8 September 2000

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JUSTICE RAPP delivered the opinion of the court:

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

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

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

Plaintiffs attached to their complaint a copy of the trialcourt's sentencing order in People v. Novak, No. 91--CF--1625. Itrequired defendant to pay the restitution of $48,258.04 in monthlyinstallments 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 todismiss plaintiffs' complaint. He alleged as follows. Plaintiffswere seeking to "enforce a criminal sentence" for conversion. Undersection 13--205 of the Code (735 ILCS 5/13--205 (West 1998)), aconversion claim must be commenced within five years after the claimaccrued. Because defendant committed his crime no later than 1992,plaintiffs' complaint was untimely.

In their response, plaintiffs argued that they were not seekingdamages for defendant's conversion. Instead, they were seeking torecover for defendant's failure to make his court-orderedrestitution payments. According to plaintiffs, that claim accruedin 1996, when defendant stopped making those payments uponcompleting his probation. Thus, plaintiffs filed their complaint incompliance with section 13--205. Plaintiffs concluded that thedismissal of their complaint would allow defendant "to subvert thecourt's [sentencing] order and unilaterally reduce the amount ofrestitution owed simply by discontinuing payments."

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

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 askingto enforce this particular order.

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

Plaintiffs responded that they had a valid claim for "the balance ofrestitution" that accrued when defendant stopped making his requiredpayments. The trial court replied that "[t]here is no such cause ofaction." The court further stated that section 5--5--6(n) did notprevent plaintiffs from maintaining "a civil action parallel withthe criminal action." However, plaintiffs did not commence such anaction. On those grounds, the court dismissed the complaint, andplaintiffs appealed.

Initially, we must clarify the nature of defendant's motion. Defendant filed a section 2--619 motion in which he asserted thatplaintiffs' complaint stated an untimely claim for conversion. Thiswas a proper section 2--619 motion, which admits the legalsufficiency of the cause of action but asserts a defect or defensethat defeats it. Mio v. Alberto-Culver Co., 306 Ill. App. 3d 822,824 (1999). At the hearing, however, defendant agreed with theargument in plaintiffs' response: plaintiffs were not seekingdamages for conversion but were seeking a judgment for defendant'sunpaid restitution. Defendant then argued that such a cause ofaction did not exist. Thus, he essentially proffered an alternativemotion to dismiss under section 2--615 of the Code (735 ILCS 5/2--615 (West 1998)), which challenges the legal sufficiency of thecause 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--615motion, not the original section 2--619 motion.

Although a "hybrid" motion to dismiss is improper, we willreview a dismissal under such a motion if doing so will serve theinterests of judicial economy and if the nonmoving party will not beprejudiced. 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 onother grounds, 186 Ill. 2d 472 (1999). Here, plaintiffs argued inthe trial court that they stated a valid (and timely) claim for thebalance of the restitution order. They repeat that argument onappeal. Therefore, they will suffer no prejudice if we determinewhether their complaint was properly dismissed for failure to statea cause of action. In the interests of judicial economy, we willreview the trial court's order as a dismissal under section 2--615.

A motion to dismiss pursuant to section 2--615 presents thequestion whether a complaint's allegations, viewed in the light mostfavorable to the plaintiff, are sufficient to state a cause ofaction upon which relief may be granted. The motion should begranted only if no set of facts could be proved that would entitlethe plaintiff to recover. Our review of a dismissal under section2--615 is de novo. Randall, 311 Ill. App. 3d at 850.

Again, plaintiffs contend that they stated a valid claim torecover a judgment for defendant's unpaid restitution. They alsoargue that their claim accrued when defendant stopped making thepayments to which plaintiffs were entitled.

We agree with defendant that plaintiffs failed to state a causeof action. Defendant argues that, because the restitution order is"an enforceable judgment" in plaintiffs' favor, plaintiffs are"attempting to bring a cause of action against [defendant] to securea judgment that *** has already been entered." Reading thecomplaint literally, this statement is absolutely true.

Section 5--5--6(m)(3) of the Corrections Code states:

"A restitution order under this Section is a judgment lienin favor of the victim that:

***

(3) May be enforced to satisfy any payment that isdelinquent under the restitution order by the person inwhose favor the order is issued or the person'sassignee[.]" 730 ILCS 5/5--5--6(m)(3) (West 1998).

A restitution order is enforceable as a civil judgment. 730 ILCS5/5--5--6 (West 1998). Furthermore, a "restitution order is notdischarged by the completion of the sentence imposed for theoffense." 730 ILCS 5/5--5--6 (West 1998). Thus, although defendantcompleted his probation in 1996, plaintiffs retained an enforceablejudgment for the balance of the restitution order. When plaintiffsfiled their complaint seeking a judgment for that amount, theyprayed for what they already possessed.

We acknowledge that two provisions of section 5--5--6 allow beneficiaries of restitution orders to pursue civil actions forspecified remedies. However, plaintiffs' allegations did notsupport a claim under either provision. Section 5--5--6(n) states:

"An order of restitution under this Section does not bara civil action for:

(1) Damages that the court did not require the[defendant] to pay to the victim under the restitutionorder but arise from an injury or property damages thatis the basis of restitution ordered by the court; and

(2) Other damages suffered by the victim." 730 ILCS5/5--5--6(n) (West 1998).

This provision allows a victim of crime to sue for damages for whichthe court did not award restitution. However, plaintiffs sought torecover only the money that the court did award in its restitutionorder.

Section 5--5--6(k) states:

"Nothing contained in this Section shall preclude theright of any party to proceed in a civil action to recover forany damages incurred due to the criminal misconduct of thedefendant." 730 ILCS 5/5--5--6(k) (West 1998).

This provision allows a victim to maintain a civil action "separate"from the State's prosecution of the defendant. People v. Mitchell,241 Ill. App. 3d 1094, 1098 (1993). However, plaintiffs' complaintdid not set out a "separate" civil action; it merely asserted aclaim for what was already due under the judgment in the criminalcase.

In sum, as the trial court concluded, plaintiffs' complaintproffered a cause of action that does not exist. No legalauthority, within or without section 5--5--6, allows a plaintiff torecover a judgment for the balance due under another judgment. Therefore, plaintiffs' argument that they timely filed such a claimis moot.

In their reply brief, plaintiffs submit their alternativeargument that their claim was invalid only because they sought thewrong remedy. They contend that, had they prayed merely for theenforcement of the restitution order (730 ILCS 5/5--5--6(m)(3) (West1998)), they would have stated a cause of action. They furtherargue that their selection of the wrong remedy entitles them toamend their complaint. We agree.

Section 2--617 of the Code states in part:

"Where relief is sought and the court determines, onmotion directed to the pleadings, *** that the plaintiff haspleaded *** facts which entitled the plaintiff to relief butthat the plaintiff has sought the wrong remedy, the court shallpermit the pleadings to be amended, on just and reasonableterms, and the court shall grant the relief to which theplaintiff is entitled on the amended pleadings or upon theevidence." 735 ILCS 5/2--617 (West 1998).

Although plaintiffs alleged facts that entitled them to enforce therestitution order, they improperly sought a judgment for the unpaidrestitution. Under section 2--617, that error was not fatal totheir complaint. Instead, they must be permitted to amend it.

We recognize that plaintiffs technically waived this argumentwhen they failed to raise it in the trial court (City of Rockford v.Suski, 307 Ill. App. 3d 233, 243 (1999)) and in their initial brief(Perona v. Volkswagen of America, Inc., 292 Ill. App. 3d 59, 65(1997)). However, waiver is an admonition to the parties ratherthan a limitation on our jurisdiction, and it may be relaxed whenthe interests of justice so require. Caterpillar, Inc. v. Doherty,299 Ill. App. 3d 338, 346 (1998). Here, defendant acknowledged inthe trial court that plaintiffs were seeking the "enforcement of the[restitution] order." Furthermore, in this court, defendantsuggests that plaintiffs' proper remedy was enforcement undersection 5--5--6(m)(3). Because plaintiffs' procedural error hascaused no prejudice to defendant, we decline to invoke the waiverrule to sustain the harsh sanction of dismissal.

For these reasons, the judgment of the circuit court of Du PageCounty is reversed, and the cause is remanded with directions topermit plaintiffs to amend their complaint to seek the enforcementof the restitution order.

Reversed and remanded with directions.

INGLIS and McLAREN, JJ., concur.