Holiday Magic, Inc. v. Scott

• Decision Date: 26 April 1972
• Docket Number: No. 55792.,55792.
• Citation: 4 Ill. App.3d 962,282 N.E.2d 452
• Parties: HOLIDAY MAGIC, INC. et al., Plaintiffs-Appellants, v. WILLIAM J. SCOTT et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

4 Ill. App.3d 962

282 N.E.2d 452

HOLIDAY MAGIC, INC. et al., Plaintiffs-Appellants, v. WILLIAM J. SCOTT et al., Defendants-Appellees.

No. 55792.

Illinois Appellate Court — First District.

February 22, 1972.

Rehearing denied April 26, 1972.

Jenner & Block, of Chicago, (Thomas P. Sullivan and Robert C. Keck, Jr., of counsel,) for appellants.

Freeman, Freeman & Salzman, of Chicago, (Lee A. Freeman and Jerrold E. Salzman, of counsel,) for appellees.

Judgment affirmed.

Mr. PRESIDING JUSTICE GOLDBERG delivered the opinion of the court:

Holiday Magic, Inc., a California corporation; Masters & Generals Trust No. 101, doing business as Chicagoland Center; Earl Miller, Gene Amado and John Carr, Trustees (plaintiffs) filed an amended complaint for injunctive relief and damages against William J. Scott, individually, and as Attorney General of the State of Illinois; Allen A. Freeman, individually, and as Deputy Attorney General of the State of Illinois; and Robert S. Atkins, individually, and as Assistant Attorney General of the State of Illinois (defendants). The trial court sustained a motion by defendants to strike and dismiss the amended complaint and dismissed the suit with prejudice. Plaintiffs appeal.

• 1 The facts appear from the properly pleaded allegations of the amended complaint, admitted by the motion to dismiss. (Acorn Auto Driving School, Inc. v. Board of Education, 27 Ill.2d 93, 96, 187 N.E.2d 722; Follett's Illinois Book & Supply Store, Inc. v. Isaacs, 27 Ill.2d 600, 603, 190 N.E.2d 324.) The amended complaint alleged in substance that plaintiffs were engaged in the business of selling and distributing a complete line of cosmetics for both ladies and gentlemen throughout the United States. It alleged that the defendants made a "very brief, incomplete and inadequate" investigation of the business of plaintiffs to determine whether it was being operated in compliance with the law of Illinois. Plaintiffs alleged that, during the course of this investigation, the defendant Atkins ordered plaintiffs to change their methods of business operation and, "* * * further stated that if plaintiffs refused, he would take legal action on behalf of the Attorney General which would generate sufficient adverse publicity to `kill' Atkins' word plaintiffs' business, even though such legal action might be groundless. Atkins stated that he was unsure of the correctness of his position in the threatened legal action and admitted that there was a good chance that he would lose the case."

It was further alleged that defendants then filed action against plaintiffs on August 14, 1969. A copy of this prior complaint is appended as an exhibit to the original complaint filed herein. This former complaint described the general manner in which plaintiffs herein conducted their business in Illinois. It charged plaintiffs in the cause at bar with four offenses against the law of Illinois: (1) conducting an illegal lottery (Ill. Rev. Stat. 1967, ch. 38, par. 28-2); (2) unlawful combination and conspiracy in restraint of trade (Ill. Rev. Stat. 1967, ch. 38, par. 60-3 (1)(a) and 60-3(2)); (3) the use of misleading and fraudulent misrepresentations in operation of their business in violation of the Consumer Fraud Act (Ill. Rev. Stat. 1967, ch. 121 1/2, pars. 261 and following) and the Uniform Deceptive Practices Act (Ill. Rev. Stat. 1967, ch. 121 1/2, pars. 311 and following); and 4) violations of the Illinois Securities Law of 1953 (Ill. Rev. Stat. 1967, ch. 121 1/2, pars. 137.2 and following). This former complaint prayed injunctive and other relief against plaintiffs herein.

The gist or substance of the amended complaint herein appears from paragraph 7. This paragraph contains a series of allegations descriptive of the prior suit which may be summarized or quoted in the order in which they are set forth as follows:

(a) The prior suit was filed and, "used with an ulterior purpose." This was to punish plaintiffs by "killing" their business through the generation of adverse publicity. Defendants herein knew that the filing of such proceedings by the Attorney General would generate a large amount of adverse publicity which would seriously damage the business of plaintiffs.

(b) "After filing the lawsuit, defendants committed acts in the use of the process not proper in the regular prosecution of the proceeding. Defendants actively and knowingly gave wide publicity to the contents of their complaint. Specifically, defendants caused a series of articles to appear in one of Chicago's major daily newspapers. Further, defendants made statements to members of the news media regarding the lawsuit which further tended to damage plaintiffs' business. Plaintiffs are informed and believe that defendants will continue to use this lawsuit to generate publicity adverse to plaintiffs' business."

(c) "Said lawsuit was brought without probable cause."

(d) "Said lawsuit was instituted by defendants with malice." This was demonstrated by the statement of defendant Atkins that he would file the suit to "kill" plaintiffs' business and punish plaintiffs even though the suit was groundless. In addition malice was demonstrated by the lack of adequate investigation prior to filing suit and by the existence of the ulterior purpose. It is alleged here on information and belief that Mrs. Hattie Atkins had invested in plaintiffs' program and was unable to recoup this investment. It is further alleged on information and belief that "* * * malice arose from Atkins' personal dislike for the people in the plaintiffs' business whom Atkins met prior to the filing * * *" of the previous suit.

The amended complaint also alleged that plaintiffs' business suffered extensive damage and that they were required to incur obligations for costs and attorney's fees. It alleged that the pendency of the previous case caused emotional embarrassment and distress to plaintiffs and their families and required them to expend substantial amounts of time which they would otherwise have devoted to income producing matters. The amended complaint prayed large amounts of damages and punitive damages against defendants, temporary and permanent injunctions restraining defendants from making public or private statements "to the news media" about plaintiffs and restraining defendants from prosecuting the previous suit and also for general relief.

Seven separate grounds are specified in the motion of defendants to strike and dismiss. Under the view we take of this appeal, only the third ground need be considered. This ground is that the amended complaint fails to state a cause of action in that no facts are alleged involving misuse or abuse of process. In addition, this portion of the motion states that the amended complaint fails to state a cause of action for malicious prosecution because the allegations of malice, lack of probable cause and existence of ulterior purpose are only conclusions and not allegations of fact and that the essential allegation that the prior action was terminated in favor of defendants therein is lacking. Ill. Rev. Stat. 1969, ch. 110, par. 45(1) (2).

In their briefs filed in this court, plaintiffs contend: 1) The amended complaint states a good cause of action for abuse of process. 2) The amended complaint was actionable even if it does not state such a cause of action. 3) Defendants cannot claim immunity by virtue of their public offices. 4) The injunctive relief prayed in the amended complaint is appropriate. Under the view which we take of this appeal, it is necessary to consider only the first two points.

• 2, 3 In determining the sufficiency of the amended complaint, we will obey the clear statutory mandate that it is to "* * * be liberally construed with a view to doing substantial justice between the parties." (Ill. Rev. Stat. 1969, ch. 110, par. 33(3).) However, to accomplish this purpose, we must determine if the amended complaint contains those "* * * substantial averments of fact necessary to state a cause of action." (See Fanning v. LeMay, 38 Ill.2d 209, 211, 230 N.E.2d 182, citing Ill. Rev. Stat. 1965, ch. 110, par. 31.) This determination requires us to examine the definition and nature of the classic tort known as abuse of process.

• 4 This definition is best approached by comparing abuse of process with malicious prosecution. In numerous decisions, the courts of Illinois have stated and defined the requisite elements of malicious prosecution as follows (Franklin v. Grossinger Motor Sales Inc., 122 Ill. App.2d 391, 397, 259 N.E.2d 307; also Freides v. Sani-Mode Manufacturing Co., 33 Ill.2d 291, 295, 211 N.E.2d 286):

1. Institution and prosecution of judicial proceedings by the defendant.

2. Lack of probable cause for these proceedings.

3. Malice in instituting the proceedings.

4. Termination of the prior cause in plaintiff's favor.

5. Suffering by plaintiff of damage or injury from the prior proceeding.

Certain of these elements, however, are not requisites of the tort of abuse of process. The requirements that the prior proceeding be terminated in plaintiff's favor, the necessity of proof of lack of probable cause for the former case and the need to allege malice in the complaint are not essential elements of abuse of process. See Dixon v. Smith-Wallace Shoe Co., 283 Ill. 234, 241, 119 N.E. 265 and Wicker v. Hotchkiss, 62 Ill. 107, 110. See also Coplea v. Bybee, 290 Ill. App. 117, 125, 8 N.E.2d 55.

• 5 Therefore, a statement of the two remaining elements, which alone form the requisites of the tort of abuse of process, is comparatively simple. The elements are:

1. Existence of an ulterior purpose or motive, and

2. Some act in the use of the legal process not proper in the regular prosecution of the proceedings.

These elements have been defined and described in many Illinois cases. (Ammons v. Jet Credit Sales Inc., 34 Ill. App.2d 456, 462, 181 N.E.2d 601. See also Alberto-Culver Co. v. Andrea Dumon, Inc., 295 F. Supp. 1155, 1159.) The...