A woman alleging her brother forged her signature in a quit claim deed conveying her interest in property they jointly owned in Bond County to him has filed a motion to reconsider a Feb. 21 order dismissing remaining claims of her lawsuit.
Plaintiff Jane Childerson filed her suit in April 2013 against her brother Kenneth R. Childerson, who died on Jan. 7, 2012, and her brother’s estate. She also blamed notary Phyllis Langenhorst for accepting the forged signature as authentic in 1992, which resulted in the release of her interest in the property. She also accuses the Highland law firm Johannes & Marron PC, which employed Langenhorst.
Mudge had previously granted a defense motion to transfer and/or dismiss a claim related to the quit claim deed, after defense successfully argued that venue of the title claim must be decided in the county in which the real estate is located – Bond County.
Mudge filed his order granting dismissal the remaining claims on Jan. 22, based on the statute of repose.
Citing a 2001 appellate court decision, Ferguson v McKenzie, Mudge wrote that the statute of repose provides that a lawsuit is time-barred if filed more than six years after the date on which it occurred.
“…[A] statute of repose extinguishes the action itself after a fixed period of time, regardless of when the action accrued," Mudge had written. "Unlike a statute of limitations, which begins running upon accrual of a cause of action, a statute of repose begins running when a specific event occurs, regardless of whether an action has accrued or whether any injury has resulted. A statute of repose gives effect to a policy different from that advanced by a statute of limitations; it is intended to terminate the possibility of liability after a defined period of time, regardless of a potential plaintiff’s lack of knowledge of his or her cause of action.”
Childerson filed her motion to reconsider on Feb. 21 through attorney Roy C. Dripps, arguing that there are at least two mistakes of law in Mudge's Jan. 22 order.
Dripps claims the order cites 735 ILCS 5/13-214.3(c) in its argument that an action is time-barred if filed more than six years after it occurred. However, he says the order is quoting the version of the statute that was previously held unconstitutional in Best v Taylor.
“The constitutional version of the statute contains an exception that is not part of the unconstitutional version of the statute quoted in the Order. That exception is ‘Except as provided in subsection (d).’ Subsection (d) states, ‘When the injury caused by the act or omission does not occur until the death of the person for whom the professional services were rendered, the action may be commenced within 2 years after the date of the person’s death…’” the motion states.
Therefore, Dripps argues the statute of repose does not bar the plaintiff’s claim.
The second mistake Dripps claims is that the order "confuses the issue of whether there are statutory exceptions to a statute of repose with whether a statute of repose can be tolled. These are distinct concepts."
Dripps cites Rule 735 ILCS 5/13-215 which provides, “’If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he or she has such cause of action, and not afterwards.’”
The Illinois Supreme Court held in 2006 that when a claim has been fraudulently concealed, which was made clear by the complaint and amended complaint in this case, the statute of repose contained in 735 ILCS 5/13-214.3(c) does not apply in light of 735 ILCS 5/13-215, Dripps argues.
“Finally, plaintiff notes that Count II was directed at a notary public, while Count III was directed at a law firm’s supervision of the notarization service. While that notarization occurred at a law firm, it could just as easily have been performed at a bank or anywhere else,” the motion states.
Barry S. Noeltner, Kent L. Plotner and Neil A. Schonert of Heyl Royster in Edwardsville represents the defendants.
Madison County Circuit Court case number 13-L-677