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Docket No. 97218-Agenda 5-November 2004.

PIERRE FERGUSON, Appellant, v. THE CITY OF CHICAGO, Appellee.

Opinion filed November 18, 2004.

JUSTICE RARICK delivered the opinion of the court:

Plaintiff, Pierre Ferguson, brought an action in the circuit courtof Cook County to recover damages from defendant, the City ofChicago (the City), for malicious prosecution. The City moved todismiss Ferguson's action, arguing, inter alia, that it was barred bythe one-year limitations period set forth in the Local Governmentaland Governmental Employees Tort Immunity Act (745 ILCS10/8-101 (West 2000)). The circuit court found the City's limitationsdefense to be meritorious and dismissed Ferguson's complaintpursuant to section 2-619(a)(5) of the Code of Civil Procedure (735ILCS 5/2-619(a)(5) (West 2000)). The circuit court's judgment wasaffirmed by the appellate court. 343 Ill. App. 3d 60. We subsequentlygranted Ferguson's petition for leave to appeal. 177 Ill. 2d R. 315. Forthe reasons that follow, we now reverse and remand to the circuitcourt for further proceedings.

Because this matter comes before us in the context of a dismissalunder section 2-619 of the Code of Civil Procedure, we must acceptas true all well-pleaded facts in the plaintiff's complaint and allinferences that may reasonably be drawn in the plaintiff's favor.Feltmeier v. Feltmeier, 207 Ill. 2d 263, 277 (2003). Pursuant to thisstandard, and based on the allegations in Ferguson's complaint, thefacts of this case are as follows.

Ferguson is a resident of the City of Chicago. On July 31, 1999,he looked out the window of his home and saw an ambulance beingdriven the wrong way down a one-way street and strike anothervehicle. When Chicago police officers arrived at the scene toinvestigate the collision, Ferguson approached them to report what hehad witnessed. The officers refused to speak with Ferguson andordered him to return to his property. Ferguson complied.

The driver of the ambulance denied, falsely, that he had beennegligent. When it appeared to Ferguson that the investigating officerswere going to accept the ambulance driver's version of what hadtaken place, Ferguson told the officers that neither the ambulance'semergency lights nor its sirens had been activated.

The officers responded to Ferguson's statements by walking intohis yard and placing him under arrest. According to Ferguson'scomplaint, the police subsequently misled the prosecutors assigned tothe case by claiming that Ferguson had been arrested because he wasswearing at them in a loud voice and refused to stop. The officers alsogave false statements that Ferguson had resisted arrest and struck oneof the officers in the chest.

Ferguson was charged with three misdemeanor offenses. Heretained counsel to represent him. After Ferguson had appeared incourt nine times, the assistant State's Attorney who was prosecutingthe case concluded that the arresting officers had lied. The assistantState's Attorney therefore requested that the charges be "stricken withleave to reinstate,"or SOL'd.

The court granted the State's request and SOL'd the charges onAugust 25, 2000. Ferguson's lawyer immediately filed a writtendemand for a trial. Pursuant to section 103-5(b) of the Code ofCriminal Procedure of 1963 (725 ILCS 5/103-5(b) (West 2000)),Ferguson was entitled to be tried within 160 days from the date of thatdemand. The 160-day speedy-trial period subsequently elapsed onFebruary 1, 2001, without any further action by the State or the court.The prosecutor never sought leave to reinstate the charges and no trialwas ever conducted.

On January 29, 2002, Ferguson filed a one-count complaint formalicious prosecution against the City based on the foregoing events.The City made a timely motion to dismiss the complaint pursuant tosections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS5/2-615, 2-619 (West 2000)). Three arguments were advanced by theCity in support of its motion: (1) Ferguson's cause of action was time-barred under the applicable statute of limitations; (2) another actionwas pending between the same parties for the same cause in theUnited States District Court for the Northern District of Illinois; and(3) the complaint failed to state a cause of action because it did notallege sufficient facts to establish certain elements necessary to prevailon a claim of malicious prosecution.

Following a hearing, the circuit court agreed with the City'scontention that Ferguson's cause of action was untimely. It thereforedismissed the cause of action pursuant to section 2-619(a)(5) of theCode of Civil Procedure (735 ILCS 5/2-619(a)(5) (West 2000)). Thecourt did not rule on the City's claim that Ferguson failed to state acause of action, nor did it reach the question of whether Ferguson'scomplaint should be dismissed based on the pendency of his otherlawsuit in federal court.

The appellate court affirmed. Ferguson sought and obtained leaveto appeal to our court, and the matter is now before us for review. Onthis appeal, the State does not argue that dismissal of Ferguson'scause of action should be sustained on the grounds that his complaintfails to state a cause of action or because it is the subject of anotherpending action between the same parties. The sole question we areasked to consider is whether plaintiff's cause of action is barred by theapplicable statute of limitations.

In determining whether a cause of action is untimely, we are notbound by the conclusions of either the circuit or the appellate court.Whether a cause of action was properly dismissed under section2-619(a)(5) of the Code of Civil Procedure based on the statute oflimitations is a matter we review de novo. See Alicea v. Snyder, 321Ill. App. 3d 248, 252 (2001).

As indicated earlier in this opinion, Ferguson's complaint assertsa civil action for damages against the City of Chicago. Because theCity is a local public entity, and because Ferguson seeks to hold itliable in tort for injuries he sustained, Ferguson's action is subject tosection 8-101 of the Local Governmental and GovernmentalEmployees Tort Immunity Act (745 ILCS 10/8-101 (West 2000)).Section 8-101 of the Act provides that a civil action sounding in tortasserted against a local entity or any of its employees must be"commenced within one year from the date that the injury wasreceived or the cause of action accrued." 745 ILCS 10/8-101 (West2000).

A cause of action for malicious prosecution does not accrue untilthe criminal proceeding on which it is based has been terminated in theplaintiff's favor. See Stanger v. Felix, 97 Ill. App. 3d 585, 586-87(1981). The point of contention in this case is when the criminalproceedings against Ferguson should be deemed to have beenterminated. The City's position, with which the circuit and appellatecourts both agreed, is that the proceedings terminated on August 25,2000, when the circuit court entered its order striking the criminalcharges with leave to reinstate. Ferguson, however, argues thatstriking a charge with leave to reinstate is not a final disposition of thecriminal proceedings. He contends that the proceedings remainedpending and that the State remained free to reinstate the charges untilthe statutory speedy-trial period expired. Accordingly, he asserts thatexpiration of the speedy-trial period, not striking of the charges, is theoperative event for assessing the timeliness of his maliciousprosecution action. After careful consideration, we find Ferguson'sargument to be meritorious.

An order striking a case with leave to reinstate, while notprovided for by any rule or statute, is common practice in the circuitcourt of Cook County. It is used almost exclusively in criminal cases.See People ex rel. De Vos v. Laurin, 73 Ill. App. 3d 219, 222 (1979).Where a case is stricken with leave to reinstate, the matter remainsundisposed of. The same charges continue to lie against the accused,albeit in a dormant state. See People v. Daniels, 190 Ill. App. 3d 224,226 (1989). The matter may still be placed on the docket and broughtto trial if there is a subsequent motion to reinstate. People v. St. John,369 Ill. 177, 178 (1938). Accordingly, the courts of Illinois haveconsistently recognized that the striking of charges with leave toreinstate does not terminate the proceedings against the accused.People v. Bryant, 409 Ill. 467, 470 (1951); see Khan v. AmericanAirlines, 266 Ill. App. 3d 726, 732 (1994); People v. Rodgers, 106 Ill.App. 3d 741, 745 (1982); People v. Griffin, 58 Ill. App. 3d 644, 646(1978). Indeed, our court has expressly held that an SOL orderexcludes the conclusion that the case is at an end. People v. St. John,369 Ill. at 178.

Because an SOL order does not finally dispose of criminalproceedings, the circuit court's order of August 25, 2000, striking thecriminal charges against Ferguson with leave to reinstate did not resultin a termination, favorable or otherwise, of the criminal case againsthim. The criminal charges remained pending. It necessarily followsthat Ferguson's malicious prosecution claim had yet to accrue. Entryof the August 25 order therefore did not trigger commencement of thelimitations period on that claim. As a result, the circuit and appellatecourts erred in holding that Ferguson's action was time-barredbecause it was not filed within one year of the August 25 order.

In urging us to uphold the circuit court's and appellate court'sjudgments, the City relies on our decisions in Swick v. Liautaud, 169Ill. 2d 504 (1996), and Cult Awareness Network v. Church ofScientology International, 177 Ill. 2d 267 (1997). Neither of thosedecisions, however, raised the question of how soon a plaintiff wasrequired to bring suit for malicious prosecution where, as here, theunderlying criminal charges were stricken with leave to reinstate.

In Swick, the underlying criminal charges were not stricken withleave to reinstate. They were nol-prossed. The two procedures arequalitatively different. A nolle prosequi is a formal entry of recordwhereby the prosecuting attorney declares that he is unwilling toprosecute a case. People v. Daniels, 187 Ill. 2d 301, 312 (1999). Incontrast to an SOL order, which leaves the criminal proceedingspending, a nolle prosequi order terminates the charge and requires theinstitution of a new and separate proceeding to prosecute thedefendant. See People v. Sanders, 86 Ill. App. 3d 457, 469 (1980).

The difference in the nature of the two procedures has practicalconsequences. Because a case which has been SOL'd remainspending, the statute of limitations for filing the underlying criminalcharges is tolled (see People v. East-West University, Inc., 265 Ill.App. 3d 557, 562 (1994)), while the statutory speedy-trial periodcontinues to run as long as the defendant demands trial (see People v.East-West University, Inc., 265 Ill. App. 3d at 567). Where the casehas been nol-prossed, the converse is true. Because nol-prossingterminates the case and returns the matter to the same conditionswhich existed before the prosecution commenced (see Swick v.Liautaud, 169 Ill. 2d at 512-13), it does not toll the statute oflimitations. As a general rule, however, it does toll the running of thestatutory speedy-trial period. See People v. Hillsman, 329 Ill. App. 3d1110, 1117 (2002).

Because the charges in Swick were nol-prossed, there was nodispute that the criminal proceeding had been terminated. The realquestion in that case was whether the termination was favorable to theplaintiff, thereby satisfying an essential element for a maliciousprosecution claim. We held that the bare fact that a case has been nol-prossed is not sufficient to establish that the case was terminatedfavorably for the plaintiff. Rather, the plaintiff must show that theprosecutor abandoned the case for reasons indicative of the plaintiff'sinnocence. Swick, 169 Ill. 2d at 513.

That problem is not presented by the matter under considerationtoday. No one disputes that the circuit court's decision to SOL thecharges against Ferguson represented a favorable outcome for him.The point is that, favorable or not, the decision did not have the effectof terminating the case. Accordingly, whatever uncertainty may ariseregarding the finality of criminal proceedings when charges are nol-prossed is not present here. The charges in this case were SOL'd.Under settled Illinois case law, charges stricken with leave remainpending. Nothing in Swick alters that conclusion.

Cult Awareness Network v. Church of Scientology International,177 Ill. 2d 267 (1997), is distinguishable for similar reasons. It did notinvolve applicability of the statutory limitations period where criminalcharges had been SOL'd. It did not involve the SOL procedure.Moreover, in contrast to Swick, it did not even involve criminalcharges. The action arose from a series of civil actions whichdefendants had filed against the plaintiff in various jurisdictions aroundthe United States. After all the actions had concluded, plaintiff sueddefendants, alleging that defendants had conspired with each other tocarry out a campaign of malicious prosecution for the express purposeof causing plaintiff's bankruptcy and eventual disbandment.

The circuit court granted the defendants' motion to dismiss. Theappellate court affirmed. The matter then came before us for review.The primary issue was whether plaintiff's complaint had allegedsufficient facts to support a cause of action for conspiracy. Resolutionof that issue, in turn, depended on whether plaintiff had allegedsufficient facts to satisfy two of the elements of malicious prosecution,special injury and favorable termination of the underlying suits. CultAwareness Network, 177 Ill. 2d at 272.

Special injury is not at issue in the present case. As for thequestion of favorable termination, the situation in Cult AwarenessNetwork was similar to Swick, in that there was no question that theunderlying litigation had been terminated. The dispute concernedwhether the termination had been favorable to the plaintiffs who nowsought recovery based on the theory of malicious prosecution. Inresolving that dispute, we adopted the view that, for purposes of amalicious prosecution action, whether disposition of the underlyingmatter constitutes a termination that is favorable to the plaintiff turnsupon the circumstances under which the disposition was obtained.Cult Awareness Network, 177 Ill. 2d at 277-80.

That principle remains good law. As with our decision in Swick,however, it is simply not relevant to this case. Cult AwarenessNetwork provides the standard for assessing whether a priordisposition was favorable. It does not speak to the threshold questionof whether the disposition marked termination of the priorproceedings. As with Swick, it therefore does not alter our conclusionthe circuit court's SOL order did not terminate the criminalproceedings against Ferguson. Those proceedings remained pendingeven after the SOL order was entered. Accordingly, that order couldnot have triggered the statutory limitations period governingFerguson's malicious prosecution claim.

The criminal proceedings against Ferguson did not terminate, andFerguson's malicious prosecution claim did not accrue, until such timeas the State was precluded from seeking reinstatement of the charges.That period was marked by the expiration of the statutory speedy-trialperiod. As noted at the outset of this opinion, Ferguson's lawyer madea speedy-trial demand immediately after the charges were SOL'd onAugust 25, 2000. The State had 160 days from that time to bring himto trial. The 160-day period ended February 1, 2001, with no furtheraction having been taken by the State or the court. It was then, andnot before, that the underlying criminal proceedings against Fergusonmust therefore be deemed to have terminated. See Velez v. Avis RentA Car System, Inc., 308 Ill. App. 3d 923, 929 (1999); Rich v.Baldwin, 133 Ill. App. 3d 712, 717-19 (1985). Correspondingly, itwas then, and not before, that Ferguson's cause of action formalicious prosecution accrued.

Under the limitations period set forth in section 8-101 of theLocal Governmental and Governmental Employees Tort ImmunityAct (745 ILCS 10/8-101 (West 2000)), Ferguson had one year fromFebruary 1, 2001, to file his malicious prosecution claim against theCity. The record shows his complaint was filed January 29, 2002,within the one-year limitations period. Ferguson's cause of action wastherefore timely and should not have been dismissed under section2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(5)(West 2000)).

For the foregoing reasons, the judgments of the appellate andcircuit courts are reversed, and the cause is remanded to the circuitcourt for further proceedings consistent with this opinion.

Reversed and remanded.