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04/06/87 Steven Jay Landau, v. Philip Schneider Et Al.

April 6, 1987

STEVEN JAY LANDAU, PLAINTIFF-APPELLANT

v.

PHILIP SCHNEIDER ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

506 N.E.2d 735, 154 Ill. App. 3d 875, 106 Ill. Dec. 935 1987.IL.447

Appeal from the Circuit Court of Lake County; the Hon. Fred A. Geiger, Judge, presiding.

APPELLATE Judges:

JUSTICE LINDBERG delivered the opinion of the court. DUNN and HOPF, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Plaintiff, Steven Jay Landau, appeals pursuant to Supreme Court Rule 304(a) (103 Ill. 2d R. 304(a)) from the dismissal with prejudice of count I of his complaint for abuse of process and from the striking with prejudice of certain allegations of count II of his complaint for intentional infliction of emotional distress. On appeal, plaintiff raises the following issues: (1) whether the trial court erred in dismissing count I for failure to state a cause of action for abuse of process; and (2) whether the trial court erred in striking certain allegations of count II for a failure to state a cause of action for intentional infliction of emotional distress. We affirm in part and dismiss in part.

Steven and Carol Landau were married on June 20, 1980. Their son, Adam, was born on November 24, 1982. The couple was divorced on August 1, 1983. Since the divorce Carol Landau and Adam have resided with Carol's parents, Philip and Phylis Schneider, defendants in this case.

On June 10, 1985, plaintiff filed in Lake County a two-count complaint against defendants. Count I alleges that defendants willfully and maliciously conspired to abuse process by swearing out a criminal complaint for telephone harassment (Ill. Rev. Stat. 1985, ch. 134, par. 16-4-1(5)) against plaintiff in the name of Carol Landau, but signed by Philip Schneider, with the purpose of interfering with and severing the plaintiff's relationship with his son, Adam. Plaintiff further alleged that, based on this complaint, summons were issued, and plaintiff had to defend himself in the circuit court of Cook County. Plaintiff was acquitted of all charges against him. Further, plaintiff prayed for damages, including attorney fees, proximately caused by defendants' actions. Plaintiff also asked for punitive damages. On October 8, 1985, the trial court dismissed count I with prejudice, finding that the complaint failed to state a cause of action for abuse of process.

Count II of the complaint alleges a cause of action for intentional infliction of emotional distress. Certain allegations of count II were stricken by the trial court with prejudice.

On November 11, 1985, plaintiff's motion to reconsider the court's order striking with prejudice several allegations of count II was denied, and the court certified for appeal the October 8, 1985, order which had dismissed with prejudice count I of the complaint. This interlocutory appeal ensued.

Plaintiff's first contention on appeal is that count I of the complaint states a cause of action for abuse of process, and, therefore, the trial court improperly dismissed it with prejudice. We disagree.

A complaint is to be liberally construed; however, plaintiffs are not relieved of the necessity of stating a cause of action. (First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 9, 373 N.E.2d 1326; Fanning v. LeMay (1967), 38 Ill. 2d 209, 211, 230 N.E.2d 182, 184.) In determining the sufficiency of a complaint, a court of review must strip the complaint of unsupported Conclusions and inferences and then determine whether the complaint alleges sufficient facts to sustain a cause of action. Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 426, 430 N.E.2d 976; Kinney v. St. Paul Mercury Insurance Co. (1983), 120 Ill. App. 3d 294, 295, 458 N.E.2d 79.

The elements necessary to properly plead a cause of action 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 the proceedings. (Bonney v. King (1903), 201 Ill. 47, 50, 66 N.E. 377; Cartwright v. Wexler, Wexler & Heller, Ltd. (1977), 53 Ill. App. 3d 983, 986, 369 N.E.2d 185.) Specifically, the defendant must have intended to use the action to accomplish some result which could not be accomplished through the suit itself. (Doyle v. Shlensky (1983), 120 Ill. App. 3d 807, 816, 458 N.E.2d 1120; Kurek v. Kavanagh, Scully, Sudow, White & Frederick (1977), 50 Ill. App. 3d 1033, 1038, 365 N.E.2d 1191.) The mere institution of proceedings, even with a malicious motive, does not in and of itself constitute abuse of process. Holiday Magic, Inc. v. Scott (1972), 4 Ill. App. 3d 962, 282 N.E.2d 452; Ammons v. Jet Credit Sales, Inc. (1962), 34 Ill. App. 2d 456, 462, 181 N.E.2d 601.

To support his contention that defendants abused process to prevent plaintiff from establishing a relationship ...


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