Lofthouse v. Suburban Trust & Savings Bank

542 N.E.2d 36, 185 Ill. App. 3d 889, 10 U.C.C. Rep. Serv. 2d (West) 453, 134 Ill. Dec. 36, 1989 Ill. App. LEXIS 966
CourtAppellate Court of Illinois
DecidedJune 27, 1989
DocketNo. 1-88-2321
StatusPublished
Cited by3 cases

This text of 542 N.E.2d 36 (Lofthouse v. Suburban Trust & Savings Bank) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lofthouse v. Suburban Trust & Savings Bank, 542 N.E.2d 36, 185 Ill. App. 3d 889, 10 U.C.C. Rep. Serv. 2d (West) 453, 134 Ill. Dec. 36, 1989 Ill. App. LEXIS 966 (Ill. Ct. App. 1989).

Opinion

JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff presents the following issue for review: whether the trial court erred in dismissing plaintiff’s complaint pursuant to section 2— 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619), where it was not shown that his action was barred by a statute of limitations because: (a) the pleading attacked did not affirmatively show that the action was barred by the appropriate statute of limitations; (b) whether there was a loss to defendants due to plaintiff’s delay is a question of fact that the court below improperly disposed of in granting defendants’ section 2 — 619 motion to dismiss; or (c) laches was improperly considered by the court in defendants’ section 2 — 619 motion to dismiss.

On January 12, 1983, a draft in the amount of $6,939.59 representing the proceeds from the sale of certain stock held by the subject estate was issued by Langill & Co., designating William W. Hall, executor of the estate of Nancy M. Hendrickson, as payee; defendant Northern Trust was the drawer bank. On January 15, 1983, defendant Suburban Trust accepted the check for deposit into the personal account of one Joseph Collins. The check was endorsed as follows: “Paid to the order of Joseph A. Collins — William W. Hall, Executor of the Estate of Nancy Hendrickson.” Hall’s signature was a forgery.

On September 12, 1986, plaintiff Wayne T. Lofthouse was appointed special administrator of the estate of Nancy M. Hendrickson. On August 10, 1987, plaintiff filed a complaint seeking to recover from defendants $6,939.59, representing the proceeds from the forged instrument, plus interest and costs, asserting that the signature of William W. Hall was a forgery.

Both defendants filed motions to dismiss based on sections 2 — 615 and 2 — 619 of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 615, 2 — 619.) The motions to dismiss pursuant to section 2 — 619 relied on two separate grounds: (1) that plaintiff failed to commence his action within the requisite period of the statute of limitations found in section 4 — 207(4) of the Uniform Commercial Code (Ill. Rev. Stat. 1985, ch. 26, par. 4 — 207(4)), and (2) that the action was barred by the doctrine of laches. Plaintiff did not provide a written response to defendants’ motions. After hearing argument on June 29, 1988, the trial court, without the benefit of the services of a court reporter, granted defendants’ section 2 — 619 motions to dismiss; however, the order fails to state the reasons the judge relied upon in granting the motions.

On appeal, plaintiff first asserts that since the pleading attacked did not affirmatively show that the action was barred by the appropriate statute of limitations, defendants’ motions should have been denied by the trial court. (Rowan v. Novotny (1987), 157 Ill. App. 3d 691, 510 N.E.2d 1111.) In Rowan, the court held that the limitations period does not begin to run until after the plaintiff has knowledge or should have knowledge of defendant’s wrongful acts (Rowan, 157 Ill. App. 3d 691, citing Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976), and that whether plaintiff knew or had reasonable grounds to know of the libelous nature of defendant’s letter was a question of fact; accordingly, the statute of limitations defense was improperly entertained in a section 2 — 619 motion to dismiss. Rowan, 157 Ill. App. 3d at 694.

Plaintiff argues that similarly, in the present case, it is also a question of fact as to when the statute of limitations began to run because, although the forged instrument was negotiated nearly four years and eight months before the filing of the present suit, plaintiff was not named special administrator of the estate of Nancy M. Hendrickson until September 12, 1986, less than a year prior to the filing of this lawsuit. Thus, plaintiff contends, questions of fact are raised as to when the “reasonable time” set forth in section 4 — 207(4) of chapter 26 began to run, what constitutes a “reasonable time,” and when he knew or should have known of the injury to the estate.

Section 4 — 207(4) (Ill. Rev. Stat. 1985, ch. 26, par. 4 — 207(4)) provides as follows:

“Unless a claim for breach of warranty under this Section is made within a reasonable time after the person claiming learns of the breach, the person liable is discharged to the extent of any loss caused by the delay in making the claim.”

Plaintiff cites a Seventh Circuit United States Court of Appeals case for its definition of what constitutes a “reasonable time”:

“What notification would be deemed ‘reasonable’ in a specific case depends, of course, upon the activities reviewed and the surrounding circumstances [citations]. In some cases, quite lengthy delays in reporting forgeries will not defeat the warranty claim if no damages resulted from the delays. E.g. Michigan National Bank v. American Nat. B. & T. Co., 34 Ill. App. 3d 30, 339 N.E.2d 375 (1975).” (Home Indemnity Co. v. First National Bank (7th Cir. 1981), 659 F.2d 796, 799.)

In Home Indemnity, the court relied on section 4 — 207(4) and upheld the defendant’s motion for summary judgment because of plaintiff’s unreasonable delay. However, plaintiff urges, in Home Indemnity, there was ample evidence through discovery to determine that plaintiff engaged in dilatory behavior and that this delay occurred while plaintiff had knowledge of the forgery. In the case at bar, he contends, no such circumstances were present, claiming, instead, that the record is devoid of any evidence to determine what a “reasonable time” would have been in this case because discovery was never pursued. Plaintiff insists that this was a disputed issue of material fact improperly determined by the trial court, and that the dismissal of his cause should be reversed and the amended complaint reinstated.

Thus, the issue in this case becomes quite simple: whether the trial court’s dismissal of plaintiff’s action pursuant to section 2 — 619 of our Code of Civil Procedure was supported by the record. In reviewing the dismissal of a complaint or an order granting judgment on the pleadings, the appellate court may affirm on any basis found in the record. (Fischer v. Mann (1987), 161 Ill. App. 3d 424, 514 N.E.2d 566, citing Goldberg v. Goldberg (1981), 103 Ill. App. 3d 584, 587, 431 N.E.2d 1060.) The absence of reasons in the trial court’s order rendering judgment in this cause and the lack of a transcript of the hearing at which the arguments were made leading to that judgment present no obstacle to our review, for where the record on appeal is incomplete, a reviewing court is to presume that the trial court’s judgment was in conformance with the law and based on sufficient facts. (Davis v. Allstate Insurance Co. (1986), 147 Ill. App. 3d 581, 498 N.E.2d 246

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542 N.E.2d 36, 185 Ill. App. 3d 889, 10 U.C.C. Rep. Serv. 2d (West) 453, 134 Ill. Dec. 36, 1989 Ill. App. LEXIS 966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lofthouse-v-suburban-trust-savings-bank-illappct-1989.