Guarantee Trust Life Insurance Co. v. Kribbs ( 2016 )


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  •                                   
    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
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    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
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    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
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    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
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    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.
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