In re Marriage of Rivera

FOURTH DIVISION
September 30, 2016

2016 IL App (1st) 160552

No. 1-16-0552

In re MARRIAGE OF ) Appeal from the
) Circuit Court of
JUAN A. RIVERA, ) Cook County.
)
Petitioner-Appellee, )
)
and ) No. 14 D 4873
)
MELISSA SANDERS-RIVERA, ) Honorable
) Carole Kamin Bellows,
Respondent-Appellant. ) Judge Presiding.

JUSTICE HOWSE delivered the judgment of the court, with opinion.
Justices McBride and Burke concurred in the judgment and opinion.

OPINION

¶1 This appeal comes to the court on a certified question concerning whether the proceeds of

petitioner’s settlement of a lawsuit for a wrongful conviction is marital property for purposes of

distributing a marital estate. The court certified the following question:

“Whether the settlement proceeds received from a wrongful conviction action are

marital property when (a) the coerced confession and initial conviction occurred

before the marriage, and (b) the conviction was reversed during the marriage.”

¶2 For the following reasons, we answer the certified question in the affirmative and find the

settlement proceeds in this case are marital property because the lawsuit accrued during the

marriage.

¶3 BACKGROUND

¶4 The circumstances that led to this appeal stem from petitioner’s conviction in 1993 for

murder. Petitioner was incarcerated from the time of his arrest in 1992 until January 2012, after
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his conviction was reversed by the appellate court. While petitioner was incarcerated, he and

respondent got married on October 31, 2000. After his release from prison in 2012, petitioner

filed a petition for dissolution of marriage from respondent in 2014. In March 2015, petitioner

settled his lawsuit for $20 million, of which petitioner will receive approximately $11.36 million.

¶5 Petitioner subsequently filed a motion for summary judgment in the dissolution case

arguing that the settlement proceeds are his own separate property, not marital property.

Respondent filed a motion for a declaratory judgment that the proceeds are marital property and

specifically that the portion of the proceeds that were awarded for the defamation of character

count in petitioner’s lawsuit are marital property. The trial court certified for appeal the issue of

whether the settlement proceeds are marital property.

¶6 The facts of petitioner’s conviction are of limited relevance to the issue in this appeal, so

we will limit our discussion of those facts to those that are germane. Petitioner was charged with

first degree murder in 1992. People v. Rivera, 333 Ill. App. 3d 1092, 1093 (2002). The victim

had been raped and stabbed multiple times. Id. at 1093-94. The evidence against petitioner

included incriminating statements to police and a signed confession. Petitioner maintains these

statements were coerced. In 1993, following a jury trial, petitioner was convicted and sentenced

to natural life imprisonment without the possibility of parole. Id. at 1093. He appealed, and his

conviction was reversed and the cause remanded for a new trial. Id. A second jury trial

commenced in 1998. Id. at 1094. The jury again found petitioner guilty and the court sentenced

him to natural life imprisonment without the possibility of parole. Id. at 1100.

¶7 Petitioner appealed the 1998 verdict and sentence, and in 2002 the appellate court

affirmed. Id. at 1104. In 2004 the circuit court of Cook County granted petitioner’s motion for

DNA testing of material taken from vaginal swabs of the victim. People v. Rivera, 2011 IL App

(2d) 091060, ¶ 4. As a result of those tests the circuit court of Cook County granted petitioner

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relief from judgment. Id. ¶ 4. A new jury trial commenced in 2009. Id. ¶ 5. The record shows

that at the time of the murder, petitioner was already under arrest for a minor offense and as a

result had been released from custody on electronic home monitoring. Despite evidence from

the home monitoring system, which indicated that petitioner could not have committed the

murder because he was at home at the time of the murder, he was unfortunately convicted again

by a jury and the court sentenced him to natural life imprisonment without the possibility of

parole. Id. ¶ 22.

¶8 In 2011, the appellate court reversed petitioner’s conviction. Id. ¶ 46. Petitioner left

prison in 2012.

¶9 On October 30, 2012, petitioner filed a complaint under section 1983 of the United States

Code alleging violations of his civil rights under color of law. Petitioner alleged various theories

of recovery based on his wrongful conviction against numerous defendants including Lake

County, various local governments, and members of the Illinois State Police (hereinafter, the

lawsuit). On May 23, 2014, petitioner filed a petition for dissolution of marriage, and on July 3,

2014, respondent filed a counter-petition for dissolution.

¶ 10 On May 21, 2015, petitioner filed a motion titled “Motion for Partial Summary Judgment

Regarding Petitioner’s Non-Marital Settlement Funds.” Petitioner’s motion asserted that the

entire settlement for his lawsuit “was based on the torts in his Complaint that arose out of his

wrongful incarceration and conviction which were derived from conduct that occurred in 1992.”

Petitioner asserted that the lawsuit “was the result of conduct which led to his wrongful

conviction prior to the marriage.” Petitioner also alleged that he received a Certificate of

Innocence (COI) from the State of Illinois and recovered approximately $213,000. Petitioner

sought a partial summary judgment that the settlement proceeds from his lawsuit and his

remaining COI funds are his nonmarital property. In support of his motion for summary

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judgment petitioner attached an affidavit by Steve Art, one of petitioner’s attorneys representing

him in the lawsuit. Art averred that he was involved in all aspects of the settlement negotiations

and the “entire settlement was based on the torts in his Complaint that arose out of his wrongful

incarceration and conviction which were derived from conduct that occurred in 1992 (Counts I,

II, III, IV, V, VI, VII, VIII, and IX).”

¶ 11 On May 27, 2015, respondent filed a motion titled “Motion for Declaratory Judgment

that Civil Rights Lawsuit and Settlement Proceeds Therefrom are Marital Property.” Respondent

asked the trial court to find that the lawsuit is marital property “because it could not have been

filed unless and until the conviction was overturned.” Respondent noted petitioner made that

same argument to the United States District Court for the Northern District of Illinois in response

to a motion to dismiss his lawsuit. Respondent argued the lawsuit did not become property until

the conviction was reversed in 2011, after the parties were married; and the lawsuit is marital

property because the lawsuit accrued during the marriage. In her reply to petitioner’s response to

respondent’s motion for declaratory judgment, respondent argued that the settlement petitioner

received included a settlement for a defamation claim included in the lawsuit. The defamation

claim was in Count X of the lawsuit. Respondent argued that the defamation claim was based on

statements made during the marriage and, therefore, petitioner “cannot properly claim the

defamation count is anything but marital property.” The defamation claim was based on an

article appearing in the New York Times in 2011, during the parties’ marriage.

¶ 12 Pursuant to an agreed order, petitioner filed a supplement to his motion for partial

summary judgment and an amendment to Art’s affidavit. Petitioner’s supplement to the motion

for partial summary judgment asserted the defamation claim had no impact on or value in the

overall settlement of $20 million. Petitioner also alleged the defamation claim was never

discussed in settlement negotiations. Petitioner pointed out that seven defendants were able to

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agree to a settlement as a whole even though only two were the subject of defamation claims,

and he argued that this was “because the defamation claim did not factor into the settlement

amount.” In the amended affidavit Art averred as follows:

“The defamation claim in [petitioner’s] civil lawsuit had no impact on or

value in the overall settlement of $20 million. Indeed, during settlement

negotiations with the defendants in the civil lawsuit, the defamation claim was

never even discussed. Moreover, the group of seven (7) defendants was able to

agree to a settlement as a whole (even though two (2) of the defendants had

defamation claims against them while the rest did not) because the defamation

claim did not factor into the settlement amount. The defamation claim did not

factor into or increase the settlement to [petitioner.]”

¶ 13 In August 2015 respondent filed a motion titled “Motion to Strike Affidavits of Steve

Art.” Respondent argued Art’s averment that all defendants were able to reach a settlement as a

whole, despite only two having defamation claims against them, is not supported by a statement

that Art has knowledge the defamation claim had no effect on the amount paid by the defendants

who did have a defamation claim against them. Art offered no facts to indicate how any of the

defendants were able to agree on the settlement amount and offered no facts for the conclusion

the defamation count was not included in their determination. Moreover, one defendant subject

to the defamation count negotiated separately, and Art offered no facts for his conclusion the

defamation claim was not considered in that defendant’s agreement to a settlement amount.

Respondent further argued that each relevant settlement agreement (with the defendants subject

to the defamation claim) stated petitioner was releasing every claim against the defendant, which

necessarily included the defamation claim. She further argued each agreement contains an

integration clause indicating the parties “specifically agreed that the agreements would be

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interpreted solely according to the language in the agreements.” Respondent argued that Art’s

affidavits are contrary to the plain language of the settlement agreements and are irrelevant and

inadmissible. She stated they are nothing more than Art’s opinion as to how the settlement

agreements should be construed.

¶ 14 Respondent argued that because Art admitted that the defamation claim was not

discussed during negotiations Art has no factual basis to conclude the defamation claim had no

impact on the amount of the settlement. Respondent argued “Art is offering as a fact what in

reality is merely his subjective opinion, again because Art never even discussed the defamation

claim with the defendants during the settlement negotiations.” She asserts there are no facts to

support the conclusion the defamation claim had no impact on the amount of the settlement.

Respondent further replied that the court must first determine whether Art’s affidavits comply

with Rule 191 before she is required to submit counter-affidavits. Regardless, she is not required

to submit counter-affidavits because Art’s statement that the defamation claim did not influence

the amount of the settlement is refuted by the documents attached to the affidavits in that the

settlement documents state the settlement was for a release of all claims including the defamation

claim. Respondent argued she is allowed to rely on the contradiction between the affidavits and

the documents attached thereto to create a genuine issue of material fact. She asserts the

“dismissal of the defamation claim was part of the expressed consideration in the written

settlement agreements in exchange for which [petitioner] received $14.5 million dollars.”

¶ 15 The trial court found that given Art’s first-hand experience and involvement in the case,

he “is qualified to testify to the facts concerning the settlement meetings and final settlement.”

The court ruled that Art’s affidavits were made based on the personal knowledge of the affiant

and do not set forth legal conclusions or opinions without stating supporting facts. “Rather,

Art’s Affidavits, as a whole, are based upon his personal knowledge of [petitioner’s] case and

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personal involvement in the settlement negotiation process. Thus, there is a reasonable inference

that Art could competently testify to the contents of his Affidavit at trial.” The court held the

affidavits satisfied Rule 191 and denied respondent’s motion to strike.

¶ 16 Subsequently, the trial court granted petitioner’s motion for partial summary judgment

that his settlement proceeds and remaining COI funds are his nonmarital property, and denied

respondent’s motion for declaratory judgment. The court turned first to whether a genuine issue

of material fact exists. The court rejected respondent’s argument the settlement documents

contradict Art’s affidavits. The court reasoned: “Art’s affidavits provide testimony regarding

how the parties arrived at the value of the released claims. The settlement documents, in

contrast, do not set forth information relating to how the parties arrived at the value of the

released claims. Thus, the settlement agreements themselves do not contradict Art’s affidavits.”

The court took as true the statements in Art’s affidavits regarding the basis for the settlement,

specifically noting that respondent failed to file a counter-affidavit.

¶ 17 Turning to the classification of the settlement proceeds, the trial court found that no cases

presented the exact factual situation present here, but that this case could be analogized to cases

that address characterization of traditional personal injury claims as marital or nonmarital

property. The court wrote as follows:

“[F]or purposes of property characterization in the present divorce action, the

Court will regard [petitioner’s] lawsuit and settlement proceeds therefrom as no

different than other personal injury lawsuits involving injuries that occurred

before marriage. In such cases, the claim remains non-marital, regardless of

whether the lawsuit is brought or the settlement is paid during the marriage.”

¶ 18 Nonetheless, the court later noted that the “differentiation between the simultaneous

timing of cause of action and injury in most tort cases, and, [petitioner’s] inability to assert his

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cause of action simultaneously with his injury, is what causes this to be an issue of first

impression for this Court.” The court rejected respondent’s claim the settlement (or at least a

portion of it) was marital property because the defamation claim was based on events that

occurred during the marriage by relying on Art’s affidavits that the defamation claim did not

factor into the settlement. Next, the court found persuasive a ruling in a proceeding related to

this case in which the appellate court found that the insurance carrier for one of the defendants in

petitioner’s lawsuit at the time of petitioner’s release was not responsible to provide coverage for

petitioner’s damages.

¶ 19 The trial court found that the injuries that gave rise to the lawsuit occurred or were based

on events that occurred prior to the date of marriage, and, based on Art’s affidavits, the entire

settlement was based on torts that arose from conduct that occurred prior to the marriage. The

court ruled that petitioner established that there is no genuine issue of material fact as to the

characterization of the settlement proceeds received from the lawsuit and remaining COI funds

as his nonmarital property.

¶ 20 Respondent filed a motion titled “Melissa’s Motion for a Supreme Court Rule 304(A) or

Rule 308 Finding for the Immediate Appeal of the Ruling on Her Motion for Declaratory

Judgment.” The trial court issued an order finding that the “classification of the lawsuit and

settlement proceeds as marital or non-marital property will control various facets of the pending

dissolution action, specifically the burden of proof and scope of evidence to be considered in the

division of the settlement proceeds. Therefore, the disposition of the [order grating partial

summary judgment in favor of petitioner] will have a substantial impact on the course of this

litigation.” The court denied respondent’s motion for a Rule 304(A) finding and granted her

motion to certify a question of law for interlocutory appeal pursuant to Rule 308. The court

certified the following question:

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“Whether the settlement proceeds received from a wrongful conviction action are

marital property when (a) the coerced confession and initial conviction occurred

before the marriage, and (b) the conviction was reversed during the marriage.”

¶ 21 On May 4, 2016, this court granted respondent’s Rule 308 application for leave to appeal.

¶ 22 ANALYSIS

¶ 23 “The scope of review in an interlocutory appeal under Rule 308 is ordinarily limited to

the question certified by the trial court, which is reviewed de novo. [Citation.]” Yarbrough v.

Northwestern Memorial Hospital, 2016 IL App (1st) 141585, ¶ 30. The parties dispute whether

this court has the authority to review the trial court’s judgment denying respondent’s motion to

strike the Art affidavits in addition to answering the certified question. “When this court accepts

an appeal involving a question of law identified under Rule 308, interests of judicial economy

and the need to reach an equitable result oblige us to go beyond the question of law presented

and consider the propriety of the order that gave rise to the appeal. [Citations.]” Bright v. Dicke,

166 Ill. 2d 204, 208 (1995) (citing Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 193-94

(1995); Schrock v. Shoemaker, 159 Ill. 2d 533, 537 (1994)).

¶ 24 We can answer the certified question as written without addressing the motion to strike;

but in terms of the order giving rise to the appeal, that order began with the factual presumption

that no part of the settlement represented compensation for the defamation claim. The certified

question thus presumes the correctness of the trial court’s judgment, which was based on its

acceptance of the Art affidavit. For the sake of judicial economy, we will first address the issue

raised in the certified question because it is potentially dispositive of all the issues in this case—

if we answer the certified question in the affirmative and find the settlement (whether a portion is

attributable to the defamation claim or not) is marital property, respondent will have no reason to

appeal the order on the Art affidavit. She will simply present evidence pursuant to section

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503(d) of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (750 ILCS

5/503(d) (West 2012)) to aid in the trial court’s judgment dividing the marital property in just

proportions. Accordingly, we will turn first to the certified question. Then, if the desire for an

equitable result and the interests of judicial economy warrant, we will review the order denying

the motion to strike the Art affidavits.

¶ 25 Certified Question

¶ 26 Respondent argues petitioner’s lawsuit, and consequently the proceeds of the settlement

of that lawsuit, is marital property. See In re Marriage of Gan, 83 Ill. App. 3d 265, 270 (1980)

(“The proceeds of the personal injury settlement having been properly declared to be marital

property, they are subject to disposition, along with other marital property, pursuant to the

provisions of sec. 503(c) and (d) of the Act.”). First, respondent argues that under Heck v.

Humphrey, 512 U.S. 477 (1994), Ferguson v. City of Chicago, 213 Ill. 2d 94 (2004), and Rivera

v. Lake County, 974 F. Supp. 2d 1179 (N.D. Ill. 2013), petitioner’s section 1983 cause of action

did not exist and therefore did not accrue until his conviction was reversed during the marriage.

Second, under In re Marriage of DeRossett, 173 Ill. 2d 416 (1996), a cause of action that accrues

during a marriage is marital property. Third, prior to the conviction being vacated, the cause of

action was not a present property interest but a mere expectancy, and under In re Marriage of

Centioli, 335 Ill. App. 3d 650 (2002), it was not property for purposes of the Dissolution Act.

Because the cause of action came into existence during the marriage (when petitioner’s wrongful

conviction was vacated) it is property “acquired” during the marriage and, therefore, pursuant to

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section 503 of the Dissolution Act (750 ILCS 5/503 (West 2014)), the cause of action is marital

property. 1

¶ 27 Petitioner responds “if the tort is one where the injury and the accrual of the cause of

action are separate events, then the relevant inquiry [for purposes of characterizing the cause of

action resulting from the tort as marital or nonmarital property] is the time of the injury.” He

argues that respondent, relying on Heck, conflated the date he could sue with the date his

property rights in the cause of action arose under the Dissolution Act. Petitioner argues Heck is a

procedural law regulating when a party can file a lawsuit that does not control the

characterization of property. Petitioner argues that Heck does not control because “it was created

solely to address a very specific procedural paradox inherent in wrongful conviction claims,

related to the need to prevent convicts from collaterally attacking their convictions in the civil

courts before the convictions themselves are reversed.” Rather, petitioner argues, the

characterization of the cause of action for purposes of a distribution of marital property is

controlled “by the date of the actual injury giving rise to the civil rights claim.”

¶ 28 In support of his assertion that the date of injury controls the characterization of a cause

of action as marital or nonmarital, petitioner argues that In re Marriage of DeRossett and In re

Marriage of Drone, 217 Ill. App. 3d 758 (1991), and others like them, on which respondent

relied for the proposition that the date a cause of action accrues determines marital property

rights, “are more appropriately interpreted to support [petitioner,] where they have held that the

1
We note that respondent devotes attention to arguing that the circuit court’s analysis of
this question was incorrect, but because our standard of review is de novo, those arguments,
while instructive, are superfluous. Manago ex rel. Pritchett v. County of Cook, 2016 IL App
(1st) 121365, ¶ 16 (“De novo review is completely independent of the trial court’s decision.
[Citation.]”); Battaglia v. 736 N. Clark Corp., 2015 IL App (1st) 142437, ¶ 23 (“under de novo
review, the appellate court analyzes issues of law as if they were new issues”).

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classification of personal injury settlements and workers’ compensation awards is determined by

the date the actual injury occurred (and for which the lawsuit is based), rather than the date the

award is received.”

¶ 29 Heck and Ferguson and Accrual of the Cause of Action

¶ 30 Heck was an appeal from the dismissal of a complaint seeking monetary damages filed in

federal court alleging prosecutors and police had engaged in unlawful conduct leading to the

petitioner’s arrest. Heck, 512 U.S. at 478-79. The district court dismissed the complaint without

prejudice “because the issues it raised directly implicate the legality of [the petitioner’s]

confinement. [Citation.]” (Internal quotation marks omitted.) Id. at 479. The Seventh Circuit

affirmed the dismissal, finding the complaint had to be classified as an application for habeas

corpus because “if he won his case the state would be obliged to release him even if he hadn’t

sought that relief,” (id. at 480) and, therefore, the petitioner had to exhaust his administrative

remedies. Id. The Supreme Court noted the conflict created by the intersection of an action

under § 1983, which does not require exhaustion of state remedies, and an action for habeas

corpus, which requires state prisoners “first seek redress in a state forum.” Id. at 480-81. The

question created by that intersection was whether a § 1983 plaintiff not explicitly seeking habeas

corpus relief, but which would require such relief if successful, should be required to exhaust

state remedies. However, the Supreme Court found that the “issue with respect to monetary

damages challenging conviction is not *** exhaustion; but rather *** whether the claim is

cognizable under § 1983 at all.” Id. at 483. The Court held such as claim was not cognizable

under § 1983. Id.

¶ 31 The Supreme Court stated it must look to the common law of torts to determine whether

there was any bar to the suit at issue. Id. The closest analogy to that suit was the common-law

cause of action for malicious prosecution. Id. at 484. “One element that must be alleged and

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proved in a malicious prosecution action is termination of the prior criminal proceeding in favor

of the accused. [Citations.]” Id. The Court found that same principle “applies to § 1983

damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction

or confinement.” Id. at 486. The Court held that

“to recover damages for allegedly unconstitutional conviction or imprisonment, or

for other harm caused by actions whose unlawfulness would render a conviction

or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence

has been reversed on direct appeal, expunged by executive order, declared invalid

by a state tribunal authorized to make such determination, or called into question

by a federal court’s issuance of a writ of habeas corpus, [citation]. A claim for

damages bearing that relationship to a conviction or sentence that has not been so

invalidated is not cognizable under § 1983.” Id. at 486-87.

¶ 32 The Court found that its holding was in one respect broader than engrafting an exhaustion

requirement on those § 1983 claims that would necessarily show a conviction or sentence to be

unlawful or that would “resolve a necessary element to a likely challenge to a conviction.

[Citation.]” (Internal quotation marks omitted.) Id. at 488-89. The Court stated its ruling does

“not engraft an exhaustion requirement upon § 1983, but rather [denies] the existence of a cause

of action.” Id. at 489. Thus, “[e]ven a prisoner who has fully exhausted available state remedies

has no cause of action under § 1983 unless and until the conviction or sentence is reversed,

expunged, invalidated, or impugned by the grant of a writ of habeas corpus.” Id. For that

reason, under the Court’s analysis in Heck, “the statute of limitations poses no difficulty while

the state challenges are being pursued, since the § 1983 claim has not yet arisen. Just as a cause

of action for malicious prosecution does not accrue until the criminal proceedings have

terminated in the plaintiff's favor, [citations], so also a § 1983 cause of action for damages

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attributable to an unconstitutional conviction or sentence does not accrue until the conviction or

sentence has been invalidated.” Id. at 489-90.

¶ 33 In Ferguson v. City of Chicago, 213 Ill. 2d 94, 96 (2004), police arrested Ferguson on

July 31, 1999, then on August 25, 2000, the trial court granted the State’s request to strike the

charges against Ferguson with leave to reinstate. Id. at 97. Ferguson’s lawyer filed a demand for

a trial. Id. at 97-98. The statutory speedy-trial period elapsed on February 1, 2001 without the

State seeking leave to reinstate the charges and without a trial. Id. at 98. On January 29, 2002,

Ferguson filed a complaint against the City of Chicago for malicious prosecution. Id. The trial

court dismissed the complaint based on the expiration of the statute of limitations, and the

appellate court affirmed. Id. The sole issue before our supreme court was whether Ferguson’s

cause of action was barred by the statute of limitations. Id. at 99. The applicable statute of

limitations required Ferguson to commence his cause of action “within one year from the date

that the injury was received or the cause of action accrued. [Citation.]” (Internal quotation

marks omitted.) Id. at 99 (quoting 745 ILCS 10/8-101 (West 2000)). The court noted that “[a]

cause of action for malicious prosecution does not accrue until the criminal proceeding on which

it is based has been terminated in the plaintiff’s favor. [Citation.]” Id. (citing Stanger v. Felix,

97 Ill. App. 3d 585, 586-87 (1981)). The point of contention in Ferguson was when the criminal

proceedings in that case “should be deemed to have been terminated.” Id.

¶ 34 The Ferguson court agreed with the plaintiff that the expiration of the speedy-trial period,

not the striking of the charges with leave to reinstate (SOL), was the operative event for

assessing the timeliness of his malicious prosecution action. Id. at 100. “Because a case which

has been SOL’d remains pending, the statute of limitations *** is tolled.” Id. at 101 (citing

People v. East-West University, Inc., 265 Ill. App. 3d 557, 562 (1994)). The court held that the

“criminal proceedings against Ferguson did not terminate, and Ferguson’s malicious prosecution

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claim did not accrue, until such time as the State was precluded from seeking reinstatement of

the charges. That period was marked by the expiration of the statutory speedy-trial period.” Id.

at 104. The expiration of the statutory speed-trial period without further actions by the State or

the court was when the proceedings terminated and “Ferguson’s cause of action for malicious

prosecution accrued.” Id.

¶ 35 Finally, Rivera v. Lake County, 974 F. Supp. 2d 1179 (N.D. Ill. 2013), was a decision on

multiple motions to dismiss petitioner’s lawsuit based, in part, on the statute of limitations.

Rivera, 974 F. Supp. 2d at 1187-88. The court denied the motions to dismiss, finding the various

claims did not accrue until petitioner’s conviction was vacated. Id.

¶ 36 DeRossett and Drone and the Characterization of Marital Property

¶ 37 In In re Marriage of DeRossett, 173 Ill. 2d at 418-19, the petitioner had filed a workers’

compensation claim “in which he alleged that the date of injury was January 18, 1990.” The

petitioner filed a petition for dissolution of marriage on February 2, 1994. In September 1994,

during the pendency of the dissolution proceeding and prior to resolution of the workers’

compensation claim, the trial court determined that the respondent was entitled to a portion of the

petitioner’s workers’ compensation claim and reserved ruling on the amount until the claim was

settled. Id. at 418. Later that month, the petitioner accepted a lump-sum settlement of his claim.

Id. The trial court entered a judgment of dissolution in October 1994, and in December 1994,

after denying the petitioner’s motion to reconsider, awarded the respondent 30% of the

settlement. Id. The appellate court affirmed, finding “the trial court had properly determined

that the workers’ compensation claim was marital property because it accrued during the

marriage. [Citation.]” Id. at 418-19. On appeal to our supreme court, the petitioner did not

directly challenge the finding that the claim, or the settlement thereof, was marital property

because it accrued during the marriage. Rather, the petitioner argued that the settlement should

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be considered his nonmarital property because it is compensation for his diminished earning

capacity, which will continue beyond the date of dissolution. Id. at 419. The petitioner’s

argument was in accord with the “analytical approach” used by the appellate court in In re

Marriage of Waggoner, 261 Ill. App. 3d 787 (1994).

¶ 38 Our supreme court rejected that argument because it “completely ignores section 503 of

the [Dissolution] Act, which mandates what constitutes marital and nonmarital property for

purposes of disposition on dissolution of marriage.” Id. Section 503(a) states that “marital

property” means “all property acquired by either spouse subsequent to the marriage.” (Internal

quotation marks omitted.) Id. (quoting 750 ILCS 5/503(a) (West 1994)). The court found that

section 503(a) of the Dissolution Act “contains an ‘exclusive’ and ‘specific’ list of nonmarital

property ([citation]), and workers’ compensation awards do not fall under any of the methods

listed.” Id. at 420. (Nor do § 1983 causes of action.) Therefore, the court held, the “petitioner’s

workers’ compensation award constitutes marital property because the claim accrued during the

marriage of the parties.” Id. at 421.

¶ 39 In In re Marriage of Drone, 217 Ill. App. 3d 758, 764 (1991), the respondent appealed an

order distributing marital property. The trial court awarded the petitioner the parties’ marital

home, the down payment on which was paid with funds from the respondent’s workers’

compensation settlement. Id. at 761. The parties also used a portion of the settlement to

purchase two IRA’s, carpeting for the home, and for payment toward the purchase of a vehicle.

Id. at 762. A portion of the settlement remained in the parties’ joint checking account. Id. at

761. On appeal the respondent argued the trial court “erred in finding that the down payment on

the marital home made from his workers’ compensation settlement check was a gift to the

marriage instead of nonmarital property.” Id. at 764. The court noted that the injury for which

the respondent received the workers’ compensation settlement check occurred before the parties

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were married, but he received the settlement check during the marriage. Id. The Drone court

relied on In re Marriage of Dettore, 86 Ill. App. 3d 540, 542 (1980), for the proposition that “if

the claim for a compensation award accrues during the marriage, the award is marital property

regardless of when received. [Citation.].” Id. (quoting In re Marriage of Dettore, 86 Ill. App. 3d

at 542). The Drone court found that, applying the reasoning of Dettore, “it is reasonable to infer

that the time the cause of action accrues determines the classification of this property interest.

Generally, a cause of action accrues when facts exist which allow a person to maintain an action

against another. ([Citation.]).” Id. (citing Aetna Life & Casualty Co. v. Sal E. Lobianco & Son

Co., Inc., 43 Ill. App. 3d 765 (1976)). The court held that the respondent’s workers’

compensation claim accrued “at the time of his injury” prior to the marriage, therefore “his

settlement check was nonmarital property as it was acquired prior to the marriage.” Id. at 765.

¶ 40 In In re Marriage of Burt, 144 Ill. App. 3d 177, 178 (1986), the court held that “a cause

of action for personal injuries to a party to a dissolution proceeding occurring during the

pendency of the proceedings is marital property” in its entirety. Notably, the Burt court held that

“we are impressed by the fact that the complete list of types of property excluded under section

503(a) makes no mention of any types of causes of action.” Id. at 182. The Burt court relied in

part on the decision in In re Marriage of Thomas, 89 Ill. App. 3d 81 (1980). There, the court

held that “the better rule is to have the time of accrual of the claim, rather than the date the award

is received, govern the classification of the award as marital property.” In re Marriage of

Thomas, 89 Ill. App. 3d at 84. In Thomas, the workers’ compensation claim was contested and

was still pending at the time of the dissolution. Id. at 82.

¶ 41 Accrual and Characterization of Petitioner’s Lawsuit

¶ 42 Here, as in In re Marriage of Burt, petitioner “does not dispute that most causes of action

are property.” In re Marriage of Burt, 144 Ill. App. 3d at 179. Reviewing the foregoing

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authorities we find no support for petitioner’s argument that the time of the “injury” determines

the character of a cause of action as marital or nonmarital property for purposes of a dissolution

proceeding. Instead, the authorities support respondent’s position that a cause of action is

marital property if the cause of action accrues during the marriage. The fact that DeRossett and

Drone involve causes of action where the injury and accrual of the cause of action are

simultaneous (see In re Marriage of Drone, 217 Ill. App. 3d at 765 (“workers’ compensation

claim accrued at the time of his injury”)) does in fact mean that those cases are not on all fours

with this case as petitioner argues. But that fact does not mean that the rationale behind those

cases—that the date of accrual determines the character of a cause of action as marital or

nonmarital property—is inapplicable. Each of the cases on which petitioner and respondent rely

uses the date of accrual to characterize the cause of action as marital or nonmarital. See In re

Marriage of DeRossett, 173 Ill. 2d at 421 (“Therefore, we agree with the appellate court herein

that, under the [Dissolution] Act, petitioner’s workers’ compensation award constitutes marital

property because the claim accrued during the marriage of the parties.”); In re Marriage of

Drone, 217 Ill. App. 3d at 764-65 (finding the respondent’s workers’ compensation claim

accrued at the time of his injury in 1979 because he had the right to file his claim. “Therefore,

his settlement check was nonmarital property as it was acquired prior to the marriage.”); In re

Marriage of Thomas, 89 Ill. App. 3d at 84 (“we believe the better rule is to have the time of

accrual of the claim, rather than the date the award is received, govern the classification of the

award as marital property”). The fact that in most cases those dates are the same is not the basis

for nor restricts the applicability of that rule. We find the rule is that the classification of a cause

of action as marital or nonmarital property depends on whether the cause of action accrues

during the marriage, meaning the date that the claimant had a right to file a claim for damages.

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In re Marriage of Drone, 217 Ill. App. 3d at 764 (citing Aetna Life & Casualty Co., 43 Ill. App.

3d 765).

¶ 43 Petitioner cited In re Marriage of Burt as an example of a case holding that the

classification of personal injury settlements is determined by the date the actual injury occurred.

But the Burt court did not actually address that issue because in that case, “the thrust of [the]

petitioner’s theory” (which the court rejected (In re Marriage of Burt, 144 Ill. App. 3d at 181

(“all portions of a cause of action for personal injuries are marital property under section 503(a)))

was that the portion of the cause of action having to do with future pain, suffering, and disability

“is so personal to the injured spouse that it should not be deemed marital property.” In re

Marriage of Burt, 144 Ill. App. 3d at 179. Although most of the facts giving rise to petitioner’s

claim arose prior to the marriage, nonetheless one key fact prevented petitioner from maintaining

his lawsuit. It is reasonable to infer the date that fact came into existence “determines the

classification of his property interest.” In re Marriage of Drone, 217 Ill. App. 3d at 764 (“it is

reasonable to infer that the time the cause of action accrues determines the classification of this

property interest. Generally, a cause of action accrues when facts exist which allow a person to

maintain an action against another. ([Citation.]).” (citing Aetna Life & Casualty Co., 43 Ill. App.

3d 765)). We hold the date of accrual is the appropriate inquiry to determine whether

petitioner’s lawsuit is marital property or nonmarital property in this case. Petitioner’s

arguments to the contrary are unconvincing.

¶ 44 In support of petitioner’s assertion that he acquired his property interest at the time of his

injury, despite the fact he was barred from pursuing a remedy, petitioner relies upon the

definition of property in In re Marriage of Weinstein, 128 Ill. App. 3d 234, 244 (1984). In

Weinstein, the court held that a medical degree and license to practice surgery did not constitute

property. In re Marriage of Weinstein, 128 Ill. App. 3d at 244. There, this court stated that “the

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term property has been defined as a word of the very broadest import, connoting any tangible or

intangible res which might be made the subject of ownership.” (Internal quotation marks

omitted.) Id. (quoting In re Marriage of Goldstein, 97 Ill. App. 3d 1023, 1026 (1981)).

Weinstein goes on to state that “to be property within the ambit of the [Dissolution] Act,

however, the res must be in the nature of a present property interest, rather than a mere

expectancy interest.” Id. (citing In re Marriage of Hunt, 78 Ill. App. 3d 753, 660 (1979)). “An

expectancy interest is the interest of a person who merely foresees that he might receive a future

beneficence, such as the interest of an heir apparent *** or a beneficiary designated by a living

insured who has a right to change the beneficiary. [Citation.]” Id. (quoting In re Marriage of

Pesheck, 89 Ill. App. 3d 959, 964 (1980)).

¶ 45 To find an extant property interest in 1992 and 1993, petitioner argues that his cause of

action “consists of the operative facts on which a right to sue is based, even if that lawsuit does

not ‘accrue’ until all the legal predicates establishing an enforceable claim or right are present.”

Defining a “cause of action” in this way—the presence of the operative facts of a lawsuit even

though the lawsuit has not accrued—petitioner argues his cause of action, in other words the

property at issue, existed in 1992 and 1993. 2 Petitioner argues respondent’s reliance on In re

Marriage of Centioli, 335 Ill. App. 3d 650 (2002), is misplaced and his “property rights” as

described above are not a mere expectancy. In Centioli, this court faced “an issue of first

2
Specifically, petitioner argued as follows:
“Under this principle, the operative facts and circumstances that gave rise
to [petitioner’s] cause of action occurred in 1992 and 1993. The ‘property’ at
issue here is not the lawsuit, but rather the property is the wrongful conduct and
resulting injury themselves (indisputably occurring prior to the marriage), which
ultimately resulted in the settlement proceeds. Accordingly, [petitioner’s]
property interest in that cause of action, i.e., the right to a legal remedy for the
injuries he suffered from the wrongful conduct, was also acquired prior to the
marriage.” (Emphasis in original.)

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impression as to whether the court can enjoin a spouse from changing the beneficiary designation

of an inter vivos revocable trust while dissolution of marriage proceedings are pending.” In re

Marriage of Centioli, 335 Ill. App. 3d at 652. The court held the spouse seeking the injunction

was not entitled to relief because “her beneficial interest [was] not a clearly ascertainable right to

be protected.” Id. at 656. The court held that her beneficial interest in the revocable trust “was

but a mere expectancy.” Id. Petitioner attempts to distinguish Centioli on the grounds his

injuries were irrevocable, “and an equally irrevocable property interest arose.”

¶ 46 Petitioner’s argument misses the mark, which lies on when he had a property interest to

characterize as marital or nonmarital. In Centioli, the spouse’s beneficial interest in the

revocable trust could not “be characterized as a vested property interest within the ambit of the

Act.” Id. In this case, petitioner’s injuries, alone, cannot be characterized as a legally cognizable

cause of action because, he admits, the cause of action had not accrued. Under DeRossett, our

supreme court considers a cause of action to be “acquired” when it accrues. In re Marriage of

DeRossett, 173 Ill. 2d at 421. Petitioner’s argument also ignores the fact that petitioner’s cause

of action may have never accrued. If petitioner’s conviction was not reversed, he would never

have been able to file a cause of action. See Gonzalez v. Profile Sanding Equipment, Inc., 333

Ill. App. 3d 680, 695 (2002) (“it could be substantially disputed whether defendant would ever

have title to or a right of possession of a chose for legal malpractice where it is unknown if

defendant will ever bring such an action. Essentially, the plaintiff is making a prayer for relief

based on a presumption that is nothing if not premature.”). In Gonzalez, the court affirmed the

denial of a motion pursuant to section 2-1402 of the Code of Civil Procedure (735 ILCS 5/2-

1402 (West 2000)) to turnover the asset of a possible legal malpractice action to satisfy a

judgment. Id. at 695. The Gonzalez court characterized the putative legal malpractice claim,

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which had “neither been asserted nor commenced” as only a “potential chose in action.”

(Emphasis in original.) Id. at 694.

¶ 47 Petitioner argues his cause of action did not accrue until decades later because of a

“procedural technicality” that was “created solely to address a very specific procedural paradox

inherent in wrongful conviction claims.” Specifically, the possibility of “the creation of two

conflicting resolutions arising out of the same or identical transaction. [Citation.]” (Internal

quotation marks omitted.) Heck, 512 U.S. at 484. Petitioner argues that for purposes of

characterizing the lawsuit as marital or nonmarital property the focus should be on “the essence

of a wrongful conviction claim” which is “the wrongful conduct itself, not the procedural

technicality of when the wronged party can sue ***.” (Emphasis omitted.) Petitioner argues that

in this regard, Indian Harbor Insurance Co. v. City of Waukegan, 2015 IL App (2d) 140293, a

decision in an ancillary proceeding to petitioner’s lawsuit, in instructive.

¶ 48 In Indian Harbor, the insurer for certain defendants in petitioner’s lawsuit sought a

declaratory judgment they were not obligated to provide coverage under the defendants’ law

enforcement liability insurance policies. Indian Harbor Insurance Co., 2015 IL App (2d)

140293, ¶ 1. The policies at issue came into effect long after petitioner’s prosecution, conviction

and imprisonment. Id. ¶ 3. The issue to be decided was what constituted the “wrongful act”

under the policies: the commencement of the alleged malicious prosecution in 1992, or the

termination of the prosecution in favor of the accused in 2011. Id. ¶¶ 1, 4. The insureds in that

case (defendants in petitioner’s lawsuit) argued that petitioner’s “prosecution continued until his

conviction was reversed on December 9, 2011, a date that fell within the first policy period” (id.

¶ 6) and that the lawsuit “contained allegations of continuing injury” (id. ¶ 6). Petitioner adopted

those arguments in Indian Harbor. Id. ¶ 7. The insureds in Indian Harbor relied on Security

Mutual Casualty Co. v. Harbor Insurance Co., 65 Ill. App. 3d 198 (1978), rev’d, 77 Ill. 2d 446

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(1979), for the proposition that coverage is triggered at the time of termination of the underlying

prosecution because “coverage is not triggered until there is a complete tort and *** the tort of

malicious prosecution does not exist until the person prosecuted has been exonerated of

wrongdoing. Id. ¶ 15 (citing Security Mutual, 65 Ill. App. 3d at 206). The Indian Harbor court

rejected that argument because our supreme court overruled Security Mutual and because the

appellate court had recently noted that “Security Mutual provides no guidance on construing an

insurance policy, because it is well settled that a court construing an insurance policy must

ascertain the parties’ intent from the policy’s language, and the appellate court’s analysis in

Security Mutual focused on the elements of a malicious-prosecution action instead of the

policy’s language.” Id. ¶ 16 (citing St. Paul Fire & Marine Insurance Co. v. City of Zion, 2014

IL App (2d) 131312, ¶ 18).

¶ 49 The Indian Harbor court followed its decision in St. Paul, where the court held that

“under the unambiguous language of the [insurer’s] policy, the commencement of the alleged

malicious prosecution was the occurrence triggering coverage, which occurrence took place

outside the policy period.” Id. ¶ 17 (citing St. Paul Fire & Marine Insurance Co., 2014 IL App

(2d) 131312, ¶ 1). The Indian Harbor court found that in St. Paul, the policy “did not require

that the offense [(or tort)] of malicious prosecution be committed while the policy was in effect.

Rather, that section provided coverage if the injury caused by the malicious prosecution

happened while the policy was in effect.” (Emphases omitted.) Id. ¶ 20 (citing St. Paul Fire &

Marine Insurance Co., 2014 IL App (2d) 131312, ¶ 14). Thus, the St. Paul court had to look to

“when the injury resulting from the malicious prosecution happened, not when the offense [(or

tort)] was committed.” Id. The St. Paul court relied on Muller Fuel Oil Co. v. Insurance Co. of

North America, 95 N.J. Super. 564 (App. Div. 1967). The New Jersey court

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“reasoned that four of the five elements of the tort of malicious prosecution occur

when a prosecution is initiated. [Citation.] The court held that the ‘essence’ of

the tort of malicious prosecution is the wrongful conduct in making the criminal

charge. [Citation.] The court stated that ‘[i]t would be unreasonable to hold’ that

the parties intended the policy to provide coverage for a malicious-prosecution

claim when ‘four of the five essential ingredients’ of the claim preceded the

effective date of the policy.” Id. ¶ 23 (citing Muller Fuel Oil Co., 95 N.J. Super.

at 174).

¶ 50 The St. Paul court agreed with the Muller Fuel court “because the favorable termination

of a malicious prosecution marks the beginning of the judicial system’s remediation of the wrong

committed, not the commencement of the injury or damage.” (Internal quotation marks omitted.)

Id. ¶ 24 (quoting St. Paul Fire & Marine Insurance Co., 2014 IL App (2d) 131312, ¶ 23

(quoting Town of Newfane v. General Star National Insurance Co., 14 A.D. 3d 72 (2004))). The

St. Paul court “found it difficult to see how a criminal defendant’s release from prison could be

described as an injury in any sense of the word.” Id. (quoting St. Paul Fire & Marine Insurance

Co., 2014 IL App (2d) 131312, ¶ 23 (citation omitted)). The St. Paul court concluded that “in

essence, the policy provided that St. Paul would pay damages for injury that happens while the

agreement is in effect and that is caused by a malicious prosecution. [Citation.] Because injury

results upon the commencement of a malicious prosecution, it is the commencement of the

prosecution that triggers coverage under the policy. [Citation.]” (Internal quotation marks

omitted.) Id. ¶ 25 (citing St. Paul Fire & Marine Insurance Co., 2014 IL App (2d) 131312, ¶

25).

¶ 51 The policy in Indian Harbor provided that the insurer would pay damages “if an

insured’s wrongful act occurs during the policy period and results in injury, where ‘injury’

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included malicious prosecution.” Id. ¶ 30. The Indian Harbor court held “[b]ased on the

rationale in St. Paul, the wrongful act is the filing of the malicious prosecution, not its favorable

termination.” The Indian Harbor court found that the “policies focus not on the tort of malicious

prosecution, but on wrongful acts, which result in personal injury, as the triggering event.”

(Internal quotation marks omitted.) Id. ¶ 31. “Simply put, the policies [(at issue in Indian

Harbor)] do not equate a wrongful act with a completed cause of action.” Id.

¶ 52 We do find Indian Harbor instructive, but not favorable to petitioner. Indian Harbor,

like St. Paul, was “limited to construing the relevant language of the policies providing coverage

for malicious prosecution.” Id. ¶ 28. Indian Harbor and the cases it relied upon distinguished

between the completed tort of malicious prosecution (which, as will be discussed below, is the

pertinent focal point for purposes of classifying a cause of action as marital or nonmarital

property) and wrongful conduct giving rise to a wrongful prosecution (which, as explained in

Indian Harbor, is the pertinent inquiry for purposes of determining insurance coverage under an

occurrence policy). For purposes of determining insurance coverage, the wrongful conduct was

the covered occurrence, not the initiation of the lawsuit; and, therefore, the date of the wrongful

conduct was dispositive. See Indian Harbor, 2015 IL App (2d) 140293, ¶¶ 32-33 (describing

occurrence-based policy).

¶ 53 Rather than look to the date of the wrongful conduct causing injury to petitioner, we must

look to the date of the completed tort of malicious prosecution to characterize the lawsuit as

marital property or nonmarital property. While it is true that Indian Harbor and the cases cited

therein support finding that petitioner suffered an injury at the commencement of the

prosecution, that injury alone did not give rise to a cognizable cause of action and, therefore, did

not create a property interest that can be characterized as petitioner’s nonmarital property. The

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decision in Indian Harbor, for which Muller Fuel is antecedent 3, is not contrary to that

determination.

“The [e]ssence of an action for malicious prosecution is that the proceeding was

instituted without probable cause, that the complainant was actuated by a

malicious motive in making the charge. [Citation.] Often, as here, the accused is

arrested, required to post bail to secure his liberty pending trial, and his reputation

is adversely affected. Thus, damage flows immediately from the tortious act. But

the accused may not sue for any damage sustained unless and until the criminal

proceeding has terminated in his favor. [Citation.] In addition to the proof of the

termination in his favor, the plaintiff must adduce affirmative proof *** tending

to show the falsity of or want of probable cause for the charge laid against him, or

that the defendant did not honestly believe in his guilt. [Citation.] Thus, although

a favorable termination of the criminal proceeding is a condition precedent to

institution of the action, the ‘essence’ of the tort is the wrongful conduct in

making the criminal charge. Since a suit for malicious prosecution must await a

favorable termination of the criminal proceeding, the statute of limitations does

not begin until such termination.” (Internal quotation marks omitted and

emphases added.) Muller Fuel Oil Co., 95 N.J. Super. at 576-77.

¶ 54 Similarly, since a suit under § 1983 must await a favorable termination, no property

interest arises until such termination. Before property, including a cause of action, can be

classified as marital or nonmarital there must actually be a property interest. The defining

3
In St. Paul Fire & Marine Insurance Co. “[w]e found instructive Muller Fuel Oil Co.],
the first case to adopt what would become the majority position.” Indian Harbor Insurance Co.,
2015 IL App (2d) 140293, ¶ 22.

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characteristic of a property interest is that its holder has an enforceable right to it. See In re

Marriage of Wendt, 2013 IL App (1st) 123261, ¶ 23 (quoting In re Marriage of Brown, 544 P.2d

561, 565 (1976) (“The Brown court, however, found that nonvested pension rights were not

expectancies, noting that ‘the defining characteristic of an expectancy is that its holder has no

enforceable right to his beneficence.’ (Emphasis in original.) [Citation.]”)). In Wendt, the court

held that an employment bonus was not marital property where the employee had no contractual

right to the bonus, the employer could chose not to award a bonus, and the right to a bonus was

not automatic. Id. ¶ 20. Plaintiff’s injuries did not give him a property interest where plaintiff

could not enforce his rights prior to the favorable termination of the criminal proceedings against

him.

¶ 55 We also find that Heck did not simply create a procedural rule. The Heck court reiterated

that § 1983 “creates a species of tort liability,” and that the rules of the law of torts “defining the

elements of damages and the prerequisites for their recovery, provide the appropriate starting

point for the inquiry under § 1983 as well.” (Internal quotation marks omitted.) Heck, 512 U.S.

at 483. The Court analogized a § 1983 claim that would demonstrate the invalidity of a

conviction to a common law claim for malicious prosecution. Id. at 484. The requirement that

the underlying proceedings be resolved in the plaintiff’s favor in a way demonstrating his or her

innocence prior to bringing a malicious prosecution claim has long been part of the substantive

law of that cause of action. When proceedings began against petitioner, despite his suffering an

injury, an element of the cause of action was missing.

“The elements of a malicious-prosecution claim under Illinois law are well

established. [Citation.] The elements are (1) the commencement of judicial

proceedings by the defendant, (2) a lack of probable cause for the proceedings, (3)

malice in instituting the proceedings, (4) termination of the prosecution in the

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plaintiff’s favor, and (5) damage or injury to the plaintiff. [Citation.]” (Emphasis

added.) St. Paul Fire & Marine Insurance Co., 2014 IL App (2d) 131312, ¶ 15

(citing Cult Awareness Network v. Church of Scientology International, 177 Ill.

2d 267, 272 (1997)). 4

¶ 56 In March v. Cacioppo, 37 Ill. App. 2d 235, 246-47 (1962), the trial court dismissed a

complaint for, inter alia, malicious prosecution of a civil complaint. Cacioppo, 37 Ill. App. 3d

at 243-44. The appellate court addressed whether the plaintiff had shown favorable termination

of the underlying suit. Id. at 245. The Cacioppo court examined the reasons for the favorable

termination requirement and found that none of them prevented the plaintiff’s case from

proceeding. Id. at 247. As it pertains to this appeal, the court wrote as follows:

“We have found four reasons given for the rule that the plaintiff must

show that the prior proceeding, civil or criminal, has terminated in his favor. The

four are these:

(1) ‘One [reason for this] is that a conviction of the accused is sufficient to

establish that there was probable cause for the prosecution.’ Prosser, Torts, 2nd

Ed. (1955), sec. 98. ***

(2) the other [reason is] that in the malicious prosecution action the

plaintiff cannot be permitted to make a collateral attack upon the criminal

judgment ***. Prosser, ibid. ***

4
We discuss the elements of malicious prosecution in conformity with the Supreme
Court’s observation that “[t]he common-law cause of action for malicious prosecution provides
the closest analog to claims of the type considered here because, unlike the related cause of
action for false arrest or imprisonment, it permits damages for confinement imposed pursuant to
legal process.” Heck, 512 U.S. at 484.

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(3) Until a complaining party has shown that the action against him was

unsuccessful, he has not shown that he has suffered any damage. 18 R.C.L.,

Malicious Prosecution, sec. 11. ***

(4) If he [the plaintiff] were permitted to sue before he had won the first

suit, he might secure a recovery for the bringing of an action which the court

entertaining such cause found to be well brought. 18 R.C.L., Malicious

Prosecution, sec. 11.” (Internal quotation marks omitted.) Cacioppo, 37 Ill. App.

2d at 246-47.

¶ 57 Certainly facts existed in 1992 and 1993 which show that the defendants’ conduct was

wrongful. “But malice, although expressly proved, affords no cause of action, if there was

probable cause for the prosecution. Society requires prosecutions for crimes, and probable cause

for such prosecutions is a protection against legal liability, no matter by what motive the

prosecutor may have been actuated.” McBean v. Ritchie, 18 Ill. 114, 116 (1856). We do not

dispute that petitioner suffered injury in 1992 and 1993 at the hand of the defendants to his

lawsuit. However, for purposes of petitioner’s lawsuit, petitioner had no damages until the

appellate court vacated his conviction. Cacioppo, 37 Ill. App. 2d at 246-47.

¶ 58 The “essence” of the malicious prosecution for purposes of determining whether an

insurer intended to cover a loss when issuing an insurance policy—which is all the Muller Fuel

court found—is not determinative of when a party obtained a property interest for determining

whether that property is marital or nonmarital. What is determinative of when property, in the

form of a cause of action, is obtained (and thus marital or nonmarital) is when the cause of action

accrues. See supra ¶ 43. In this context, using the date of accrual is not simply “a quirk of

timing created solely to address a very specific procedural paradox inherent in wrongful

conviction claims” as petitioner argues. Rather, using the date of accrual respects the fact

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petitioner did not have a claim until the appellate court vacated his conviction. Heck, 512 U.S. at

489 (“We do not engraft an exhaustion requirement upon § 1983, but rather deny the existence of

a cause of action. Even a prisoner who has fully exhausted available state remedies has no cause

of action under § 1983 unless and until the conviction or sentence is reversed, expunged,

invalidated, or impugned by the grant of a writ of habeas corpus.”).

¶ 59 Petitioner did not have a property interest in his lawsuit (or stated differently no lawsuit

existed) until the appellate court vacated his conviction in 2011. If there was no lawsuit, or

property, in 1992 and 1993, there are no grounds for finding the lawsuit is nonmarital property.

Because the lawsuit accrued in 2011, during the marriage, it is marital property subject to

distribution pursuant to the factors set forth in section 503 of the Dissolution Act. 750 ILCS

5/503(a), (d) (West 2010).

¶ 60 As we stated earlier, having answered the certified question in the affirmative respondent

has no reason to appeal the judgment on the Art affidavit. The issue is moot and we will not

address the trial court’s ruling.

¶ 61 CONCLUSION

¶ 62 The certified question is answered, and the cause is remanded for further proceedings

consistent with this opinion.

¶ 63 Certified question answered.

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