Find Legal Information

Sixth Division

PRESIDING JUSTICE ZWICK delivered the opinion of the court:

Plaintiff, Louis Velez, filed the instant action seeking recovery for malicious prosecution based upon the institution of criminal proceedings against him by defendant, Avis Rent A Car System, Inc. (Avis). Avis brought a motion to dismiss the action pursuant to section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 1996)), asserting that plaintiff had failed to allege a "favorable termination" of the prior criminal proceedings, which was an essential element of his claim for malicious prosecution. The trial court denied the motion to dismiss, and Avis has appealed.

The substantive allegations contained in plaintiff's second amended complaint consist of the following:

Plaintiff had been employed by Avis for approximately seven years when Avis knowingly, maliciously, and without any justification, caused a criminal complaint to be filed against plaintiff, charging him with criminal damage to property. That criminal complaint, filed on March 30, 1995, was ultimately stricken with leave to reinstate on March 22, 1996. Avis thereafter refiled the cause on April 17, 1996. The cause was continued on several occasions. Plaintiff demanded an immediate trial on August 12, 1996, pursuant to the speedy trial provisions contained in the Illinois Code of Criminal Procedure of 1963 (725 ILCS 5/103-5(a) (West 1996)). However, Avis refused to proceed to trial, and the cause was again stricken with leave to reinstate. As of that date, the statute of limitations had expired for the offense charged in the criminal complaint against plaintiff, and trial was precluded by the provisions of the Speedy Trial Act.

Plaintiff's complaint further alleged that Avis's inaction in prosecuting the charges against him indicated that Avis lacked probable cause in initiating the criminal complaint. The striking of the charges against him constituted both an abandonment by Avis and a favorable termination of the criminal proceedings. In addition, plaintiff asserted that this result was consistent with his claim that he was innocent of the charges wrongfully brought against him.

Avis sought dismissal of the action pursuant to section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 1996)), asserting that plaintiff had failed to allege a "favorable termination" of the prior criminal proceedings, an essential element of a claim for malicious prosecution. The trial court denied the motion to dismiss, and on Avis's motion, the court certified the following question for interlocutory appeal pursuant to Supreme Court Rule 308(a):

"Does this Complaint for Malicious Prosecution state a valid cause of action where the Complaint alleges that the Defendant, at two separate criminal court hearings, refused to prosecute criminal charges against the Plaintiff, with the Plaintiff demanding trial and pleading not guilty at each hearing, the charges being stricken on leave to reinstate ('SOL'd'), and where the Plaintiff specifically alleges that he is innocent of said criminal conduct, and the fact that the criminal charges are now barred by the Statute of Limitations and the Speedy Trial Act, constitute a favorable termination of the prior proceeding necessary to support said Malicious Prosecution cause of action?

On March 29, 1999, this court granted Avis's request for interlocutory appeal under Rule 308(a).

When determining the legal sufficiency of a complaint under section 2-615, all well-pleaded facts are taken as true, and all reasonable inferences from those facts are drawn in favor of the plaintiff. 735 ILCS 5/2-615 (West 1996); Connick v. Suzuki Motor Co., 174 Ill.2d 482, 490, 675 N.E.2d 584 (1996). The court must determine whether the allegations in the complaint, when viewed in the light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. People ex rel. Sklodowski v. State of Illinois, 182 Ill.2d 220, 227-28, 695 N.E.2d 374 (1998). Since the question of whether a complaint states a cause of action is one of law, our review of a trial court's decision on a section 2-615 motion to dismiss is de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 116, 619 N.E.2d 732 (1993).

As framed by the certified question set forth above, the sole issue presented in this appeal is whether plaintiff's second amended complaint sufficiently alleged a "favorable termination" of the prior criminal proceedings against him to support his claim for malicious prosecution.

To assert a claim for malicious prosecution in Illinois, a plaintiff must establish (1) that the defendant in the malicious prosecution action brought a previous action against him maliciously and without probable cause, (2) that the previous action was terminated in his favor, and (3) that he suffered some "special injury" or damage beyond the usual expense, time, or annoyance attributable to defending a lawsuit. Cult Awareness Network v. Church of Scientology International, 177 Ill. 2d 267, 272, 685 N.E.2d 1347 (1997).

In Cult Awareness Network, the Illinois Supreme Court identified the types of judicial determinations which constitute a "favorable termination" for purposes of malicious prosecution suits. There, the supreme court rejected the more restrictive approach embodied in numerous prior appellate opinions which required the legal disposition of the prior action to consist of a determination on the factual issue of the case in order to be considered a favorable termination. See Cult Awareness Network, 177 Ill. 2d at 271. Instead, the supreme court adopted the more liberal approach set forth in the Restatement (Second) of Torts, which mandates that the court look beyond the type of disposition obtained in the prior proceedings when assessing whether that termination was, indeed, "favorable" for purposes of a malicious prosecution claim.

The court's opinion in Cult Awareness Network, quoted that portion of the Restatement which as follows:

"'Termination in favor of the person against whom civil proceedings are brought. Civil proceedings may be terminated in favor of the person against whom they are brought *** by (1) the favorable adjudication of the claim by a competent tribunal, or (2) the withdrawal of the proceedings by the person bringing them, or (3) the dismissal of the proceedings because of his failure to prosecute them. A favorable adjudication may be by a judgment rendered by a court after trial, or upon demurrer or its equivalent. In either case the adjudication is a sufficient termination of the proceedings, unless an appeal is taken.

* * *

Whether a withdrawal or an abandonment constitutes a final termination of the case in favor of the person against whom the proceedings are brought and whether the withdrawal is evidence of a lack of probable cause for their initiation, depends upon the circumstances under which the proceedings are withdrawn.' (Emphasis added.) Restatement (Second) of Torts