NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
2025 IL App (3d) 240640-U
Order filed October 27, 2025 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
CHARLES H. LANDWER, Appeal from the Circuit Court of the Eighteenth Judicial Circuit, Plaintiff-Appellant, Du Page County, Illinois.
v. Appeal No. 3-24-0640 Circuit No. 18-L-1005 DELUXE TOWING, INC., The Honorable Defendant-Appellee. Robert G. Gibson, Judge, Presiding. ____________________________________________________________________________
JUSTICE ANDERSON delivered the judgment of the court. Justices Peterson and Davenport concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: The trial court’s dismissal of plaintiff’s second amended complaint is reversed, and the case is remanded for evidentiary hearings on whether equitable tolling or fraudulent concealment will toll the statute of limitations.
¶2 Plaintiff Charles H. Landwer’s trailer, tools, and equipment went missing and were
reported as having been stolen to the Hanover Park, Illinois, police in March 2007. Defendant
Deluxe Towing, Inc., towed and took possession of the trailer in early 2007. Landwer became
aware Deluxe might have those items in 2016 and filed suit against Deluxe in 2018 seeking to recover them. The trial court dismissed the suit as barred by the statute of limitations, and Landwer
appealed. This court reversed the dismissal and remanded the case for the trial court to hear
evidence on whether, and if so, when, equitable tolling of the limitations period would apply to
allow the suit to proceed. Landwer v. Deluxe Towing, Inc., 2024 IL App (3d) 220077. On remand,
Landwer filed a new second amended complaint that was again dismissed as beyond the statute of
limitations, and Landwer timely appealed. We now reverse and remand the cause for an evidentiary
hearing to determine whether fraudulent concealment occurred and whether equitable tolling of
the statute of limitations is appropriate.
¶3 I. BACKGROUND
¶4 Our prior decision in Landwer, 2024 IL App (3d) 220077, includes a detailed factual
background that need not be repeated here. In essence, in February 2007, Landwer discovered that
his trailer, equipment, tools, and other personal property were missing from his residence. He
reported the items stolen to the Hanover Park police. On March 12, 2007, he filed a police report
with the Hanover Park police, and a supplemental report on March 16, 2007.
¶5 Landwer first became aware of the location of any of his stolen property in spring 2016
when he was notified of a warranty claim being made on equipment that was part of the stolen
property. Landwer contacted the Illinois Secretary of State and was informed in the summer of
2016 that the registered agent and president of Deluxe was attempting to obtain a vehicle title for
the trailer. Landwer unsuccessfully attempted to contact Deluxe in October 2016 by e-mail and
letters to inquire about the trailer. He eventually filed his lawsuit against Deluxe in 2018.
¶6 The trial court dismissed the first amended complaint with prejudice as time barred for
being filed more than five years after the date Landwer became aware of the theft of the trailer.
This court reversed the dismissal and remanded the cause to the trial court to consider whether the
2 statute of limitations should be tolled, and if so, to what date. The majority found that Landwer
had sufficiently pled enough facts, if proved, for equitable tolling of the statute of limitations to
apply. We ordered the trial court “to allow plaintiff to present evidence establishing when, through
the exercise of reasonable diligence, he could have first discovered the defendant possessed his
trailer.” Id. ¶ 28. Specially concurring, Justice McDade agreed on the reversal and remand, but
relied on the plaintiff having pled sufficient facts, if proved, to support a claim of fraudulent
concealment to toll the statute of limitations. Id. ¶ 42 (McDade, J., concurring).
¶7 On remand, Landwer immediately sought and was granted leave to amend his complaint
and filed his second amended verified complaint. That complaint repeats virtually all the
allegations in the first amended complaint, including Landwer’s efforts to discover what had
happened to his stolen property. The second amended complaint also adds new facts and theories,
including additional factual allegations relating to the statute of limitations, the discovery rule, and
fraudulent concealment.
¶8 The second amended complaint’s fraudulent concealment allegations state Deluxe towed
and took possession of Landwer’s trailer, tools, and equipment, and retained possession of the
property without providing notice to anyone. The complaint alleges that, depending on the
circumstances of Deluxe’s tow, various Illinois statutes required it to provide written notice to
Landwer, the owner of the vehicle, that it had towed the trailer, sought a lien on the trailer for fees
owed, and was selling the trailer to recover those fees. Landwer alleges that Deluxe never notified
police that a tow had occurred and that the police never notified Landwer of the tow. Deluxe never
directly notified Landwer, the registered owner of the trailer, by certified mail or any other means
that it held his property, nor did it publish proper statutory notice. Deluxe never inventoried and
reported the property to anyone, obtained new title after conducting a lawful sale of any of the
3 property, accounted for any monies realized from that sale, and never turned over any surplus
funds from any sale that exceeded the towing and storage liens, as required by statute. The
complaint further alleges that Deluxe failed to provide any mandated notice to prevent Landwer
from recovering his property.
¶9 Deluxe filed a motion to dismiss Landwer’s second amended complaint as time-barred
under section 2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(5) (West 2022)).
The motion argued that the complaint did not plead facts sufficient to support equitable tolling
because Landwer was not diligent in seeking information about his stolen trailer and should have
discovered any published notice concerning the trailer in the local newspaper. Deluxe also asserted
that it held the trailer lawfully pursuant to a requested police tow in May 2007.
¶ 10 As support for its motion to dismiss, Deluxe attached an affidavit of its president and keeper
of records stating that the copy of the “Certification of Publication” produced in briefing on the
first amended complaint was the only document on notice by publication in its records. The
affidavit also stated that Deluxe had towed the trailer from West Chicago to Deluxe’s yard at the
request of the Du Page County Sheriff, attaching a “Certificate of Purchase” from its records in
support. The attached “Certificate of Purchase Transferring Ownership of Abandoned, Lost, Stolen
or Unclaimed Vehicles Pursuant to Illinois Compiled Statutes” states that the trailer was towed
from 1N248 Ridgeland in West Chicago and that the tow was authorized by the Du Page County
Sheriff’s Office. It also indicates the trailer was sold to Deluxe on May 25, 2007.
¶ 11 After hearing argument, the trial court granted Deluxe’s motion to dismiss the second
amended complaint with prejudice pursuant to section 2-619(a)(5). Plaintiff timely filed his notice
of appeal. We reverse, again.
¶ 12 II. ANALYSIS
4 ¶ 13 Landwer seeks reversal of the trial court’s dismissal with prejudice of the second amended
complaint as time-barred pursuant to section 2-619(a)(5) (735 ILCS 5/2-619(a)(5) (West 2022)).
Landwer argues that the five-year statute of limitations on his claims for replevin and detinue
should be tolled because Deluxe’s acts and failure to act constitute fraudulent concealment that
prevented him from discovering that it held his property. Landwer further argues that the statute
of limitations should be equitably tolled because, despite using reasonable diligence, he could not
have discovered that Deluxe had possession of his property until 2016.
¶ 14 We begin our analysis by recognizing where our last one finished. In Landwer’s prior
appeal, we found that the first amended complaint had properly pled a basis for the equitable tolling
of the statute of limitations and reversed its dismissal, remanding the cause to the trial court. We
specifically instructed that court to allow Landwer to present evidence on when, through the
exercise of reasonable diligence, he could have discovered that Deluxe possessed his trailer.
Landwer, 2024 IL App (3d) 220077, ¶ 28.
¶ 15 After remand, the trial court did not conduct an evidentiary hearing based on the allegations
in Landwer’s first amended complaint. Instead, the trial court exercised its discretion and allowed
him to file his second amended complaint. That complaint includes significant fact allegations in
addition to those pled in the first amended complaint. Because the second amended complaint
superseded the first amended complaint, we consider only its allegations in determining the
sufficiency of Landwer’s claims. Foxcroft Townhome Owners Ass’n v. Hoffman Rosner Corp., 96
Ill. 2d 150, 154 (1983). Given that a new pleading was filed, our decisions on the prior complaint
are relevant only to the extent those allegations are repeated or incorporated in the subsequent
complaint. Gaylor v. Campion, Curran, Rausch, Gummerson and Dunlop, P.C., 2012 IL App (2d)
5 110718, ¶¶ 35, 36. Here, Landwer repeated nearly all of the allegations in his first amended
complaint but also alleged additional facts.
¶ 16 Deluxe argues that our prior decision means that it is now the “law of this case” that
fraudulent concealment cannot apply to toll the statute of limitations in this dispute. That is
incorrect. As Deluxe acknowledges, our prior decision was based on the lack of allegations in the
first amended complaint that Deluxe acted to prevent the discovery of Landwer’s claim. The first
amended complaint is no longer the operative pleading, however, and the second amended
complaint contains considerable additional allegations. We did not hold that fraudulent
concealment could never be pled nor proven. We must now review the allegations in Landwer’s
second amended complaint to determine if it pleads either fraudulent concealment or equitable
tolling circumstances sufficient to toll the statute of limitations.
¶ 17 A. Section 2-619 Standards
¶ 18 A motion to dismiss under section 2-619 admits the legal sufficiency of the plaintiff’s
complaint but asserts that the claim made against the defendant is barred by some affirmative
matter that avoids the legal effect of, or defeats, the claim. Landwer, 2024 IL App (3d) 220077, ¶
15. The affirmative matter in this case is based on section 2-619(a)(5) and asserts “[t]hat the action
was not commenced within the time limited by law.” 735 ILCS 5/2-619(a)(5) (West 2022). The
parties both agree that the statute of limitations for Landwer’s claims for replevin and detinue is
five years under section 13-205, which governs actions “to recover the possession of personal
property or damages for the detention or conversion thereof.” 735 ILCS 5/13-205 (West 2022).
¶ 19 When reviewing a complaint on a section 2-619 motion to dismiss, this court must accept
all well-pleaded facts as true and view them in the light most favorable to the plaintiff. Porter v.
Decatur Memorial Hospital, 227 Ill. 2d 343, 352 (2008); Gonnella Baking Co. v. Clara’s Pasta di
6 Casa, Ltd., 337 Ill. App. 3d 385, 388 (2003). The court may consider all facts presented in the
pleadings, affidavits, and depositions contained in the record. Id. A section 2-619 motion should
be granted only if the plaintiff cannot prove facts entitling him to relief. Landwer, 2024 IL App
(3d) 220077, ¶ 15. We review de novo whether a circuit court properly granted a motion to dismiss.
Porter, 227 Ill. 2d at 352.
¶ 20 Because dismissing a complaint under section 2-619 is a means of summarily disposing of
issues of law or easily proved issues of fact, any disputed questions of fact preclude dismissal and
are reserved for trial. Kedzie and 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115
(1993). A motion to dismiss must therefore present the sort of supporting proof needed to support
a motion for summary judgment. Id. at 116. Defendant’s proof may consist of affidavits and
verified pleadings, but the movant must present adequate support for the asserted affirmative
matter defense that defeats the plaintiff’s claim or their motion will be denied. Id. If the movant
presents adequate proof to establish the defense, then the burden shifts to the plaintiff to establish
that the defense is unfounded or “requires the resolution of an essential element of material fact
before it is proven.” Id. To establish that the asserted defense is unfounded or that a material
element is unproven, the plaintiff may present counter-affidavits or may present other forms of
proof. Id.
¶ 21 Landwer argues that the five-year statute of limitations should be tolled for his claims
because Deluxe acted to fraudulently conceal its possession of his property and that the limitations
period should be equitably tolled because, even when acting with reasonable diligence, he could
not have discovered that Deluxe held his property until 2016. We will first examine whether
Landwer adequately pled either basis to toll the statute of limitations.
1. Fraudulent Concealment
7 ¶ 22 Fraudulent concealment is a statutory exception to the statute of limitations. Section 13-
215 of the Code of Civil Procedure states: “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 5 years after the person entitled to bring the same discovers that he
or she has such cause of action, and not afterwards.” 735 ILCS 5/13-215 (West 2022). Under the
fraudulent concealment doctrine, the statute of limitations will be tolled if the plaintiff pleads and
proves that fraud prevented discovery of the cause of action. Henderson Square Condominium
Ass’n. v. LAB Townhomes, LLC, 2015 IL 118139, ¶ 36; Clay v. Kuhl, 189 Ill. 2d 603, 613 (2000).
Generally, the concealment necessary to toll the statute of limitations must consist of acts or
representations that prevent a plaintiff from discovering a viable claim. Henderson, 2015 IL
118139, ¶ 38. In our previous decision in this case on those issues, we held that the statute would
be tolled for Landwer’s claims of replevin and detinue until Landwer knew or should have known,
through the exercise of reasonable diligence, that Deluxe possessed his trailer. Landwer, 2024 IL
App (3d) 220077, ¶ 26.
¶ 23 Landwer’s second amended complaint contains numerous additional allegations
concerning Deluxe’s fraudulent concealment. Those additional allegations contain sufficient
details of the specific acts allegedly performed by Deluxe to prevent Landwer from discovering
who possessed his property to remedy the first amended complaint’s previously inadequate
pleading of fraudulent concealment.
¶ 24 The second amended complaint alleges that Deluxe admitted towing Landwer’s trailer and
that Deluxe asserted that it gained possession of the trailer because of a tow request by the Du
Page County Sheriff. Landwer alleges that any tow requested by the police or a private party is
governed by statutes mandating what a towing service must do concerning the towed trailer (625
8 ILCS 5/4-201 et seq. (West 2022)). Landwer also alleges that any reimbursement Deluxe sought
for towing and storage charges was governed by the Labor and Storage Lien Act (770 ILCS
45/0.01 et seq. (West 2022)). Those statutes mandate that the towing service make required
notifications and take specific actions that vary with the circumstances of each tow. Those required
acts may include notification to the requesting police of the tow’s completion, direct written
notifications to the owner of the towed property, the charges for the tow, and any liens being
asserted for those charges. See 625 ILCS 5/4-202, 203(g)(2), 204, 205, 206, 208, 212, 216(a) (West
2022).
¶ 25 Landwer’s second amended complaint alleges that Deluxe never notified the police that it
had taken possession of the trailer and the police never notified him that Deluxe possessed the
trailer. It also alleges that Deluxe never provided him, as the registered owner, with the statutorily
required written notice that it had towed the trailer, nor provided written notice to him, as the
owner, that it was seeking any payment from him, was asserting a lien on his trailer, or was seeking
to sell the trailer. The complaint also alleges that Deluxe never published proper notice of any sale
or lien against his trailer.
¶ 26 In addition, Landwer pleads that he had reported the trailer and equipment as stolen, filed
a report with the Hanover Park police, and contacted the State of Illinois to determine if any of the
stolen items had been registered with a new owner. Landwer alleges that Deluxe failed to follow
the statutory notice provisions so that it could conceal its possession of the trailer and his property.
He further alleges that Deluxe retained possession of the trailer and his property, sold some of the
property, and attempted to gain title to the trailer.
¶ 27 In considering the section 2-619 motion to dismiss, we must accept Landwer’s factual
allegations as true and view them in the light most favorable to Landwer. Gonnella, 337 Ill. App.
9 3d at 388. Landwer’s allegations more than adequately state facts that, if proved, would support
the inference that Deluxe wrongfully failed to provide required notice to Landwer that Deluxe had
the trailer, despite knowing his name and address, and did so deliberately to obtain ownership of
Landwer’s property. Landwer adequately states facts to support the tolling of the statute of
limitations based on fraudulent concealment.
¶ 28 2. Equitable Tolling
¶ 29 Equitable tolling is appropriate when: (1) a defendant has misled a plaintiff; (2) the plaintiff
was prevented from asserting their rights in an extraordinary way; or (3) the plaintiff asserted their
rights in the wrong forum. Clay, 189 Ill. 2d at 614. The extraordinary barriers required to establish
equitable tolling may be an irredeemable lack of information or a plaintiff’s inability to learn the
identity of the proper defendant through the exercise of reasonable diligence. Ralda-Sanden v.
Sanden, 2013 IL App (1st) 121117, ¶ 26.
¶ 30 Landwer realleged all the allegations in his first amended complaint that this court
previously found supported equitable tolling (and that our specially concurring colleague found
adequate to state fraudulent concealment). Landwer, 2024 IL App (3d) 220077, ¶ 42. Landwer
also made additional allegations of deliberate actions by Deluxe, as listed above, to prevent him
from discovering that Deluxe possessed his property.
¶ 31 Landwer has, thus, properly pled sufficient facts, if proven, to support a claim of equitable
tolling of the statute of limitations. In our prior decision in this case, we held that the statute of
limitations would be equitably tolled until Landwer could have discovered through the use of
reasonable diligence that Deluxe possessed his trailer. Landwer, 2024 IL App (3d) 220077, ¶ 28.
¶ 32 B. Evidence of Notice
10 ¶ 33 Landwer has properly pled facts to support both fraudulent concealment and equitable
tolling sufficient to toll the statute of limitations. Deluxe argues that even if facts to support tolling
were properly pled, the statute of limitations may only be tolled until July 2007, when Deluxe
claims it published a notice showing it possessed the trailer. Deluxe argues that the publication of
notice in July 2007 is the time Landwer should have known, through the exercise of reasonable
diligence, that Deluxe possessed the trailer and when the statute of limitations began to run. The
five year statute of limitations would then have ended in July 2012, and, because Landwer did not
file until 2018, the suit is time barred and properly dismissed.
¶ 34 Deluxe’s section 2-619(a)(5) motion to dismiss could be properly granted only if it
presented proof that removed all issues of material fact concerning whether Landwer’s 2018
complaint “was not commenced within the time limited by law.” 735 ILCS 5/2-619(a)(5) (West
2022). This necessarily requires Deluxe to present proof that there is no question of material fact
that proper notice was published in July 2007 that informed Landwer Deluxe possessed the trailer.
If there are unresolved material questions of fact, the motion may not be granted. See Ralda-
Sanden, 2013 IL App (1st) 121117, ¶¶ 17, 26 (statute of limitations equitably tolled when identity
of defendant could not have been found by plaintiff even with exercise of due diligence).
¶ 35 Deluxe thus must present proof that there are no issues of material fact regarding the
publication of notice of the towed trailer to obtain dismissal of Landwer’s complaint. To support
its motion to dismiss, Deluxe proffered affidavits and attached documents on the towing of the
trailer and the publication of notice. After reviewing that evidence, however, we conclude issues
of material fact relating to the notice remain, precluding resolution of the case by a section 2-619
motion to dismiss.
11 ¶ 36 Deluxe’s motion to dismiss included its president’s affidavit, which stated that Deluxe
towed the trailer from West Chicago at the request of the Du Page County Sheriff. Also attached
to the affidavit were two documents from Deluxe’s records: (1) a copy of a “Certification of
Publication” from the Daily Herald newspaper of a notice of sale to enforce a lien on the trailer
showing 2007 publication dates of July 2, 9, and 16, for a sale to be held on July 31, 2007; and (2)
a “Certificate of Purchase” showing the trailer was towed from West Chicago and then sold to
Deluxe at a sale on May 25, 2007.
¶ 37 First, there are numerous unresolved issues of fact regarding the viability and accuracy of
the Certification of Publication notice because its contents conflict with other evidence offered by
Deluxe in the record. The Certification of Publication states that the trailer was towed from
Landwer’s home address, not from West Chicago, directly contradicting the affidavit of Deluxe
president’s and the Certificate of Purchase. Moreover, the Certification of Publication, purportedly
published in July 2007, was for a sale scheduled to occur on July 31, 2007, but the Certificate of
Purchase indicates that the trailer had already been sold to Deluxe two months earlier, on May 25,
2007. Deluxe offers no explanation for the inconsistencies, creating questions of why and from
where the trailer was towed and when or if the trailer was sold. The inconsistencies leave
unresolved what statutory duties of notice were required of Deluxe and whether Deluxe complied
with those notice statutes.
¶ 38 The Certification of Publication lists Landwer as the owner of the trailer and shows his
correct home address, establishing that Deluxe knew that information in July 2007. Landwer
alleges, however, that he never received written notice from Deluxe of the tow, lien, or sale. If
Deluxe sought to sell the trailer to collect storage fees, it was required to send Landwer written
notice by certified mail. 625 ILCS 5/4-216(a) (West 2022). In the absence of that mandatory notice,
12 Deluxe was not entitled to collect storage fees or to enforce a lien, and Landwer was entitled to
possession of the trailer. 625 ILCS 5/4-216(b), (c), (e) (West 2022). Failure to send the required
written notice precludes Deluxe from both enforcing any lien for fees or selling the trailer. King
Auto Sales, Inc v. Act Now Towing, 2021 Il App (5th) 200143, ¶ 24. The purportedly published
notice is, thus, at least inaccurate and potentially invalid. It is not the role of this court to resolve
these factual issues on appeal. The existence of these unresolved fact issues, however, precludes
the dismissal of Landwer’s second amended complaint.
¶ 39 Second, Deluxe’s submissions fail to eliminate all factual issues on the authenticity of the
Certification of Publication. Deluxe did not produce the original Certification of Publication.
Deluxe obtained affidavits indicating that the copy of the Certification appeared to be authentic
and in the proper form, but it was not authenticated by the publisher. The inconsistency of the
information contained in the Certification of Publication copy, the Certificate of Purchase, and
Deluxe’s other affidavits also calls the authenticity of the copy into question. Landwer also offered
evidence that the notice was not actually published on the July 2007 dates listed on the Certification
of Publication and that it may not have appeared in an appropriate version of the Daily Herald.
Landwer produced copies of the Daily Herald for the listed publication dates that did not contain
the required notice. These material issues of fact may be resolved only through an evidentiary
hearing, not on a section 2-619 motion to dismiss. See Draper v. Frontier Insurance Co., 265 Ill.
App. 3d 739, 742 (1994) (stating that a section 2-619 motion to dismiss may not be granted if the
trial court finds disputed questions of fact and that the “court may not weigh the evidence or decide
controverted material issues of fact” in deciding a motion to dismiss).
¶ 40 We conclude that Deluxe has failed to meet its burden of establishing that no material
issues of fact related to the tolling of the statute of limitations due to fraudulent concealment or
13 equitable tolling remain. Landwer’s second amended complaint alleges sufficient facts, if proven,
to allow the statute to be tolled to a date within the statutorily allowed period. Accordingly, the
dismissal of Landwer’s second amended verified complaint is reversed, and this matter is
remanded to the circuit court for evidentiary proceedings on the alleged facts pled in the second
amended complaint concerning the tolling of the statute of limitations.
¶ 41 III. CONCLUSION
¶ 42 For the reasons stated, the judgment of the circuit court of Du Page County is reversed,
and the cause is remanded to the circuit court for further proceedings consistent with this order.
¶ 43 Reversed and remanded.