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Indesco Products, Inc. v. Novak

September 08, 2000

INDESCO PRODUCTS, INC., AND CERNAK, INC.,
PLAINTIFFS-APPELLANTS,
V.
KEITH NOVAK,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Du Page County. No. 99--AR--1173 Honorable Richard A. Lucas, Judge, Presiding.

The opinion of the court was delivered by: Justice Rapp

This appeal arises from the failure of a defendant convicted of theft in a criminal case to pay the full restitution due to the victim during the course of his sentence of probation. Plaintiffs herein, Indesco Products, Inc., and Cernak, Inc., are the victims of the theft.

Plaintiffs appeal the trial court's dismissal of their complaint against defendant, Keith Novak. They argue (1) that they stated a timely and valid claim to obtain a judgment for unpaid, court-ordered restitution; and, alternatively, (2) that they merely sought the wrong remedy and are entitled to amend their complaint. Because we agree with plaintiffs' alternative argument, we reverse and remand.

Plaintiffs filed their complaint on May 20, 1999. The complaint contained the following allegations. On June 10, 1992, defendant was convicted of theft from plaintiffs. He was sentenced to four years' probation and ordered to pay $48,258.04 in restitution. During his probation, defendant paid $14,000. After his probation ended, defendant paid nothing. Plaintiffs sought a judgment for the $34,258.04 that remained unpaid.

Plaintiffs attached to their complaint a copy of the trial court's sentencing order in People v. Novak, No. 91--CF--1625. It required defendant to pay the restitution of $48,258.04 in monthly installments of $300.

Pursuant to section 2--619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2--619(a)(5) (West 1998)), defendant moved to dismiss plaintiffs' complaint. He alleged as follows. Plaintiffs were seeking to "enforce a criminal sentence" for conversion. Under section 13--205 of the Code (735 ILCS 5/13--205 (West 1998)), a conversion claim must be commenced within five years after the claim accrued. Because defendant committed his crime no later than 1992, plaintiffs' complaint was untimely.

In their response, plaintiffs argued that they were not seeking damages for defendant's conversion. Instead, they were seeking to recover for defendant's failure to make his court-ordered restitution payments. According to plaintiffs, that claim accrued in 1996, when defendant stopped making those payments upon completing his probation. Thus, plaintiffs filed their complaint in compliance with section 13--205. Plaintiffs concluded that the dismissal of their complaint would allow defendant "to subvert the court's [sentencing] order and unilaterally reduce the amount of restitution owed simply by discontinuing payments."

Plaintiffs further asserted that, under section 5--5--6(n) of the Unified Code of Corrections (Corrections Code) (730 ILCS 5/5--5--6(n) (West 1998)), they were barred from commencing an action for their conversion damages because those damages were awarded in the restitution order. In his reply, defendant argued that, under section 5--5--6(k) of the Corrections Code (730 ILCS 5/5--5--6(k) (West 1998)), the restitution order barred no civil action by plaintiffs.

At the hearing on defendant's motion, defendant argued:

"[Plaintiffs are] seeking enforcement of the [restitution] order. They're not here asking for conversion. They're asking to enforce this particular order.

Our argument is basically if they had anything, they had a conversion action that should have been brought within five years. So even if the last of these actions occurred June 10th of 1992, that would actually be barred in 1997."

Plaintiffs responded that they had a valid claim for "the balance of restitution" that accrued when defendant stopped making his required payments. The trial court replied that "[t]here is no such cause of action." The court further stated that section 5--5--6(n) did not prevent plaintiffs from maintaining "a civil action parallel with the criminal action." However, plaintiffs did not commence such an action. On those grounds, the court dismissed the complaint, and plaintiffs appealed.

Initially, we must clarify the nature of defendant's motion. Defendant filed a section 2--619 motion in which he asserted that plaintiffs' complaint stated an untimely claim for conversion. This was a proper section 2--619 motion, which admits the legal sufficiency of the cause of action but asserts a defect or defense that defeats it. Mio v. Alberto-Culver Co., 306 Ill. App. 3d 822, 824 (1999). At the hearing, however, defendant agreed with the argument in plaintiffs' response: plaintiffs were not seeking damages for conversion but were seeking a judgment for defendant's unpaid restitution. Defendant then argued that such a cause of action did not exist. Thus, he essentially proffered an alternative motion to dismiss under section 2--615 of the Code (735 ILCS 5/2--615 (West 1998)), which challenges the legal sufficiency of the cause of action. Randall v. Lemke, 311 Ill. App. 3d 848, 850 (2000). When the trial court dismissed the complaint because "[t]here is no such cause of action," it granted the section 2--615 motion, not the original section 2--619 motion.

Although a "hybrid" motion to dismiss is improper, we will review a dismissal under such a motion if doing so will serve the interests of judicial economy and if the nonmoving party will not be prejudiced. Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 286 Ill. App. 3d 48, 63 (1996), aff'd in part & rev'd in part on other grounds, 186 Ill. 2d 472 (1999). Here, plaintiffs argued in the trial court that they stated a valid (and timely) claim for the balance of the restitution order. They repeat that argument on appeal. Therefore, they will suffer no prejudice if we determine whether their complaint was properly ...


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