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02/23/87 the People Ex Rel. Fred L. v. Estate of Raymond Kawa

February 23, 1987

LAKE COUNTY, PLAINTIFF-APPELLANT

v.

ESTATE OF RAYMOND KAWA, DEFENDANT-APPELLEE

SECTION 505(A)(5) OF THE ILLINOIS CONTROLLED SUBSTANCES ACT (ILL. RE

v.

STAT. 1985, CH. 56 1/2, PAR. 1505(A)(5)) PROVIDES THAT THE FOLLOWING ARE SUBJECT TO FORFEITURE:



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

THE PEOPLE ex rel. FRED L. FOREMAN, State's Attorney of

504 N.E.2d 983, 152 Ill. App. 3d 792, 105 Ill. Dec. 698 1987.IL.223

Appeal from the Circuit Court of Lake County; the Hon. Charles F. Scott, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LINDBERG delivered the opinion of the court. UNVERZAGT and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Plaintiff, the People of the State of Illinois (State), initiated a forfeiture proceeding against defendant, the estate of Raymond Kawa (estate), pursuant to section 505 of the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1505). The State sought approximately $1,680 in United States currency which had been found in a safety deposit box along with a quantity of cocaine. Defendant, the administrator of the estate of the decedent, filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619). The State appeals from the judgment of the circuit court of Lake County which granted defendant's motion to dismiss the complaint. On appeal, the State contends that the trial court erred when it granted defendant's motion to dismiss as: (1) the motion to dismiss was unsupported by affidavit; (2) defendant challenged, rather than admitted, the facts of the complaint as is proper on a motion to dismiss; and (3) defendant failed to meet its burden of proof. We reverse.

Raymond Kawa died on June 18, 1981. At the time of his death, he had owned a safety deposit box at the American National Bank in Libertyville. In May 1985, the bank opened the box by drilling it, since the rent was in arrears, and discovered a quantity of cocaine along with numerous other items of jewelry, stamps, and an antique bill collection with face value of approximately $1,680.

On May 13, 1985, the Lake County State's Attorney filed a forfeiture action (cause No. 85 MR 159) against the "Estate of Raymond Kawa." In the complaint the State alleged that the currency and the quantity of cocaine were found in the safety deposit box of Raymond Kawa. Thereafter, on July 10, 1985, the State's attorney filed another complaint (cause No. 85 MR 230) for forfeiture against "Raymond Kawa, deceased." The complaint sought forfeiture of $1,680 in United States currency.

On October 23, 1985, defendant was served with the cause No. 85 MR 159 complaint. The actual complaint which defendant received, however, was the complaint set out in cause No. 85 MR 230. The number "85 MR 230" was blocked out, and "85 MR 159" was substituted. Later, on January 8, 1986, the court granted the State's motion to dismiss cause No. 85 MR 230. On November 26, 1985, defendant filed a motion pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619) to dismiss the forfeiture proceeding. In support of its motion defendant alleged: (1) the statutory exemption from forfeiture provided for in section 505(a)(5); (2) the State's alteration of the complaint; (3) the pendency of another action; (4) the State's failure to conform to statutory requirements; and (5) the death of Raymond Kawa warranted the dismissal of the complaint.

On appeal, defendant seems to argue that the grounds for dismissal were also brought pursuant to a section 2 -- 615 motion. (Ill. Rev. Stat. 1985, ch. 110, par. 2 -- 615.) Defendant, however, brought its motion to dismiss pursuant to section 2 -- 619, and on review, we will only consider those grounds raised properly in the section 2 -- 619 motion. See Premier Electric Construction Co. v. La Salle National Bank (1983), 115 Ill. App. 3d 638, 642, 450 N.E.2d 1360.

On December 4, 1985, the court granted the State leave to file a first amended complaint which essentially alleged the same set of circumstances as the prior complaint. At a hearing on defendant's motion, the State argued that, as the estate failed to present evidence to satisfy its burden of proof under section 505(a)(5), the statutory exemption did not apply and the court should not dismiss the complaint. The court dismissed the complaint with prejudice, and the State appeals.

"verything of value furnished, or intended to be furnished, in exchange for a substance in violation of this Act, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used, to facilitate any violation of this Act; except that no property is subject to forfeiture under this Section, to the extent of the interest of an owner, by reason of any act or omission which that owner proves to have been committed or omitted without his or her knowledge or consent. All moneys, coins and currency found in close proximity to forfeitable substances, to forfeitable drug manufacturing or distributing paraphernalia, or to forfeitable records of the importation, ...


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