concurring in part and dissenting in part:
I agree with affirming the trial court’s dismissal of the complaint against the Department for lack of jurisdiction. I also agree with the majority’s finding that the claim against Streator was ripe for adjudication. I disagree, however, with affirming the dismissal of the complaint against Streator. I believe that the complaint against Streator would survive dismissal at this stage, and I would remand for further action on that complaint.
Meyer’s complaint against Streator alleged that Streator held certain funds in escrow for the benefit of Meyer and Gonzalez, owed a fiduciary duty to each not to disburse those funds until authorized to do so, and breached that duty by disbursing the funds to the State. Streator moved to dismiss the complaint for failure to state a cause of action. A motion to dismiss for failure to state a claim admits not only facts alleged in the complaint, but all reasonable inferences that can be drawn therefrom. Weinberger v. Bell Federal Savings & Loan Ass’n, 262 Ill. App. 3d 1047, 1049-50 (1994). Further, a cause of action should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts can be proved which would entitle the plaintiff to recover. Krautstrunk v. Chicago Housing Authority, 95 Ill. App. 3d 529 (1981). To state a claim for breach of fiduciary duty, a plaintiff must allege: (1) the existence of a fiduciary duty; (2) the defendant’s breach of that duty; and (3) damages that were proximately caused by that breach. DOD Technologies v. Mesirow Insurance Services, Inc., 381 Ill. App. 3d 1042 (2008).
Here, the complaint alleged facts that, along with reasonable inferences, would state a claim for breach of fiduciary duty. Plaintiff alleged the existence of a fiduciary duty in that Streator allegedly held the funds in escrow. An inference is raised in the pleading that Streator was to hold those funds until instructed by the plaintiff to disburse the funds. The complaint also alleged that Streator, in violation of its fiduciary duty, released the funds. As to damages caused by the alleged breach of fiduciary duty, the majority maintains that there could be no set of facts or inferences under which plaintiff could prove that plaintiff would be entitled to recover. I disagree. The very reason for placing the funds in escrow appears to have been to allow plaintiff the time to negotiate with the Department over the amount sufficient to settle the lien. By paying the full lien amount without instruction from plaintiff, Streator may have damaged plaintiffs position in those negotiations. At this stage of the pleadings, I would see no reason why the complaint should not survive a motion on the pleadings. I would remand for Streator to answer the complaint. I respectfully dissent from that portion of the order affirming the dismissal of the count against Streator.