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Rule 23 order filed
March 17, 2004;
Motion to publish granted
April 27, 2004.

The plaintiff, Alexander Toth Jr., filed a small claims complaint against the defendants,Marsha England and the Southwestern Illinois Visiting Nurses Association (Association),England's employer, for defamation, abuse of process, and malicious prosecution. Thedefendants filed a motion to dismiss, and the circuit court denied the motion. The defendantsfiled a motion to reconsider. The record does not reflect any ruling on that motion. Subsequent to the trial, the circuit court entered an order that dismissed the Association as adefendant, and the court entered a judgment in favor of the plaintiff and against England in theamount of $5,000 plus costs. England filed a timely notice of appeal.

The relevant facts are as follows. The plaintiff filed a small claims complaint againstthe defendants on July 23, 2001, alleging defamation, abuse of process, and maliciousprosecution. The plaintiff did not state what actions the defendants had taken that supportedhis claim. For that reason, the defendants filed a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2000)),contending that they were entitled to sovereign immunity, to public official immunity, and toimmunity pursuant to the Elder Abuse and Neglect Act (Elder Act) (320 ILCS 20/1 et seq.(West 2000)). The circuit court denied the motion on September 24, 2001. A few weekslater, the defendants filed a motion to reconsider the denial of their motion to dismiss. In thatmotion, the defendants argued that England was a State of Illinois employee pursuant to theElder Act and that she was acting in the course of her employment. The defendants alleged thatthe plaintiff's cause of action was barred by sovereign immunity and that England was protectedby public official immunity. A review of the record shows no ruling on the motion toreconsider. The case proceeded to a trial.

The testimony at the trial revealed that the Association became involved with the Tothfamily because Florence Toth, who was 81 years old with a history of Alzheimer's dementia,was living at home with her husband, Alexander Toth Sr. (Toth Sr.), who was approximately thesame age as Mrs. Toth and serving as her primary caregiver. The plaintiff is the Toths' onlychild. For various reasons, the Association intervened to provide assistance to the family.

Peggy Riley, Mrs. Toth's senior companion, testified in her evidence deposition thatshe worked for the Toth family for six months in 2000. She stated that she noticed bruisingon Mrs. Toth's body during that period of time. Riley said that one day while sitting with Mrs.Toth she noticed a "humongous" bruise on Mrs. Toth's breastbone when Toth Sr. was changingher blouse. Riley claimed that there were always "fingerprint bruises" on Mrs. Toth's arms, asif someone were "squeezing [her] too hard." She also noticed a bruise on Mrs. Toth's lip. Shewas concerned when she noticed the bruises, and she asked Toth Sr. about them. Toth Sr.claimed that Mrs. Toth fell a lot. Riley thought that was strange because she and Mrs. Tothwent outside, down the steps, on the patio, and down the driveway when she visited with hertwice a week, and she had never seen Mrs. Toth fall. Riley stated that she did not hold ontoMrs. Toth or help her.

On October 2, 2000, Riley noticed that Mrs. Toth was not sitting at the kitchen tableas she normally did. When she entered the Toth home, she could hear Toth Sr. "hollering" atMrs. Toth. They were in the bathroom. Riley thought that Toth Sr. had shoved Mrs. Toth,because when Mrs. Toth exited the bathroom she was "almost at the point of running." Mrs.Toth then "plopped down in the chair." Mrs. Toth's eyes were glazed and she had a "very blanklook on her face." She was "trembling." Mrs. Toth was unable to communicate with Riley. Riley said that this was unusual for Mrs. Toth. Toth Sr. told Riley that Mrs. Toth had "messed"on herself. Toth Sr. exited the bathroom and threw some crackers on the table. Toth Sr. toldMrs. Toth that the crackers would be the only thing that she would get to eat that day. Rileypicked up the cracker and Mrs. Toth "ignored it." Riley suggested to Toth Sr. that they call anambulance to take Mrs. Toth to the hospital. Toth Sr. told Riley that it was "too expensive." The telephone rang, and it was the plaintiff. Riley told the plaintiff about the incident betweenToth Sr. and Mrs. Toth. The plaintiff responded, "[W]ell, [D]ad does that sometimes." She toldthe plaintiff that she was concerned about getting Mrs. Toth to the hospital and that Toth Sr. didnot want to call an ambulance. The plaintiff talked to Toth Sr. for a few seconds on thetelephone, and Toth Sr. then called an ambulance. Riley stated that Toth Sr. made no effort todo anything for Mrs. Toth while they were waiting for the ambulance to arrive.

Riley also testified that Toth Sr. did not give Mrs. Toth enough food. Mrs. Toth waslosing weight. Riley stated that she brought it to Toth Sr.'s attention and nothing changed. TothSr. complained if Riley turned a light on to read to Mrs. Toth; he said it made his electric billmore expensive. Riley also claimed that one day she played a radio for Mrs. Toth and that TothSr. told her to turn it off because she was running the batteries down. Riley basically statedthat these incidents were examples of how Toth Sr. generally conducted himself.

Eileen Brewer, the elder abuse trainer and coordinator for the Illinois Department onAging (Department), testified that the purpose of the elder abuse program is to receive reportsof any type of abuse, neglect, or financial exploitation of a senior citizen who lives in adomestic setting. Brewer stated that the Department then intervenes in substantiated cases. According to Brewer, her employer, the Association, is the designated elder abuse agency forthe seven counties in southwestern Illinois, pursuant to the Elder Act. See 320 ILCS 20/1 etseq. (West 2000). Additionally, the State of Illinois provides the Association's training. Thecaseworkers must attend caseworker certification training, supervisor training, communitycare training, documentation training, and in-service training throughout the year. Brewerstated that England received such training. She also said that England is listed on the registryfor caseworker and supervisor. Brewer agreed that England had received intervention training,which included seeking orders freezing the assets of elderly clients who were believed to befinancially exploited. Agencies such as the Association use attorneys to prepare the petitionsto freeze assets, but no specific directions are given to caseworkers on how to serve ordersfreezing assets. Brewer stated that caseworkers must act quickly in situations where an orderhas been entered freezing assets, in order to prevent the depletion of assets. Brewer testifiedthat an agency employee should seek the advice of an attorney if she does not know theparticular banks where the alleged victim has assets.

England testified that she is a social worker for the Association. She had worked forthe Association for about 11 years. England earned a bachelor's degree in social work from"Southwestern Illinois University of Edwardsville [sic]" in 1990. England testified that she hadreceived training from the Department. England described her job as an elderabuse/neglect/exploitation caseworker. She explained that she gets involved in cases wheresomeone has made allegations of abuse, exploitation, or neglect of a senior citizen.

On August 25, 2000, England was assigned to a case involving Mrs. Toth. At that time,Mrs. Toth's primary caregiver was Toth Sr. During the course of England's investigation, sheinterviewed the plaintiff, Toth Sr., several medical personnel who provided care for Mrs. Toth,Riley, and Mary, who was Mrs. Toth's aide and cared for her during the week. England statedthat she spoke with the plaintiff approximately seven times.

On November 15, 2000, England, on behalf of the Association, filed a petition for theguardianship of a disabled adult and a motion to freeze assets pursuant to the Elder Act. England explained that the purpose of filing the motion was to ensure that Mrs. Toth wouldreceive the type of care that she needed. England stated that her primary concern was Mrs.Toth's safety and well-being. In the motion, England stated in part as follows:

"3. The undersigned reasonably believes that the client, Florence Toth[,] is thesubject of financial exploitation based upon the work of myself and other members ofmy agency, including, but not limited to the following:

a. When our agency *** began work[ing] with Mrs. Toth in July or August 2000she was ambulatory. She had dementia and could not speak properly. She was unableto reside in her home by herself. Her spouse[] Alexander Toth[] Sr. and her [son]Alexander Toth[] Jr. were unwilling or unable to pay for the necessary home health care. The spouse *** is believed to have sufficient assets and income to pay for thenecessary care.

b. In August 2000 the family agreed that Mrs. Toth needed constant supervisionand care. However, rather than placing her in a nursing home, the son placed her in amotel to live by herself.

c. The spouse and son have been very resistant to suggestions that they takeadvantage of outside services that would permit Mrs. Toth to reside in the home withthe necessary care. They have been reluctant to employ outsiders.

d. Caregivers were eventually hired to help Mrs. Toth in her home[;] however,they were discharged by the spouse on the grounds that he could not afford them.

e. On October 2, 2000[,] the spouse grabbed Mrs. Toth after she was incontinent,leaving her with cuts and bruises and in shock. The son refused to consent to 9[-]1[-]1being called. I believe that he was afraid that she would be taken to a nursing home orhave hospital charges.

f. The son claims to have advanced education degrees ***. *** [H]is fathercannot remember any graduation ceremonies. *** Further exploration is neededregarding the possibility that the son has continued to receive money from his parentsfor school even though he is no longer attending." (Emphasis added.)

The motion requested that "any real or personal property owned in whole or in part *** byFlorence Toth be frozen." England understood the order to freeze the combined assets of TothSr. and Mrs. Toth. England was unaware that the plaintiff's name was listed on some accountswith Mrs. Toth's name. Mrs. Toth and Toth Sr. had accumulated assets totaling $900,000.

The circuit court entered an ex parte order freezing Mrs. Toth's assets. England thentook the order, not the motion, to all the banks in Granite City, Illinois, because she did notknow where Toth Sr. and Mrs. Toth had bank accounts. She could not gather this informationfrom Toth Sr. Although England testified that she did not ordinarily serve the order to freezeassets on banks, she had consulted with the Association and an attorney, and they approved ofher serving all the local banks with the court order. When employees of the First Bank onNameoki Road asked why they were being served with an order to freeze assets, England statedthat it appeared that Toth Sr. was giving the plaintiff money. This statement was based uponinformation provided by Toth Sr., who stated that on a routine basis the plaintiff would cometo his home for money. She stated that she did not relay this information to any other banks. Two days after the order to freeze assets was entered by the circuit court, a hearing was heldbefore another judge, who lifted the freeze on the assets.

The plaintiff testified that he filed this case because he was "upset by the defamatoryinformation." He claimed that he was especially upset by the allegation in the motion to freezeassets that stated that he did not want his mother to receive care. The plaintiff stated that hewas also upset by the allegation that he was negligent and did not care about his mother's healthstatus or her living conditions. The plaintiff testified that it was "very upsetting mentally ***to have those kind of allegations made[;] plus, it was a very devastating time." The plaintiffstated that he had to pay an attorney, he was unable to proceed with work that he would havenormally done, and he had "incurred further expenses." He described the reasons he filed thiscase: "[for the] overall devastating effect on my financial status with the expenses incurred,with my social and mental outlook, and also for the interference with my daily routine." Theplaintiff said that he "felt very badly" that a statement was made in a public court document thathe had abandoned his mother in a motel. He also claimed that the order freezing his mother'sassets affected him since his name is similar to his father's name. The plaintiff claimed thathe spent $6,151 in attorney fees. He did not testify about what legal services were renderedfor these payments.

The plaintiff also claimed that he had been in weekly counseling since February 2001. At the time of his testimony in January 2002, he was continuing to see a counselor. Theplaintiff did not specify what type of counseling he received, but he did state that it was notwith a psychologist or psychiatrist. The plaintiff claimed that he was in counseling solelybecause of the motion to freeze assets. The plaintiff did not state where he was receivingcounseling or how much he paid for the counseling. Additionally, he did not submit any billsor other documentation to substantiate his claims that he required counseling.

After the plaintiff rested, the defendants made a motion for a judgment on the samegrounds raised in the still-unresolved motion to reconsider. The defendants argued that theywere protected by sovereign immunity since England was an agent acting on behalf of the Statewithin the scope of her employment. The defendants also claimed that England was protectedby public official immunity. Finally, the defendants stated that England was immune from suitpursuant to the Elder Act (320 ILCS 20/1 et seq. (West 2000)) because she had been actingin good faith and pursuing her duties. The defendants also argued that the plaintiff had notestablished the requisite elements for abuse of process, malicious prosecution, or defamation. Regarding the malicious prosecution claim, the defendants argued that the plaintiff's complaintdid not challenge the propriety of the defendants' filing of the underlying petition forguardianship. In fact, the defendants argued that the plaintiff objected only to certainstatements made within a motion filed within that proceeding. Additionally, the defendantsclaimed that England had probable cause to believe that the motion to freeze assets wasnecessary to protect Mrs. Toth's assets. Finally, the defendants claimed that the plaintiff failedto demonstrate that England had acted with malice toward him. The defendants also contendedthat the plaintiff failed to plead special damages or injury. The defendants argued that withrespect to the abuse of process claim, the plaintiff had not demonstrated that they had anulterior motive or that they had taken some act in the use of the legal process that was notproper in the regular prosecution of the proceedings. The defendants also claimed that thestatements contained in the motion could not be considered defamatory per se. The circuitcourt denied the motion. We note parenthetically that even though it was error for the circuitcourt to fail to rule on the defendants' motion to reconsider, it was harmless error, since thesame issues were raised in the motion for judgment and denied. See Hadley v. Snyder, 335Ill. App. 3d 347, 352, 780 N.E.2d 316, 321 (2002) (the court determined that although thecircuit court had erred by failing to rule on Hadley's motion to compel answers to O'Leary'sinterrogatories, the error did not affect the outcome of his case).

After hearing all the evidence, the circuit court entered an order on May 8, 2002, thatdismissed the Association as a defendant, found that England had exceeded the boundaries ofher employment with the Association, determined that the immunity statutes were inapplicableto England since she had exceeded the boundaries of her employment, found that England'sefforts were irrelevant and unnecessary to protect Mrs. Toth, determined that there was a basisfor an order of protection, and found that there was no factual basis to support England's "goodfaith" defense. The circuit court entered a judgment in favor of the plaintiff for $5,000. Theorder does not specify if the circuit court found that England had engaged in maliciousprosecution, abuse of process, or defamation.

Initially, England claims that the motion to dismiss should have been granted due to theplaintiff's failure to state a claim. We disagree.

The rules governing small claims actions were designed to provide an expeditious,simplified, and inexpensive procedure for the handling of such claims. Supreme Court Rule282 (177 Ill. 2d R. 282) provides that a small claims action may be commenced by filing ashort and simple complaint setting forth the nature and amount of the plaintiff's claim, givingdates and other relevant information. It is not necessary to plead all the elements that areessential to state a cause of action in a small claims complaint. Simmons v. Fox ValleyDodge, 16 Ill. App. 3d 197, 198, 305 N.E.2d 543, 544 (1973). If a complaint in a small claimsaction clearly notifies the defendant of the nature of the plaintiff's claims, it states a cause ofaction. Johnston v. Suckow, 55 Ill. App. 3d 277, 281, 370 N.E.2d 650, 654 (1977). In the instant case, the small claims complaint was sufficient to notify the defendantsof the nature of the claim; hence, it stated a cause of action.

England also claims that she was immune from suit based upon the doctrine ofsovereign immunity. We agree.

The plaintiff argues that England is not entitled to sovereign immunity because she isnot a State employee.

The State Employee Indemnification Act (Indemnification Act) defines an "employee"as "individual representatives of or organizations designated by the Department on Aging in theperformance of their duties as elder abuse provider agencies or regional administrativeagencies under the [Elder Act]." 5 ILCS 350/1(b) (West 2000). Additionally, the Elder Actprovides, "The Department shall establish, design[,] and manage a program of response andservices for persons 60 years of age and older who have been, or are alleged to be, victims ofabuse, neglect, or financial exploitation." 320 ILCS 20/3(a) (West 2000). The Departmentis required to contract with provider agencies for those services. 320 ILCS 20/3(a) (West2000). Hence, the employees of the provider agencies are providing State services eventhough they are not paid directly by the State comptroller. Further, the Elder Act provides thatthe Department must approve the designation of provider agencies and "monitor the use ofservices, provide technical assistance to the provider agencies[,] and be involved in programdevelopment activities." 320 ILCS 20/3(b) (West 2000). Hence, the Department's regulationsallow it to have control over the provider agencies. Section 270.215(c) of Title 89 of theIllinois Administrative Code (89 Ill. Adm. Code