Kumar v. Bornstein

• Court: United States Appellate Court of Illinois
• Citation: 820 N.E.2d 1167,290 Ill.Dec. 100,354 Ill. App.3d 159
• Docket Number: No. 2-04-0134.,2-04-0134.
• Parties: Shalabh KUMAR, Plaintiff-Appellant, v. Deborah H. BORNSTEIN and Gardner Carton and Douglas, Defendants-Appellees.
• Decision Date: 13 December 2004

820 N.E.2d 1167
354 Ill. App.3d 159
290 Ill.Dec. 100

Shalabh KUMAR, Plaintiff-Appellant,
v.
Deborah H. BORNSTEIN and Gardner Carton and Douglas, Defendants-Appellees

No. 2-04-0134.

Appellate Court of Illinois, Second District.

December 13, 2004.

Rehearing Denied January 12, 2005.

820 N.E.2d 1169

David G. Susler, Carol Stream, Robert G. Black, Law Offices of Robert G. Black, Naperville, for Shalabh Kumar

Bart T. Murphy, Daniel J. Peters, Wildman, Harrold, Allen & Dixon LLP, Lisle, for Deborah H. Bornstein, Gardner Carton, Douglas Gardner.

Justice BYRNE delivered the opinion of the court:

Plaintiff, Shalabh Kumar, appeals the order of the circuit court of Du Page County dismissing his complaint against defendants, Deborah H. Bornstein and Gardner Carton and Douglas, attorney and law firm, respectively, pursuant to section 2-615 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-615 (West 2002)). The trial court dismissed plaintiff's complaint for abuse of process because, by failing to allege an actual arrest or seizure of property, he failed to satisfy the second element of the tort of abuse of process. Plaintiff claims that Illinois law does not require that he allege an actual arrest in order to sustain the claim. Plaintiff asserts that the claim requires that he show that process was used to accomplish some result that was collateral to the purview of the process, and he contends specifically that his allegations of the ex parte issuance of a body attachment order and the attempt to arrest him were sufficient to state a claim. We agree that arrest is not a required element of the tort. However, we find that the process was not used for any purpose other than that for which it was intended, because the writ of attachment and arrest warrant were issued to obtain compliance with discovery subpoenas after plaintiff's entities failed to obey them. Accordingly, we affirm the trial court's dismissal on this ground.

FACTS

Plaintiff's amended complaint alleged the following relevant facts. Plaintiff is the chief executive officer of a national group of companies, including Viktron Limited Partnership (Viktron). Prior to 1998, Woodward Governor Company (Woodward) ordered certain products from Viktron and failed to pay for them in an amount in excess of $1 million. Viktron sued Woodward to recover the amount due. On October 19, 1998, on behalf of Woodward, defendants filed a breach of contract suit in Colorado against Viktron.

In late 2000, defendants filed an ancillary proceeding in Cook County, Illinois, requesting discovery from various companies owned by plaintiff. Plaintiff alleged that in 2000, he attended a meeting with personnel of Woodward and was told that agents of Woodward would make plaintiff's life miserable if he continued to attempt to have monies collected by Viktron from Woodward. Woodward had previously offered to pay Viktron monies, but not enough, to dismiss Viktron's lawsuit. At

820 N.E.2d 1170

the 2000 meeting, Woodward threatened "to destroy" plaintiff if Viktron continued to sue Woodward

On February 14, 2001, defendants filed another ancillary proceeding in Cook County for the alleged purpose of issuing deposition and document subpoenas against three entities owned by plaintiff, Autotech Technologies Limited Partnership, Kumar Family Limited Partnership, and Electronic Support Systems Corporation (the Kumar Entities). None of the Kumar Entities or plaintiff was at that time named as a defendant in the underlying Colorado action. Plaintiff alleged that, when his attorneys demanded that defendant Bornstein stop "this harassment disguised as discovery," Bornstein agreed to a meeting, wherein she reiterated the threat to destroy plaintiff and his business entities.

On April 5, 2001, defendants filed a motion in the Colorado case for leave to file a second amended complaint and add several new parties as defendants to that action, including plaintiff and the Kumar Entities.

On May 3, 2001, defendants filed a petition for a rule to show cause in Illinois against the Kumar Entities for failing to produce discovery. Plaintiff alleged that all of the discovery was available in the Colorado case in which Woodward had joined the Kumar Entities. We note, however, that the Kumar Entities were not joined in the Colorado case until May 9, 2001, when the Colorado court granted the motion to add them and plaintiff.

Plaintiff alleged that by suing him and his business entities in Colorado, defendants forced him to retain Colorado counsel and that defendants sued the same parties in Illinois for the sole purpose of continuing their campaign of harassment against plaintiff and his business entities. Plaintiff alleged that Woodward refused to dismiss the Illinois suit even though it served no legitimate purpose. On May 9, 2001, the Illinois court entered the rule to show cause against the Kumar Entities and ordered that it was returnable on May 16, 2001. Plaintiff alleged that the order of contempt was not granted against him personally. Plaintiff further alleged that the defendants in the Colorado case filed a motion for a protective order on May 15, 2001, which created an automatic stay of discovery in the Colorado case. In addition, plaintiff alleged that discovery was not allowed in the Colorado cases because an answer to the complaint had not been filed nor was an answer yet due.

On May 22, 2001, the court granted the rule to show cause and ordered that a writ of attachment issue for the Kumar Entities for failure to appear and failure to comply with the subpoenas duces tecum served on them. Plaintiff alleged that defendants proceeded with the writ of attachment in the Illinois case despite having previously added plaintiff and the Kumar Entities as defendants in the Colorado case and despite discovery being stayed in that case.

Plaintiff alleged that, on June 6, 2001, defendants appeared ex parte before the court and secured the entry of a body attachment order against plaintiff personally and as representative of the Kumar Entities. Plaintiff alleged that defendants appeared before the judge in his chambers and not pursuant to any motion or call and that defendants did not show plaintiff's counsel the June 6 order for review, nor did they provide any notice of intent to have it entered or to change the order to hold plaintiff personally in contempt and subject to arrest. Plaintiff alleged that his lawyers learned of the June 6 order only when defendants referred to it in a pleading filed in the Colorado case.

On June 20, 2001, the Kumar Entities filed a motion to vacate the May 22, 2001,

820 N.E.2d 1171

contempt order entered against them in the Illinois proceedings. The motion was not filed on behalf of plaintiff because, plaintiff alleged, at that time defendants "kept secret the entry of the June 6, 2001[,] order against him."

On June 28, 2001, defendant Bornstein participated in a status hearing before the Colorado court. At that hearing, the court granted the defendants therein, including plaintiff, 30 days to provide written discovery. Plaintiff alleged that, despite the knowledge that discovery was stayed in the Colorado case at least another 30 days, defendants continued to pursue contempt proceedings against him in Illinois with the intent of arresting him.

On July 17, 2001, the Lake County sheriff issued to plaintiff a notice of civil arrest, directing him to surrender to the sheriff. On July 24, 2001, plaintiff alleged that his attorneys discovered for the first time the June 6 order of body attachment against plaintiff personally. After learning of the order, plaintiff requested that defendants voluntarily agree to vacate the writ of attachment. Defendants refused, "forcing" plaintiff to file a motion to vacate the May 22 contempt order and the June 6 attachment order.

Plaintiff was deposed on September 10, 2001, thus purging the contempt. On September 12, 2001, the court vacated the writ of attachment and arrest warrant against plaintiff.

On April 17, 2003, plaintiff sued defendants for abuse of process. Plaintiff alleged that defendants engaged in the above pattern of conduct in an attempt to undermine and discredit his professional reputation and his businesses, to harass and intimidate him, and to cause personal harm to him. Plaintiff alleged that, despite having added plaintiff and the Kumar Entities to the Colorado case and despite the discovery stay order entered in the Colorado case, defendants improperly continued to pursue the rule to show cause by procuring an order of contempt and a writ of attachment against plaintiff in Illinois.

Defendants filed a section 2-615 motion to dismiss the complaint, asserting that plaintiff failed to allege a claim for abuse of process because he failed to allege that he suffered an actual arrest or physical seizure of property as is uniformly required for an abuse of process claim in Illinois. The trial court agreed with defendants. When counsel for plaintiff requested leave to amend, the court specifically asked him if he could plead that plaintiff suffered any actual arrest or physical seizure of his property. Plaintiff's counsel admitted that he could not plead an actual arrest but claimed that there "are additional facts that are not contained in the complaint surrounding the issue of arrest that I think I should have a chance to replead." Accordingly, the trial court dismissed plaintiff's complaint without prejudice.

Thereafter, plaintiff filed an amended complaint. On the issue of arrest, plaintiff alleged that on July 23, 2001, the Lake County deputy sheriff went to plaintiff's house to arrest him but plaintiff was not home. Plaintiff alleged that he was unable to return to his home because of the danger of being arrested.

Defendants filed another section 2-615 motion to dismiss, arguing that plaintiff never alleged that he was actually arrested and, therefore, he failed to cure the fundamental defect...