dissenting:
I respectfully dissent.
The trial court dismissed plaintiffs’ complaint because it failed to state a cause of action. This court appropriately holds that plaintiffs did have a cause of action and are entitled to recoupment of benefits paid to an employee who is not entitled to those benefits. Nevertheless, this court affirms because of the complaint’s reference to section 19(g) of the Act, a section which I agree provides no basis for recovery. The majority is not concerned the complaint said too little, but that it said too much.
It is not necessary to plead a particular legal theory in order to state a cause of action in Illinois, only that facts be pleaded which allege a cause of action. (See 3 R. Michael, Illinois Practice §24.2, at 340 (1989) (Civil Procedure Before Trial).) A motion to dismiss does not lie as long as a good cause of action is stated even if that cause of action is not the one intended to be asserted by the plaintiff. (Browning v. Heritage Insurance Co. (1975), 33 Ill. App. 3d 943, 947, 338 N.E.2d 912, 916 (absolute liability pleaded where there was only liability for fraud, negligence, or bad faith); Luethi v. Yellow Cab Co. (1985), 136 Ill. App. 3d 829, 833-34, 483 N.E.2d 1058, 1061 (willful and wanton conduct pleaded but only possible cause of action one for negligent entrustment).) A complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved which would entitle plaintiff to relief. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504-05, 565 N.E.2d 654, 657; Meerbrey v. Marshall Field & Co. (1990), 139 Ill. 2d 455, 473, 564 N.E.2d 1222, 1230.) If plaintiffs here proved the facts alleged in their complaint, plaintiffs would be entitled to recovery. The reference to section 19(g) should be ignored as mere surplusage. Surplusage does not provide a basis for dismissal of a complaint containing all of the factual allegations necessary to state a cause of action. Segall v. Berkson (1985), 139 Ill. App. 3d 325, 329, 487 N.E.2d 752, 755.
The trial court certainly cannot be faulted for failing to consider a theory not argued by plaintiff. Nevertheless, if this complaint had not mentioned section 19(g) of the Act, we would reverse, even if the trial court and the parties were not familiar with Celeste or Zambole. The rule that an appellant may not raise in the reviewing court an issue not presented to or considered by the trial court has been held not to apply to cases like this one, where the appellate court considers whether a complaint states a cause of action. A complaint which states facts sufficient to allege a cause of action gives some notice of its theory, regardless of whether plaintiff chose to argue that theory in the trial court. Krautstrunk v. Chicago Housing Authority (1981), 95 Ill. App. 3d 529, 534-35, 420 N.E.2d 429, 433.
I would reverse the order dismissing the complaint and remand for the case to proceed.