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Randall v. Lemke, No. 2-99-0595

2nd District, 10 March 2000

PRESIDING JUSTICE BOWMAN delivered the opinion of the court:

Plaintiff, Robert Randall, appeals two orders of the circuit court of Lake County: (1) its dismissal of his first amendedcomplaint against defendant, Fred Lemke; and (2) its quashing of his subpoena. He argues that (1) his complaint statedvalid claims of malicious prosecution and false imprisonment; and (2) his subpoena requested relevant evidence. We affirm.

Plaintiff filed his first amended complaint on February 18, 1999. In count I, he asserted a claim of malicious prosecution.He alleged that, on February 1, 1998, defendant called the police and "falsely" reported that plaintiff was in his vehicle witha gun. For that reason alone, a police officer pulled over and arrested plaintiff. Plaintiff did not have a gun at the time.Charges were filed but dismissed for lack of probable cause. Defendant acted "willfully, wantonly, and with blatantdisregard for" plaintiff's rights. Plaintiff suffered damages of more than $50,000.

Count II contained plaintiff's claim of false imprisonment. There he made the same allegations, with the following addition:"For the sole reason of the aforesaid actions of Defendant, Plaintiff was arrested and imprisoned against his will for chargesunrelated to possession of a weapon."

On February 24, 1999, plaintiff issued a subpoena seeking the production of certain records of defendant's telephone calls.

Pursuant to section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 1998)), defendant moved to dismissplaintiff's complaint. His argument was based partly upon the fact that plaintiff was arrested for and charged with offensesunrelated to defendant's alleged report to the police. Defendant also moved to quash plaintiff's subpoena.

The trial court granted both motions, stating in its written orders: "[Plaintiff] was arrested on Feb. 1, 1998 *** and wascharged with No Headlights [court file number], DUI [court file number] and other traffic offenses and was not chargedwith any weapons offenses." Plaintiff appealed those orders.

A section 2--615 motion to dismiss attacks the legal sufficiency of a complaint. It presents the question whether thecomplaint's allegations, viewed in the light most favorable to the plaintiff, are sufficient to state a cause of action uponwhich relief may be granted. A claim may not be dismissed on the pleadings unless no set of facts may be proved that willentitle the plaintiff to recover. Our review of an order of dismissal is de novo. Abbasi v. Paraskevoulakos, 187 Ill. 2d 386,391 (1999).

To state a claim of malicious prosecution, a plaintiff must allege facts showing: (1) the defendant's commencement orcontinuation of an original criminal or civil proceeding; (2) the termination of the proceeding in the plaintiff's favor; (3) theabsence of probable cause for the proceeding; (4) the defendant's malice; and (5) the plaintiff's damages. Swick v. Liautaud,169 Ill. 2d 504, 512 (1996). We conclude that plaintiff failed to state a valid claim.

The commencement of a criminal proceeding is the filing of a complaint, an information, or an indictment. 725 ILCS5/111--1 (West 1998). Thus, some official action is required; a citizen does not commence a prosecution when he merelygives false information to the proper authorities. Mulligan v. Village of Bradley, 131 Ill. App. 3d 513, 516 (1985). On theother hand, when a citizen knowingly gives false information to a police officer, who then swears out a complaint, theofficer's action may be attributed to the citizen. Geisberger v. Vella, 62 Ill. App. 3d 941, 943 (1978).

Here, plaintiff alleged that charges were filed against him, fairly stating that a prosecution was commenced. He also allegedthat defendant instigated the prosecution by "willfully" and "wantonly" making a "false report" to the police. Viewed in thelight most favorable to plaintiff, this allegation conveys that defendant knowingly gave false information.

However, as plaintiff concedes in his reply brief, a fair reading of his complaint establishes that the charges filed againsthim had nothing to do with the information that defendant allegedly reported to the police. Defendant allegedly reportedthat plaintiff was carrying a gun, but plaintiff was charged only with unrelated offenses. Under these circumstances, coulddefendant have "commenced" the prosecution of plaintiff? Although we have found no Illinois case on point, we answer thequestion in the negative.

In the absence of Illinois authority, we deem persuasive the Restatement (Second) of Torts. See Pratt v. Kilborn Motors,Inc., 48 Ill. App. 3d 932, 935 (1977). Section 653, comment g states, in relevant part: