Carlsen v. Village of Oakwood Hills

• Decision Date: 29 December 1987
• Docket Number: No. 2-87-0295,2-87-0295
• Citation: 164 Ill.App.3d 396,517 N.E.2d 1107
• Parties: , 115 Ill.Dec. 421 Helmut P. CARLSEN, Plaintiff-Appellant, v. The VILLAGE OF OAKWOOD HILLS, et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1107

517 N.E.2d 1107

164 Ill.App.3d 396, 115 Ill.Dec. 421

Helmut P. CARLSEN, Plaintiff-Appellant, v. The VILLAGE OF OAKWOOD HILLS, et al., Defendants-Appellees.

No. 2-87-0295.

Appellate Court of Illinois Second District.

Dec. 29, 1987.

Janice Metros Johnston, argued, Crystal Lake, Louis F. Aiello, Woodstock, for Helmut P. Carlsen.

Judge & Knight, Ltd., Elizabeth A. Brown (argued), Sarah Hansen Sotos, Park Ridge, for Village of Oakwood Hills and Donna Stefani.

Kell, Nuelle & Loizzo, Thomas F. Loizzo, Woodstock, for Thaddeus Dzierzbicki.

Justice INGLIS delivered the opinion of the court:

This appeal arises from an order of the trial court entered on defendants' motion to dismiss, dismissing count III of plaintiff's complaint for malicious prosecution. The trial court determined that plaintiff's complaint failed to state a cause of action since the attempted criminal prosecution underlying plaintiff's complaint was not terminated in a manner indicative of plaintiff's innocence. We affirm.

On August 1, 1982, plaintiff, Helmut P. Carlsen, was involved in an altercation with Thaddeus Dzierzbicki, a police officer with the Village of Oakwood Hills (village). On August 2, 1982, Dzierzbicki swore out two complaints against plaintiff, charging plaintiff with resisting a peace officer and battery. Plaintiff was arrested and subsequently released on bail pending trial.

On March 15, 1983, prior to trial, the State sought to amend the complaint charging plaintiff with battery. The initial complaint charged plaintiff with committing battery by knowingly causing bodily harm without legal justification. The State sought to amend the complaint so that it charged plaintiff with committing battery by knowingly making physical contact of a provoking nature without legal justification. Both types of conduct constitute battery pursuant to section 12-3(a) of the Criminal Code of 1961 (Ill.Rev.Stat.1985, ch. 38, par. 12-3(a)). The trial court denied the State's motion, and the State subsequently nol-prossed both charges.

On March 16, 1983, Dzierzbicki again swore out two complaints against plaintiff, charging plaintiff with resisting a peace officer and battery. The complaint charging plaintiff with resisting a peace officer was identical to the one dismissed the day before. The complaint charging plaintiff with battery was different from its predecessor complaint in that it incorporated the language which the State had unsuccessfully attempted to include by amendment the previous day.

On April 11, 1983, prior to trial, plaintiff filed a motion to dismiss the new charges. Plaintiff's motion alleged that the State's refiling of charges against plaintiff was intended to circumvent the court's previous order denying the State leave to amend the battery charge, and further alleged that the charges had no merit. Plaintiff's motion sought dismissal of both charges and requested a finding of not guilty. Plaintiff's contested motion was heard on April 19, 1983. The trial court allowed plaintiff's motion and entered the following order:

"This cause, coming to be heard upon the motion of the defendant to dismiss the above-entitled causes of action and for a finding of not guilty on both charges and the Court being advised in the premises:

Now Therefore It Is Hereby Ordered that the motion of the defendant be granted and said causes are hereby dismissed and the defendant is found to be not guilty."

On September 16, 1983, plaintiff brought the instant action against the village, Dzierzbicki, and village police officer Donna Stefani. Plaintiff filed his second amended complaint on March 28, 1984. Count III of plaintiff's second amended complaint was directed against the village and Dzierzbicki and alleged a cause of action for malicious prosecution relating to the previously dismissed criminal complaints.

On March 16, 1987, the scheduled day of trial, the village filed a motion to dismiss count III of plaintiff's second amended complaint pursuant to section 2-615(e) of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2-615(e)). Plaintiff's counsel objected to the timeliness of the filing of the motion on the basis that he had just received a copy of the motion that morning. The trial court granted a recess permitting plaintiff to prepare a response. The court heard oral argument on the village's motion that afternoon. At that time, Dzierzbicki joined in the village's motion. After hearing, the trial court granted defendants' motion to dismiss count III, stating:

"I'm going to hold the Judge Holmer [sic ] order on finding not guilty invalid. You can make that a point on appeal or something. But that's they [sic ] way I'm going to go.

Logically from that has to flow that Count III is dismissed or enter judgment on the pleadings."

On March 20, 1987, the trial court entered a written order in accordance with its oral finding. That order provided in pertinent part:

"1. That Count III of plaintiff's Second Amended Complaint is substantially unsufficient [sic ] in law and fails to state a cause of action;

2. That, as a matter of law, criminal judicial proceedings commenced against the plaintiff, which were numbered 83 CM 362 and 83 CM 363 in the Circuit Court of McHenry County, Illinois, were not terminated in a manner indicative of plaintiff's innocence;

3. That the presiding judge who terminated the criminal judicial proceedings, stated aforesaid in the proceeding [sic ] paragraph, lacked authority to find [plaintiff] not guilty without evidentiary hearing in the order dated April 19, 1983."

The order further provided "that there is no just reason for delaying enforcement or appeal of the final judgment for defendant on count III of plaintiff's second amended complaint." Plaintiff brought this timely appeal.

This case comes before this court on the trial court's grant of defendants' motion for judgment on the pleadings. A motion for judgment on the pleadings admits all facts well pleaded as true (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill.2d 179, 187, 20 Ill.Dec. 581, 380 N.E.2d 790) and submits to the court a question of law as to whether or not there is an issue of fact to be tried (Pollack v. Marathon Oil Co. (1976), 34 Ill.App.3d 861, 867, 341 N.E.2d 101). Such a motion may be addressed to a complaint which is insufficient as a matter of law to state a cause of action. (34 Ill.App.3d at 867, 341 N.E.2d 101.) The legal sufficiency of a complaint is tested by ascertaining whether the essential elements of a cause of action are alleged. Beese v. National Bank (1980), 82 Ill.App.3d 932, 933, 38 Ill.Dec. 364, 403 N.E.2d 595.

This is an action for malicious prosecution. To state a cause of action for malicious prosecution plaintiff must allege facts showing (1) the commencement or continuance of a criminal or civil judicial proceeding by the defendant; (2) a termination of that proceeding in favor of the plaintiff; (3) the absence of probable cause for the proceeding; (4) the presence of malice; and (5) damages to plaintiff resulting from the commencement or continuance of that proceeding. (Joiner v. Benton Community Bank (1980), 82 Ill.2d 40, 45, 44 Ill.Dec. 260, 411 N.E.2d 229.) In the instant action, the trial court determined that count III of plaintiff's complaint failed to allege that the underlying judicial proceedings were terminated in his favor.

While the plaintiff in a malicious prosecution case must allege facts which show that the underlying judicial proceeding was terminated in his favor, where the underlying proceeding was criminal in nature, it is not essential that there have been a trial and verdict of acquittal upon the charge involved. (Rich v. Baldwin (1985), 133 Ill.App.3d 712, 714, 88 Ill.Dec. 748, 479 N.E.2d 361.) Rather, the underlying criminal proceeding must have been terminated in a manner indicative of the innocence of the accused. (Joiner v. Benton Community Bank (1980), 82 Ill.2d 40, 45, 44 Ill.Dec. 260, 411 N.E.2d 229; Rich v. Baldwin (1985), 133 Ill.App.3d 712, 714, 88 Ill.Dec. 748, 479 N.E.2d 361.) Therefore, the issue presented to this court is whether plaintiff's allegation that the underlying criminal proceedings were dismissed and he was found "not guilty" is sufficient to satisfy the element that the underlying proceeding was terminated in a manner indicative of plaintiff's innocence.

Plaintiff contends that the trial court erred when it decided as a matter of law that the underlying criminal proceedings were not terminated in a manner indicative of plaintiff's innocence. We disagree.

The import of the words "not guilty" accompanying an order for dismissal of criminal charges was considered in People v. Seaberry (1980), 86 Ill.App.3d 369, 41 Ill.Dec. 705, 408 N.E.2d 51. In Seaberry, the defendant moved for dismissal of criminal charges when the State appeared for trial and sought a continuance. The defendant's motion was denied, and the defendant subsequently moved for reconsideration. (86 Ill.App.3d at 371, 41 Ill.Dec. 705, 408 N.E.2d 51.) After a hearing on the motion to reconsider, the court allowed the defendant's motion and entered an order which stated, " '[f]urther, defendant found not guilty because no complaining witnesses were present to offer any evidence as to the defendant's guilt.' " (86 Ill.App.3d at 371, 41 Ill.Dec. 705, 408 N.E.2d 51.) In considering whether the State could appeal from that trial court's order, the appellate court noted that there had not been a trial on the merits and held that the ruling of the trial court on the motion to reconsider had the "substantive effect of a dismissal." (Emphasis added.) (86 Ill.App.3d at 371, 41 Ill.Dec. 705, 408 N.E.2d 51.) The Seaberry court went on to discuss the State's right to appeal dismissal orders; however, its earlier conclusion that a dismissal order incorporating a finding of "not guilty" merely has the substantive effect of a dismissal instructs us that the mere use of the...