Kurek v. Kavanagh, Scully, Sudow, White and Frederick

• Decision Date: 22 July 1977
• Docket Number: No. 76-342,76-342
• Citation: 50 Ill.App.3d 1033,8 Ill.Dec. 805,365 N.E.2d 1191
• Parties: , 8 Ill.Dec. 805 William KUREK, Walter Durdle, Robert Togikawa, Edwin Jones and Richard Hoadley, Plaintiffs-Appellants, v. KAVANAGH, SCULLY, SUDOW, WHITE & FREDERICK, a partnership, Pleasure Driveway& Park District of Peoria, John Canterbury, Pete Vonachen, Jim Cummings, Bonnie Noble, Virginia Keller, Billy Stone, Clyde West, Rhodell Owens, Jack Fuller, Frank Borror and Daniel Ohlemiller, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1191

365 N.E.2d 1191

50 Ill.App.3d 1033, 8 Ill.Dec. 805

William KUREK, Walter Durdle, Robert Togikawa, Edwin Jones and Richard Hoadley, Plaintiffs-Appellants, v. KAVANAGH, SCULLY, SUDOW, WHITE & FREDERICK, a partnership Pleasure Driveway& Park District of Peoria, John Canterbury Pete Vonachen, Jim Cummings, Bonnie Noble, Virginia Keller Billy Stone, Clyde West, Rhodell Owens, Jack Fuller, Frank Borror and Daniel Ohlemiller, Defendants-Appellees.

No. 76-342.

Appellate Court of Illinois, Third District.

July 22, 1977.

Richard D. Price, John E. Cassidy, Jr., Peoria, for plaintiffs-appellants.

Julian E. Cannell, Kavanagh, Scully, Sudow, White & Frederick, Peoria, for defendants-appellees.

SCOTT, Justice.

This is an appeal from an order of the Circuit Court of Peoria County granting the defendants' motions to dismiss complaints for malicious prosecution and abuse of process filed by each of the plaintiffs. The litigation, of which this appeal is a part, began in January, 1974, when Pleasure Driveway and Park District of Peoria (defendants herein) filed a forcible entry and detainer suit against the five former golf course manager/pro-greenskeepers, William Kurek, Walter Durdle, Robert Togikawa, Edwin Jones and Richard Hoadley (plaintiffs herein). That original suit was the result of unsuccessful concession agreement negotiations between the Peoria Park District and the five former golf course manager/pro-greenskeepers. (Pleasure Driveway & Park District v. Kurek (1975), 27 Ill.App.3d 60, 325 N.E.2d 650.) This court ordered that a writ of restitution issue for execution in favor of the Peoria Park District (hereinafter called Park District) and against the defendants, Kurek, Durdle, Togikawa, Jones and Hoadley (hereinafter called golf pros) for the possession of the golf concession shops situated at five Park District golf courses in Peoria, Illinois.

Then, on July 25, 1975, the Park District filed suit for wrongful holdover against the golf pros. Summary judgment on the issue of liability was granted in favor of the Park District. A bench trial was held on the issue of damages. On November 14, 1975, the trial court gave judgment to the Park District in the amount of $127,605 plus costs. Notice had been given to counsel for the golf pros that judgment would be entered on that day, but he failed to appear. Collection proceedings were begun on the same day that the judgment was entered and the bank accounts of the golf pros were garnished.

The golf pros asked that the garnishments and writs of execution be quashed because the collection remedies were premature since collection was begun less than thirty days after judgment was rendered. This motion was denied. Citations to discover assets were issued with a hearing date set for November 26, 1975. Defendant Hoadley answered the citation questions; the other four did not and were held in contempt. On November 21, 1976, William Kurek filed a post-trial motion. On December 10, 1976, post-trial motions were filed on behalf of the other four golf pros. The motions were denied on December 12, 1976.

Defendant Hoadley appealed without supersedeas. On January 8, 1976, supersedeas was approved for Kurek, Durdle, Togikawa, and Jones. On January 12, 1976, the four were purged of contempt and the writs of execution, citation proceedings, and garnishments were quashed or dismissed as to them, but not as to Hoadley. This court sustained the validity of the judgments obtained by the Park District and against the golf pros in the case of Pleasure Driveway and Park District of Peoria v. Jones et al., Ill.App., --- Ill.Dec. ---, --- N.E.2d ----, filed July 18, 1977.

The complaints which are the cause of this appeal were filed on November 20, 1975, on behalf of William Kurek and on December 22, 1975, on behalf of Walter Durdle, Robert Togikawa, Edwin Jones, and Richard Hoadley. The complaints each alleged that the counsel for the Park District, Kavanagh, Scully, Sudow, White and Frederick; the Pleasure Driveway and Park District of Peoria; and eleven individual Park District board and staff members (hereinafter called Park District) recklessly, wilfully, maliciously, purposefully and intentionally abused process in attempting to collect the judgment. They were charged with doing so in order to economically and financially destroy the golf pros. All five complaints were dismissed for failure to state a cause of action.

Each of the complaints alleged:

"Execution of the judgment of November 14, 1975, (Group Exhibit B) is, and has been, without probable cause and in violation of section 68.3 of the Civil Practice Act of Illinois (Ill.Rev.Stat., Chap. 110, Sec. 68.3) and Rule 305 of the Rules of the Supreme Court of Illinois (Ill.Rev.Stat., Chap. 110A, Para. 305).

Moreover execution of the foregoing judgment constitutes an abuse of the judicial processes culminating a scheme by the defendants or repetitive abuses of the judicial and governmental processes for the purpose of economically and financially destroying plaintiff.

Defendants' conduct above complained of is, and has been a reckless, wilful, malicious, purposeful and intentional abuse of the legal and governmental processes.

As a direct and proximate result of said abuses and wrongful uses of the processes for execution of judgments the plaintiff has sustained substantial compensatory injury and damage and is entitled to punitive damages in an amount no less than that which will visit the economic and financial destruction of each of the defendants as each of them has inflicted and is attempting to inflict, upon the plaintiff."

The golf pros were granted leave to amend their complaints but each elected to stand on his complaint.

The issues presented for review are: (1) do the plaintiffs' complaints state a cause of action for either malicious prosecution or abuse of process; and (2) after a judgment order is entered following a bench trial can collection proceedings be initiated within the thirty-day period during which the judgment debtor may elect to file either a post-trial motion or notice of appeal, even though there has been no showing that the judgment creditor's ability to collect the judgment might be impaired by the delay; and (3) does the institution of post-judgment collection proceedings during the said thirty-day period effectively destroy a judgment debtor's post-trial remedies and impair his ability to post a supersedeas bond thereby constituting a deprivation of the constitutional right to appeal under section 6 of Article VI of the Illinois Constitution of 1970.

The golf pros argue that the language of their complaints states a cause of action for either malicious prosecution or abuse of process. We have carefully reviewed the wording of each complaint. It is a well-established rule that pleadings which state conclusions (Haas v. Mid-America Fire & Marine Ins. Co. (1976), 35 Ill.App.3d 993, 343 N.E.2d 36) and characterize acts (Atwood Vacuum Machine Co. v. Continental Casualty Co. (1969), 107 Ill.App.2d 248, 246 N.E.2d 882) rather than state facts are insufficient at law. While that rule is applicable in this instance, the protracted litigation between the parties makes a discussion of malicious prosecution and abuse of process necessary.

Malicious prosecution and abuse of the process are two separate torts although they are often thought to be the same. Some courts have stated that malicious use of process and malicious prosecution are the same remedy. (Ammons v. Jet Credit Sales, Inc. (1962), 34 Ill.App.2d 456, 181 N.E.2d 601; Coplea v. Bybee (1937), 290 Ill.App. 117, 8 N.E.2d 55.) While that is correct, we believe that it has lead to confusion because many practitioners think that the words use and abuse are synonyms.

The elements of malicious prosecution which must be alleged and proved are the institution of a civil suit by the defendant; the termination of the civil suit in favor of the plaintiff; want of probable cause for the filing of the civil suit; malice on the part of the defendant in filing the civil suit; and special injury to the plaintiff as a result of the civil suit. Franklin v. Grossinger Motor Sales, Inc. (1970), 122 Ill.App.2d 391, 259 N.E.2d 307; Alswang v. Claybon (1976), 40 Ill.App.3d 147, 351 N.E.2d 285.

Termination of the civil suit in favor of the plaintiff must be a judicial determination which deals with the factual issues. Voluntary dismissal (Bonney v. King (1903), 201 Ill. 47, 66 N.E. 377), settlement (Schwartz v. Schwartz (1937), 366 Ill. 247, 8 N.E.2d 668), or even involuntary dismissal (Siegel v. City of Chicago (1970), 127 Ill.App.2d 84, 261 N.E.2d 802) are not such terminations.

Special injury requires some interference with plaintiff or his property greater than the ordinary inconvenience one may be expected to suffer as the result of litigation. Alswang v. Claybon (1976), 40 Ill.App.3d 147, 351 N.E.2d 285; Siegel v. City of Chicago (1970), 127 Ill.App.2d 84, 261 N.E.2d 802.

The elements of abuse of process which must be alleged and proved are an ulterior purpose for the use of regular court process and an act in the use of the regular process which is not proper in the regular prosecution of the lawsuit. (Alberto-Culver Co. v. Andrea Dumon, Inc. (D.C.1969), 295 F.Supp. 1155.) The purpose of such an action is to accomplish some result which could not be accomplished through the suit itself. (Barrett v. Baylor (7 Cir. 1972), 457 F.2d 119; Ammons v. Jet Credit Sales, Inc. (1962), 34 Ill.App.2d 456, 181 N.E.2d 601.) This must be something other than the successful completion of that particular lawsuit. (Ewert v. Wieboldt Stores, Inc. (1976), 38 Ill.App.3d 42, 347 N.E.2d 242.) The mere filing of a lawsuit, even with a malicious motive, does not constitute an abuse of process. Holiday Magic, Inc. v. Scott (1972), 4 Ill.App.3d 962, 282 N.E.2d 452; Ewert v. Wieboldt Stores, Inc. (1976), 38 Ill.App.3d 42, 347 N.E.2d 242; Ammons v. Jet Credit...