Business Liable for Notary’s Misconduct Under Common Law But Not Statute, First District Rules


In a case of first impression, the Illinois First District Court of Appeal has ruled that copy shop Kinko’s may not be held liable under the Illinois Notary Public Act for misconduct by a notary it employed, but may be held liable for common-law negligence. In Vancura v. Katris, No. 1-06-2750 (Ill. 1st. Dec. 26, 2008) , the appeals court found that Kinko’s did not consent to the misconduct and vacated $233,000 in jury awards.

Plaintiff Richard Vancura helped fund a real estate investment by defendant Glenn Brown, who had trouble reselling the property. A mutual acquaintance, Randall Boatwright, agreed to give Vancura shares in his company in exchange for Brown’s debt to Vancura, which he agreed to lower. Brown then struck a related deal giving defendant Peter Katris an interest in the property and arranged a real estate closing at which all of these deals would be sealed. Boatwright and his business partner had Vancura sign some papers on the day before the closing, but then realized that some would have to be notarized. They visited a local Kinko’s for that purpose, but without Vancura. One of the documents they left with had purported signatures from Vancura and Gustavo Albear, the notary.

Several months later, Vancura called Brown and discovered that Brown believed the debt was resolved. Vancura, who had not been paid, did not agree, and eventually sued a variety of defendants, including Albear and Kinko’s; Brown and Katris also sued those defendants, along with Boatwright. After a bench trial, the trial court found Kinko’s liable to Vancura, Brown and Katris for violations of the Notary Public Act as well as negligent supervision and training of Albear. Kinko’s appealed both.

In its analysis, the appeals court dismissed Kinko’s arguments on the common-law negligence claims, citing the company’s failure to cite a relevant authority as well as substantial expert testimony that the training and storage provided to Albear by Kinko’s was inadequate. On the statutory claims, however, the court was more friendly to the defense. The Notary Public Act makes employers liable for a notary’s “official misconduct” if the employer “consented” to the misconduct. The majority pointed out that Kinko’s had never actively encouraged or tolerated misconduct by Albear, nor had it knowingly let previous misconduct slide.

Thus, the court concluded, the trial court was wrong to award damages based on the Notary Public Act claims; it vacated those judgments. Justice O’Malley dissented, however, saying that he would have reversed the statutory ruling for different reasons. The record shows Kinko’s took substantial trouble to train its employee, he wrote, showing that it did not consent to any misconduct. In fact, wrote Justice O’Malley, the common-law ruling should also have been reversed because it was based on inadmissible evidence — irrelevant expert testimony from a notary law expert — among other problems.

The consumer protection law firm of Lubin Austermuehle helps consumers harmed by businesses’ fraud or other illegal activities. Based in Chicago and Oakbrook Terrace, Illinois, we defend clients throughout Illinois and the United States from violations of privacy, billing fraud and more. If you believe you’ve been harmed by this type of deceptive business practice, please contact us to learn more about your legal rights.

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