specially concurring:
I agree with the majority that the five-year limitations period of section 13 — 205 of the Code of Civil Procedure (735 ILCS 5/13 — 205 (West 1996)) applies to this case. However, I believe that this result is best reached through a straightforward application of long-settled legal principles.
The majority opinion fails to do this. Rather, in the course of its “observations” on time limitations in legal and equitable actions, the majority opinion needlessly attacks well-established distinctions between cases at law and in equity. 195 Ill. 2d at 265-74. The opinion also engages in an extended and unnecessary discussion of when actions such as these accrue. 195 Ill. 2d at 266-70, 275-85. Most disturbingly, the majority opinion also implies the impropriety on the part of attorneys who invoke principles of equity. 195 Ill. 2d at 270, 281-82. These discussions are not necessary to resolve this case.
Accordingly, I concur in the judgment of the court, but not in its opinion.
Count III of plaintiff’s complaint, as ultimately amended, pled “restitution, assumpsit, unjust enrichment and recovery of payment.” This count describes an action at law governed by principles of equity. Board of Highway Commissioners v. City of Bloomington, 253 Ill. 164, 173-74 (1911). The controlling principles are quite settled:
“It is an elemental principle of law, applied in both law and equity courts, that where one person has received money or its equivalent, which belongs to another, under such circumstances that in equity and good conscience he ought not to retain it, recovery will be allowed. [Citations.] In equity, the theory of recovery is predicated on the imposition of a constructive trust, [citations] and at law, on the basis of a quasi-contract, or contract implied in law. [Citations.]” Board of Trustees of Police Pension Fund v. Village of Glen Ellyn, 337 Ill. App. 183, 194-95 (1949).
See generally 1 D. Dobbs, Remedies § 4.2(3), at 579-82, § 4.3(2), at 590-91 (2d ed. 1993). These theories of recovery are parallel. “Both quasi-contract and constructive trust aim at restitution of something that in good conscience belongs to the plaintiff.” 1 D. Dobbs, Remedies § 4.3(2), at 590 (2d ed. 1993).
It is equally established: “Where both a court of equity and a court of law have concurrent jurisdiction, the bar of the statute of limitations has been held to be as binding in equity as at law.” Dean v. Kellogg, 394 Ill. 495, 504 (1946); accord Rakstiene v. Kroulaidis, 33 Ill. App. 3d 1067, 1072-73 (1975); 7 Ill. L. & Prac. Chancery § 124, at 347 (1954). Specifically, courts have applied the limitations bar of section 13 — 205 of the Code of Civil Procedure and its predecessor provisions to constructive trust cases sounding in equity (see, e.g., Hagney v. Lopeman, 147 Ill. 2d 458, 462 (1992), citing Chicago Park District v. Kenroy, Inc., 78 Ill. 2d 555, 560-61 (1980)), as well as to implied contract or assumpsit actions at law (see, e.g., Rohter v. Passarella, 246 Ill. App. 3d 860, 868 (1993); Partipilo v. Hallman, 156 Ill. App. 3d 806, 811 (1987); see Burns Philp Food, Inc. v. Cavalea Continental Freight, Inc., 135 F.3d 526, 527-28 (7th Cir. 1998)(apply-ing Illinois law)). Therefore, section 13 — 205 of the Code applies here.
Further, it is long settled when this type of action accrues, so as to start the running of section 13 — 205 of the Code of Civil Procedure. “Illinois case law firmly establishes that in such actions the statute of limitations begins running when the payment is made.” Pennwalt Corp. v. Metropolitan Sanitary District of Greater Chicago, 368 F. Supp. 972, 980 (N.D. Ill. 1973)(collecting cases); Rath v. City of Chicago, 207 Ill. App. 117, 121 (1917), quoting 2 A. Jacobs, Cooley on Taxation 1508 (3d ed. 1903). The present case is resolved based on settled law.
However, the majority opinion proceeds to state what the appellate court said in Rath via lengthy discussion of tax collection cases. 195 Ill. 2d at 266-70, 275-85. Also, the majority opinion, stressing the need for certainty and finality, needlessly attacks the applicability of the equitable defense of laches to tax collection cases. 195 Ill. 2d at 270-74. As the above-cited cases, particularly Dean and Rath, show, the majority opinion’s lengthy discussion of tax cases, and especially the opinion’s attack on equity jurisprudence, are unnecessary to decide this case.
Even more disturbing, the majority opinion needlessly impugns the integrity of attorneys who invoke principles sounding in equity. The majority opinion characterizes such attorneys as “shrewd” advocates, who attempt to “manipulate the outcome” of cases. 195 Ill. 2d at 270. The majority opinion characterizes the pleading of equitable principles as potentially “arbitrary and manipulative.” 195 Ill. 2d at 282. The majority opinion exhorts: “Claimants should not be able to manipulate the result by the turn of a phrase, thereby avoiding the relevant statute of limitation ***.” 195 Ill. 2d at 282. Not only is such rhetoric unnecessary to decide this case, it impugns the integrity of attorneys who do nothing more than invoke principles of equity.
“An action for money had and received will lie whenever one person has received money which, in justice, belongs to another, and which, in justice and right, should be returned.” Wilson v. Turner, 164 Ill. 398, 403 (1896). This court recognized that the action “ ‘embraces a great variety of cases.’ ” Wilson, 164 Ill. at 403, quoting Allen v. Stenger, 74 Ill. 119, 121 (1874).
In providing for this action, Illinois courts long ago resolved issues that the law-equity dichotomy presents. The majority opinion’s extended discussion and rhetoric do not add to that accomplishment. I concur in the judgment.
JUSTICE McMORROWjoins in this special concurrence.