dissenting:
The majority holds that Partipilo stated a cause of action for unjust enrichment and that he is entitled to relief from Hallman. The majority concludes, however, that two issues of fact prevented the trial court from entering summary judgment for Partipilo. The majority also concludes that the statute of limitations applies to this case and bars Partipilo from recovering taxes that he paid more than five years preceding his filing of the lawsuit. I believe that summary judgment is appropriate in this case and that the statute of limitations is inapplicable. I would affirm the judgment of the trial court in all respects. Consequently, I respectfully dissent.
I
The majority notes that Hallman was “deprived of his right to object to the assessed evaluation of his improvements,” and that he was “not enriched to the extent that his taxes would have been lowered had he filed an objection to the assessment.” (156 Ill. App. 3d at 811.) The majority concludes, therefore, that it is a question of fact whether the assessment would have been reduced and that this question of fact precludes summary judgment. The majority next notes that “Hallman was not enriched to the extent that he may have overpaid his Federal income taxes. Any overpayment should be borne by Partipilo, and the amount of such overpayment is a question of fact to be resolved by the trial court.” 156 Ill. App. 3d at 811.
Summary judgment is available only when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1985, ch. 110, par. 2—1005(c); Artis v. Fibre Metal Products (1983), 115 Ill. App. 3d 228, 231-32, 450 N.E.2d 756, 758.) Further, the mere existence of factual questions will not preclude summary judgment unless those facts are material to the litigation. Facts that are unrelated to the essential elements of plaintiff’s cause of action are immaterial; no matter how sharply the parties dispute them, their presence in the record will not warrant denial of a motion for summary judgment. Equity General Insurance Co. v. Patis (1983), 119 Ill. App. 3d 232, 236, 456 N.E.2d 348, 351, cited in Eakins v. New England Mutual Life Insurance Co. (1984), 130 Ill. App. 3d 65, 68, 473 N.E.2d 439, 442.
Applying these principles to the instant case, I conclude that summary judgment is appropriate. All parties agreed on the material facts in the trial court and continue to do so. The majority opinion begins by noting that the parties do not dispute the facts. The only issue before the trial court was whether the theory of unjust enrichment supported recovery by Partipilo. The majority holds that it does. No one disputes that Partipilo paid $26,467.10 as a result of the overassessment. No genuine issues of material fact are present.
Although a trial court should construe the facts liberally in favor of the nonmovant in considering a motion for summary judgment, the court need not strain to adduce some remote factual possibility that will defeat the motion. (Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 145, 407 N.E.2d 1031, 1033.) The majority speculates on the amount that Hallman’s taxes would have been lowered, had he filed an objection at all, which is further speculation. The amount that Hallman overpaid on his Federal income taxes is additional speculation. I would affirm the trial court’s entry of summary judgment for Partipilo.
II
The majority also holds that the statute of limitations (Ill. Rev. Stat. 1985, ch. 110, par. 13—205) applies to this case and bars Partipilo from recovering taxes that he paid more than five years preceding his filing of the lawsuit. I believe that the statute of limitations does not apply to this case.
The majority correctly holds that the tort of unjust enrichment is not an equitable cause of action, but, rather, is an action at law. Thus, the majority correctly rejects Hallman’s equitable defense based upon an adequate remedy at law since this is an action at law. The majority concludes, however, that the legal defense of the statute of limitations necessarily applies to this case. I disagree.
The authorities upon which the majority relies for the rule that the tort of unjust enrichment is an action at law also teach that principles of equity govern the right to recover. Board of Highway Commissioners v. City of Bloomington (1911), 253 Ill. 164, 174, 97 N.E. 280, 285; Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980), 87 Ill. App. 3d 480, 486, 408 N.E.2d 1069, 1074; Dickerson Realtors, Inc. v. Frewert (1974), 16 Ill. App. 3d 1060, 1063, 307 N.E.2d 445, 448.
Further, a court of equity usually follows the statute of limitations as a convenient measure for determining the length of time that ought to operate as a bar to an action. The limitations period, however, is neither conclusive nor binding. The court may refuse relief although the time that the statute fixed has not expired, or may grant relief even though the time limitation has long elapsed. The court must review the facts of each particular case to determine whether to strictly construe the statute. Stenwall v. Bergstrom (1947), 398 Ill. 377, 385-86, 75 N.E.2d 864, 868.
Since principles of equity govern the right to recover in an action for unjust enrichment, the statute of limitations is neither conclusive nor binding in the instant case. After reviewing the record, I conclude that the majority’s application of the limitations period in this case is inequitable. Referring to the discussion of laches in Matchett v. Rose (1976), 36 Ill. App. 3d 638, 650-51, 344 N.E.2d 770, 781, I additionally note that Partipilo was sufficiently vigilant in enforcing his rights. I, therefore, would reject Hallman’s claim that laches bars Partipilo’s action.
For the foregoing reasons, I would affirm the judgment of the trial court.