We disagree with these grounds for dismissal. Fraudulent concealment tolls the statute of limitations on a common law fraud claim as on a securities claim in Illinois, see Tarpoff v. Karandjeff, 17 Ill.2d 462, 470, 162 N.E.2d 1, 5 (1959); the amended complaint pleads the alleged fraud in adequate detail; and Penn Mutual's failure to credit the deposit account with the full investment income earned on it minus just the contractually specified charges appears to violate the provision of the contract entitling the pension plan to participate pro rata (for so the reference to apportionment may be understood) in divisible surplus. We do not think it necessary to consider whether the plan or its participants have standing to prosecute the common law claims, since the trustees clearly do.
But public records do not necessarily constitute constructive notice when a plaintiff has no duty or reason to search them. See Tarpoff v. Karandjeff, 17 Ill.2d 462, 471 (1959) (no reason to excite suspicion in plaintiff to search public deed records and make inquiry); Moore v. Moore, 15 Ill.2d 239, 243-44 (1958) (husband's public recording of deed ten months before marriage did not constitute constructive notice to plaintiff-wife, who was under no obligation to "search the records to determine the truth or falsity of representations concerning ownership of real estate"). So even when matters are of public record, a property owner does not necessarily have constructive notice of such records if he has no duty or reason to search them.
And though Illinois law does not temper the operation of every limitations statute with a discovery rule, certainly the nature of an action for a statutory penalty (which views the wrongdoer as specially culpable) interacts with the Aetna Life policy statement ("not to shield a wrongdoer . . . [but] to encourage diligence in the bringing of actions") to suggest strongly that Illinois courts would not start the limitations clock for a RICO-type claim until plaintiff had reason to know of its existence. In that respect it is worth noting — though it is by no means dispositive — that in an action for fraud (the basis for these plaintiffs' RICO claims) Illinois law provides the applicable statute of limitations does not accrue ( Tarpoff v. Karandjeff, 17 Ill.2d 462, 470, 162 N.E.2d 1, 5 (1959)): until discovery of the fraud or such time it should have been discovered if reasonable diligence had been exercised.
" The Illinois Supreme Court has recently said in Tarpoff v. Karandjeff, 17 Ill.2d 462, 470, 162 N.E.2d 1, 5: "`There is no laches where there is no knowledge, and delay will not bar relief where the injured party was ignorant of the fraud.' * * * `There can be no laches where there is no knowledge, and mere delay will not bar relief where the injured party was ignorant of the fraud and filed his bill within a reasonable time after acquiring knowledge of it.' * * * `Mere delay will not constitute laches, but the delay must be such as to work to the disadvantage of the other party. * * *'"
See also R. Clapp, A Fiduciary's Duty of Loyalty, 3 Md.L.Rev. 221 (1939). Although a party is usually required to exercise ordinary diligence to discover fraudulent conduct of the opposite party, different standards are applied where fiduciaries are involved, Desser v. Woods, supra, 266 Md. at 708-09; Herring v. Offutt, 266 Md. 593, 598-601, 295 A.2d 876, 879-81 (1972); Perkins v. First National Bank of Atlanta, 221 Ga. 82, 95-96, 143 S.E.2d 474, 484 (1965); Tarpoff v. Karandjeff, 17 Ill.2d 462, 470-71, 162 N.E.2d 1, 5-6 (1959); see Citizens Bank v. Leffler, 228 Md. 262, 268-69, 179 A.2d 686, 689-90 (1962) and 51 Am.Jur.2d Limitation of Actions § 452, at 914 (1970). The Supreme Court of Georgia, in Perkins, supra, set forth the rule as follows:
e for delay shown); Neagle v. McMullen, 334 Ill. 168, 181-82, 165 N.E. 605 (1929) (evidence existed that appellants had notice as to the condition of the title or could have been aware by the exercise of due diligence); Miller v. Siwicki, 8 Ill.2d 362, 366, 134 N.E.2d 321 (1956) (deed to property was public record and constituted constructive notice); Bays v. Matthews, 108 Ill. App.3d 1112, 1119, 440 N.E.2d 142 (1982) (although aware that the property was being taxed, plaintiffs made no inquiry regarding the property's tax status); and Szymanski v. Glen of South Barrington Property Owners Ass'n, 293 Ill. App.3d 911, 914 689 N.E.2d 272 (1997) ( laches applicable where plaintiffs offered no reason for four-year delay between their initial objection and filing suit). See also Moore v. Moore, 15 Ill.2d 239, 243-44, 154 N.E.2d 256 (1958) (recording of deed ten months before the marriage did not constitute constructive notice to wire so as to bar complaint eleven years after the recording); Tarpoff v. Karandjeff, 17 Ill.2d 462, 471, 162 N.E.2d 1 (1959) (no reason to excite suspicion in plaintiff to search the records and make inquiry); Amgro, Inc. v. Johnson, 71 Ill. App.3d 485, 489, 389 N.E.2d 888 (1979) (in the absence of evidence of any circumstances such as to raise suspicion or cause inquiry, insurance company not charged with constructive notice of litigation between secured creditor and insurance agency); De Kalb Bank v. Purdy, 166 Ill. App.3d 709, 725, 520 N.E.2d 957 (1988) (laches not applicable because defendant had constructive notice of plaintiff's rights when trust deed was a matter of public record for over 10 months before defendant signed his lease). The two fundamental elements of laches are lack of due diligence by the party asserting the claim and prejudice to the opposing party.
• 1 We hold without extensive discussion that the failure to name the defendant as a trustee in the caption is not material. The body of the complaint makes it clear that the action is brought against the defendant as a trustee. (See Tarpoff v. Karandjeff (1959), 17 Ill.2d 462, 162 N.E.2d 1; Novak v. Thies (1980), 89 Ill. App.3d 991, 412 N.E.2d 666.) In like manner, we reject the petitioners' claim that the plaintiffs fraudulently concealed the judgment.
Plaintiff stated he had no knowledge of the receipt of the payments or what they represented prior to their disclosure after June 1978. Thereafter, he brought this action in July 1979. Where a cause of action arises from fraud, particularly in cases involving a fiduciary relationship, the statute of limitations will not begin to run nor laches apply until the fraud is discovered or until such time as it could have been discovered by the exercise of reasonable diligence. ( Tarpoff v. Karandjeff (1959), 17 Ill.2d 462, 162 N.E.2d 1; Pelcak v. Bartos (1946), 328 Ill. App. 435, 66 N.E.2d 465.) We, therefore, find that since plaintiff was without the knowledge upon which to base his claim until June 1978, laches will not apply. • 5 Defendant also relies on the language in the dissolution agreement executed by the parties as a bar to plaintiff's claim.
"A fiduciary or confidential relationship exists where, by reason of friendship, agency, business association and experience, trust and confidence are reposed by one person in another who, as a result, gains an influence and superiority over him. * * * Factors to be considered * * * include the degree of kinship, as well as disparity in age and business experience, and the extent to which the allegedly servient party entrusts the handling of his affairs to the other." McCartney v. McCartney (1956), 8 Ill.2d 494, 499, 134 N.E.2d 789, 792; see also Tarpoff v. Karandieff (1959), 17 Ill.2d 462, 162 N.E.2d 1. • 4 The complaint contains no information concerning the respective ages of Judith, James and Margaret Wolfe. Nor do we have any facts concerning their business experience or lack thereof.
• 4 We also disagree with defendants' argument that laches bars this suit seeking the imposition of a constructive trust because plaintiff did not file within five years of when the brothers allegedly first entered into their joint business enterprises. The rule is that suit must be filed within five years of the time when the fraud or violation of fiduciary duty is discovered or reasonably should have been discovered. ( Tarpoff v. Karandjeff (1959), 17 Ill.2d 462, 162 N.E.2d 1.) Plaintiff claims that she only discovered the violation after September 20, 1975. Since the issue of when in fact plaintiff acquired the knowledge necessary to bring her cause of action is unresolved, we cannot say at this point that plaintiff has failed to file suit within the five-year period. In addition to the genuine issue as to when plaintiff acquired the knowledge necessary to bring suit, we find that a genuine issue existed as to whether any delay on plaintiff's part has prejudiced defendants. Defendants claim prejudice on grounds that several individuals who might have knowledge of the transactions involved in this case were either dead or incompetent.