good morning we want to thank both parties for agreeing to conduct oral arguments remotely this morning just as if we were in the elgin courthouse you will be given your regular lot of time the fifteen minutes when you are not arguing as our courtship kaplan said please use your phone each party will have fifteen minutes for your main argument the appellate will have five minutes for a bottle argument as you heard the clerk of the court will operate a timer signal you'll be given a signal when there are five minutes remaining in your main argument the purpose of the five minute signal is to ensure that we have time for questions from the panel as is our practice in the nd district we've all read the briefs and we're familiar with the facts of the case so there's no necessity of going into all the facts of the case what will be different today is that we will not be interrupting your arguments with questions as conducting all arguments in that manner so we will save our questions until you complete your main argument keep in mind you are not required to use all of your time certainly if you complete your argument before the signal by just ask questions at that time we remind you that no one except the clerk of the court is permitted to record this argument either of you have any questions about our form at this morning ashby who was recently appointed special administrator of the estate of david wayne ashby because their names are very similar i'm going to refer to david wayne ashby today when i refer to knows from our briefs this case involves a parcel of land apply there for a parcel of land in plainfield illinois that  s originally owned by the parents of wayne and the other two parties in this case mark ashby and bonnie pen settlers or the nd of the settlers passed away and the property then became subject to the terms of the trust as the cour briefs we filed an original complaint which was then subsequently amended there was an argument on a motion to dismiss on the amended complaint amended complaint was dismissed complaint and that ultimately what brings us here today in our nd imagine complaint we had essentially three causes of action we had an action to quiet title we had an action to do a partition or an equitable partition and then we had claims for breach of fiduciary duty when this trust was  entered into in two thousand and three wayne and mark ashby and bonnie ashby were called trustees under the trust they were also they also became beneficiaries under the trust when the last of the settlers died in two thousand and six the trust required upon the death document in the record on appeal it would be common law to record page nine or c nine where it says that the property was not invited trustees who are who were defendant a lot david that five acre parcel two thirds to the two of them and one rd to my client and it's our position it was our position in the court below that that division was improper for several reasons number one is that my client was not given notice that the other two trustees had acted or were going to act number two was that that division did not create an equal division of the property even though it was divided into thirds the rd that was given to my client was significantly less valuable than the rd that was given to each of the other two so it was our position below that that that minimum that created a question of fact that precluded the the the judge below  nineteen the judge stated basically three reasons for just lifting the case and those more the statute of limitations based three the statute of limitations that was breach of produce jury duty so we believe that the dismissal based upon the statute of limitations for count one is st of all improper because to establish an interest or a plane took property which is exactly what occurred here so st of all we believe that that dismissing on a special limitations grounds was improper  brief we believe that it was because in two thousand and six when my client became a beneficiary of the property he became a centrally  determination that the trustees had an absolute right to act our response to the motion contained an affidavit our complaint was verified those were the facts that were in front of the court and those are the facts because this was a six hundred and nineteen motion that the that the court had to accept those facts is true there were no counter facts that were provided a verified answer or anything for that matter that the court could rely on besides the facts that were presented by the plaintiffs so we believe that a finding of fact that the trustees had an absolute right to act in the manner that they did it was reversible error as to count two there was also some militarists from a trustee when there's three more trustees if one of them is being excluded or is not going to make a decision that executed in two thousand and ten and so we believe that that was in violation of the majority of trustees to act act and that that is another  basis that the court committed reversible error by not interpret that statute and not taking into consideration the we attached county real estate tax records and those real and and when you look at those county real estate tax records the the one rd that was deeded to my client in the year that it was dated had a net taxable value of twenty thousand dollars the two thirds that were that were devoted to the other two beneficiaries had a combined net taxable value of sixty two thousand dollars so if you cut that in half that's thirty one thousand dollars apiece so it's about one hundred and fifty six percent at least according to the net taxable value about one hundred and fifty six percent greater in value and that's at least facts that were presented to the court so that's  a question of material fact that we believe was was something that precluded summary judgment on that issue or i'm sorry precluded dismissal on that issue so in fact there is evidence that this property had already been provided with considered as big pieces of property anyway well what happened was when they when they went when it got defeated out of the trust and the issue is that it was in the trusts until two thousand and ten in two thousand and ten it got dated out of the trust and at the time that that happened the other two trustees  somehow were able to describe in the legal description on those deeds out of the trust this one rd that was dated to my client in the two thirds that were dated to them so so so that was picked up in the county tax records there was a pin number that was changed but but if you look at if you look at the deeds it shows that there that it was divided that way through the through the  of but again i think that's a question of fact that that that at a minimum required some discovery and and and made it so that a motion to dismiss was not appropriate that may be a that may be an argument that could be made at summary judgment by the other side we just don't think that it was proper at the at the motion to dismiss stage when the last  was your client also residing in the property i don't know if right at that time he was i do know that that at some point he lived there for a short period of time for a couple of years but i don't know if if on the date that the last of the settlers had that he was living in the property but by two thousand and eighteen when this case was i guess brought to court he was not residing there correct that's correct need some sort of possession of the property in addition to he is what he believes to be his you know his rights pursuant to the trust to bring a quiet title action certainly and in two thousand and six he did as as a as a result of having the as a result of the trust requiring that the that the property be divided in the rd so he entitled to a possessive possessory interest so between twenty million sixty two thousand and ten when the when the when the when the property was deeded out of the trust he did have a right to possession and what we're arguing is that that possessory right gives him a claim to invalidate those two thousand and ten deeds so you're saying it's a possessory right rather than actual possession death in a devise of a remainder do not refer to the time when the remainder is to vested interest but rather the time when the remainder men are to take possession and there's a couple of other cases that we've talked about that that that you just i don't have any other questions but this time well he could have but but but the law of fraudulent concealment as we cited cases in our in our brief is that is that when there's a fiduciary relationship which there is between fiduciary is enough to to to to have a fraudulent concealment act at least in our position spring forward so that's how we're but that's what we're basing it on from a fraudulent concealment standpoint are you also relying on the trust back which required the written notice yes absolutely and there wasn't and there wasn't we know that at least at this stage there's been no evidence whatsoever from the other side that there was any notice that was provided no you said that david is wayne yes so so so david ashby is deceased he he granted last week to to to appoint his son who is executor of his will as a special administrator so the caption has not been changed but he is now appointed special appreciate it may please the court your honour's this case is about a person who brought suit in a court of equity after sleeping on his rights for nearly a decade this person violated the maxim he's who s equity must do equity david wayne ashby who i refer to as wayne was not simply a beneficiary under the trust he was a co trustee just like his brother mark s p and just like his sister bonnie penalty if you look at section four of the trust it charges the trustees to hold manage care for and protect the trust property this was an ongoing and continuous obligation and this responsibility applied to wayne bonnie and mark equally but despite this crystal clear directive wayne did absolutely nothing for the eight years that followed after the trust the deeds were executed so in essence when he brought suit in the lower court he was asking the circuit court to just hit the reset button forget or ignore the fact that he was in complete dereliction of his own duties to hold manage care for him and protect the trust property escrow trustee for nearly a decade and what he wanted was to just bring the parties back to where they stood in two thousand and ten right before the trustees deeds were executed dividing up the property with respect to wayne's action to quiet title the reason why was because he did not have an actual title the trust documents make that clear and they're attached when complaint the deed in trust says quote no beneficiary here under shall have any title or interest legal or equitable in order to said real estate in order to prevail in a he can't maintain an action to quiet title the same exact concept or rationale applies to the equitable partition action the party needs to be an owner of the real estate he is seeking to equitable be equitably partitioned so wayne didn't have legal title he didn't have equitable title nor was he an owner the forty year statute of limitations only applies if he was the nd point i want to make your honour's is bonnie and mark represent a majority of the trustees and two of the three are competent to act in all cases returning to the trust document for a moment if you look at section four d it provides they're authorized to do the following they could sell convey exchange transfer or otherwise deal with the trust property state law also allows the majority to act the really isn't even a question as to whether the settlers of the trust invision the majority to rule they did if you look at section five of the rd article of the trust it says the letters of direction may be signed by two of three trustees slash ten which is what was a clickable at the time the suit was filed and when the acts happened it says if there are three or more trustees of a trust the majority of the trustees are competent to act in all cases after prior written notice to or written waiver of notice by each other trustee so way makes much to do about the lack of written notice but the fact of the matter is he had notice the entire world had notice of what happened so wayne should be afforded the ability to use that statute as a shield when he was in total dereliction of his duties for nearly a decade another point to bring up is the fact that wayne never argued the lack of written notice in his written response to the motion to dismiss the  amended complaint when we were before the circuit court nor did he argue noncompliance with the statue at the hearing that noncompliance argument was totally abandoned so it should be considered waived but even if this court were to consider the argument as stated previously wayne was not just a beneficiary he was a coach trustee and he was charged with an ongoing duty to hold manage care for and protect the trust property you know and it's really hard to imagine that the legislature envisioned an act of the majority which was authorized by the express provisions of the trust would be invalidated by an absent co trustee who respectfully sat on his hands for nearly a decade with respect to his own duties that he had there's a couple other points to consider with respect to the statute the st is the legislature did not include any temporal requirement regarding when noticed when written notice should be provided by the majority they did in other sections of the act with respect to small trust terminations notice is required to be for to be provided thirty days before hand the same applies when t trust the delegating investment functions to an agent you have to give thirty days notice but with respect to the acts of the majority there is no temporal requirement included in that provision it's totally unclear and silent as to how much time is good notice the nd thing to consider is the legislature provided no consequence for failure to provide written notice sir position as the precept should be considered directly but the bigger point here is that and this bigger point was not lost on the lower court either the fact of the matter is when had an ongoing responsibility to actively participate in the management of the trust property and the deeds were public record the rd point i want to make your honour's is the only viable cause of action that wayne arguably had was for breach of fiduciary duty however that claim was totally time barred because the five year statute of limitations had long ran by the time he brought suit when his charge with knowledge of the trustees deeds being executed because once they were filed with the kendall county recorder they became matters of public record he cannot hide behind that fact so what we have here is not only did the trust require wayne to be an active participant in the management of the trust property but the very acts that he complains of that his brother and sister did were matters of public record they were known to him and the entire world it's pretty clear that wayne understood that he allowed the statute of limitations to run which is why he took what i call a shotgun approach at tolling the statute of limitations period through either the discovery or rule the fraudulent concealment doctrine or equitable tolling hoping that one of those three things what stick but not apply with respect to the discovery rule the rule was applied on a case by case basis and wayne is claiming that the st time he discovered the acts of his brother and sister executing the trustees the was june th two thousand and eighteen nearly eight years after it happened but in order to believe that and except that this court and the lower court would have had to ignore the fact that wayne had a continuing obligation to hold managed care for and protect the trust property he had skin in the game and he had an active duty to participate in the trust and he didn't do that so pleading ignorance to the eight year state of affairs with respect to the trust property while simultaneously having that specific duty is a position that just totally defies common sense  furthermore the division of the property as i stated became public record and once they became so wayne was charged with knowledge of the conveyances and the scribe case we cite stands for that proposition that says records of the recorder's office are public records open and alike to all parties equitable towing doesn't doesn't apply to this case either and should not apply in tolling the five year statute of limitations wayne relies on the c which stated that equitable tolling may be appropriate if the defendant actively misled the plaintiffs if the plaintiff was prevented from asserting as rights in some extraordinary way or if the plaintiff mistakenly asserted his rights in the wrong forum but the problem here is wayne doesn't even state what of those which of those three propositions applies to him and that's because none of them do and stead of stating which three apply weight and stud pits arguing  supposedly some irredeemable lack of information based on the fact he didn't have a computer he didn't have internet access and he lacked the physical home address those three things are not a functional equivalent to having an eer apply for the exact same reasons your honor there is no concealment of the material fact the fact that he complains of are matters of public record when should have discovered the trustees deeds through ordinary diligence and he he cannot claim he would have been unable to learn about the trustees deeds through a reasonable inquiry because they were there for him in the entire world to see property tax bills issued twice a year every year after two thousand and ten when the trust were executed when he had more than a reasonable amount of time to bring suit for breach of fiduciary duty and he just simply failed to do so the law gave him nearly half a decade or dig gave him half a decade five years to bring suit cold i sort of lost count of the times that you called nist called wayne a co trustee but i know there were many and as each time you raised it you said manage to hold manag maintain well wouldn't what was required to hold manage and maintain amount to significant material facts that needed to be determined in this case because i don't believe there were any that were cited you know just when i bring up the fact that he had an ongoing duty to hold manage and maintain the property the point of that is wayne can't claim ignorance with respect to the goings on and the management of that purse full of land he had a continuing obligation to know and price himself of what was happening with that property he had a fiduciary duty to his brother and sister just like they did to him so because he had that responsibility he can't hide behind the fact and claim that he didn't know what was going on for eight years when he had an active duty to know exactly what was going on for eight years well it may not be his issue it may be an issue for this court you that the court and were granted that right to dismiss this case based upon his failure to act what what is he said what's he supposed to do we don't know what hold manage and maintain means and i believe that would be something a court should be advised of before it can make a decision of this nature correct well judge i'd respectfully disagree i think old manage care for and protect the trust property to me means that he had to know what was going on with the trust property it's sure it's certainly irreconcilable to have that duty while at the same time doing absolutely nothing for nearly a decade and that's that's unquestionable that's  that could be possible is if he was in total dereliction of his own duties and then dition to that as i stated this is a matter of public record so even if you set aside the fact that he wasn't holding his end of the bargain with respect to being a coach trustee managing this property he was put on notice just like the whole world was put on notice once the trustees deeds were executed and recorded with the kennel county recorder while he was a co trustee for four years the last death was in two thousand and six in the transaction occurred in two thousand and ten you were saying that being manage and maintain required these people to act in this way your clients to act in this way because they could not afford to do it themselves they couldn't handle it themselves what was your reason you know i'm not saying that he was or they were required to do anything a particular way what i'm saying is that when he had that duty he had to know what was going on with the property that those are all active adjectives to hold manage care for and protect the trust property and then addition to that it was brought up earlier believe it may have been your line of questioning your honor with respect to whether wayne lived on the property or not he did he lived on that property after the west of the settlers passed away he lived there for approximately three years prior to leaving so at one point he involved himself with the management of the trust property and then he just abandoned his responsibilities for whatever reason and despite th fact i'm sorry your honor i guess the question arising from this little bit of fact is so what did they do to help him hold manage and maintain during those three years now again my issue is aren't there facts that we don't know that could have been determined before this case could be dismissed and i think your answer is no and we'll leave it at that for now did he in getting these three years he was living there so he left for the year between that would be o the property taxes when did not he allow the property to fall into total disrepair itself out of you know if it it was damaged your honor  i'm sorry and i said something so brilliant i'm kidding anyway i'm not talking about quite tell you indicated that he cannot raise quite title because he doesn't own the property doesn't live on the property however quite title action if he can establish fraud or some other equitable claim he can require title no your honor i don't believe he can if you if you refer back to the deed in trust which was attached to wayne's complaint it says towards the end and this was in the appendix a a nineteen with respect to each and every beneficiary under the trust that such interest that they have in the sale or disposition of the real estate is that no benefit states that no beneficiary here under sh legally or equitably and that's a precursor to have a quiet title action you have to have actual title which is why our position is that the only claim arguably that wayne may have had would have been that breaches to do sherry duty clam not that's right judge in the statute it does state that you were to provide a written notice this is a little bit of a unique situation here because the act doesn't provide for what is to happen if notice isn't provided that that's one but but to is this is a this is also a unique situation because wayne was supposed to know what was going on he lived on the property for a number of years and then he was just totally a t he was in total dereliction of his duties but the act that he is complaining of he had constructive notice of and the whole world had constructive notice of because it was a public record as soon it was recorded but the kennel county recorder and i think you were the one that brought that up to mr herman judge and that's just the fact he can't get around that now i have a bit of an issue with your mandatory directory distinction how would applicable here i think that that only applied to government action judges the cases that we cited do deal with government actors but the statute is a not bright but the statute doesn't provide any consequence for what is what is to happen should someone fail to provide written notice so that's why we are of the the mind set of the position that we submit to the court that it should just be directory and i think you have to consider again all the facts of this case that this wasn't just someone who was simply a beneficiary this was someone who had an active duty to participate in the management of the trust the state so the one thing is if you didn't have that responsibility he did but it was also a matter of public record it was filed whatever his amount of damages were i think that one applies to the breach of fiduciary duty claim that's the that's the only cause of action i think wayne ashby arguably had but he had five years to assert that after two thousand and ten when the deeds were recorded and then that case could have proceeded on but the fact of the matter is that nearly a decade passed and the circuit court was not impressed with his explanation as to why he was bringing and eighteen when this when these action that he's complaining of happened back in two thousand and ten when he had an ongoing and active responsibility to participate in the management of the property it didn't impress the circuit court and that's why the circuit court did not toll the statute of limitations for any of the three reasons that were requested what he speaking is not anything other than the way i'm reading is the place to trust the property back in trust in divided equally correct yeah i think that's exactly what position was as a had ultimately when he brought suit he was asking the lower court to just what i call hit the reset button he wanted the court to just forget about everything that transpired for about ten years and just go back thank you i have no further question thank you judge thank you mr wardle is your argument actually with i don't know how many times you said the same thing but  with respect to ways failure to act or so to live up to his responsibilities does that excuse the defendants from their notice requirement well it was a matter again judge it was a matter of public record i think that ultimately if you were to balance all of these things it still weighs in bonnie and mark's favor here because this one this wasn't just this wasn't just a matter of public record what they did when he had a continuing obligation to apprise themselves from the management of the property not know what was going on and he just didn't do that he was and again i'm sorry j t i want to redirect to my question is the fact that he failed to take action during those eight years excuse defendants from giving him notice under the trust and then he just sensually fell off the face of the earth for a number of years and it was up to him and it was up to his brother and sister to make sure that that that the directives that were charged to all three of those siblings were carried out what does competent at mean in the trust that you rely on the competent  language that's right but what does it mean with respect to providing notice well to me competent tact your honor just means it means simply that that they can act it's a way to deal with a situation where the management of a trust or whether the number or  certain number of co trustee as if they were to be some sort of impasse with respect to how they were how they were going to handle the management or the protection of the property competent to act means well as long as there's a majority two out of three can carry out whatever their intentions are and that's what the case was here bonnie and mark represented two out of three well the record is not fully developed is it with respect to what wayne did or did not do before he left the property right there's no there's no evidence of the records are right there well there's no evidence in the record as far as what he did after leaving he knew nothing about anything with respect to that property until you received some phone call in june of two thousand and eighteen and that's when he supposedly found out about these trustees deeds that were executed eight years prior to that and that with respect to that judge you know it's not just what wayne says that's what he doesn't say if if wayne was involved with the couple of quick things st of all there was a lot of questions and a lot of discussion about whether wayne was living on the property those facts were not before the trial court in any way so it shouldn't be something that  clearly in front of the court and the court clearly had a duty to interpret the statute as a whole the important thing that i want to point out with that is that it uses the words prior written notice which the word prior means that the notice has to be given before an action is taken and i think the argument that's being made by by my opposing counsel is that the act of recording the deed was notice but that's not prior notice that's subsequent notice and so i don't think there's been a single fact that shows that there was any prior notice or even attempt of prior notice that was that was given with respect to  to the to the quiet title action there's reference to this deed and trusts in two thousand and three that talks about the interests of the parties what is being lost there is that that deed is before the last of the settlers died when the last of the settlers died the trust required that the property be divided equally among the beneficiaries and so that's where the interest to arise at that point and then justice bearcat you asked about other assets in the record at c twelve there's a schedule of assets and there's two additional assets there both annuity policies  contracts that are that are part of the schedule of the assets so there was this real estate and then the two annuity policies i don't think there's been any evidence that's been presented of what happened with those policies that could be something that gets developed reman during discovery thank you for your time and that's all that i have thank you just as such in sanaa the other questions the courts thanks both parties for the quality of your arguments but participating in argument remotely the case will be taken under advisement a written decision will be issued in due course the court stan