DONALD DIOTALLEVI, JOSEPHINE DIOTALLEVI, RICHARD DIOTALLEVI, CAMILLE DIOTALLEVI, and RONALD DIOTALLEVI, Plaintiffs-Appellants,
DENNIS DIOTALLEVI, PAMELA DIOTALLEVI, CHICAGO TITLE AND TRUST COMPANY LAND TRUST 1106876, Dated February 10, 1999, and CHICAGO TITLE AND TRUST COMPANY LAND TRUST 1106788, Dated November 15, 1998, Defendants-Appellees.
Rehearing denied February 7, 2014
Plaintiffs’ second amended complaint to recover the money they provided to their brother and his former wife to acquire land and operate a business was properly dismissed as untimely, notwithstanding plaintiffs’ arguments that the statute of limitations was either tolled or did not otherwise bar their claims, since the record showed plaintiffs provided defendants with money without obtaining any security for the advances, they failed to properly plead any fiduciary duty on defendants’ part to repay the funds, there was no concealment of the transactions, and plaintiffs did not raise any argument that they should be allowed to replead their claims.
Appeal from the Circuit Court of Du Page County, No. 10-CH-4552; the Hon. Bonnie M. Wheaton, Judge, presiding
Robert G. Black, of Law Offices of Robert G. Black, of Naperville, and B.J. Farrell, of Law Offices of B.J. Farrell, P.C., of Woodridge, and Timothy M. Daw, of Schiller, DuCanto & Fleck LLP, of Wheaton, for appellants.
Charles J. Corrigan, of Dommermuth, Cobine, West, Gensler, Philipchuck, Corrigan & Bernhard Ltd., of Naperville, for appellee Dennis Diotallevi.
Frederick E. Roth, of Roth Law Firm, LLC, of Naperville, and Mary E. McSwain, of McSwain & Associates, P.C., of Wheaton, for appellee Pamela Diotallevi.
John A. Lipinsky, of Coman & Anderson, P.C., of Lisle, for other appellees.
Justices McLaren and Hutchinson concurred in the judgment and opinion.
BURKE, PRESIDING JUSTICE.
¶ 1 This is a family dispute in which plaintiffs, Donald Diotallevi, Josephine Diotallevi, Richard Diotallevi, Camille Diotallevi, and Ronald Diotallevi, allege that defendants, Dennis Diotallevi and Pamela Diotallevi, failed to repay money received in the forms of loans and investments. Plaintiffs filed a second amended complaint alleging unjust enrichment, seeking a constructive trust, a resulting trust, and a declaratory judgment, and bringing shareholder derivative actions based on breach of fiduciary duty and constructive fraud. The trial court dismissed with prejudice the second amended complaint on the grounds that (1) plaintiffs failed to allege the existence and breach of a fiduciary duty owed by defendants and (2) even if defendants breached such a duty, plaintiffs' claims were untimely because defendants engaged in no concealment that would extend the five-year statute of limitations for contract actions (see 735 ILCS 5/13-205 (West 2010)). On appeal, plaintiffs argue that (1) the five-year limitations period of section 13-205 is not an "absolute bar" to their claims and (2) the second amended complaint states claims for constructive and resulting trusts, a claim for unjust enrichment, and shareholders' derivative claims. We affirm.
¶ 2 I. FACTS
¶ 3 On August 12, 2010, Donald, Richard, Camille, Ronald, and their mother, Josephine, filed a complaint against the siblings' brother, Dennis, and his now-former wife, Pamela. Plaintiffs allege that they gave defendants money in the form of loans and investments so defendants could purchase certain property to run a business and that, after defendants divorced, defendants failed to repay the money. On March 17, 2011, plaintiffs electronically filed (e-filed) an amended complaint, which was involuntarily dismissed. The trial court granted plaintiffs leave to further amend their claims.
¶ 4 On August 5, 2011, plaintiffs filed a second amended complaint, which is the subject of this appeal. Plaintiffs alleged that, in December 1995, by the will of Oldrich Mikulik, Dennis inherited a right of first refusal to purchase a parcel of land in Morris, commonly referred to as the Tree Farm. Dennis also inherited a one-half interest in a parcel in Aurora, commonly known as the Saw Mill. Defendants lacked the funds to buy the Tree Farm or to buy the other one-half interest in the Saw Mill. According to plaintiffs, starting in 1998, plaintiffs made payments to Dennis in the form of loans and capital investments to buy the Tree Farm and to acquire the remaining one-half interest in the Saw Mill. On November 15, 1998, defendants placed the titles to the Tree Farm and the Saw Mill in two land trusts. Defendants held as joint tenants the beneficial interest and power of direction of the land trusts, without recognition of plaintiffs' payments.
¶ 5 In March 2000, Dennis allegedly created an entity known as Family Tree Nursery, Inc., to operate a business on the Tree Farm and the Saw Mill. Thereafter, Dennis received all of the income and losses. For a year, the parties discussed formalizing an agreement regarding plaintiffs' funds used to acquire the Tree Farm and the Saw Mill. Plaintiffs alleged that defendants signed a document called the "Family Tree Nursery Inc. Operating Agreement" on March 3, 2001. "To avoid costly legal expenses, " Donald drafted the document, which was revised several times before defendants signed it.
¶ 6 In 2008, Donald allegedly made another cash infusion, and around that time he distributed to the parties a spreadsheet describing plaintiffs' payments to date. Donald sought to establish a "reasonable return of equity" and to "protect and return (as a minimum) the ...