Appeal from the Circuit Court of Lake County; the Hon. Robert
K. McQueen, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Plaintiff, John T. Jursich, has appealed the dismissal of his amended complaint against defendant, Arlington Heights Federal Savings and Loan Association, under section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45) (recodified as section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-615)), for its failure to state a cause of action.
In his first amended complaint, plaintiff alleged that he was the assignee of the rights of M-J Builders, Inc., under a mortgage contract and note executed by M-J Builders, Inc., and the defendant. The mortgage had secured a sizable commercial loan on a shopping center constructed by plaintiff and M-J Builders, Inc. The note provided that a late payment charge could be assessed against plaintiff and M-J Builders, Inc., for any installment payments made on the note which were more than 15 days late. Plaintiff alleges that between 1972 and 1976, defendant demanded, and M-J Builders, Inc., and plaintiff paid defendant $24,785.99 in such late charges.
According to plaintiff, defendant orally represented to plaintiff that installment payments on the note were due on the first of each month; and that a late charge would be assessed if the installment was unpaid by the 22d day of each month. According to plaintiff, however, the note did not specify that payment was due on the first day of each month. (It is inferred that plaintiff would construe the note to allow timely payment at any time within a given month.) As a result, plaintiff contends that $24,785.99 was assessed by defendant for late payment charges, when the underlying installment payments had, in fact, been timely.
Plaintiff sought to certify his claim as part of a class action under section 57.2 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57.2) (recodified as section 2-801 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-801)). However, the circuit court found that plaintiff's amended complaint failed to state a claim for plaintiff individually; and thus, could not form the basis for a class action. The circuit court granted defendant's motion to strike plaintiff's amended complaint, without expressly denying plaintiff the right to plead over. The circuit court certified the cause for review under Supreme Court Rule 304(a) (73 Ill.2d R. 304(a)).
Three issues are presented for review: (1) Whether defendant's renewed motion to dismiss this appeal for want of jurisdiction should be denied; (2) Whether plaintiff's amended complaint stated a cause of action for monies erroneously paid another pursuant to a claim of right, and (3) Whether any issue concerning the circuit court's denial of class status to plaintiff's complaint is before this court on review.
In its brief, defendant has renewed its motion to dismiss this appeal, which motion was previously denied by this court on May 3, 1982. In its motion, defendant asserts that the circuit court's order of November 19, 1981, as modified on December 14, 1981, was an appealable order. As a consequence, defendant asserts that plaintiff's notice of appeal, filed March 4, 1982, was filed beyond the 30-day period specified in Supreme Court Rule 303 (73 Ill.2d R. 303).
• 1, 2 However, a final, appealable judgment is "defined as a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit." (See, e.g., Flores v. Dugan (1982), 91 Ill.2d 108, 112; Village of Niles v. Szczesny (1958), 13 Ill.2d 45, 48.) Courts> look to the substance, rather than to the form of the order, to determine its finality. (See, e.g., Peach v. Peach (1966), 73 Ill. App.2d 72, 78.) Under these principles, defendant's renewed motion to dismiss is denied.
• 3 The dismissal order left plaintiff free to plead over. Plaintiff presumably could have done so, perhaps stating a cause of action under one or more of the exceptions to the general rule upon which the dismissal was based. Thus, it is concluded that this court has jurisdiction to decide this appeal.
The second issue, whether plaintiff's amended complaint stated a cause of action for monies erroneously paid another, pursuant to a claim of right, or stated another way, whether equitable principles have emasculated the doctrine that monies erroneously paid to another under a mistake of law, pursuant to a claim of right, cannot be recovered.
• 4, 5 As a general rule, money or property which is paid to another under a claim of right to the payment, with full knowledge of the underlying facts, and absent fraud or coercion, cannot be recovered. (Groves v. Farmers State Bank of Woodlawn (1937), 368 Ill. 35, 47.) Plaintiff has acknowledged the existence of this general rule and does not argue that his amended complaint stated a cause of action under an exception to that rule. Rather, plaintiff asserts that the general rule has been "emasculated" by the equitable rule announced in Board of Trustees v. Village of Glen Ellyn (1949), 337 Ill. App. 183, 194-95, that "where one person has received money or its equivalent, which belongs to another, under such circumstances that in equity and good conscience he ought not to retain it, recovery will be allowed." Plaintiff's legal conclusion is mistaken. The two doctrines are quite distinguishable.
The cases which involve the Glen Ellyn rule each involve a situation where a party has unilaterally, and mistakenly, transferred property to another. However, in none of the cases located, was such payment made pursuant to a claim of right. (See Selmaville Community Consolidated School District v. Salem Elementary School District (1981), 96 Ill. App.3d 1062, 1065-66 (plaintiff school district sought to recover property taxes which, due to a scrivener's error, had been mistakenly paid to the defendant, adjoining school district); Bank of Naperville v. Catalano (1980), 86 Ill. App.3d 1005, 1008-10 (bank sought to recover money it unilaterally, and erroneously, paid defendant when it closed defendant's bank account); Board of Education v. Holt (1976), 41 Ill. App.3d 625, 627 (school board sought to recover money erroneously paid to a former employee after the employee had retired); Board of Trustees v. Village of Glen Ellyn (1949), 337 Ill. App. 183, 194-95 (trustees sought to recover monies which had been unilaterally diverted to other uses by village officials).) In none of the above cases did the court disturb a bargain, or an agreement between the parties, respecting the monies paid.
In contrast, it can be seen that the element of payment pursuant to "a claim of right" is present in each case which has applied the general rule to defeat a claimant's right to recover payments made under a mistake of law. (See Commercial National Bank v. Bruno (1979), 75 Ill.2d 343, 350-51 (estate assets paid to heirs upon their claim of heirship could not be recovered by executor); Groves v. Farmers State Bank (1937), 368 Ill. 35, 47 (monies paid to successful litigants pursuant to a contract claim reduced to judgment cannot be recovered); The Hartford v. Doubler (1982), 105 Ill. App.3d 999, 1001 (insurance proceeds paid to beneficiary cannot be recovered); Western and Southern Life Insurance Co. v. Brueggeman (1944), 323 Ill. App. 173, 178-79 (death benefit paid to beneficiary upon his application cannot be recovered); Bryan v. Pilgrim National Life Insurance Co. (1938), 294 Ill. App. 356, 360-61 (money paid to assignee of a contract cannot be recovered based on a claim that the assignment of the contract was invalid).) Based on the above, it is apparent that the lines of authorities represented by Groves and Glen Ellyn may be distinguished, respectively, by the presence or absence of a "claim of right" to the money or property, asserted by the transferee of the property. Under Groves, the court declines intervention where a dispute between the parties has been resolved through voluntary payment by one party having full knowledge of the facts, in the context of arms-length bargaining (e.g., absent coercion or possession of a superior bargaining position by the transferee). Groves v. Farmers State Bank (1937), 368 Ill. 35.
On the other hand, where there has been no pre-existing claim between the parties, and monies have been unilaterally, and erroneously, paid to another, equity will apply the Glen Ellyn rule to do justice between the parties. The two doctrines are thus compatible, and plaintiff's suggestion that the Glen Ellyn rule has "emasculated" the Groves rule is meritless. Board of Trustees v. Village ...