23 August 2000

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JUSTICE McLAREN delivered the opinion of the court:

The plaintiff, Barbara Kaiser, appeals the dismissal of hercomplaint seeking judgment for money she gave the defendant, PaulB. Fleming, to pay off the mortgage on his home. We affirm inpart, reverse in part, and remand the cause for furtherproceedings.

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

The plaintiff alleged that, before the plaintiff's judgment ofdissolution of marriage was entered on March 11, 1995, she told thedefendant that she was considering accepting the propertydistribution from her dissolution in installment payments over twoor three years. The defendant became angry and told the plaintiffshe would be foolish to accept payment over a number of years andadvised her to demand a lump-sum payment. The plaintiff followedthe 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 1996she considered purchasing a unit in a newly built subdivision. Thepurchase required the plaintiff to use approximately $45,000 of herproperty distribution money for the down payment. The defendantadvised the plaintiff that the " 'lay of the land' could cause aproblem of water damage to the foundations of the units in thesubdivision." The plaintiff did not purchase the unit.

Subsequently, the defendant asked the plaintiff to live withhim at his home in Elgin, Illinois. The plaintiff spoke with anaccountant, who the plaintiff believed was the defendant'saccountant, regarding investing her property distribution money. The defendant then suggested that the plaintiff use the money topay off the balance of the defendant's mortgage, stating that theywould both "be able to save more money" and "would have more 'gain'when the real property was sold." The plaintiff believed thatpaying off the defendant's mortgage would be a safe investment forher money and would be an investment for the future of both herselfand the defendant. The plaintiff moved into the defendant's homeon June 30, 1996.

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

During the plaintiff's stay at the defendant's home, she"purchased the food, groceries, and other routine householdarticles 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 thedefendant was verbally abusive toward the plaintiff intermittentlyfrom January 1997 until November 15, 1997, when the plaintiff movedout of the defendant's home. During this period, the defendantperiodically refused to speak to the plaintiff, ignored her, andbecame intimidating toward her.

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

Count II, titled "Money Had and Received," incorporated byreference the allegations contained in count I and sought ajudgment in the amount of $47,188.38, along with statutoryinterest, costs, attorney fees, and reasonable expenses, all to bepaid 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 bydismissing both counts of her complaint.

Under section 2--615 of the Code of Civil Procedure (735 ILCS5/2--615 (West 1998)), the question presented by a motion todismiss for failure to state a cause of action is whether theplaintiff has alleged sufficient facts in the complaint that, ifproved, would entitle the plaintiff to relief. Anderson v. VandenDorpel, 172 Ill. 2d 399, 407 (1996). All well-pleaded facts in thecomplaint are taken as true (Boyd v. Travelers Insurance Co., 166Ill. 2d 188, 194 (1995)), but any conclusions drawn from the factsas 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 thecomplaint become part of the complaint and will be considered. Fuller's Car Wash, Inc., 298 Ill. App. 3d at 170. A motion todismiss should be granted only if the plaintiff can prove no set offacts to support the cause of action asserted. Carroll v. Faust,311 Ill. App. 3d 679, 684 (2000). We must review the complaint ina light most favorable to the plaintiff (Carroll, 311 Ill. App. 3dat 684) under de novo review (Abbasi v. Paraskevoulakos, 187 Ill.2d 386, 391 (1999)).

After reviewing the pleadings and attached documents, wedetermine that the trial court erred by dismissing count II of theplaintiff's complaint for money had and received. "An action formoney had and received is maintainable where defendant has receivedmoney which in equity and good conscience belongs to theplaintiff." 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 theoryof 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 thedefendant's benefit for a partnership that never materialized. Theappellate court held that the plaintiff had established a cause ofaction for money had and received.

Here, the plaintiff alleged that she paid money to thedefendant and that he used the money to pay off the mortgage on hishome and did not record her interest in the property or return themoney to her. The plaintiff alleged, and the defendant did notdeny, that he agreed to pay the plaintiff back when the propertywas sold. Interpreting the complaint in a light most favorable tothe plaintiff, we believe count II sufficiently set forth a causeof action for money had and received under a theory of either implied contract or quasi-contract.

We do not agree with the defendant's assertion that a cause ofaction for money had and received can be proved only where theplaintiff was compelled to pay the defendant. Other courts havenot required proof of this element. See Maloney, 215 Ill. App. 3dat 45. Further, Butitta v. First Mortgage Corp., 218 Ill. App. 3d12 (1991), cited by the defendant, is not controlling here. TheButitta court erroneously cited Peterson v. O'Neill, 255 Ill. App.400, 402 (1930), for the proposition that the plaintiff mustestablish that she was compelled to pay money to the defendant toestablish a cause of action for money had and received. However,the Peterson court merely stated that compulsion is one way ofestablishing the cause of action. Nothing in Peterson supports thedefendant's assertion that one must allege compulsion. Thus,Butitta is not controlling here. Union Pacific v. Village of SouthBarrington, 958 F. Supp. 1285 (N.D. 1997), also cited by thedefendant, cites Butitta for the same erroneous proposition and islikewise not controlling here.

The defendant also cites Ayala v. Fox, 206 Ill. App. 3d 538(1990), to support his argument that the plaintiff's complaintviolated Illinois public policy against granting mutual propertyrights to unmarried cohabitants. We disagree with the defendant.Unlike the plaintiff in Ayala, the plaintiff here alleged rightssubstantially independent from her nonmarital relationship with thedefendant. The plaintiff alleged that she wanted to invest themoney she received from her property distribution and believedpayment of the mortgage would be a safe investment. She furtheralleged that the defendant told her that the parties would realize"more gain" when the property was sold. Further, the plaintiff'sclaim here was based upon a lump-sum payment made to the defendantas an investment to pay off the mortgage on his home. Theplaintiff's claim in Ayala was based upon mortgage payments theplaintiff made while she lived with the defendant for 10 years.Further, the plaintiff in Ayala sought additional relief akin to amarital relationship and based her claims on the fact that she andthe defendant " 'lived together as husband and wife.' " Ayala, 206Ill. App. 3d at 539. Thus, Ayala is factually distinguishable fromthe case at bar.

The plaintiff also argues that the trial court erred bydismissing her claim seeking a constructive trust. The defendantargues that the trial court properly dismissed this claim. Weagree with the defendant.

"A constructive trust is an equitable remedy imposed againstone who, by some form of wrongdoing such as actual or constructivefraud, breach of a fiduciary duty, duress, coercion, or mistake,has been unjustly enriched." Schultz v. Schultz, 297 Ill. App. 3d102, 106-07 (1998). The plaintiff here based her claim on thedefendant's purported breach of fiduciary duty. To establish aconstructive trust based on the existence of a confidential orfiduciary relationship, the party seeking the constructive trustmust prove such a relationship by clear and convincing evidence. Martin v. Heinold Commodities, Inc., 163 Ill. 2d 33, 46 (1994). The following factors must be taken into consideration: (1) thedegree of kinship; (2) the disparity in age, health, mentalcondition, education, and business experience between the parties;and (3) the extent to which the allegedly servient party entrustedthe handling of her business and financial affairs to the"dominant" party and placed trust and confidence in him. Ransom v.A.B. Dick Co., 289 Ill. App. 3d 663, 673 (1997).

In this case, the disparity between the parties was not greatin any regard. The plaintiff and the defendant were not related;their age difference was 17 years, but the plaintiff was a 38-year-old woman. The defendant had a college degree, whereas theplaintiff had taken some college courses. Further, the plaintiffdid not allege that her mental capacity was not equal to thedefendant's or that the defendant controlled her business affairs. The plaintiff alleged that she was looking for a good investment,and the defendant suggested that she invest in his Elgin home. Under the facts alleged, we determine that the plaintiff failed tosufficiently allege a fiduciary relationship. Further, we cannotsay that the plaintiff sufficiently established that the defendantbreached the purported fiduciary duty. Thus, the trial courtproperly dismissed count I of the plaintiff's complaint.

Accordingly, we affirm the trial court's dismissal of count Iof the plaintiff's complaint titled "Petition for ConstructiveTrust." We reverse the trial court's dismissal of count II of theplaintiff's complaint titled "Money Had and Received" and remandthe cause for further proceedings.

The judgment of the circuit court of Kane County is affirmedin part and reversed in part, and the cause is remanded for furtherproceedings.

Affirmed in part and reversed in part; cause remanded.

BOWMAN, P.J., and HUTCHINSON, J., concur.