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Savage v. Seed





APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. ELWARD, Judge, presiding.


Plaintiff, Jack Savage, appeals from the dismissal of four counts of his amended complaint, in which he sought damages from defendant, Randolph Seed, for: malicious prosecution; malicious and oppressive frustration of the collection of a debt; conspiracy with co-defendant, David Schoenstadt, to frustrate the collection of a debt; conspiracy to commit the tort of maintenance as well as the commission of that tort; and slander. Three counts against Schoenstadt had previously been dismissed, and he is not involved in this appeal. Seed moved for the dismissal of the amended complaint on various grounds. The motion was granted and Savage appealed, contending that each of the four counts sufficiently stated a cause of action. We affirm in part. The pertinent facts follow.

Prior to the filing of the within action, Seed was sued in Illinois by his brokerage firm for recovery of commodities trading debts and filed a third-party action against Savage. Schoenstadt was sued in California by his brokerage firm and filed a cross-complaint against Savage and the brokerage firm. Thereafter, on August 12, 1976, Savage filed his original six-count complaint in the instant action against both Seed and Schoenstadt. Savage alleged that Seed's third-party action constituted malicious prosecution, wilful frustration of the collection of a debt, and the tort of maintenance. Seed's third-party action was still pending when Savage initiated the instant action. Savage's complaint was therefore dismissed upon Seed's motion, and Savage was given leave to file an amended complaint.

The amendment to Savage's complaint, filed on March 18, 1977, alleged that Seed had settled the litigation with his brokerage firm but refused to dismiss the third-party action against Savage. Savage also added a seventh count, alleging that he had been defamed by statements made by Seed to Schoenstadt and Schoenstadt's attorneys. Seed again moved to dismiss the complaint. While his motion was pending, Seed voluntarily dismissed his third-party action against Savage. As a result, Savage filed a second amendment to his complaint, adding counts VIII, IX, X and XI, which were identical to the four counts in his amended complaint, except for the addition of the allegations that Seed had voluntarily dismissed his third-party complaint against Savage. The parties agreed to the entry of an order which dismissed all but the four new counts in the second amendment to the complaint, and Seed's motion to dismiss was allowed to stand as to those remaining counts. Following a hearing, Seed's motion to dismiss counts VIII, IX, X and XI was granted. Savage has appealed from the dismissal order.



The trial court dismissed Savage's malicious prosecution claims, counts VIII and IX, on the grounds that he did not plead special damages and that he did not receive a favorable judicial determination in Seed's third-party action against him. Savage does not challenge the trial court's findings regarding special damages, but does contend that Seed's voluntary dismissal of the third-party action was a sufficient termination in Savage's favor to support his malicious prosecution action against Seed. We find the allegations of counts VIII and IX to be inadequate in both regards.

• 1 To sustain a cause of action for malicious prosecution, a complaint must contain the following allegations: (1) that the present defendant had initiated and pursued a judicial proceeding against the present plaintiff; (2) that the original action was brought maliciously and without probable cause; (3) that the original action terminated in the present plaintiff's favor; and (4) that injury resulted to the present plaintiff. Madda v. Reliance Insurance Co. (1977), 53 Ill. App.3d 67, 368 N.E.2d 580; Holiday Magic, Inc. v. Scott (1972), 4 Ill. App.3d 962, 282 N.E.2d 452.

• 2, 3 The special injury required in a malicious prosecution action is injury "over and above the ordinary expense and trouble attendant upon the defense of an ordinary civil suit." (Schwartz v. Schwartz (1937), 366 Ill. 247, 252, 8 N.E.2d 668, 671.) Savage alleges that he has suffered emotional distress which has left him "unable to attend to his occupation" and that he has incurred liabilities for attorneys' fees and costs in defending the third-party action. Such injuries are common to all litigation and are not sufficient to sustain a cause of action for malicious prosecution. Berlin v. Nathan (1978), 64 Ill. App.3d 940, 381 N.E.2d 1367; Caspers v. Chicago Real Estate Board (1965), 58 Ill. App.2d 113, 206 N.E.2d 787.

• 4 Although the absence of special damages alone supports the dismissal of counts VIII and IX, we will consider Savage's contention that the third-party action against him terminated in his favor. We agree with Savage's observation that there is no Illinois case directly on point. However, we are of the opinion that there is sufficient authority to conclude that Seed's voluntary dismissal of his third-party complaint did not constitute a termination of that action in Savage's favor, notwithstanding Savage's citations of authority to the contrary from other jurisdictions.

The requirement of a favorable legal termination in the prior action against the present plaintiff is a long-standing one (see, e.g., Bonney v. King (1903), 201 Ill. 47, 66 N.E. 377), which arises from the policy that "courts> should be open to litigants for the settlement of their rights without fear of prosecution for calling upon the courts> to determine such rights." (Schwartz v. Schwartz (1937), 366 Ill. 247, 250, 8 N.E.2d 668, 670.) While the various jurisdictions are not uniform in applying the rule to cases terminated without a hearing on the merits (54 C.J.S. Malicious Prosecution § 24 (1948)), it appears that Illinois does require an actual adjudication on the merits of the initial action.

In March v. Cacioppo (1962), 37 Ill. App.2d 235, 246, 185 N.E.2d 397, 402, the court noted that there are four principal reasons for requiring a favorable determination in the original action: (1) to show a lack of probable cause for bringing the action; (2) to avoid a collateral attack on a previous judgment; (3) to show that damages were suffered; and (4) to avoid securing recovery for the bringing of an action which another court may eventually find to be well brought. The only reasons relevant here are the first and the fourth.

There is general agreement among all jurisdictions that the termination of a civil proceeding without a final adjudication is not evidence of a lack of probable cause because there is no preliminary determination, as in a criminal action, of the sufficiency of the evidence to justify the suit. (Prosser, Torts § 120, at 855 (4th ed. 1971).) This general rule has apparently been adopted by the courts> of this State.

Siegel v. City of Chicago (1970), 127 Ill. App.2d 84, 261 N.E.2d 802, upon which the court below based the dismissal of counts VIII and IX, discussed at length the legal termination rule in the context of probable cause. In Siegel, the defendant's counterclaim for malicious prosecution was dismissed on the pleadings. In affirming the dismissal, the appellate court found the counterclaim to be insufficient because there were no special damages and because the counterclaimant did not receive a favorable termination in the original action. The original action had been involuntarily dismissed for failure to allege a cause of ...

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