Howard v. Firmand

• Citation: 880 N.E.2d 1139,378 Ill. App. 3d 147
• Decision Date: 17 December 2007
• Docket Number: No. 1-06-2019.,1-06-2019.
• Parties: Glen HOWARD, Plaintiff-Appellant, v. Bethany FIRMAND, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

880 N.E.2d 1139

378 Ill. App. 3d 147

Glen HOWARD, Plaintiff-Appellant, v. Bethany FIRMAND, Defendant-Appellee.

No. 1-06-2019.

Appellate Court of Illinois, First District, First Division.

December 17, 2007.

Robert G. Kirchner and Ruth E. Wyman of. Robert G. Kirchner Law Office, Chicago, for Appellant.

Paul B. O'Flaherty and Anne T. Stinneford of Cheely, O'Flaherty & Ayers, Chicago, for Appellee.

Justice CAHILL delivered the opinion of the court:

Plaintiff Glen Howard appeals a summary judgement order for defendant Bethany Firmand on his complaint for malicious prosecution. The trial court held Firmand had probable cause as a matter of law to initiate the underlying civil proceedings against Howard. We disagree with the finding that probable cause was established as a matter of law, but we affirm the order of summary judgment based on plaintiffs failure to establish the special injury required in a complaint for malicious prosecution.

Firmand and Howard lived together in Champaign-Urbana and attended the University of Illinois. The couple had an argument on November 21, 2000, and Firmand moved out. On November 25, 2000, Howard filed a police report, alleging Firmand had taken some of his property when she left. On November 28, 2000, Firmand filed a petition in the circuit court of Champaign County for a plenary order of protection against Howard under section 214(a) of the Illinois Domestic Violence Act of 1986(Act) (750 ILCS 60/214(a) (West 2000)). Firmand alleged in the petition that Howard had physically abused her. An emergency order of protection was entered. After a hearing on the petition during which Howard denied Firmand's allegations, the trial court denied the petition for a plenary order of protection.

On February 19, 2001, Howard filed a motion for attorney fees under section 226 of the Act (750 ILCS 60/226 (West 2000)) and Supreme Court Rule 137 (155 Ill.2d R. 137). Howard alleged Firmand's allegations of abuse were untrue and made without reasonable cause. The trial court denied the petition.

Firmand filed a second petition for a plenary order of protection against. Howard a week later, on February 26, 2001. Howard again denied the allegations of abuse made by Firmand. The trial court denied the petition, finding Firmand's testimony to be less credible than that offered by Howard and witnesses testifying on his behalf. With one justice dissenting, the appellate court affirmed the denial of that order of protection on May 7, 2003. See Firmand v. Howard, No. 4-02-0785, 337 Ill.App.3d 1181, 300 Ill.Dec. 265, 843 N.E.2d 523 (2003) (unpublished order under Supreme Court Rule 23) (Firmand I).

While these proceedings were pending, Firmand filed charges against Howard for misdemeanor domestic abuse and felony stalking. The State filed a criminal complaint against Howard but the charges were later dismissed. Firmand was also successful in bringing about disciplinary proceedings against Howard by the University of Illinois. As a result of those proceedings, the university delayed issuing Howard a diploma.

Howard filed a three-count complaint against Firmand on November 27, 2002. Two of the counts—for replevin and conversion —were voluntarily dismissed and are not at issue here. The third count, which is at issue, alleged malicious prosecution grounded on the two earlier order of protection proceedings. The criminal charges and university action were not included as grounds for the complaint.

Firmand moved for summary judgment on the malicious prosecution claim. Firmand alleged she had probable cause to seek the orders of protection. See Ely v. National Super Markets, Inc., 149 Ill. App.3d 752, 758, 102 Ill.Dec. 498, 500 N.E.2d 120 (1986) (existence of probable cause is a complete defense to an action for malicious prosecution). Firmand relied on the dissenting opinion in Firmand I. She argued the fact that one justice on the panel believed her petition should have been granted was sufficient to show she had probable cause to bring the petition in the first instance. Without citation to authority, the trial court agreed and granted Firmand's motion for summary judgment. Howard appeals.

Summary judgment is proper where the pleadings, depositions, admissions and affidavits on file, when viewed in the light most favorable to the nonmoving party, reveal there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2002); Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill.2d 307, 315, 290 Ill.Dec. 218, 821 N.E.2d 269 (2004). We review the entry of summary judgment de novo and may affirm on any ground appearing in the record. Home Insurance, 213 Ill.2d at 315, 290 Ill.Dec. 218, 821 N.E.2d 269.

"A malicious prosecution action is brought to recover damages suffered by one against whom a suit has been filed maliciously and without probable cause." Miller v. Rosenberg, 196 Ill.2d 50, 58, 255 Ill.Dec. 464, 749 N.E.2d 946 (2001). A plaintiff who files a complaint for malicious prosecution based on an earlier civil proceeding must show: (1) the defendant instituted the underlying suit without probable cause and with malice; (2) the former action was terminated in the plaintiff's favor; and (3) the plaintiff suffered a special injury beyond the usual expense, time or annoyance in defending the underlying action. Miller, 196 Ill.2d at 58, 255 Ill.Dec. 464, 749 N.E.2d 946. Probable cause is a complete defense to an action for malicious prosecution. Ely, 149 Ill.App.3d at 758, 102 Ill.Dec. 498, 500 N.E.2d 120.

The underlying actions here were filed under section 214(a) of the Act. That statute authorizes the trial court to enter an order of protection to prevent abuse by one household member to another. 750 ILCS 60/214(a) (West 2000). "Abuse" is defined by the Act as "physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation." 750 ILCS 60/103(1) (West 2000). Firmand alleged as grounds for filing the section 214(a) petitions that Howard had physically abused, threatened and stalked her. Howard denied the truth of Firmand's allegations. The trial court and the appellate court orders entered in the underlying proceedings show that resolution of both petitions rested on witness credibility.

We are asked to review whether Firmand had probable cause to initiate those proceedings. "Probable cause is a state of facts that would lead a person of ordinary care and prudence to believe or to entertain an honest and sound suspicion that the accused committed the offense charged." Fabiano v. City of Palos Hills, 336 Ill.App.3d 635, 642, 271 Ill.Dec. 40, 784 N.E.2d 258 (2002). "Probable cause is determined at the time of subscribing a criminal complaint: `[There must be] an honest belief by the complainant at the time of subscribing a criminal complaint that another is probably guilty of an offense; it is immaterial that, the accused may thereafter be found not guilty.'" (Emphasis added.) Ely, 149 Ill.App.3d at 758, 102 Ill. Dec. 498, 500 N.E.2d 120, quoting Mangus v. Cock Robin Ice Cream Co., 52 Ill.App.3d 110, 116, 9 Ill.Dec. 769, 367 N.E.2d 203 (1977); see also Johnson v. Target Stores, Inc., 341 Ill.App.3d 56, 72, 274 Ill.Dec. 795, 791 N.E.2d 1206 (2003) (relevant inquiry is whether the complainant had an honest belief that the accused committed an offense). "The existence of probable cause is a mixed question of law and fact." Fabiano, 336 Ill.App.3d at 642, 271 Ill.Dec. 40, 784 N.E.2d 258. "Whether the circumstances alleged to show probable cause are true is a question of fact, but, if true, whether those circumstances amount to probable cause is a question of law to be decided by the court." Fabiano, 336 Ill. App.3d at 642, 271 Ill.Dec. 40, 784 N.E.2d 258.

Firmand argues she had probable cause as a matter of law to file the section 214(a) petitions against Howard. Firmand, as did the trial court, relies on the fact that the dissenting justice in Firmand I would have reversed the denial of Firmand's second petition and granted the order of protection. We fail to see the relevancy of a dissenting justice's opinion in any context. Firmand cites to no case, nor could we find one, where the dissenting opinion of a justice in one case may be cited as persuasive authority to support a ruling by a trial judge in a subsequent proceeding involving the same parties. The relevant inquiry is whether Firmand had an honest belief that Howard had committed abuse under section 214(a) of the Act when she filed the petitions for orders of protection. Ely, 149 Ill.App.3d at 758, 102 Ill.Dec. 498, 500 N.E.2d 120; see also Rodgers v. Peoples Gas, Light & Coke Co., 315 Ill.App.3d 340, 348, 248 Ill. Dec. 160, 733 N.E.2d 835 (2000) ("[i]t is the state of mind of the one commencing the prosecution, and not the actual facts of the case or the guilt or innocence of the accused, that is at issue"); Pease v. International Union of Operating Engineers Local 150, 208 Ill.App.3d 863, 876, 153 Ill. Dec. 656, 567 N.E.2d 614 (1991), citing Lyons v. Kanter, 285 Ill. 336, 341, 120 N.E. 764 (1918) (a finding of probable cause to arrest or detain a defendant is not conclusive as to whether probable cause existed in subsequent civil proceeding for malicious prosecution). Firmand's other arguments that favorable rulings in the underlying proceedings establish her probable cause as a matter of law fail for the same reason.

Howard argues summary judgment was improper because there exists a question of fact as to whether Firmand had, probable cause to file the section 214(a) petitions. The parties have not cited, nor have we found, a case directly on point with the facts presented here: a complaint for malicious prosecution based on the filing of a petition for an order of protection under the Act. But there are several Illinois cases that have found, where the circumstances giving rise to an alleged malicious prosecuti...