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11/03/94 DON NORTON v. CITY CHICAGO

November 3, 1994

DON NORTON, GERALD MARLATT, WILLIAM KNACK, RUTH KNACK, JANE REAMES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
THE CITY OF CHICAGO, DATACOM SYSTEM CORPORATION AND COOK COUNTY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Robert Ericsson, Judge Presiding.

Released for Publication December 16, 1994.

Cahill, Johnson, Hoffman

The opinion of the court was delivered by: Cahill

JUSTICE CAHILL delivered the opinion of the court:

This case arises from the payment of a $3 penalty for a parking ticket by the plaintiffs. In addition to the penalty plaintiffs were charged and paid a fine which was the subject of litigation in the related cases People ex rel. Daley v. Datacom System Corp. (1992), 146 Ill. 2d 1, 165 Ill. Dec. 655, 585 N.E.2d 51, and Horn v. City of Chicago (7th Cir. 1988), 860 F. 2d 700. These cases supply the background about the parking tickets.

Plaintiffs filed a two count amended complaint that alleged the City, Cook County, and Datacom were unjustly enriched and violated the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1985, ch. 121 1/2, par. 261 et seq.) by collecting a $3 penalty from each plaintiff. Each defendant filed a motion to dismiss under section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-615), which the trial court granted. In doing so, the court made two rulings.

We affirm the court's first ruling that plaintiffs failed to state a cause of action under count I for unjust enrichment as to defendants Datacom and the City and under count II for violation of the Consumer Fraud Act as to Datacom. Plaintiffs do not appeal the ruling dismissing the City and Cook County under count II. We reverse the court's second ruling that the plaintiffs' complaint is an impermissible collateral attack.

When ruling on a section 2-615 motion, the trial court must consider only the allegations of the complaint ( Baughman v. Martindale-Hubbell, Inc. (1984), 129 Ill. App. 3d 506, 84 Ill. Dec. 622, 472 N.E.2d 582), and all facts properly pleaded must be taken as true ( Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187, 20 Ill. Dec. 581, 380 N.E.2d 790). Regardless of the reasoning of the trial court, we may affirm its judgment if correct. Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387.

To state a cause of action for unjust enrichment, a plaintiff must allege the defendant received and unjustly retained a benefit. Drury v. County of McLean (1982), 89 Ill. 2d 417, 425-26, 60 Ill. Dec. 624, 433 N.E.2d 666.

The allegation of count I with respect to the City is that:

"The City benefited from the defendants' aforesaid conduct because the County was demanding that the City pay the County three dollars for every ticket that was paid regardless of what amount the City received in payment and regardless of whether an additional three dollar fee was obtained in addition to money received as fines."

This allegation is insufficient to state a cause of action for unjust enfichment. Plaintiffs fail to allege that the City received or retained any portion of the $3 penalty.

The allegation of count I with respect to Datacom is that:

"Datacom benefitted from the defendants' aforesaid conduct because it received a percentage of the ...


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