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Smith v. Aaron

OPINION FILED JANUARY 27, 1983.

DAVID J. SMITH, PLAINTIFF-APPELLANT,

v.

AARON, AARON, SCHIMBERG & HESS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County; the Hon. Jack Hoogasian, Judge, presiding.

JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:

Plaintiff, David J. Smith, appeals from the dismissal of that portion of his complaint which alleged that defendant's representation of his wife constituted malicious prosecution. Plaintiff's wife, Dorothy Smith, retained the defendant law firm, which filed a petition for legal separation. (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.) Subsequently, the petition for separation was dismissed for want of prosecution by the circuit court of Cook County and plaintiff then filed a complaint for malicious prosecution in the circuit court of Lake County. Plaintiff appeals from the trial court's dismissal of his complaint.

The defendants in this cause were retained by plaintiff's wife, Dorothy Smith, and they filed a petition for legal separation on her behalf on December 12, 1977. On the next day they filed a motion for a temporary restraining order, which was granted ex parte and which, in effect, froze plaintiff's assets. The TRO was served on plaintiff's employer and resulted in the withholding of his salary. Plaintiff also alleged that it resulted in the termination of his employment.

After plaintiff obtained counsel and had entered into an agreed order modifying the TRO, he moved to strike his wife's petition for separation, alleging that it failed to allege that the parties were living separate from each other. The trial court granted plaintiff's motion and vacated all orders entered previously, allowing her to amend. No subsequent petitions were filed, and the case was dismissed for want of prosecution on May 9, 1978.

• 1 The requisite elements for malicious prosecution are well settled:

"Under Illinois law, a complaint for malicious prosecution must allege five distinct elements: (1) institution and prosecution of judicial proceedings by the defendant; (2) lack of probable cause for those proceedings; (3) malice in instituting the proceedings; (4) termination of the prior cause in plaintiff's favor, and (5) suffering by plaintiff of some special injury, beyond the anxiety, loss of time, attorney fees, and necessity for defending one's reputation, which are an unfortunate incident of many (if not most) lawsuits." Lyddon v. Shaw (1978), 56 Ill. App.3d 815, 818, 372 N.E.2d 685.

• 2 Further, it has been held that an attorney can be held liable for malicious prosecution. (Berlin v. Nathan (1978), 64 Ill. App.3d 940, 381 N.E.2d 1367.) In Berlin the court noted that if an attorney acts, knowing that his client has no just claim and that his client is actuated by illegal or malicious motives, he may be liable for malicious prosecution. (64 Ill. App.3d 940, 948.) An attorney cannot always justify himself merely by showing he followed his client's instructions. Burnap v. Marsh (1852), 13 Ill. 535.

• 3 After careful consideration of plaintiff's contentions, the complaint and other pleadings, we have concluded that the trial court properly granted the motion to strike plaintiff's complaint. Plaintiff's complaint for malicious prosecution failed to meet a number of the requirements of Lyddon v. Shaw (1978), 56 Ill. App.3d 815, 818, 372 N.E.2d 685.

• 4 Plaintiff's first contention is that the petition for separation was instituted without probable cause. He contends that it is a statutory requirement that the petitioner for a legal separation live in a separate abode from the respondent at the time of filing. Ill. Rev. Stat. 1977, ch. 40, par. 402.

Plaintiff alleges that at the time the petition was filed, the defendant law firm was aware that the parties were not living in separate abodes. Therefore, he contends, defendants had no probable cause for filing the petition.

Defendants concede that Dorothy was not living in a separate abode at the time of filing, but it also contends that there is no clear statutory requirement that the parties reside in a separate abode at the time of filing. The statute in issue became effective only two months before the date when defendants filed the petition for legal separation, December 12, 1977. It provides in part:

"[I]f a party, prior to trial, requests a judgment of legal separation (formerly known as separate maintenance), rather than a judgment of dissolution of marriage, the court shall grant the judgment in that form, provided that the petitioner has resided in a separate abode from the respondent continuously since the separation, and such separation has been within the petitioner's fault." Ill. Rev. Stat. 1977, ch. 40, par. 402.

The statute makes it clear that the parties must reside in a separate abode before the court grants the judgment in the form of legal separation. The statute does not require separate abodes at the time of filing — it is silent on this question. The petition for separation alleged that the wife was seeking to have the plaintiff move out of the marital home, but he had refused to leave the premises. We believe plaintiff has failed to make a clear showing that defendants had no probable cause for filing the subject petition.

Baumgartner v. Baumgartner (1958), 16 Ill. App.2d 286, 292, 148 N.E.2d 327, held that it was against public policy for a couple to live together during the pendency of a separate maintenance or divorce action. Because the evidence showed that plaintiff and defendant were living together at the time the suit for separate maintenance was filed, and because the complaint lacked an allegation that the parties were living separate and apart, the complaint did not state a cause of action. Therefore, the court held that the suit was not brought in good faith. Plaintiff contends that Baumgartner shows both the element of no probable cause and the element of malice. However, it should be noted that the applicable statute was quite different in Baumgartner from the current statute in that it provided specifically for a remedy in equity against the other spouse "while they so live or have so lived separate and apart." (Ill. Rev. Stat. 1951, ch. 68, par. 22.) This differs from the ...


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