Commerce Bank, N.A. v. Plotkin

• Decision Date: 29 August 1986
• Docket Number: No. 49-6096-00-9,No. 77-6096-00-0,49-6096-00-9,77-6096-00-0
• Citation: 255 Ill.App.3d 870,194 Ill.Dec. 409,627 N.E.2d 746
• Parties: , 194 Ill.Dec. 409 COMMERCE BANK, N.A., Successor to the First National Bank of Peoria, as Trustee under Trust Agreement, f/k/a Trust, dated
• Court: United States Appellate Court of Illinois

Page 746

627 N.E.2d 746

255 Ill.App.3d 870, 194 Ill.Dec. 409

COMMERCE BANK, N.A., Successor to the First National Bank of Peoria, as Trustee under Trust Agreement No. 49-6096-00-9 f/k/a Trust No. 77-6096-00-0, dated August 29, 1986, and GHSC Associates Limited Partnership, Plaintiffs-Appellants, v. Willard J. PLOTKIN, Carol T. Plotkin, and Columbia Rug &amp Linoleum Co., Inc., Defendants-Appellees.

No. 3-93-0374.

Appellate Court of Illinois Third District.

Jan. 20, 1994.

William R. Kohlhase (argued), Thomas R. Davis, Miller, Hall & Triggs, Peoria, for Commerce Bank, N.A. and GHSC Assoc. Ltd. Partnership.

Thomas E. Leiter, Sandra J. Birdsall (argued), The Leiter Group, Peoria, for Willard J. Plotkin, Carol T. Plotkin and Columbia Rug & Linoleum Co.

Justice STOUDER delivered the opinion of the court:

The plaintiffs, Commerce Bank, N.A. and GHSC Associates Limited Partnership, filed a complaint against the defendants, Willard Plotkin, Carol Plotkin, and Columbia Rug & Linoleum Company, Inc., alleging abuse of process. The defendants filed a motion to dismiss pursuant to section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 1992)) alleging that the complaint failed to state a cause of action. The court granted the motion, dismissing the complaint with prejudice. The plaintiffs now appeal to this court claiming that their complaint properly stated a cause of action for abuse of process. We affirm.

In their complaint, the plaintiffs alleged that they have received from the city of Peoria all appropriate governmental approvals and authority to develop a certain piece of property at 5001 N. Big Hollow Road as the Glen Hollow Shopping Center. The complaint further alleged that the defendants Willard and Carol Plotkin own the real estate at 5001 War Memorial Drive and that defendant Columbia Rug & Linoleum Company, Inc. operates a business at that address. On October 30, 1992, the defendants filed Case No. 92 MR 246 in the circuit court of Peoria county naming the city of Peoria and Commerce Bank as defendants. The complaint in that case challenges the plaintiffs' legal right to develop the Glen Hollow Shopping Center. The plaintiffs alleged in their complaint that case No. 92 MR 246 is without legal or factual merit, that the defendants did not file it for the purpose of obtaining the relief sought, that the defendants knew that any litigation attacking the plaintiffs' legal right to develop the shopping center would delay the development of the center by preventing the plaintiffs from obtaining financing, and that the case was filed for the purpose of coercing plaintiffs to pay substantial sums of money to defendants so that they would terminate those proceedings and thereby allow plaintiffs to proceed with the development of the shopping center.

It was further contended by the plaintiffs in the complaint that, prior to the filing of Case No. 92 MR 246, they had commitments to lease a substantial amount of space at the shopping center. Since the filing of that case, they have had to sell a portion of the property because the financing to own and lease that space at the shopping center could not be obtained, solely due to the pendency of the defendants' case. The plaintiffs claimed that by being forced to sell, instead of lease, that portion of the property they had been damaged to the extent of at least $2,315,000. According to the complaint, the defendants have demanded that the plaintiffs pay them a substantial sum of money and also provide construction at no cost to the defendants, even though Case No. 92 MR 246 does not include any claims for money damages. The plaintiffs claimed that the defendants' case was filed for the sole purpose of harming them if they did not succumb to the defendants' demands.

On a motion to dismiss, all well-pleaded facts are accepted as true. (McColgan v. United Mine Workers of America (1984), 124 Ill.App.3d 825, 80 Ill.Dec. 183, 464 N.E.2d 1166.) The standard of review on appeal from a motion to dismiss a complaint is whether the complaint sufficiently states a cause of action; the merits of the case are not before the reviewing court. (McCormick v. Kruk (1991), 220 Ill.App.3d 449, 163 Ill.Dec. 122, 581 N.E.2d 73.) When reviewing a motion to dismiss, the court should interpret the facts alleged in the complaint in the light most favorable to the plaintiff, and the complaint should not be dismissed unless the pleadings disclose that no set of facts could be proved that would entitle the plaintiff to relief. Theodosakis v. Austin Bank of Chicago (1981), 93 Ill.App.3d 634, 49 Ill.Dec. 116, 417 N.E.2d 806.

To state a cause of action for abuse of process a plaintiff must allege two elements:

(1) existence of an ulterior motive or purpose, and

(2) some act in the use of legal process not proper in the regular prosecution of the proceedings. (Executive Commercial Services, Ltd. v. Daskalakis (1979), 74 Ill.App.3d 760, 31 Ill.Dec. 58, 393 N.E.2d 1365.)

An action for abuse of process requires evidence that process has been misused or misapplied to accomplish some...