{ "id": 75234, "name": "VIPAL ARORA et al., Plaintiffs and Counterdefendants-Appellees, v. DAVID CHUI et al., Defendants and Counterplaintiffs-Appellants", "name_abbreviation": "Arora v. Chui", "decision_date": "1996-04-26", "docket_number": "No. 2\u201495\u20140051", "first_page": "321", "last_page": "337", "citations": [ { "type": "official", "cite": "279 Ill. App. 3d 321" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "4 Ill. App. 3d 962", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2919628 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "968" }, { "page": "968" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/4/0962-01" ] }, { "cite": "120 Ill. App. 3d 807", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3594619 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "816" }, { "page": "816" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0807-01" ] }, { "cite": "154 Ill. App. 3d 875", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3647111 ], "year": 1987, "pin_cites": [ { "page": "878" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/154/0875-01" ] }, { "cite": "81 Ill. App. 3d 744", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3228866 ], "year": 1980, "pin_cites": [ { "page": "750", "parenthetical": "holding that a voluntary dismissal which does not adjudicate the merits of the claim involved is not a favorable \"judicial termination\" which can support a subsequent claim for malicious prosecution" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/0744-01" ] }, { "cite": "168 Ill. App. 3d 568", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3512066 ], "year": 1988, "pin_cites": [ { "page": "573-74", "parenthetical": "a physician must prove that there was a factual termination of the underlying medical malpractice suit in his favor to proceed with his suit for malicious prosecution" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/168/0568-01" ] }, { "cite": "201 Ill. 47", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5593389 ], "weight": 3, "year": 1903, "pin_cites": [ { "page": "50" }, { "page": "51" } ], "opinion_index": 0, "case_paths": [ "/ill/201/0047-01" ] }, { "cite": "50 Ill. App. 3d 1033", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5639059 ], "weight": 4, "year": 1977, "pin_cites": [ { "page": "1038" }, { "page": "1038" }, { "page": "1038" }, { "page": "1038" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/50/1033-01" ] }, { "cite": "112 Ill. App. 3d 653", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5434400 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "657" }, { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/112/0653-01" ] }, { "cite": "118 Ill. App. 3d 65", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5662026 ], "weight": 6, "year": 1983, "pin_cites": [ { "page": "68" }, { "page": "67" }, { "page": "68" }, { "page": "68" }, { "page": "68" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/118/0065-01" ] }, { "cite": "127 Ill. App. 2d 84", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2473544 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-app-2d/127/0084-01" ] }, { "cite": "169 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909172 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/169/0504-01" ] }, { "cite": "82 Ill. 2d 40", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5475597 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "46" }, { "page": "45-46" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0040-01" ] }, { "cite": "74 Ill. App. 3d 760", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3268828 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "767" }, { "page": "767" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/74/0760-01" ] }, { "cite": "225 Ill. App. 3d 539", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5246393 ], "year": 1992, "pin_cites": [ { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/225/0539-01" ] }, { "cite": "139 Ill. 2d 455", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5574428 ], "year": 1990, "pin_cites": [ { "page": "473" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/139/0455-01" ] }, { "cite": "366 Ill. 247", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2579025 ], "weight": 2, "year": 1937, "pin_cites": [ { "page": "250" } ], "opinion_index": 0, "case_paths": [ "/ill/366/0247-01" ] }, { "cite": "81 Ill. 2d 151", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5480949 ], "year": 1980, "pin_cites": [ { "page": "154-55" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/81/0151-01" ] }, { "cite": "77 Ill. 2d 173", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5490363 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "185" }, { "page": "187" }, { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0173-01" ] }, { "cite": "186 Ill. App. 3d 937", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2657093 ], "year": 1989, "pin_cites": [ { "page": "940", "parenthetical": "a motion to dismiss under section 2 - 615 may be made at any time \"if it appears that, as a matter of law, the complaint wholly and absolutely fails to state a cause of action which the law will recognize\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/186/0937-01" ] }, { "cite": "164 Ill. 2d 54", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477002 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "61" }, { "page": "61-62" }, { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/164/0054-01" ] }, { "cite": "110 Ill. App. 3d 569", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2999041 ], "year": 1982, "pin_cites": [ { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/110/0569-01" ] }, { "cite": "88 Ill. 2d 300", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3082276 ], "year": 1981, "pin_cites": [ { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0300-01" ] }, { "cite": "78 Ill. 2d 235", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3074116 ], "year": 1980, "pin_cites": [ { "page": "241" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/78/0235-01" ] }, { "cite": "628 P.2d 707", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10439280 ], "year": 1981, "pin_cites": [ { "page": "710" } ], "opinion_index": 1, "case_paths": [ "/p2d/628/0707-01" ] }, { "cite": "37 Ill. App. 2d 235", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5257401 ], "year": 1962, "opinion_index": 1, "case_paths": [ "/ill-app-2d/37/0235-01" ] }, { "cite": "81 Ill. App. 3d 744", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3228866 ], "year": 1980, "pin_cites": [ { "page": "749" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/81/0744-01" ] }, { "cite": "168 Ill. App. 3d 568", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3512066 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "573-74" }, { "page": "573-74" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/168/0568-01" ] }, { "cite": "201 Ill. 47", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5593389 ], "weight": 3, "year": 1903, "pin_cites": [ { "page": "49-50" } ], "opinion_index": 1, "case_paths": [ "/ill/201/0047-01" ] }, { "cite": "50 Ill. App. 3d 1033", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5639059 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "1038" }, { "page": "1038" }, { "page": "1038" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/50/1033-01" ] }, { "cite": "112 Ill. App. 3d 653", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5434400 ], "year": 1983, "pin_cites": [ { "page": "657" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/112/0653-01" ] }, { "cite": "118 Ill. App. 3d 65", "category": "reporters:state", "reporter": "Ill. 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DAVID CHUI et al., Defendants and Counterplaintiffs-Appellants." ], "opinions": [ { "text": "JUSTICE THOMAS\ndelivered the opinion of the court:\nThe trial court granted the motion to dismiss counterplaintiffs\u2019 counterclaims for malicious prosecution and abuse of process pursuant to section 2 \u2014 615 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 615 (West 1994)). The counterplaintiffs, David Chui, Lillian Chui, and Joseph Lau, (hereinafter referred to as the Chuis and/or Lau, respectively) appeal. We affirm.\nOn November 6, 1992, the counterdefendants, Vipal Arora and Nirmal Arora (hereinafter referred to as the Aroras), filed a complaint for specific performance of a contract for the sale of real property. The complaint alleged that the Aroras had entered into a valid real estate contract with Lau, as the duly authorized agent of the Chuis, for the purchase of the Chuis\u2019 home in Oak Brook, Illinois, at a price of $1,440,000. The Aroras requested that the Chuis be enjoined from conveying or disposing of any interest in the property and that the Chuis be ordered to perform the alleged contract. On November 10, 1992, the Aroras filed a lis pendens notice with the Du Page County recorder of deeds.\nThe Aroras did not attach a copy of the alleged real estate contract to their complaint. However, the Chuis\u2019 motion to dismiss the complaint on that basis was denied. The Chuis subsequently filed an answer to the complaint, which denied that the parties had ever entered into a contract. The Chuis also filed counterclaims for malicious prosecution and abuse of process.\nThe counterclaims alleged that on October 31, 1992, the Aroras, Robin Zahran (the Aroras\u2019 financial advisor), Zahran\u2019s wife, real estate broker Renuka Shah, and Mehri Briant (an agent for counter-plaintiff Lau) were present on the Chuis\u2019 property. Lau had added a provision to \"Rider 412\u201d of the alleged contract which stated that the house in all respects was to be sold in \"as is\u201d condition. The Aroras would not agree to the \"as is\u201d provision, and Zahran crossed out the \"as is\u201d provision which had been inserted by Lau. The Aroras initialled the change. Zahran gave the contract to Briant, and Briant told everyone present that this was now a counteroffer and that there was another party interested in purchasing the property. The counterclaims further alleged that Zahran then told Briant not to play games with him and that if Briant did not get the contract without the \"as is\u201d provision,. Zahran would \"get a lot\u201d for the Aro-ras and build them a home. Briant began turning off the lights at the property in preparation to leave when Shah indicated that the seller should be given time to think about the offer. Shah then added a provision to the contract which stated, \"Sellers have till November 2, 9:00 p.m.\u201d The Aroras again initialled the change.\nThe counterclaims further alleged that on November 2, 1992, Bri-ant asked Shah whether the Aroras would execute a \"Rider 406,\u201d which is a rider providing that the buyer was accepting the house in an \"as is\u201d condition. Shah replied that the Aroras would not execute such a rider.\nThe counterclaims also stated that on November 2, 1992, Briant presented the Aroras\u2019 offer to Lau, who crossed off the provision that the sellers had until November 2, 1992, at 9 p.m. and initialled the change. Lau also wrote on the offer, \"This contract serves as a back-up offer.\u201d Lau executed a rider 406 to be part of the back-up offer, and Briant inserted the rider 406 into paragraph 9 of the Aroras\u2019 offer, indicating that a rider 406 was required to be part of the back-up contract. Lau then executed a valid real estate contract for the Chui property with Vijay and Nishi Bajaj.\nThe counterclaims further alleged that the Aroras had wrongfully, maliciously, without probable cause, and for the purpose of preventing the Chuis from selling their property as they saw fit filed a lis pendens notice with the Du Page County recorder of deeds, which gave notice of the pendency of the Aroras\u2019 action against the Chuis and which indicated that the Aroras had entered into a valid real estate contract on October 31, 1992, even though the Aroras knew this to be false. In addition, the Chuis alleged that, as a result of the Aroras\u2019 actions, the Chuis were unable to close the sale of the Chui property to the Bajajs and alleged specific monetary damages suffered as a result of the Aroras\u2019 misconduct.\nThe Aroras filed a response to the counterclaims wherein they admitted that, because of the lis pendens notice, the Chuis had been unable to convey the property to anyone else.\nOn March 25, 1994, the Chuis filed a \"Motion to Set Discovery Cutoff Date And Set Matter for Trial,\u201d which alleged that the Aroras had not taken any depositions or requested any discovery.\nOn April 15, 1994, the parties entered a stipulation to dismiss, which stated that the Aroras\u2019 complaint was to be dismissed with prejudice, that the Aroras would file a release of their lis pendens on the Chuis\u2019 property, and that the Bajajs, who had been granted leave to intervene, would dismiss their complaint with prejudice. The stipulation also stated that the Chuis\u2019 counterclaims were not dismissed and would be the only actions remaining to be determined by the court, all other matters having been resolved by the parties.\nOn December 8, 1994, trial commenced on the counterclaims. After counsel for the Chuis had completed his opening statement, the Aroras\u2019 counsel made oral motions to dismiss the Chuis\u2019 malicious prosecution and abuse of process claims. The trial court stated that it would defer ruling on the motions until the close of the Chuis\u2019 proof.\nThe trial was continued and subsequently the Chuis presented their case in chief. Briant testified for the Chuis and detailed the negotiations between the Aroras and the Chuis, including their inability to come to agreement with regard to the rider 406, by which the Aroras would have accepted the house in an \"as is\u201d condition. Briant also testified that she took the Aroras\u2019 final offer, made after the time for accepting the plaintiffs\u2019 preceding counteroffer, to Lau. At the same time, Briant presented Lau with an offer from the Ba-jajs. Lau executed the Bajaj contract and wrote on the Aroras\u2019 offer that it was a back-up offer and made some changes to it, including again writing \"as is\u201d on the document. Briant also testified that she told Shah that the Aroras\u2019 offer was a back-up offer when Briant returned home that night. Later that evening and again the next morning, Briant claimed she received a number of telephone calls from Shah and Zahran, wherein Shah and Zahran threatened to sue, as well as put a lis pendens on the house and also stated that nobody would get the house for three years.\nLau also testified. According to Lau, the Chuis executed powers of attorney in favor of Lau, which Lau used in handling the sale of the Chuis\u2019 house. Lau testified regarding the history of the negotiations with the Aroras and also that he was unable to close the sale with the Bajajs because of the lis pendens.\nThe parties entered into a stipulation regarding costs of $48,000 that the Chuis incurred as a result of the Aroras\u2019 filing of the lis pendens notice.\nAfter the Chuis rested their case on the issue of liability, the Aro-ras renewed their oral motions to dismiss, which they identified for the first time as section 2 \u2014 615 motions to dismiss (735 ILCS 5/2\u2014 615 (West 1994)) for failure to state a cause of action. The trial court stated that, in light of the nature of the motions, it could not consider the evidence which had been presented and was limited to reviewing the pleadings to determine if the counterclaims stated cognizable causes of action. The trial court then dismissed both the malicious prosecution and the abuse of process counterclaims with prejudice.\nIn view of the awkward proceedings before the trial court, we are compelled to detail the proper timing for making section 2 \u2014 615 motions (735 ILCS 5/2 \u2014 615 (West 1994)) at the trial court level. While section 2 \u2014 615 (735 ILCS 5/2 \u2014 615 (West 1994)) does not explicitly place a specific time limit on bringing the\u201d motion at the trial level, our supreme court has stated that \"the best measure of a complaint\u2019s sufficiency *** is whether the defendant is able to answer [it].\u201d People ex rel. Fahner v. Carriage Way West, Inc., 88 Ill. 2d 300, 308 (1981). Thus, where \"a complaint substantially although imperfectly alleges a cause of action, the defendant waives any defect by answering it without objection.\u201d Burks Drywall, Inc. v. Washington Bank & Trust Co., 110 Ill. App. 3d 569, 572 (1982). By answering the counterclaims, the Aroras thus waived the defects alleged to be present therein.\nThe Aroras point to an exception to the above rule and contend that they may raise at any time a claim that the counterclaims failed to state causes of action. See Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 61 (1994). However, our supreme court has recently held:\n\"[T]his exception applies only when a complaint fails to state a recognized cause of action [in this State]. The exception does not apply where the complaint states a recognized cause of action, but contains an incomplete or otherwise insufficient statement of that cause of action.\u201d (Emphasis added.) Adcock, 164 Ill. 2d at 61-62.\nSee Lambert v. City of Lake Forest, 186 Ill. App. 3d 937, 940 (1989) (a motion to dismiss under section 2 \u2014 615 may be made at any time \"if it appears that, as a matter of law, the complaint wholly and absolutely fails to state a cause of action which the law will recognize\u201d). In other words, courts draw a distinction between a complaint that alleges no cause of action, which may be challenged at any time, and one which defectively or imperfectly alleges a cause of action. Adcock, 164 Ill. 2d at 62, citing Swager v. Couri, 77 Ill. 2d 173, 185 (1979).\nIn Swager, the plaintiffs brought a complaint alleging that the defendants tortiously interfered with a contractual relationship. After a trial, the court entered judgment against the defendants on a jury verdict. The defendants then filed a post-trial motion contending that the plaintiffs\u2019 complaint failed to state a cause of action by not alleging an essential element \u2014 lack of justification. The motion also pointed out that the defendants failed to prove that element at trial. The trial court denied the motion, but the appellate court reversed, finding that the plaintiffs\u2019 complaint was defective for failing to plead lack of justification. The supreme court found that the defendants could not challenge the sufficiency of the complaint. However, the court refused to stop its analysis there. It noted that it could affirm on other grounds and, in this case, a remand would serve no purpose where the proofs adduced at trial showed a complete absence of evidence on the element of lack of justification. Swager, 77 Ill. 2d at 187. The supreme court found that the trial court should have entered a judgment n.o.v. in favor of the defendants. Accordingly, it affirmed the appellate court\u2019s ruling which had reversed the judgment in favor of the plaintiffs.\nSimilarly, after filing their answer, the Aroras could not attack the sufficiency of the Chuis\u2019 counterclaims via a section 2 \u2014 615 motion to dismiss. Clearly, malicious prosecution and abuse of process are recognized causes of action in Illinois. Thus, the trial court should have dismissed the Aroras\u2019 motion to dismiss before it heard evidence in the case and should not have entertained the motion after the Chuis presented their case in chief.\nHowever, we note that the present case is similar to Swager, where the supreme court determined that a remand would serve no useful purpose since it was apparent that a judgment n.o.v. should have been granted for the defendants because the plaintiffs failed to prove an essential element of their cause of action. See Swager, 77 Ill. 2d at 187. Here, it would have been proper for the Aroras to move for a directed finding at the close of the Chuis\u2019 case (see 735 ILCS 5/2 \u2014 1110 (West 1994)). A trial court may grant the defendant a directed finding at the end of the plaintiff\u2019s evidence if: (1) as a matter of law the plaintiff has not made a prima facie case for recovery; or (2) after weighing the evidence, the court concludes that the prima facie case has been negated. Kokinis v. Kotrich, 81 Ill. 2d 151, 154-55 (1980).\nIn the interests of judicial economy and of maintaining a sound body of precedent, we will determine whether the trial court should have granted a directed finding in favor of the Aroras on the Chuis\u2019 claims of malicious prosecution and abuse of process.\nThe tort of malicious prosecution is not favored under Illinois law. Schwartz v. Schwartz, 366 Ill. 247, 250 (1937). Two of the necessary elements to establish a prima facie case for malicious prosecution are: (1) the commencement or continuance of an original complaint or civil judicial proceeding by the defendant to the malicious prosecution action; and (2) the termination of that proceeding in favor of the complainant. See Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 473 (1990); Pettey v. First National Bank, 225 Ill. App. 3d 539, 546 (1992). In addition, the determination that terminates the underlying proceeding must be a determination that deals with factual issues. Executive Commercial Services, Ltd. v. Daskalakis, 74 Ill. App. 3d 760, 767 (1979).\nIn Joiner v. Benton Community Bank, 82 Ill. 2d 40 (1980), the plaintiff brought a complaint against the defendant for malicious prosecution. The complaint was based on the fact that a criminal theft charge against the plaintiff had been dismissed. The record showed that the plaintiff had \"entered into an agreement\u201d to have the charges dismissed against him. Joiner, 82 Ill. 2d at 46. The supreme court held that, where a plaintiff to a malicious prosecution action has agreed to the dismissal of the underlying charges against him, he cannot maintain a claim for malicious prosecution. In so holding, the court stated:\n\"[0]ne who procures or agrees to a disposition of the charges against him in a manner which leaves the question of his innocence unresolved may not bring a malicious prosecution action based upon such charges. [Citations.] Many of the cases state the reason for the rule to be that plaintiff admits the existence of probable cause when he enters into or procures a compromise or an agreement for dismissal of the charges against him; others state that plaintiff is thereafter 'estopped\u2019 to deny that probable cause existed.\u201d Joiner, 82 Ill. 2d at 45-46.\nRecently, in Swick v. Liautaud, 169 Ill. 2d 504 (1996), the plaintiff filed a malicious prosecution claim against the defendant after a criminal theft charge against the plaintiff was nol-prossed. The supreme court noted that an issue of first impression was presented as to whether the nolle prosequi of an underlying criminal charge constituted a favorable termination in a malicious prosecution action. The court noted that the majority rule is that a criminal proceeding has been terminated in favor of the accused when a prosecutor formally abandons the proceeding via a nolle prosequi, unless the abandonment is for reasons not indicative of the innocence of the accused. The abandonment of the proceeding is not indicative of the innocence of the accused when the nolle prosequi is the result of an agreement or compromise with the accused, misconduct on the part of the accused for the purpose of preventing trial, mercy requested or accepted by the accused, the institution of new criminal proceedings, or the impossibility or impractibility of bringing the accused to trial. Swick, 169 Ill. 2d at 513.\nThe Swick court reversed the judgment in favor of the plaintiff and held that the plaintiff had not met his burden to show that the nolle prosequi was entered for reasons consistent with his innocence. The court concluded by explaining that, although it may appear that the defendants had a right to a judgment n.o.v., as the plaintiff did not establish an element of the cause of action (i.e., favorable termination), fairness required that the cause be remanded for a new trial because this was an issue of first impression in Illinois.\nSwick is not controlling of the outcome in the present case. Here we are not dealing with an issue of first impression or a nolle prose-qui in an underlying criminal proceeding. Unlike Swick, the present case involves an agreed settlement in an underlying civil action. A defendant in a prior criminal proceeding most likely will not have had any control over the State\u2019s decision to have the charges against the defendant nol-prossed. In that type of case, Swick holds that the plaintiff is entitled to prove that no reasonable grounds existed to pursue the charges. The present case, however, is more like Joiner, where the plaintiff agreed to the dismissal of the underlying criminal charges. Similarly, the defendants here agreed to the settlement of the underlying civil suit.\nIn contrast to malicious prosecution claims involving the nolle prosequi of an underlying suit, the law regarding malicious prosecution claims based on the settlement of an underlying civil suit is well settled. It has been repeatedly held that to maintain a claim for malicious prosecution, the termination of the prior civil suit in favor of the plaintiff must be a determination that deals with factual issues; compromises, settlements (Schwartz v. Schwartz, 366 Ill. 247 (1937)), voluntary dismissals, or even involuntary dismissals (Siegel v. City of Chicago, 127 Ill. App. 2d 84 (1970)) are not such terminations. Sutton v. Hofeld, 118 Ill. App. 3d 65, 68 (1983); Smith v. Aaron, Aaron, Schimberg & Hess, 112 Ill. App. 3d 653, 657 (1983); Executive Commercial Services, Ltd. v. Daskalakis, 74 Ill. App. 3d 760, 767 (1979); Kurek v. Kavanagh, Scully, Sudow, White & Frederick, 50 Ill. App. 3d 1033, 1038 (1977).\nIn Bonney v. King, 201 Ill. 47 (1903), the plaintiff brought a malicious prosecution action against the defendants, alleging that the defendants brought four meritless suits against the plaintiff in order to coerce the plaintiff into signing a power of attorney. The four suits were still pending and undetermined at the time of the malicious prosecution action. The supreme court held that the plaintiff could not maintain his malicious prosecution action without alleging that the suits which were the foundation for the malicious prosecution action had been \"legally terminated.\u201d Bonney, 201 Ill. at 50.\nIn Sutton v. Hofeld, 118 Ill. App. 3d 65, the complainant in a malicious prosecution action was dismissed, with prejudice, from a prior medical malpractice suit with multiple defendants. The complainant\u2019s subsequent malicious prosecution suit was dismissed because the complainant had failed to allege facts sufficient to state a cause of action. Sutton, 118 Ill. App. 3d at 67. The appellate court affirmed, noting that nothing in the record indicated the reason for the dismissal of the previous action and a \"dismissal with prejudice,\u201d standing alone, does not indicate a favorable termination. Sutton, 118 Ill. App. 3d at 68. Relying on Kurek v. Kavanagh, Scully, Sudow, White & Frederick, 50 Ill. App. 3d 1033, 1038 (1977), the Sutton court explained that to satisfy the favorable termination element there must be:\n\"[A] judicial determination which deals with the factual issues. Voluntary dismissal, settlement, or even involuntary dismissal are not such terminations.\u201d (Emphasis added.) Sutton, 118 Ill. App. 3d at 68, citing Kurek, 50 Ill. App. 3d at 1038.\nHere, the parties settled the underlying dispute and the proceeding was dismissed with prejudice. Nothing in the allegations of the Chuis\u2019 counterclaims or the proof that was presented at trial supports a finding that this was a termination in favor of the Chuis. A termination of the proceeding in favor of the Chuis cannot be inferred from the parties\u2019 stipulated dismissal of the Aroras\u2019 complaint. The fact that the parties agreed to allow the Chuis to proceed with their counterclaims is of no consequence considering that the Aroras had two appellate court opinions directly on point and a host of authority generally supporting their position to assure them that the Chuis could not prove their counterclaims absent a judicial determination in the underlying suit or at the very least a termination of that suit dealing with factual issues. See Sutton, 118 Ill. App. 3d at 68; Kurek, 50 Ill. App. 3d at 1038; see also Smith, 112 Ill. App. 3d at 657; Rumer v. Zeigler Coal Co., 168 Ill. App. 3d 568, 573-74 (1988) (a physician must prove that there was a factual termination of the underlying medical malpractice suit in his favor to proceed with his suit for malicious prosecution); Savage v. Seed, 81 Ill. App. 3d 744, 750 (1980) (holding that a voluntary dismissal which does not adjudicate the merits of the claim involved is not a favorable \"judicial termination\u201d which can support a subsequent claim for malicious prosecution). Under the circumstances here, we find that the Chuis failed to establish a prima facie case for malicious prosecution due to their failure to prove that the underlying suit was terminated in their favor. Furthermore, this case does not require a remand to allow the Chuis to prove their claim since they have already presented their case in chief and the burden of proof in a malicious prosecution action involving the settlement of an underlying civil suit is well established.\nThe dissent misinterprets the settlement agreement as somehow being a concession that the Aroras would not rely on the favorable termination requirement to seek a dismissal of the malicious prosecution claim. From this mistaken premise, the dissent concludes that the parties\u2019 settlement \"passed muster\u201d as a \"favorable termination.\u201d The dissent reads too much into the parties\u2019 agreement. The agreement merely provided that the Aroras\u2019 complaint was dismissed with prejudice and the Chuis\u2019 counterclaims were not dismissed. Thus, it is clear that the settlement did not deal with any factual issues, nor did it purport to be an admission by the Aroras that their claim lacked factual merit or similarly that the Chuis\u2019 counterclaims had merit. There is simply nothing in the agreement suggesting that the Aroras\u2019 claim lacked probable cause. Had the agreement contained such an admission this would be a different case. Here, however, the agreement does not contain such an admission, and the Aroras never agreed to abandon their right to later seek a dismissal of the Chuis\u2019 claims for failure to state a cause of action. Under the circumstances, we see no problem in requiring a termination of the underlying proceeding which deals with factual issues.\nThe dissent maintains that our ruling encourages unethical behavior and obliterates the tort of malicious prosecution. Nothing could be further from the truth. Our holding merely follows the well-settled law on malicious prosecution, and neither expands nor limits that tort as it has heretofore existed in Illinois. Additionally, we note that the sanctions available under Supreme Court Rule 137 (134 Ill. 2d R. 137) protect parties from false pleadings and meritless claims. Here, the Chuis did not file a motion pursuant to Rule 137 in the underlying proceeding. Thus, it is unnecessary for us to decide whether such a motion filed in the underlying proceeding and successfully litigated by the Chuis in that proceeding would be grounds for a finding that the underlying proceeding terminated in the Chuis\u2019 favor. .\nThe dissent\u2019s view would open the floodgate for malicious prosecution claims and would discourage settlements. Any time a party found after discovery that it did not have as good a claim as anticipated and then decided to either settle, nonsuit, or forego prosecution resulting in a dismissal for want of prosecution, the plaintiff would be subject to a subsequent malicious prosecution claim if it could be shown that the plaintiff could not have proved his claim in the underlying suit. This is not the law in Illinois nor should it be. To support its departure from precedent, the dissent claims that the supreme court has never required a judicial determination. However, it would be more accurate to state that the supreme court has never been faced with the issue of whether a judicial determination is required. With the limited exception of the nolle prosequi of an underlying criminal action, the supreme court has never held that a complainant can maintain a malicious prosecution claim absent a termination of the underlying proceeding on the merits.\nAdditionally, we note that, even if the numerous cases requiring a judicial determination are incorrect, the outcome would nonetheless be the same in the present case. As the dissent recognizes, settlements do not generally amount to a finding of favorable termination. As previously stated, neither the settlement itself nor the record from the original proceeding indicates that the prior suit was terminated in the Chuis\u2019 favor.\nTurning now to the Chuis\u2019 abuse of process claim, we again find that they failed to establish a prima facie case so as to avoid a directed finding. The two elements which are necessary to prove a claim for abuse of process are: (1) the 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 such proceedings. Bonney, 201 Ill. at 51; Landau v. Schneider, 154 Ill. App. 3d 875, 878 (1987).\nIn the two Illinois cases to consider the meaning of the word \"process,\u201d the courts have defined it as any means used by the court to acquire or exercise jurisdiction over a person or over specific property. Doyle v. Shlensky, 120 Ill. App. 3d 807, 816 (1983); Holiday Magic, Inc. v. Scott, 4 Ill. App. 3d 962, 968 (1972). Those cases further explain that \"[p]rocess is issued by the court, under its official seal.\u201d Doyle, 120 Ill. App. 3d at 816; Scott, 4 Ill. App. 3d at 968. This is consistent with the Black\u2019s Law Dictionary definition of \"legal process\u201d as a \"summons, writ, warrant, mandate, or other process issuing from a court.\u201d (Emphasis added.) Black\u2019s Law Dictionary 1205 (6th ed. 1990). Moreover, no Illinois case has ever held that one can maintain an abuse of process claim that does not involve the misuse of the process of the court. The filing of a lis pendens notice, which is the asserted abuse of process in this case, did not involve the misuse of the process of the court. Accordingly, we find that the Chuis failed to establish a prima facie case.\nFor the foregoing reasons, we find that the Chuis failed to establish a prima facie c\u00e1se for either malicious prosecution or abuse of process. In the interest of judicial economy, we affirm the trial court\u2019s dismissal of the Chuis\u2019 counterclaims.\nThe judgment of the circuit court of Du Page County is affirmed.\nAffirmed.\nDOYLE, J., concurs.", "type": "majority", "author": "JUSTICE THOMAS" }, { "text": "PRESIDING JUSTICE McLAREN,\ndissenting:\nMALICIOUS PROSECUTION\nThe law of Illinois, inter alia, is that there must be a \"favorable termination\u201d in order to plead properly a cause of action recognized in this State as malicious prosection.\nI submit that a reasoned review of Illinois case law establishes that a \"favorable termination\u201d can typically occur in two situations: first, a trial or hearing \"on the merits\u201d which is terminated in the plaintiffs favor; second, a termination of the proceedings, not \"on the merits,\u201d but with sufficient facts alleged to indicate that, if there were a trial or hearing on the merits, judgment would be rendered in the plaintiffs favor.\nThe line of cases referenced by the majority essentially determines that the plaintiffs failed to plead properly a cause of action for malicious prosecution because they failed to allege sufficient facts to meet either situation above. The majority makes a quantum leap and determines that those cases stand for the proposition that no plaintiff can ever allege a set of facts setting forth a cause of action for malicious prosecution unless the plaintiff alleges facts to establish the first situation set forth above and only the first situation!\nInitially, I note that the requirement of a \"judicial determination\u201d of favorable termination in the underlying suit (see Rumer v. Zeigler Coal Co., 168 Ill. App. 3d 568, 573-74 (1988); Sutton v. Hofeld, 118 Ill. App. 3d 65, 68 (1983); Kurek v. Kavanagh, Scully, Sudow, White & Frederick, 50 Ill. App. 3d 1033, 1038 (1977)) is a radical concept with no support from the supreme court. Kurek, the first case to require a \"judicial determination,\u201d announced the requirement in obiter dicta and cited no authority for this concept. Kurek, 50 Ill. App. 3d at 1038. Kurek erroneously cites Bonney v. King, 201 Ill. 47 (1903), for the proposition that a voluntary dismissal does not constitute a favorable termination. In Bonney, our supreme court addressed a scenario where the plaintiff failed to allege that the underlying suit had been terminated in any manner. Bonney, 201 Ill. at 49-50. Bonney never reached the issue of what constitutes a favorable termination. Nevertheless, sundry cases have cited to Kurek without questioning Kurek\u2019s authority or its use of dicta to introduce a new pleading requirement for malicious prosecution claims. See Rumer, 168 Ill. App. 3d at 573-74; Sutton, 118 Ill. App. 3d at 68; Smith, 112 Ill. App. 3d at 657; Savage, 81 Ill. App. 3d at 749. All of these cases are factually distinguishable from this case. None of the cases which follow Kurek contain stipulations by the parties which allow the original defendants to proceed with their claims for malicious prosecution. It is not clear from the records and pleadings in those cases that the settlements are favorable to any party, let alone to the plaintiffs.\nThe majority states that the specific agreement between the parties to allow the claim to continue \"is of no consequence\u201d in light of the decisions cited by the majority. I believe the cases cited by the majority are factually inapposite and based upon a faulty application of obiter dicta contained in Kurek. I believe the Chuis had the right to rely on supreme court decisions which make no mention of a \"judicial determination\u201d and which assured them that their agreement with the Aroras would be considered \"of major consequence\u201d (see Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455 (1990); Bonney, 201 Ill. 47).\nThe majority fails to cite or reconcile March v. Cacioppo, 37 Ill. App. 2d 235 (1962). There, a malicious prosecution claim was allowed to proceed, although there had not been a judicial determination, let alone a judicial termination. A confession of judgment was vacated, and the defendants were allowed to appear and defend. The vacation, coupled with facts to show the lack of merit of the original confession, was deemed a favorable termination.\nI recognize that compromise and settlement agreements generally do not amount to a finding of favorable termination. See W. Keeton, Prosser & Keeton on Torts \u00a7 120 (5th ed. 1984 & Supp. 1988) (and cases cited therein). This is because:\n\"[E]ither the settlement is an admission of probable cause for the initiation of the prosecution [in a criminal case], or because it would be unfair to allow a person to consent to a termination and then take advantage of it.\u201d (Emphasis added.) Young v. First State Bank, 628 P.2d 707, 710 (Okla. 1981).\nSee also 52 Am. Jur. 2d Malicious Prosecution \u00a7 44 (1970); 3 J. Lee & B. Lindahl, Modern Tort Law \u00a7 40.10, at 455 (rev. ed. 1990).\nHowever, the facts of this case are unusual in that the settlement agreement explicitly allows the Chuis to prosecute the malicious prosecution claim. I submit it is not unfair to allow the Chuis to receive the benefit of their bargain. They are not taking advantage of the termination of the original proceedings; the agreement explicitly allows them to prosecute the claim. Therefore, the Aroras have no basis to claim surprise or unfair advantage under the circumstances. Ironically, the majority allows the Aroras, not the Chuis, to \"consent to a termination and then take advantage of it.\u201d The majority permits the Aroras to observe the part of the settlement agreement which terminates the litigation and then to disregard and disavow the burdensome remainder which allows the Chuis to proceed with their malicious prosecution claim. Ironically, in responding to this dissent, the majority suggests that, if the agreement contained an admission that the suit \"lacked probable cause,\u201d then this would have constituted a proper nonjudicial termination. I submit that the majority has failed to consider all the circumstances as required by Swick v. Liautaud, 169 Ill. 2d 504 (1996). I submit the majority has improperly resolved an apparent ambiguity in the agreement by precluding the Chuis the opportunity to present relevant evidence as to the intent of the parties.\nI submit no abuse of the judicial system or reluctance of future parties to bring an action to court would result if this court determined that a settlement like the present passed muster as a \"favorable termination,\u201d if properly pleaded and proved. I submit this would not \"open the floodgate\u201d as suggested by the majority. The plaintiff would still have to prove the other elements of a malicious prosecution in order to prevail. The majority fails to cite any authority or provide any sound logic to support its determination that to enforce a settlement agreement as it is written would somehow discourage settlements. I believe the exact opposite is true; the majority\u2019s approach discourages settlements because, under the majority\u2019s approach, parties are no longer bound by the terms of their settlement agreements. Consequently, opposing parties are better off not settling.\nI do not believe that the majority\u2019s opinion is reconcilable with our supreme court\u2019s decision in Swick, 169 Ill. 2d 504, which requires the court to examine the circumstances of the \"nonjudicial termination.\u201d Swick, 169 Ill. 2d at 512-13. The majority is incorrect in declaring that the sanctions available under Supreme Court Rule 137 (134 Ill. 2d R. 137) adequately protect parties from malicious prosecutions. Malicious prosecution claims provide for damages. Swick, 169 Ill. 2d at 512-13. Rule 137 does not! The Chuis\u2019 complaint alleged over $250,000 in special damages excluding attorney fees. The majority fails to cite to any authority that suggests or implies that a $250,000 loss is inconsequential.\nThe majority ineffectively attempts to distinguish Swick and claims that the present case is more like Joiner v. Benton Community Bank, 82 Ill. 2d 40 (1980). Joiner is factually distinguishable from the case at bar. In Joiner, the original defendant made full restitution to the bank, the original plaintiff, in exchange for the dropping of the criminal charges against the defendant. After the bank agreed and settled the original cause, the original defendant brought a malicious prosecution action against the bank. Obviously, this was unfair to the bank as it received the funds it claimed, essentially prevailing on its claim. In this case, the Aroras received nothing in the settlement of the underlying case, notwithstanding the grant of immunity declared by the majority, despite a stipulation by the parties to the contrary.\nThis case is also distinguishable from our supreme court\u2019s decision in Schwartz v. Schwartz, 366 Ill. 247 (1937), which the majority incorrectly cites for the proposition that settlements, as a whole, may not constitute favorable terminations for the purpose of a subsequent malicious prosecution action. In Schwartz, our supreme court never made such a sweeping statement. In Schwartz, the original suit was dismissed \"upon acceptance of a tender,\u201d and the supreme court held that the original defendant\u2019s payment was \"evidence of probable cause for the suit.\u201d Schwartz, 366 Ill. at 252. The payment of funds to the original plaintiff meant that in that particular case the original defendant could not factually plead that the plaintiff had not prevailed.\nThe majority opinion improperly expands the erroneous \"judicial determination\u201d doctrine. In Kurek, 50 Ill. App. 3d at 1038, and its progeny, the appellate court required a \"judicial determination\u201d of a \"favorable termination.\u201d The majority transmutes a \"judicial determination\u201d into a \"judicial termination.\u201d Thus, through dicta and superficial analysis, the majority has transformed what our supreme court has termed a \"favorable termination\u201d into a \"judicial termination\u201d on the merits.\nAnalogically, the majority\u2019s new doctrine has given the prisoner the keys to the entire prison system. A disingenuous plaintiff who maliciously prosecutes an action with the specific intent to damage the defendant may do so with impunity until it is evident that the proceedings have reached the point where the trial court will enter judgment on the merits. The disingenuous plaintiff can then terminate the suit through sundry procedures (nonsuit, or dismissal with or without prejudice, see 735 ILCS 5/2 \u2014 1009 (West 1994)) and never face the just consequences of his actions because the dismissal of the underlying action was not a \"judicial termination.\u201d The majority\u2019s opinion allows and encourages such unethical and injurious behavior and goes far beyond merely not favoring malicious prosecution (see Schwartz, 366 Ill. at 250); it effectively obliterates the tort.\nAdditionally, I would reverse for another reason. The majority erroneously likens this case to Swager v. Court, 77 Ill. 2d 173 (1979), which dealt with a judgment n.o.v. In Swager, our supreme court agreed that, \"not only was there a complete failure to plead [a required element], but also a complete lack of proof on this issue at trial, which therefore should have resulted in a judgment n.o.v. in their favor.\u201d (Emphasis added.) Swager, 77 Ill. 2d at 187. The present case deals with the grant of a motion on the pleadings, granted after the Chuis had rested their case at trial, not with a judgment n.o.v. Here, no verdict or findings of fact were ever made! The Chuis never had the opportunity to amend their pleadings, let alone present proofs considered by the court. I disagree with the majority\u2019s application of Swager, wherein it was stated \"all of the evidence, viewed in its aspect most favorable to the plaintiffs, so overwhelmingly favor[ed] the defendants on this question that no contrary verdict *** could ever stand,\u201d to the present case. Swager, 77 Ill. 2d at 187. In the present case, the trial court heard proofs which support all the elements of the claimed malicious prosecution and then declared that it would not consider the proofs. On appeal, the majority assumes the mantle of the \"trier of fact\u201d and renders a \"verdict\u201d in the nature of a judgment n.o.v., without ever considering the merits of the proofs presented.\nThe majority has: disregarded the fact that the Aroras waived the claim that the Chuis failed to plead properly a cause of action; dismissed the stipulation to allow the claim to proceed entered into by the parties; disregarded the meritorious proofs showing that the Aroras caused the Chuis $250,000 in special damages by causing a delay in the sale of the Chuis\u2019 home through the malicious prosecution of the Aroras\u2019 lame claim; failed to adequately distinguish Swick, 169 Ill. 2d 504; and disregarded the difference between a judgment on the pleadings and a judgment n.o.v.\nIn conclusion, I suggest the following to ameliorate the drastic effect of the majority\u2019s decision, despite the fact that what I suggest does not comport with a \"judicial termination.\u201d A defendant in the original proceeding might consider filing a Supreme Court Rule 137 motion. If it were successful, at least as to frivolity, it may bolster the factual allegations necessary to allege a favorable termination.\nABUSE OF PROCESS\nFinally, I would also reverse and remand on the abuse of process claim. Prosser and Keaton on Torts lists lis pendens as a \"process\u201d which lends itself to a claim for abuse of process. W. Keeton, Prosser & Keeton on Torts \u00a7 121 (5th ed. 1984 & Supp. 1988). Further, while discussing different elements of abuse of process in other cases, not only has our supreme court never set forth actual seizure or arrest as a requirement in an abuse of process claim, but it also held that, with a malicious prosecution claim, actual seizure of property was not required and \"interference with one\u2019s property\u201d would suffice. Bank of Lyons v. Schultz, 78 Ill. 2d 235, 241 (1980). I submit this tenet may and ought to be applied to claims for abuse of process. In this case, it was alleged and admitted that the filing of the lis pendens notice prevented the Chuis from selling the property. Thus the notice, though constructive, effectuated a seizure. Consequently, I believe the Chuis properly pleaded a cause for abuse of process.", "type": "dissent", "author": "PRESIDING JUSTICE McLAREN," } ], "attorneys": [ "William J. Harte, Sylvia A. Sotiras, and Joan M. Mannix, all of William J. Harte, Ltd., of Chicago, and Charles M. Jardine, of Jardine & Jardine, Ltd., of LaGrange, for appellants.", "Eugene L. Bennett, of Bennett & Bennett, Ltd., of Chicago, for appellees." ], "corrections": "", "head_matter": "VIPAL ARORA et al., Plaintiffs and Counterdefendants-Appellees, v. DAVID CHUI et al., Defendants and Counterplaintiffs-Appellants.\nSecond District\nNo. 2\u201495\u20140051\nOpinion filed April 26, 1996.\nMcLAREN, P.J., dissenting.\nWilliam J. Harte, Sylvia A. Sotiras, and Joan M. Mannix, all of William J. Harte, Ltd., of Chicago, and Charles M. Jardine, of Jardine & Jardine, Ltd., of LaGrange, for appellants.\nEugene L. Bennett, of Bennett & Bennett, Ltd., of Chicago, for appellees." }, "file_name": "0321-01", "first_page_order": 339, "last_page_order": 355 }