*1
gun,
drugs,
him —а
knowledge
implicating
of the tainted evidence
in the
and Banks’
which he was confronted
same
statement —with
interview,
played
part.
knowledge
illegally
If a
also
defendant’s
may
seized
was
in his decision
evidence
rеcovered
have been
factor
confess,
suppression
proper. People
then
v.
Nash
App.
3d
The use of evidence obtained from
Banks to confess
illegal
serve to attenuate the taint of
аrrest.
defendant’s
Beamon
Other Corey than the statement of Burns the same revealed evidence, intervening interview tainted the record shows no warnings passage circumstances. Miranda of time and a 16-hour be- tweеn sufficient arrest and confession are not to meet the standards set out in Brown. We hold that defendant’s should confession have been suppressed. challenged
The defendant has sufficiency evidence (Bea against him, no jeopardy so double considerations bar remand. 316.) mon, 627 N.E.2d We reverse and remand for a new trial.
Reversed remanded.
HOFFMAN, P.J., THEIS, J, concur. al., Plaintiffs-Appellants, DON et NORTON THE CITY OF CHICAGO et
al., Defendants-Appellees. (4th Division) First District No. 1 — 92—3963 Opinion Rehearing filed Nоvember denied December 1994. 1994. *2 Swartzman, Schoenfield, Chicago,
Rick M. of Schoenfield & of for appellants. (Lawrence Rosenthal, Counsel, Chicago Sher, Corporation S. of Susan Counsel, Dobrer, Solomon, Corporation and of
Benna Ruth Jean Assistant counsel), City Chicago. appellee for of (Francis McKenzie, Morrissey, Bridg- F. Chicago & of D. Thomas
Baker counsel), System man, Schaller, appellee Lynch of for Datacom and William Corporation. Burke, James, of Warren & and D. both Richard W. Burke Andrew P.C., Chicago, County.
MacKay, appellee for Cook of opinion of the court: the JUSTICE CAHILL delivered parking a penalty a for from the of $3 This case arises were penalty, plaintiffs plaintiffs. the In addition the ticket in the re litigation the of and a fine which was charged paid System Corp. Daley rel. v. Datacom lated cases ex (7th 1988), F.2d Cir. 700. City Chicago v. Horn of tickets. background the supply cases the about These alleged the complaint a two-count amended Plaintiffs filed and violated unjustly were enriched County, and Datacom city, Cook (Consumer Consumer Deceptive Fraud and Practices Business Act Act) (Ill. 121½, par. seq.) Fraud Rev. Stat. ch. 261 et collecting penalty plaintiff. from Each each defendant filed motion to dismiss under section of Code of 2—615 Civil Procedure (Ill. 615), trial court granted. so, doing rulings. the court made two ruling
We affirm the court’s first failed to state cause оf action under count I for enrichment as to defendants city Datacom and the and under count II for violation of the Consumer Fraud Act as to appeal Datacom. Plaintiffs do not ruling dismissing city County II. count We re- ruling verse thе court’s plaintiffs’ complaint second is an impermissible collateral attack. motion,
When aon section 2—615 the trial court must allegations consider of (Baughman v. Martindale-Hubbell, (1984), 506), Inc. and all facts properly pleaded be must taken as true (Fitzgerald Chicago Title & Trust Co. Regardless 72 Ill. 2d reasoning court, trial we affirm its if correct. Material Ser vice Corp. Department Revenue 98 Ill. 2d 387. To unjust enrichment, state cause of action fоr a plaintiff must allege the unjustly defendant Drury retained a benefit. *3 v. County McLean 89 2d Ill. 425-26. of allegation The respect of count I to City the is: City "[T]he benefited from the defendants’ aforesaid conduct County the demanding City County becаuse was the pay that the every paid regardless three dollars for ticket that was of what City amount the regardless received in of whether an money additional three dollar fee was obtained in to addition as received fines.” allegation
This is insufficient to state a cause of action for allege city enrichment. Plaintiffs fail to that or the received retained any portion of the penalty. allegation
The respеct of count with to Datacom is: "Datacom benefitted from the defendants’ aforesaid conduct percentage money it a because of the that it collected.” allegation allege This alone is must also insufficient. Plaintiffs (See specific in support facts of their Teter v. claim. Clemens 256-67.) Here, although allege plaintiffs that Datacom money collected, percentage they received a fail that to $3, Datacom received and retained a of the is the subject of this lawsuit. II, plaintiffs standing bring
As to count we find to an lack they Consumer alleging action a Fraud Act because violation Steinberg Chicago are not сonsumers. In Medical School " is Act the court noted that the Consumer Fraud Act 'An fraud, protect to consumers and borrowers and businessmen competition deceptive prac of and unfair or acts or unfair methоds any in A is tices the conduct of trade or commerce ***.’ 'consumer’ purchase 'any person purchases of merchan who or contracts for ” 328, quoting Ill. at (Steinberg, dise ***.’ 261(e).) 121½, Act The held that the Consumer Fraud court plaintiff and he plaintiffs to the action because those apply did school, represented applicants were a medical not consumers. to plaintiffs Daley, of the court allowed the the relatеd case Fraud withstand a section 2—615 motion. Consumer Act count to distinguished grounds on the Daley Steinberg court Attorney, Daley who "is limited plaintiff in was State’s protect.” Daley, to regarding interests she or he seek whose Ill. 2d at 31.
Here, allegedly group private are a of citizens who consumers, They find are not we parking committed violations. holding of the issue. Steinberg that the in controls resolution next the trial court’s second We address noted that impermissible is an collateral attack. The court 387(b) (Chicago Municipal Chicago Municipal Code Code § (1963)) ways of tickets: dispose three provided (3) (1) (2) by trial; by municipal judge; by by or official of circuit of penalty to the clerk court payment of fine "if in ac County. The then reasoned that acted court were options one the three their traffic ticket cases cordance with of were, therefore, judg final by the Cоurt and disposed deemed disposed "plaintiffs’ cases were deemed ments.” The court ruled that fines, disposal and this was they paid respective when their judgment.” equivalent of final parties having jurisdiction of the
A rendered a court collateral action. subject is not to attack and the matter attack, final collateral apply the doctrine of But before we can isus unclear required. The record before judgment оn the merits final the traffic court judgments were ever entered whether these cases. *4 failure to state cause
A motion to dismiss for section 2—615 sufficiency complaint. (Kolegas of a legal action attacks Heftel 8.) (1992), 1, A to dismiss motion Broadcasting Corp. is properly a previous it is because barred cause (Ill. Rev. Civil Procedure of the Code of brought section 2—619 under 619). 110, improper labeling par. Stat. ch. While is not 2— always fatal, require prejudiced it will reversal if the nonmovant (Premier by the error. Electrical v. La Salle Construction Co. National 638.) (1983), Bank We find that the trial court erred finding as a matter of law the traffic court entered final judgments prejudiced by in these cases. Plaintiff's were this error. county required proof judgments, was not to offer of final forego presenting were forced to support affidavits to their contention that the traffic judgments. court did not enter final re We verse the county dismissal of the count I and remand for fur proceedings. ther part
Affirmed in part reversed in and remanded.
JOHNSON, J., concurs. HOFFMAN,
PRESIDING JUSTICE concurring in part and dissenting part: (1)
For the same reasons majority, set forth I concur in: affirming (2) the dismissal against of count I city; affirming the (3) against dismissal of Datacоm; count II reversing the trial court’s holding plaintiffs’ that the complaint was barred under the collateral (4) doctrine; attack reversing the against dismissal of count I County. I separately write register my to dissent from affirming the dismissal of сount Datacom.
In addition to its application erroneous of the collateral attack doctrine, the trial court also found that prove could not that Datacom received and retained thе fees subject which are the $3 of this litigation, or unjustly and, it was enriched aas conse quence, dismissed count I plaintiffs’ complaint against amended affirming Datacom. In against Datacom, dismissal of count I majority holds that fаiled to that Datacom "received and retained a mailing [court cost or fee], which is the of this lawsuit.” 3d at 509.
As it relates count I of the amended against Datacom, this case comes to this court on review from dis (Ill. pursuant missal to section 2—615 of the Code of Civil Procedure on a motion to dismiss 2— brought pursuant to section well-pied court must take all facts as true (Steinberg Medical Chicago School 69 Ill. 2d 634; 371 N.E.2d Miner v. Gillette Co. 87 Ill. 2d 478), N.E.2d and must draw all reаsonable inferences from those (Your facts which are Publications, favorable to the pleader Style Inc. *5 421, 501 N.E.2d v. Mid Town Bank & Trust Co. 805). presented to the court on such motion is only question alleges state a cause of chаllenged pleading facts which whether the can nothing plaintiffs to do with whether the action. The motion has allegations. prove those complaint. majority’s reading of count I of the disagree
I with the six, the notices plaintiffs allege that Datacom sent paragraph In along parking tickets past-due demanded of the which fee; they and eight, plaintiffs paragraph in $3 demanded; 330,000 paragraph paid others the sums approximately 27, in the collection of more they allege that the notices resulted 29, fees; paragraph and in million attributable to the $3 than $2.7 money percentage allege that Datacom received reading I of the my From of count it collected. inference that can be drawn complaint, only reasonable amended of both the percentage received a pied from the facts is that Datacom finеs and fees collected. $3 prove not could at its conclusion that
To arrive fees, court, responding the trial Datacom received or retained ex rel. by Datacom and the decision argument an made (1991), 146 Ill. 2d 585 N.E.2d Systems Corp. Daley v. Datacom fines and up to 42% of found that Datacom in at the source of the fees issue. Whatever relied, say it suffice it to the trial court upon formation attack and should face of thе was dehors the 2—615 motion ruling on Datacom’s section considered in have been 155; (Mutual 111 N.E.2d Halpin Tobacco Co. v. N.E.2d Barenfanger Louis v. aff’d (1968), 39 Ill. 2d 236 N.E.2d alleged by the view, facts well-pied all of the my when as true complaint are taken I their amended plaintiffs in count are drawn to the inferences favorable and all reasonable cause of facts, good and sufficient count I states from those Therefore, I dissent from Datacom. against for enrichment Datacom. count the dismissal of majority’s affirmance of