       2000, and then later in 2004 or 2005, that defendant was not sharing the power of direction
       when she entered into mortgages secured by the property. Plaintiff testified further that, in
       2006, he “realized [he] was not in a good situation” because he had not lodged the
       assignments. A statute of limitations begins to run “when the party to be barred has the right
       to invoke the aid of the court to enforce his remedy.” Sundance Homes, Inc., 195 Ill. 2d at
       266. Plaintiff could have filed a similar declaratory judgment action in 2000, or in 2004 or
       2005, or even in 2006, to assert his ownership rights, but did not do so. As previously
       discussed, the appropriate statute of limitations is determined by the nature of the liability.
       Travelers Casualty & Surety Co., 229 Ill. 2d at 469. In this matter, the nature of the liability
       is not that the trustee refused to accept the assignments. Rather, the nature of the liability is
       that defendant’s actions are not consistent with the parties’ alleged 1994 agreement to each
       receive a 50% beneficial interest in the land trusts. That beneficial interest, in turn, would
       give plaintiff a 50% interest in the powers and ownership rights accorded to the beneficiary
       of an Illinois land trust.
¶ 51       In conclusion, we stress that we do not intend this decision to be interpreted as placing a
       time limitation for the lodging of assignments of beneficial interests in Illinois land trusts.
       We hold that, under the facts of this case, and the nature of plaintiff’s injury here, plaintiff
       knew, or should have known, of his injury outside the statute of limitations provided for in
       section 13-205 of the Code. 735 ILCS 5/13-205 (West 2012). The circuit court concluded
       that plaintiff had indeed met his burden of proof regarding his right to a 50% beneficial
       interest in the property, but the court’s analysis could not end there. The statute of limitations
       as applied to the facts had to be a factor in the court’s analysis. Furthermore, although the


                                                    - 12 -
       circuit court clearly believed that plaintiff had the better part of the argument and that
       defendant actively sought to take plaintiff’s 50% beneficial interest unjustly, we must accept
       the facts as we find them. Specifically, in this case, regardless of the chicanery by defendant,
       plaintiff had many opportunities to meet the statutory obligations in order to protect his
       interest and yet he failed to do so within the time allowed by section 13-205 of the Code. Id.
       Indeed, defendant admits as much and put the circuit court on notice by filing an affirmative
       defense. In short, the defendant’s affirmative defense essentially says, even if plaintiff had
       the 50% beneficial interest that he claims, he has forfeited that interest. Understandably, the
       circuit court found this unjust and sought to give plaintiff his rightful share. Accordingly,
       defendant’s affirmative defense presented sufficient evidence supporting our holding that
       plaintiff, knew, or at the very least should have known, of his injury outside of the statute of
       limitations.

¶ 52                                       CONCLUSION
¶ 53      The judgment of the circuit court of Cook County is reversed, and the cause is remanded.

¶ 54      Reversed and remanded.




                                                  - 13 -
