dissenting:
MALICIOUS PROSECUTION
The law of Illinois, inter alia, is that there must be a "favorable termination” in order to plead properly a cause of action recognized in this State as malicious prosection.
I submit that a reasoned review of Illinois case law establishes that a "favorable termination” can typically occur in two situations: first, a trial or hearing "on the merits” which is terminated in the plaintiffs favor; second, a termination of the proceedings, not "on the merits,” but with sufficient facts alleged to indicate that, if there were a trial or hearing on the merits, judgment would be rendered in the plaintiffs favor.
The line of cases referenced by the majority essentially determines that the plaintiffs failed to plead properly a cause of action for malicious prosecution because they failed to allege sufficient facts to meet either situation above. The majority makes a quantum leap and determines that those cases stand for the proposition that no plaintiff can ever allege a set of facts setting forth a cause of action for malicious prosecution unless the plaintiff alleges facts to establish the first situation set forth above and only the first situation!
Initially, I note that the requirement of a "judicial determination” of favorable termination in the underlying suit (see Rumer v. Zeigler Coal Co., 168 Ill. App. 3d 568, 573-74 (1988); Sutton v. Hofeld, 118 Ill. App. 3d 65, 68 (1983); Kurek v. Kavanagh, Scully, Sudow, White & Frederick, 50 Ill. App. 3d 1033, 1038 (1977)) is a radical concept with no support from the supreme court. Kurek, the first case to require a "judicial determination,” announced the requirement in obiter dicta and cited no authority for this concept. Kurek, 50 Ill. App. 3d at 1038. Kurek erroneously cites Bonney v. King, 201 Ill. 47 (1903), for the proposition that a voluntary dismissal does not constitute a favorable termination. In Bonney, our supreme court addressed a scenario where the plaintiff failed to allege that the underlying suit had been terminated in any manner. Bonney, 201 Ill. at 49-50. Bonney never reached the issue of what constitutes a favorable termination. Nevertheless, sundry cases have cited to Kurek without questioning Kurek’s authority or its use of dicta to introduce a new pleading requirement for malicious prosecution claims. See Rumer, 168 Ill. App. 3d at 573-74; Sutton, 118 Ill. App. 3d at 68; Smith, 112 Ill. App. 3d at 657; Savage, 81 Ill. App. 3d at 749. All of these cases are factually distinguishable from this case. None of the cases which follow Kurek contain stipulations by the parties which allow the original defendants to proceed with their claims for malicious prosecution. It is not clear from the records and pleadings in those cases that the settlements are favorable to any party, let alone to the plaintiffs.
The majority states that the specific agreement between the parties to allow the claim to continue "is of no consequence” in light of the decisions cited by the majority. I believe the cases cited by the majority are factually inapposite and based upon a faulty application of obiter dicta contained in Kurek. I believe the Chuis had the right to rely on supreme court decisions which make no mention of a "judicial determination” and which assured them that their agreement with the Aroras would be considered "of major consequence” (see Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455 (1990); Bonney, 201 Ill. 47).
The majority fails to cite or reconcile March v. Cacioppo, 37 Ill. App. 2d 235 (1962). There, a malicious prosecution claim was allowed to proceed, although there had not been a judicial determination, let alone a judicial termination. A confession of judgment was vacated, and the defendants were allowed to appear and defend. The vacation, coupled with facts to show the lack of merit of the original confession, was deemed a favorable termination.
I recognize that compromise and settlement agreements generally do not amount to a finding of favorable termination. See W. Keeton, Prosser & Keeton on Torts § 120 (5th ed. 1984 & Supp. 1988) (and cases cited therein). This is because:
"[E]ither the settlement is an admission of probable cause for the initiation of the prosecution [in a criminal case], or because it would be unfair to allow a person to consent to a termination and then take advantage of it.” (Emphasis added.) Young v. First State Bank, 628 P.2d 707, 710 (Okla. 1981).
See also 52 Am. Jur. 2d Malicious Prosecution § 44 (1970); 3 J. Lee & B. Lindahl, Modern Tort Law § 40.10, at 455 (rev. ed. 1990).
However, the facts of this case are unusual in that the settlement agreement explicitly allows the Chuis to prosecute the malicious prosecution claim. I submit it is not unfair to allow the Chuis to receive the benefit of their bargain. They are not taking advantage of the termination of the original proceedings; the agreement explicitly allows them to prosecute the claim. Therefore, the Aroras have no basis to claim surprise or unfair advantage under the circumstances. Ironically, the majority allows the Aroras, not the Chuis, to "consent to a termination and then take advantage of it.” The majority permits the Aroras to observe the part of the settlement agreement which terminates the litigation and then to disregard and disavow the burdensome remainder which allows the Chuis to proceed with their malicious prosecution claim. Ironically, in responding to this dissent, the majority suggests that, if the agreement contained an admission that the suit "lacked probable cause,” then this would have constituted a proper nonjudicial termination. I submit that the majority has failed to consider all the circumstances as required by Swick v. Liautaud, 169 Ill. 2d 504 (1996). I submit the majority has improperly resolved an apparent ambiguity in the agreement by precluding the Chuis the opportunity to present relevant evidence as to the intent of the parties.
I submit no abuse of the judicial system or reluctance of future parties to bring an action to court would result if this court determined that a settlement like the present passed muster as a "favorable termination,” if properly pleaded and proved. I submit this would not "open the floodgate” as suggested by the majority. The plaintiff would still have to prove the other elements of a malicious prosecution in order to prevail. The majority fails to cite any authority or provide any sound logic to support its determination that to enforce a settlement agreement as it is written would somehow discourage settlements. I believe the exact opposite is true; the majority’s approach discourages settlements because, under the majority’s approach, parties are no longer bound by the terms of their settlement agreements. Consequently, opposing parties are better off not settling.
I do not believe that the majority’s opinion is reconcilable with our supreme court’s decision in Swick, 169 Ill. 2d 504, which requires the court to examine the circumstances of the "nonjudicial termination.” Swick, 169 Ill. 2d at 512-13. The majority is incorrect in declaring that the sanctions available under Supreme Court Rule 137 (134 Ill. 2d R. 137) adequately protect parties from malicious prosecutions. Malicious prosecution claims provide for damages. Swick, 169 Ill. 2d at 512-13. Rule 137 does not! The Chuis’ complaint alleged over $250,000 in special damages excluding attorney fees. The majority fails to cite to any authority that suggests or implies that a $250,000 loss is inconsequential.
The majority ineffectively attempts to distinguish Swick and claims that the present case is more like Joiner v. Benton Community Bank, 82 Ill. 2d 40 (1980). Joiner is factually distinguishable from the case at bar. In Joiner, the original defendant made full restitution to the bank, the original plaintiff, in exchange for the dropping of the criminal charges against the defendant. After the bank agreed and settled the original cause, the original defendant brought a malicious prosecution action against the bank. Obviously, this was unfair to the bank as it received the funds it claimed, essentially prevailing on its claim. In this case, the Aroras received nothing in the settlement of the underlying case, notwithstanding the grant of immunity declared by the majority, despite a stipulation by the parties to the contrary.
This case is also distinguishable from our supreme court’s decision in Schwartz v. Schwartz, 366 Ill. 247 (1937), which the majority incorrectly cites for the proposition that settlements, as a whole, may not constitute favorable terminations for the purpose of a subsequent malicious prosecution action. In Schwartz, our supreme court never made such a sweeping statement. In Schwartz, the original suit was dismissed "upon acceptance of a tender,” and the supreme court held that the original defendant’s payment was "evidence of probable cause for the suit.” Schwartz, 366 Ill. at 252. The payment of funds to the original plaintiff meant that in that particular case the original defendant could not factually plead that the plaintiff had not prevailed.
The majority opinion improperly expands the erroneous "judicial determination” doctrine. In Kurek, 50 Ill. App. 3d at 1038, and its progeny, the appellate court required a "judicial determination” of a "favorable termination.” The majority transmutes a "judicial determination” into a "judicial termination.” Thus, through dicta and superficial analysis, the majority has transformed what our supreme court has termed a "favorable termination” into a "judicial termination” on the merits.
Analogically, the majority’s new doctrine has given the prisoner the keys to the entire prison system. A disingenuous plaintiff who maliciously prosecutes an action with the specific intent to damage the defendant may do so with impunity until it is evident that the proceedings have reached the point where the trial court will enter judgment on the merits. The disingenuous plaintiff can then terminate the suit through sundry procedures (nonsuit, or dismissal with or without prejudice, see 735 ILCS 5/2 — 1009 (West 1994)) and never face the just consequences of his actions because the dismissal of the underlying action was not a "judicial termination.” The majority’s opinion allows and encourages such unethical and injurious behavior and goes far beyond merely not favoring malicious prosecution (see Schwartz, 366 Ill. at 250); it effectively obliterates the tort.
Additionally, I would reverse for another reason. The majority erroneously likens this case to Swager v. Court, 77 Ill. 2d 173 (1979), which dealt with a judgment n.o.v. In Swager, our supreme court agreed that, "not only was there a complete failure to plead [a required element], but also a complete lack of proof on this issue at trial, which therefore should have resulted in a judgment n.o.v. in their favor.” (Emphasis added.) Swager, 77 Ill. 2d at 187. The present case deals with the grant of a motion on the pleadings, granted after the Chuis had rested their case at trial, not with a judgment n.o.v. Here, no verdict or findings of fact were ever made! The Chuis never had the opportunity to amend their pleadings, let alone present proofs considered by the court. I disagree with the majority’s application of Swager, wherein it was stated "all of the evidence, viewed in its aspect most favorable to the plaintiffs, so overwhelmingly favor[ed] the defendants on this question that no contrary verdict *** could ever stand,” to the present case. Swager, 77 Ill. 2d at 187. In the present case, the trial court heard proofs which support all the elements of the claimed malicious prosecution and then declared that it would not consider the proofs. On appeal, the majority assumes the mantle of the "trier of fact” and renders a "verdict” in the nature of a judgment n.o.v., without ever considering the merits of the proofs presented.
The majority has: disregarded the fact that the Aroras waived the claim that the Chuis failed to plead properly a cause of action; dismissed the stipulation to allow the claim to proceed entered into by the parties; disregarded the meritorious proofs showing that the Aroras caused the Chuis $250,000 in special damages by causing a delay in the sale of the Chuis’ home through the malicious prosecution of the Aroras’ lame claim; failed to adequately distinguish Swick, 169 Ill. 2d 504; and disregarded the difference between a judgment on the pleadings and a judgment n.o.v.
In conclusion, I suggest the following to ameliorate the drastic effect of the majority’s decision, despite the fact that what I suggest does not comport with a "judicial termination.” A defendant in the original proceeding might consider filing a Supreme Court Rule 137 motion. If it were successful, at least as to frivolity, it may bolster the factual allegations necessary to allege a favorable termination.
ABUSE OF PROCESS
Finally, I would also reverse and remand on the abuse of process claim. Prosser and Keaton on Torts lists lis pendens as a "process” which lends itself to a claim for abuse of process. W. Keeton, Prosser & Keeton on Torts § 121 (5th ed. 1984 & Supp. 1988). Further, while discussing different elements of abuse of process in other cases, not only has our supreme court never set forth actual seizure or arrest as a requirement in an abuse of process claim, but it also held that, with a malicious prosecution claim, actual seizure of property was not required and "interference with one’s property” would suffice. Bank of Lyons v. Schultz, 78 Ill. 2d 235, 241 (1980). I submit this tenet may and ought to be applied to claims for abuse of process. In this case, it was alleged and admitted that the filing of the lis pendens notice prevented the Chuis from selling the property. Thus the notice, though constructive, effectuated a seizure. Consequently, I believe the Chuis properly pleaded a cause for abuse of process.