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Kaiser v. Fleming

August 23, 2000

BARBARA KAISER, PLAINTIFF-APPELLANT,
v.
PAUL B. FLEMING, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Kane County. No. 98--CH--947 Honorable Patrick J. Dixon, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

The plaintiff, Barbara Kaiser, appeals the dismissal of her complaint seeking judgment for money she gave the defendant, Paul B. Fleming, to pay off the mortgage on his home. We affirm in part, reverse in part, and remand the cause for further proceedings.

On December 1, 1998, the plaintiff filed a two-count complaint. Count I was titled "Petition for Constructive Trust," and count II was titled "Money Had and Received." The complaint alleged that the plaintiff and the defendant began an intimate relationship while the plaintiff was married to another man. The plaintiff's marriage to her husband was later dissolved. When the plaintiff filed her complaint, she was a 38-year-old medical transcriber who had a high school education and had taken some college courses. The defendant was a 55-year-old self-employed college graduate who worked out of his home in Elgin, Illinois.

The plaintiff alleged that, before the plaintiff's judgment of dissolution of marriage was entered on March 11, 1995, she told the defendant that she was considering accepting the property distribution from her dissolution in installment payments over two or three years. The defendant became angry and told the plaintiff she would be foolish to accept payment over a number of years and advised her to demand a lump-sum payment. The plaintiff followed the defendant's advice and later received a lump-sum payment of $47,188.38 for the property distribution.

The plaintiff further alleged that in the winter of early 1996 she considered purchasing a unit in a newly built subdivision. The purchase required the plaintiff to use approximately $45,000 of her property distribution money for the down payment. The defendant advised the plaintiff that the " 'lay of the land' could cause a problem of water damage to the foundations of the units in the subdivision." The plaintiff did not purchase the unit.

Subsequently, the defendant asked the plaintiff to live with him at his home in Elgin, Illinois. The plaintiff spoke with an accountant, who the plaintiff believed was the defendant's accountant, regarding investing her property distribution money. The defendant then suggested that the plaintiff use the money to pay off the balance of the defendant's mortgage, stating that they would both "be able to save more money" and "would have more 'gain' when the real property was sold." The plaintiff believed that paying off the defendant's mortgage would be a safe investment for her money and would be an investment for the future of both herself and the defendant. The plaintiff moved into the defendant's home on June 30, 1996.

On August 7, 1996, the defendant told the plaintiff that he needed $47,188.38 to pay off the balance of his mortgage. The following day, the plaintiff gave the defendant a check for that amount. The check was cashed, and on October 7, 1996, the mortgage on the defendant's home was released.

During the plaintiff's stay at the defendant's home, she "purchased the food, groceries, and other routine household articles for the Defendant and herself; [and] prepared their meals, did the yard work and took care of the house." The parties' relationship became strained early in December 1996, and the defendant was verbally abusive toward the plaintiff intermittently from January 1997 until November 15, 1997, when the plaintiff moved out of the defendant's home. During this period, the defendant periodically refused to speak to the plaintiff, ignored her, and became intimidating toward her.

Shortly before the plaintiff moved from the defendant's home, she asked the defendant for her money back. He responded that her payment "was an 'investment' and that Plaintiff would not be repaid until the real property was sold." When the plaintiff told the defendant that she was going to see a lawyer, he told her that she would be making a "big mistake." Further, the defendant told the plaintiff that when he sold the house he would not give her the full amount of $47,188.38 but would deduct her share of the utility bills he paid while the plaintiff lived with the defendant. In count I, the plaintiff asked the court to find that the defendant (1) was the trustee for a constructive trust in the amount of $47,188.38 for the plaintiff's benefit; (2) breached his fiduciary duty to the plaintiff by failing to record the plaintiff's interest in the defendant's Elgin home; (3) breached his fiduciary duty to the plaintiff by failing to return the money to her; and (4) owed the plaintiff any money he either saved or would later gain due to his breach of fiduciary duty to her. The plaintiff sought a judgment in the amount of $47,188.38, along with statutory interest, costs, and attorney fees. In addition, the plaintiff sought a lien on the defendant's Elgin home in the amount of the judgment and "[a]ny other relief [the] Court deems just."

Count II, titled "Money Had and Received," incorporated by reference the allegations contained in count I and sought a judgment in the amount of $47,188.38, along with statutory interest, costs, attorney fees, and reasonable expenses, all to be paid within 90 days of judgment. In addition, the plaintiff sought "[a]ny other relief [the] Court deems just."

On appeal, the plaintiff argues that the trial court erred by dismissing both counts of her complaint.

Under section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 1998)), the question presented by a motion to dismiss for failure to state a cause of action is whether the plaintiff has alleged sufficient facts in the complaint that, if proved, would entitle the plaintiff to relief. Anderson v. Vanden Dorpel, 172 Ill. 2d 399, 407 (1996). All well-pleaded facts in the complaint are taken as true (Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 194 (1995)), but any conclusions drawn from the facts as alleged should be disregarded (Fuller's Car Wash, Inc. v. Liberty Mutual Insurance Co., 298 Ill. App. 3d 167, 170 (1998)). For the purpose of a motion to dismiss, exhibits attached to the complaint become part of the complaint and will be considered. Fuller's Car Wash, Inc., 298 Ill. App. 3d at 170. A motion to dismiss should be granted only if the plaintiff can prove no set of facts to support the cause of action asserted. Carroll v. Faust, 311 Ill. App. 3d 679, 684 (2000). We must review the complaint in a light most favorable to the plaintiff (Carroll, 311 Ill. App. 3d at 684) under de novo review (Abbasi v. Paraskevoulakos, 187 Ill. 2d 386, 391 (1999)).

After reviewing the pleadings and attached documents, we determine that the trial court erred by dismissing count II of the plaintiff's complaint for money had and received. "An action for money had and received is maintainable where defendant has received money which in equity and good conscience belongs to the plaintiff." Maloney v. Pihera, 215 Ill. App. 3d 30, 45 (1991). The cause of action is one that is maintainable to recover money "either under the theory of an implied contract or under the theory of a quasi contractual obligation." Beatrice Foods Co. v. Gallagher, 47 Ill. App. 2d 9, 26 (1964). For example, in Maloney, the plaintiff made expenditures for real property for the defendant's benefit for a partnership that never materialized. The appellate court held that the plaintiff had established a cause of action for money had and received.

Here, the plaintiff alleged that she paid money to the defendant and that he used the money to pay off the mortgage on his home and did not record her interest in the property or return the money to her. The plaintiff alleged, and the defendant did not deny, that he agreed to pay the plaintiff back when the property was sold. Interpreting the complaint in a light most favorable to the plaintiff, we believe count II sufficiently set ...


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