To form an agency, the parties need not use the word "agent" nor characterize their relationship as principal-agent. RTC v. Hardisty, 269 Ill.App.3d 613, 619, 207 Ill.Dec. 62, 66-67, 646 N.E.2d 628, 632-33 (1995). Their actions need only demonstrate a desire to create an agency relationship, for example, through a previous course of dealing that is sanctioned or ratified by the principal.
Sullivan objected, arguing that Illinois law provides that notarized documents preclude a challenge to the authenticity of the signature thereon by an interested party to the transaction. See Resolution Trust Corp. v. Hardisty, 269 Ill.App.3d 613, 207 Ill.Dec. 62, 646 N.E.2d 628, 631 (1995). The court allowed the presentation of the evidence, subject to a later ruling on Sullivan's objection, on which it reserved judgment.
¶ 7 Under Illinois law, a party seeking to impeach a notarized instrument must present clear and convincing evidence from a disinterested witness, such as a handwriting expert. E.g., In re Estate of Bontkowski, 337 Ill.App.3d 72, 76-77 (2003); Resolution Trust Corp. v. Hardisty, 269 Ill.App.3d 613, 616-17 (1995). As our supreme court has explained,
¶ 48 Plaintiff is correct that, when an instrument has been acknowledged by a notary and is in substantial compliance with the Illinois Notary Public Act (5 ILCS 312/1-101 et seq. (West 2012)), it may not be impeached except for fraud and imposition. Resolution Trust Corp. v.Hardisty, 269 Ill. App. 3d 613, 616 (1995). And a notary's acknowledgement of a party's signature "can be overcome only by proof which is clear, convincing and satisfactory, and by disinterested witnesses."
The powers of attorney were duly notarized. When an instrument has been acknowledged by a notary and substantially complies with the Illinois Notary Public Act (see 5 ILCS 312/6-101 et seq. (West 2004)), it may not be impeached except for fraud and imposition. Resolution Trust Corp. v. Hardisty, 269 Ill. App. 3d 613, 616 (1995); Krueger v. Dorr, 22 Ill. App. 2d 513, 528 (1959). And the party seeking to impeach the instrument must do so by clear and convincing evidence from a disinterested witness.
Forreston maintains that, however, the trial court then incorrectly reasoned that it could rely upon the testimony of an interested witness to invalidate a notarized signature if it deemed the notary to also be interested. Forreston argues that this rationale would eviscerate the long-standing evidentiary standard consistently applied by our supreme court, and would ultimately create chaos in land titles. ¶ 47 The Diehls cite Resolution Trust Corp. v. Hardisty, 269 Ill App. 3d 613 (1995), where the appellate court considered a notary's interest. We examine the case in some detail.
The validity of signatures on a deed of conveyance can be overcome only by clear and convincing evidence from disinterested witnesses. Estate of Bontkowski, 337 Ill. App. 3d at 76, citing Witt v. Panek, 408 Ill. 328 (1951); Resolution Trust Corp. v. Hardisty, 269 Ill. App. 3d 613 (1995). A trial court's determination as to these matters will not be disturbed unless it is against the manifest weight of the evidence.
The validity of signatures on a deed of conveyance and the certificate of acknowledgment can be overcome only by clear and convincing evidence from disinterested witnesses. Witt v. Panek, 408 Ill. 328, 97 N.E.2d 283 (1951); Resolution Trust Corp. v. Hardisty, 269 Ill.App.3d 613, 207 Ill.Dec. 62, 646 N.E.2d 628 (1995) (Resolution Trust). The circuit court's determination on the matter will not be disturbed unless it is against the manifest weight of the evidence.
A recorded deed raises a presumption that it is valid and effective. Resolution Trust Corp. v. Hardisty, 269 Ill.App.3d 613, 619, 207 Ill.Dec. 62, 646 N.E.2d 628 (1995). In order to rebut the presumption of validity, the party challenging the deed's validity must present clear and convincing evidence that the deed is not valid.
For instance, the extent of control, if any, that a Cruise Line exercised over RMG's business activities other than telemarketing and the course of dealing between them can constitute circumstantial evidence of ratification. Legg v. Voice Media Grp., Inc., 20 F. Supp. 3d 1370, 1377 (S.D. Fla. 2014) (citing FCC Ruling); see Resolution Trust Corp. v. Hardisty, 269 Ill. App. 3d 613, 619 (1995) ("A previous course of dealing sanctioned or ratified by the principal is competent as having a tendency to prove an agency relationship."). Thus, discovery into the Cruise Line Defendants' nonmarketing business relationship with RMG is relevant to determining vicarious liability.