{ "id": 2553452, "name": "LAURIE BURGHARDT, Plaintiff-Appellant, v. CLIFF REMIYAC et al., Defendants-Appellees", "name_abbreviation": "Burghardt v. Remiyac", "decision_date": "1991-01-18", "docket_number": "No. 2-89-1115", "first_page": "402", "last_page": "408", "citations": [ { "type": "official", "cite": "207 Ill. App. 3d 402" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "187 Ill. App. 3d 23", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2668466 ], "pin_cites": [ { "page": "25" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/187/0023-01" ] }, { "cite": "62 Ill. App. 2d 216", "category": "reporters:state", "reporter": "Ill. 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Supp.", "case_ids": [ 5717906 ], "weight": 2, "pin_cites": [ { "page": "1068" } ], "opinion_index": 0, "case_paths": [ "/f-supp/657/1066-01" ] }, { "cite": "219 Ill. App. 582", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5435506 ], "pin_cites": [ { "page": "587" } ], "opinion_index": 0, "case_paths": [ "/ill-app/219/0582-01" ] }, { "cite": "224 Ill. App. 65", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3046079 ], "pin_cites": [ { "page": "76" } ], "opinion_index": 0, "case_paths": [ "/ill-app/224/0065-01" ] }, { "cite": "42 Ill. 143", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5293870 ], "pin_cites": [ { "page": "146-47" } ], "opinion_index": 0, "case_paths": [ "/ill/42/0143-01" ] }, { "cite": "133 Ill. App. 3d 712", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3529334 ], "weight": 3, "pin_cites": [ { "page": "714" }, { "page": "714" }, { "page": "719", "parenthetical": "dismissal of underlying criminal charge on speedy-trial grounds" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0712-01" ] }, { "cite": "82 Ill. 2d 40", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5475597 ], "weight": 2, "pin_cites": [ { "page": "45" }, { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0040-01" ] }, { "cite": "33 Ill. 2d 291", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2886614 ], "pin_cites": [ { "page": "295-96" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/33/0291-01" ] }, { "cite": "149 Ill. App. 3d 752", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3458696 ], "pin_cites": [ { "page": "758" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/149/0752-01" ] }, { "cite": "85 Ill. 106", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2776867 ], "year": 1986, "pin_cites": [ { "page": "108" } ], "opinion_index": 1, "case_paths": [ "/ill/85/0106-01" ] }, { "cite": "129 Ill. 2d 351", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567184 ], "pin_cites": [ { "page": "358" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/129/0351-01" ] }, { "cite": "285 Ill. 336", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4926916 ], "pin_cites": [ { "page": "341" } ], "opinion_index": 1, "case_paths": [ "/ill/285/0336-01" ] } ], "analysis": { "cardinality": 685, "char_count": 14581, "ocr_confidence": 0.783, "pagerank": { "raw": 2.0159103759617813e-07, "percentile": 0.7447853137383685 }, "sha256": "e1ebcc85379a3c8f87fd64cfed8fea65de17e72776ad7915f792078752e36f47", "simhash": "1:99bba12e4442f6f2", "word_count": 2357 }, "last_updated": "2023-07-14T17:11:09.339704+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LAURIE BURGHARDT, Plaintiff-Appellant, v. CLIFF REMIYAC et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE GEIGER\ndelivered the opinion of the court:\nThe plaintiff, Laurie Burghardt, appeals from the trial court\u2019s order in her action for malicious prosecution granting summary judgment to the defendants, Cliff Remiyac, Gwen MacPhail, and Swanson True Value Hardware (Swanson). The sole issue that the plaintiff raises in this appeal is whether a nolle prosequi dismissal of the underlying criminal action can support the action for malicious prosecution. The defendants argue that the trial court should be affirmed, regardless of the resolution of the issue raised by the plaintiff, because there clearly was probable cause to support the criminal charges.\nOn September 17, 1986, Remiyac, Swanson\u2019s office manager, accused the plaintiff, a Swanson employee, of falsifying refund slips to steal money from Swanson. On October 3, 1986, Remiyac signed and verified a criminal complaint. The plaintiff was subsequently arrested.\nOn February 19, 1987, MacPhail testified at the preliminary hearing on the criminal charge against the plaintiff. After the hearing, the court found that probable cause existed to charge the plaintiff with theft. On September 24, 1987, the case was dismissed upon the State\u2019s motion to nol-pros; the order stated, \u201cm/s \u2014 nolle pros/insufficient evidence to convict.\u201d\nThe plaintiff filed a two-count complaint against the defendants alleging false imprisonment and malicious prosecution arising out of the facts surrounding the criminal charge. The defendants brought a motion for summary judgment as to both counts which was granted by the trial court. The false imprisonment count is not at issue in this appeal.\nIn their motion for summary judgment, the defendants argued that the plaintiff could not prove a prima facie case on two of the five elements necessary to prove malicious prosecution, i.e., want of probable cause to institute the criminal proceedings and a bona fide termination of the proceedings in the plaintiff\u2019s favor. Although the trial court granted the defendants\u2019 motion, the record included no specific findings as to the basis for the court\u2019s ruling. The plaintiff brought a motion for reconsideration which the trial court denied. When questioned as to the basis for his ruling, the trial judge stated, \u201cI don\u2019t believe that a nolle prosse is an acquittal or finding of innocence as to a named criminal defendant.\u201d The plaintiff brought this appeal.\nThe first issue presented to this court is whether the plaintiff\u2019s showing that the underlying criminal proceedings were dismissed by a nolle prosequi order was sufficient to raise a question of fact as to the required element of a termination of the proceeding in favor of the plaintiff.\nTo state a cause of action for malicious prosecution, the plaintiff must allege facts showing (1) the commencement or continuance of a criminal or civil judicial proceeding by the defendant; (2) a termination of that proceeding in favor of the plaintiff, (3) the absence of probable cause for the proceeding; (4) the presence of malice; and (5) damages to the plaintiff resulting from the commencement or continuance of that proceeding. (Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 45.) While the plaintiff in a malicious prosecution case must allege facts which show that the underlying judicial proceeding was terminated in his favor, where the underlying proceeding was criminal in nature, it is not essential that there have been a trial and verdict of acquittal upon the charge involved. (Rich v. Baldwin (1985), 133 Ill. App. 3d 712, 714.) Rather, the underlying criminal proceeding must have been terminated in a manner indicative of the innocence of the accused. Joiner, 82 Ill. 2d at 45; Rich, 133 Ill. App. 3d at 714.\nWe note that plaintiffs have been permitted to maintain actions for malicious prosecution where the underlying criminal proceedings did not reach an acquittal on the merits. See Gilbert v. Emmons (1866), 42 Ill. 143, 146-47 (dismissal of underlying criminal charge upon failure of the grand jury to return a true bill); Rich, 133 Ill. App. 3d at 719 (dismissal of underlying criminal charge on speedy-trial grounds); Reell v. Petritz (1922), 224 Ill. App. 65, 76 (dismissal of underlying criminal charge on the motion of the prosecutor); Farris v. Messimore (1920), 219 Ill. App. 582, 587 (dismissal of underlying criminal charge by justice of the peace upon failure of the complaining witness to appear).\nIn the case of Hess v. Missouri Pacific R.R. Co. (S.D. Ill. 1987), 657 F. Supp. 1066, the Federal court, interpreting Illinois law, held that a nolle prosequi termination of prosecution is a bona fide termination in the plaintiffs favor; it also held that the only exception to this rule is where the prosecution files the nolle prosequi motion as a compromise to benefit the accused. (657 F. Supp. at 1068; see also Restatement (Second) of Torts \u00a7\u00a7659(c), 660(a) (1977).) We adopt the holding in Hess and find that the trial court erred in finding that the nolle prosequi order could not prove that the plaintiff\u2019s underlying criminal case had terminated in her favor.\nThe defendants argue that, even if the plaintiff was correct that the underlying criminal proceeding had terminated in her favor, summary judgment must be affirmed here, where the plaintiff has not argued in her appeal that the defendants lacked probable cause for their actions. They also argue that summary judgment was appropriate merely because nothing of record evidences a lack of probable cause. They find support for their latter argument in the fact that, at the preliminary hearing on the plaintiff\u2019s criminal charge, the court found that the State had probable cause to charge the plaintiff with theft.\nProbable cause has been defined as a state of facts that would lead a man of ordinary caution and prudence to believe, or to entertain an honest and strong suspicion, that the person arrested committed the offense charged. (See Mack v. First Security Bank (1987), 158 Ill. App. 3d 497, 502.) It 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, which is at issue. (See Robinson v. Econ-O-Corporation, Inc. (1978), 62 Ill. App. 3d 958, 960.) The existence of probable cause is a complete defense to a malicious prosecution cause of action. Shaw-Stabler v. Tilgner (1988), 173 Ill. App. 3d 843, 846.\nAn arrest under a judicially issued arrest warrant cannot give rise to a false imprisonment claim. (Weimann v. County of Kane (1986), 150 Ill. App. 3d 962, 968.) However, under a 1918 Illinois Supreme Court decision, a criminal court\u2019s preliminary hearing finding of probable cause is not determinative on the question of whether there existed a probable cause defense to support summary judgment for a malicious prosecution defendant. Lyons v. Kanter (1918), 285 Ill. 336, 341; see also Restatement (Second) of Torts \u00a7663(2) (1977).\nSummary judgment is appropriate only when the pleadings, depositions, admissions on file, and affidavits present no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1005(c).) Furthermore, in determining whether the moving party is entitled to summary judgment, the court must construe the pleadings, depositions, admissions and affidavits strictly against the movant. (In re Estate of Whittington (1985), 107 Ill. 2d 169, 177.) Where a movant for summary judgment supports his motion with evidence, such evidence is taken as true if the respondent offers no counterevidentiary material. See Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 587.\nWe choose not to rely on the waiver analysis suggested by the defendants\u2019 first argument on this issue. However, we examine the defendants\u2019 second argument on the merits. Although the defendants misplace reliance on the court\u2019s preliminary hearing finding of probable cause, we agree with their conclusion that nothing of record defeats their demonstration of probable cause.\nAccording to the transcript of the preliminary hearing on the plaintiff\u2019s criminal charge, filed as an attachment to the plaintiff\u2019s memorandum in opposition to the defendants\u2019 motion for summary judgment, prior to seeking criminal charges against the plaintiff, the defendants systematically reviewed suspicious Swanson customer refund receipts from a SW-month period. As a result of that review, they found that during the period that she was employed at Swanson, the plaintiff had been working at each of the times one of the suspicious receipts was made. Apparently she was the only employee for whom that was true. As a follow-up, the defendants checked with one of the customers named on a suspicious refund receipt; he told them that on the day noted on the receipt, he had been at Swanson and made a purchase, but he had not returned any merchandise. Additionally, the defendants had asked all current store employees, apparently all employees during the relevant period except the plaintiff and one man, whether they had signed the questioned refund receipts; all had denied signing.\nIn her memorandum opposing summary judgment, the plaintiff disputed the defendants\u2019 allegation of no probable cause merely by stating: \u201c[A]n examination of the transcript of [the preliminary] hearing does not reveal any connection between the alleged shortage and any criminal act with which the [plaintiff] was charged.\u201d However, that mere conclusory assertion does not raise a question of fact. See Kaminski v. Missionary Sisters of the Sacred Heart (1965), 62 Ill. App. 2d 216, 219-20; 107 Ill. 2d R. 191.\nConsidering this record, we find that the defendants were entitled to summary judgment as a matter of law. Even construing the proper materials to favor the plaintiff, this record can lead only to the conclusion that the defendants\u2019 action of signing a theft complaint against the plaintiff was based upon facts that would lead a man of ordinary caution and prudence to believe or to entertain an honest and strong suspicion that the plaintiff had committed the offense of theft. Our review of the record reveals only a conclusory response by the plaintiff to the evidence in the record showing probable cause, and, thus, no question of fact on probable cause exists. Therefore, summary judgment would have been proper on this issue. Since we can affirm the trial court for any reason supported in the record (see B.T. Explorations, Inc. v. Stanley (1989), 187 Ill. App. 3d 23, 25), we affirm the trial court's grant of summary judgment.\nFor the foregoing reasons, the decision of the circuit court of Kane County to dismiss the plaintiff\u2019s complaint is affirmed.\nAffirmed.\nDUNN, J., concurs.", "type": "majority", "author": "JUSTICE GEIGER" }, { "text": "PRESIDING JUSTICE REINHARD,\nspecially concurring:\nI agree with the majority\u2019s opinion insofar as it holds that the nolle prosequi order in the criminal proceedings is not necessarily fatal to a showing of termination of those proceedings in plaintiff\u2019s favor. I further agree that the preliminary hearing finding of probable cause in the underlying criminal proceedings is, at most, evidence of probable cause in the civil proceedings. (Lyons v. Kanter (1918), 285 Ill. 336, 341.) Finally, while I agree with the majority that probable cause was demonstrated here and that defendants were entitled to judgment in their favor as a matter of law, I write separately to set forth what I consider to be the proper analysis of this issue.\nHere, both parties submitted to the trial court copies of the transcript of the preliminary hearing in the criminal proceeding in support of their respective positions with regard to the entry of summary judgment. While both parties apparently agreed below upon the underlying factual circumstances as detailed in the transcript, they disagreed as to whether such circumstances were sufficient to establish probable cause as a matter of law. The majority cites the statement made in plaintiff\u2019s memorandum in opposition to the motion for summary judgment that \u201can examination of the transcript of [the preliminary] hearing does not reveal any connection between the alleged shortage and any criminal act with which the [plaintiff] was charged.\u201d (See 207 Ill. App. 3d at 407.) The majority mistakenly dismisses this statement as a \u201cmere conclusory assertion [which] does not raise a question of fact.\u201d (207 Ill. App. 3d at 407.) This statement was not purported to be a fact, but was advanced as an argument regarding the inferences which could be drawn from the undisputed facts.\nNormally, an issue of fact should be determined by the jury and not on summary judgment where reasonable persons could draw different inferences from the facts which are not in dispute. (Pyne v. Witmer (1989), 129 Ill. 2d 351, 358.) The issue of probable cause in an action for malicious prosecution, however, presents a mixed question of law and fact. Whether the circumstances proved to show probable cause are true is a question of fact, but, if true, whether they amount to probable cause is a question of law to be decided by the court. Angelo v. Faul (1877), 85 Ill. 106, 108; Ely v. National Super Markets, Inc. (1986), 149 Ill. App. 3d 752, 758; see also Restatement (Second) of Torts \u00a7673 (1977).\nHere, there is no dispute presented regarding the facts which purport to show probable cause, so the issue is one of law. I agree with the majority that the undisputed facts presented would lead a man of ordinary caution and prudence to believe, or entertain an honest and strong suspicion, that plaintiff committed the offense charged. (See Freides v. Sani-Mode Manufacturing Co. (1965), 33 Ill. 2d 291, 295-96.) Defendants\u2019 actions showed a careful attempt to determine which of their employees was responsible for the falsified return slips. Accordingly, I agree that the trial court\u2019s entry of summary judgment in favor of defendants should be affirmed, but upon a basis different from that articulated by the trial court.", "type": "concurrence", "author": "PRESIDING JUSTICE REINHARD," } ], "attorneys": [ "G. Williams Richards and George G. Weber, both of Law Office of G. Williams Richards, of Aurora, for appellant.", "E. Jude Duffy III, Robert G. Black, and Thomas A. Brabec, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Lisle, and Daniel M. Purdom and Stephen R. Swofford, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellees." ], "corrections": "", "head_matter": "LAURIE BURGHARDT, Plaintiff-Appellant, v. CLIFF REMIYAC et al., Defendants-Appellees.\nSecond District\nNo. 2\u201489\u20141115\nOpinion filed January 18, 1991.\nREINHARD, P.J., specially concurring.\nG. Williams Richards and George G. Weber, both of Law Office of G. Williams Richards, of Aurora, for appellant.\nE. Jude Duffy III, Robert G. Black, and Thomas A. Brabec, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Lisle, and Daniel M. Purdom and Stephen R. Swofford, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellees." }, "file_name": "0402-01", "first_page_order": 424, "last_page_order": 430 }