Constructive trusts are subject to the five-year statute of limitations. ( Chicago Park District v. Kenroy, Inc. (1978), 58 Ill. App.3d 879, 887, 374 N.E.2d 670, aff'd in part rev'd in part (1980), 78 Ill.2d 555, 402 N.E.2d 181.) Similarly, actions for unjust enrichment are also governed by the five-year statute.
Defendants allege that plaintiffs' suit is based upon events which occurred in 1967 and they did not commence suit for the imposition of a constructive trust until 10 years later, in 1977. Defendants cite Chicago Park District v. Kenroy, Inc. (1978), 58 Ill. App.3d 879, 374 N.E.2d 670, as holding that constructive trusts are subject to the operation of the 5-year statute of limitations. However, In Chicago Park District, they applied the "discovery rule," stating that its application in specific situations must be carefully scrutinized.
Plaintiff's responsibility to specifically plead facts in the complaint showing that the action was brought either during the applicable limitations period or within two years after the date she could reasonably have learned of her injury has not been satisfied. Kielminski v. St. Anthony's Hospital (1979), 68 Ill. App.3d 407, 408, 386 N.E.2d 326; Chicago Park District v. Kenroy, Inc. (1978), 58 Ill. App.3d 879, 888, 374 N.E.2d 670. • 1, 2 Plaintiff asserts that the doctors' fraudulent concealment prevented her from discovering her cause of action earlier than she did, thereby bringing her within the Act's notice requirements.
( Praznik v. Sport Aero, Inc. (1976), 42 Ill. App.3d 330, 355 N.E.2d 686.) A plaintiff requesting application of the discovery rule must plead facts necessary to explain why the cause of action was not discovered sooner. Chicago Park District v. Kenroy, Inc. (1978), 58 Ill. App.3d 879, 374 N.E.2d 670. Plaintiffs have not pleaded facts which explain their failure to discover the existence of the contract sooner.
In Illinois, the applicable statute of limitations is five years. Frederickson v. Blumenthal, 271 Ill.App.3d 738, 208 Ill.Dec. 138, 648 N.E.2d 1060, 1063 (1995) (citing 735 Ill. Comp. Stat. 5/13–205 ; Chicago Park District v. Kenroy, Inc., 58 Ill.App.3d 879, 15 Ill.Dec. 887, 374 N.E.2d 670 (1978), aff'd in part, rev'd in part by 78 Ill.2d 555, 37 Ill.Dec. 291, 402 N.E.2d 181 (1980) ). In North Carolina, a ten-year statute of limitations applies to “[a]ctions seeking to impose a constructive trust or to obtain an accounting.”
We recognize, however, that the appellate court in Kenroy dismissed plaintiffs' case, declining to invoke the provisions of the discovery rule because the plaintiffs never specifically alleged facts showing that the fraud was not discovered within the limitations period. ( Chicago Park District v. Kenroy, Inc. (1978), 58 Ill. App.3d 879, 888.) This fact, together with this court's silence on the subject, has created confusion regarding the state of the law concerning pleadings.
See, e.g., Richman v. United States, 709 F.2d 122, 123 (1st Cir. 1983) ("The mere failure of a wrongdoer to disclose his wrongdoing, where no fiduciary relation exists, is not a fraudulent concealment of the cause of action. . . .") (quoting Norwood Trust Co. v. Twenty-Four Fed. St. Corp., 295 Mass. 234, 3 N.E.2d 826, 828 (1936)); Chicago Park Dist. v. Kenroy, Inc., 58 Ill. App.3d 879, 15 Ill.Dec. 887, 892, 374 N.E.2d 670, 675 (1978) (mere silence of defendant and mere failure of plaintiff to learn of cause of action do not amount to fraudulent concealment which prevents operation of statute of limitations) aff'd in part, rev'd in part on other grounds, 78 Ill.2d 555, 37 Ill.Dec. 291, 402 N.E.2d 181 (1980); Annotation, What Constitutes Concealment Which Will Prevent Running of Statute of Limitations, 173 A.L.R. 576, 585-88 (1948). Establishment of estoppel generally requires the party seeking to assert it to show "that the other party made some misrepresentation, or false statement, or acted fraudulently, and that he reasonably relied on such acts or representations . . . and due to such reliance did not institute suit timely."
The appellate court held no collateral attack occurred and reversed the dismissal of the complaint filed by the Park District and PBC, but affirmed the dismissal of the City's complaint on the ground that it was barred by the applicable statute of limitations. 58 Ill. App.3d 879. The conduct alleged in the complaints is adequately set forth in the opinion of the appellate court and need only be summarized here as follows.
In order to satisfy their burden, a plaintiff must plead facts necessary to explain why the cause of action was not discovered sooner. Pratt v. Sears Roebuck & Co., 71 Ill. App. 3d 825, 829 (1979) (citing Chicago Park District v. Kenroy, Inc., 58 Ill. App. 3d 879 (1978)). We note that the Trustee has not pleaded facts demonstrating that the insureds made any assumptions about the effects of or had knowledge of market forces or dividend interest rates prior to 2006.
Latronica contends that only a private right has been asserted because the complaint involved the rights of the people of Chicago and not all people of the state. In support of its argument, Latronica relies upon language in Chicago Park District v. Kenroy, Inc., 58 Ill. App. 3d 879, 889, 374 N.E.2d 670 (1978), rev'd in part, 78 Ill. 2d 555, 42 N.E.2d 181 (1980), which states: "As used in the present context, `public rights' are those rights belonging to all of the people of the State alike; `private rights' are those rights limited to some local subdivision or municipality, such as a city or village. [Citations.]"