at 14 n.10. But plaintiffs argue that defendants' argument is inapplicable in this case because the Act applies to securities violations. Id. (citing Endo v. Albertine, 812 F. Supp. 1479, 1495 (N.D. Ill. 1993)). Thus, plaintiffs contend that Litwin did not act exclusively as a lawyer because he aided and abetted the fraudulent securities sale. Plaintiffs' Response, at 14 n.10 (citing Armstrong v. Edelson, 718 F. Supp. 1372, 1377 (N.D. Ill. 1989) (denying motion to dismiss claim of aiding and abetting a violation of section 2 of the Consumer Fraud Act)).
As the court stated in Pucci v. Santi, 711 F. Supp. 916 (N.D. Ill. 1989), summary judgment granted, 723 F. Supp. 56 (N.D. Ill. 1989), "the mere fact that a person has gained admission to the bar does not grant him an exclusion from the Act's proscriptions." Id. at 926. Nonetheless, in that case the court granted the motion to dismiss the Consumer Fraud and Deceptive Practices Act claim because the plaintiffs' allegations demonstrated that they were "charging wrongdoing in the provision of legal services." Id. See Frahm v. Urkovich, 113 Ill. App. 3d 580, 69 Ill. Dec. 572, 447 N.E.2d 1007 (1983). In the instant case, plaintiffs also charge wrongdoing in the provision of legal services. However, the court cannot conclude, since we must construe things most favorably to the plaintiffs on a motion to dismiss, that all of plaintiffs' claims against Litwin and C&E relate exclusively to the provision of legal services, particularly since plaintiffs allege that Litwin shared in the profits earned by the Pennsylvania Realty Consultants ("PRC"). Second Amended Complaint, at P 29.
In the alternative, defendants argue that even if the plaintiffs' allegations in Count VI state a claim, the claim is time-barred for the same reasons as Counts III and IV. A three year statute of limitations applies to the Illinois Consumer Fraud Act. 815 ILCS 505/10a(e) (1993) (previously cited as ILL. REV. STAT. ch. 121 1/2, P 270a(e)). Plaintiffs claim that Count VI is timely because accrual of this claim is subject to a "discovery rule." Bradley v. Alpine Construction Co., 224 Ill. App. 3d 432, 166 Ill. Dec. 695, 586 N.E.2d 653, 655 (1991).
The court agrees with the plaintiff. The "discovery rule" provides that the statute of limitations "begins to run at the time when the plaintiff knows or reasonably should know that the injury was wrongfully caused." Bradley v. Alpine Construction Co., 586 N.E.2d at 655 (citations omitted). Several Illinois courts have applied the "discovery rule" to causes of action brought under the Consumer Fraud Act. Id. (citations omitted). Thus, for the reasons set forth above, the motion to dismiss is denied as to Count VI.
e. Count VII: Constructive Trust
Defendants argue that Count VII fails to set forth a claim upon which relief may be granted because a "constructive trust" is a remedial tool, used when "fraud is proved or when advantage is taken of a fiduciary relationship." Anderson v. Lybeck, 15 Ill. 2d 227, 154 N.E.2d 259, 262 (1958). Therefore, defendants contend that in order to obtain the constructive trust remedy, the plaintiffs must prevail on one or more of their legally cognizable claims. Plaintiffs respond that defendants' own cases hold that there is a cause of action for constructive trust. Hagney v. Lopeman, 147 Ill. 2d 458, 168 Ill. Dec. 829, 590 N.E.2d 466, 468 (Ill. 1992).
The court agrees with the defendants that constructive trust is an equitable remedy, not a cause of action. See Anderson v. Lybeck, 15 Ill. 2d 227, 154 N.E.2d 259, 262 (1958). A constructive trust "is imposed by a court of equity to prevent a person from holding for his own benefit an advantage which he has gained by reason of a fiduciary relationship or by fraud. Such a trust arises only when that fraud is proved or when advantage is taken of a fiduciary relationship by the dominant party." Id. Hagney v. Lopeman, cited by plaintiffs, is not inapposite. In Hagney, the plaintiffs sought a constructive trust where the trial court had found that the defendant had breached his fiduciary responsibility. Hagney, 590 N.E.2d at 470. Since each Count must set forth a separate cause of action, the court grants defendants' motion to dismiss as to Count VII for failure to state a claim upon which relief can be granted.
For the foregoing reasons, the court has dismissed sua sponte Counts I and II of the Second Amended Complaint. Defendants' motion to dismiss is denied with prejudice as to Counts III, IV, V, VI and VIII and granted as to Count VII.
Date: JUL 20 1993
JAMES H. ALESIA
United States District Judge