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SECOND DIVISION

December 31, 2002

PRESIDING JUSTICE McBRIDE delivered the opinion of thecourt:

Plaintiff David Allen and his former business partners,defendants Andrew Berger and Thomas Wolf, were jointly indictedby a federal grand jury for engaging in bribery and competitivebid rigging in order to obtain supply contracts with the ChicagoHousing Authority. Berger and Wolf pled guilty; however, thecharges against Allen were dismissed. Allen then sued Berger andWolf for malicious prosecution and conspiracy to maliciouslyprosecute, contending they had knowingly made false accusationsagainst Allen after he alerted federal authorities to theircriminal activity. Berger and Wolf moved to dismiss Allen'saction pursuant to section 2-615 of the Code of Civil Procedure(735 ILCS 5/2-615 (West 1998)). Both defendants argued that theywere not the cause of Allen's prosecution because they had merelyprovided information in an ongoing investigation. Berger andWolf further argued that merely testifying, even falsely, doesnot satisfy the causation element of a malicious prosecutionclaim. The motion to dismiss was granted. On appeal, Allencontends the trial court misapplied the relevant legalprinciples. Allen argues that he sufficiently alleged theelement of causation when he indicated that Berger and Wolfknowingly made false accusations against Allen in statements tothe Federal Bureau of Investigation and United States Attorney,statements that were subsequently repeated before the federalgrand jury which indicted the former partners. For the reasonsthat follow, we reverse.

A section 2-615 motion to dismiss attacks the legalsufficiency of a complaint and questions whether the allegations,viewed in a light most favorable to the plaintiff, are sufficientto state a cause of action upon which relief may be granted. Rodgers v. Peoples Gas, Light & Coke Co., 315 Ill. App. 3d 340,345, 733 N.E.2d 835, 840 (2000). All well-pled facts are takenas true and all reasonable inferences from those facts are drawnin favor of the plaintiff. Rodgers, 315 Ill. App. 3d at 345, 733N.E.2d at 840. "A cause of action will not be dismissed on thepleadings unless it clearly appears that no set of facts can beproved which will entitle the plaintiff to recover." Rodgers,315 Ill. App. 3d at 345, 733 N.E.2d at 840. The question ofwhether a complaint states a cause of action is a question oflaw; therefore, we review Allen's complaint de novo. Rodgers,315 Ill. App. 3d at 345, 733 N.E.2d at 840.

To state a claim for malicious prosecution, Allen wasrequired to allege facts showing (1) commencement or continuationof a judicial proceeding by the defendants, (2) termination ofthe prosecution in Allen's favor in a manner indicative ofAllen's innocence, (3) the absence of probable cause for theproceeding, (4) the presence of malice, and (5) resultingdamages. Swick v. Liautaud, 169 Ill. 2d 504, 512, 662 N.E.2d1238, 1242 (1996); Vincent v. Williams, 279 Ill. App. 3d 1, 3-4,664 N.E.2d 650, 652 (1996). The first element is also referredto as "legal causation." See, e.g., Geisberger v. Vella, 62 Ill.App. 3d 941, 943, 379 N.E.2d 947, 948 (1978).

The relevant portion of Allen's first amended two-countcomplaint indicates the following. Allen, Berger, Wolf, andanother individual were equal partners in an Illinois industrialsupply company called Dart. William Fletcher was the head of theChicago Housing Authority's office of purchasing and contracts. Berger bragged to Allen that the housing agency was awardingsupply contracts to Dart without soliciting or taking competitivebids because Berger and Wolf were bribing Fletcher and Fletcher'saide. Berger and Wolf were also preparing fake competitive bidswhich Fletcher and the aide used to make it appear the contractswere properly awarded.

Further, after Allen informed the Federal Bureau ofInvestigation (FBI) about Berger and Wolf's activities, the FBIand United States Attorney for the Northern District of Illinois(U.S. Attorney) began investigating Dart. Allen cooperated withthe investigation by giving various statements, including reportsabout conversations he was having with Berger. The FBI and U.S.Attorney assured Allen, repeatedly, that he was not beinginvestigated.

When Berger began to suspect that Dart was underinvestigation, he threatened to implicate Allen. Berger and Wolfthen "acted in concert" to knowingly make false statements to theFBI and/or U.S. Attorney. They implicated Allen as the"mastermind and kingpin of their scheme." After the U.S.Attorney read Berger's false accusations to the grand jury andWolf gave false testimony before the grand jury, Allen wasindicted.

In Illinois, malicious prosecution actions are disfavored. Rodgers, 315 Ill. App. 3d at 345, 733 N.E.2d at 840; Joiner v.Benton Community Bank, 82 Ill. 2d 40, 44, 411 N.E.2d 229, 231(1980). Public policy encourages the exposure of crimes andcitizen cooperation, and these interests are furthered bynarrowly circumscribing the instances in which maliciousprosecution actions may be brought. Joiner, 82 Ill. 2d at 44-45,411 N.E.2d at 231. Citizens acting in good faith who haveprobable cause to believe that crimes have been committed shouldnot be deterred from reporting them out of fear of unfoundedsuits by those they have accused. Joiner, 282 Ill. 2d at 45, 411N.E.2d at 231.

Consequently, a person who unwittingly gives a prosecutingofficer false information of another person's alleged crime isnot liable for malicious prosecution, unless the person takes anactive part in instituting criminal proceedings, by requesting,directing, or pressuring the prosecuting officer into institutingthe proceedings. See generally Geisberger, 62 Ill. App. 3d at943, 379 N.E.2d at 949; Pratt v. Kilborn Motors, Inc., 48 Ill.App. 3d 932, 935, 363 N.E.2d 452, 454-55 (1977); Restatement(Second) Torts,