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12/14/87 Robert A. Withall, v. Capitol Federal Savings of

December 14, 1987

ROBERT A. WITHALL, PLAINTIFF-APPELLEE

v.

CAPITOL FEDERAL SAVINGS OF AMERICA, F/K/A CAPITOL FEDERAL SAVINGS & LOAN ASSOCIATION, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

518 N.E.2d 328, 164 Ill. App. 3d 851, 115 Ill. Dec. 803 1987.IL.1847

Appeal from the Circuit Court of Cook County; the Hon. Willard A. Lassers, Judge, presiding.

APPELLATE Judges:

JUSTICE O'CONNOR delivered the opinion of the court. CAMPBELL and BUCKLEY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

This is an interlocutory appeal pursuant to Supreme Court Rule 308. (107 Ill. 2d R. 308.) Two issues have been certified for appeal: (1) Does the granting of a section 2-611 motion (Ill. Rev. Stat. 1983, ch. 110, par. 2-611) satisfy the "commencement of an original proceeding" and "favorable termination" requirements necessary for stating a cause of action for malicious prosecution when the underlying action had been voluntarily dismissed? (2) Does the two-year limitation period for malicious prosecution (Ill. Rev. Stat. 1985, ch. 110, par. 13-202) run from the date that the appellate court affirms a trial court's section 2-611 award?

Plaintiff Robert Withall worked as a loan officer for defendant Capitol Federal Savings of America (Capitol Federal) from 1976 to 1979. He was terminated in 1979 for reasons not related to the present case. Thereafter, Capitol Federal learned of problems involving a large commercial loan approved by Withall as a member of the bank's loan committee. Capitol Federal confronted Withall with charges that certain loan documents which he had handled during the transaction were missing. Withall denied hiding or removing the documents.

On July 11, 1980, Capitol Federal brought suit against Withall and various other defendants, alleging a conspiracy and scheme to defraud Capitol Federal. (Capitol Federal Savings & Loan Association v. Union Realty Mortgage Co., No. 80 L 16240.) On May 23, 1983, the case was settled and dismissed with prejudice as to all the other defendants and voluntarily dismissed without prejudice as to Withall. On June 17, 1983, Withall filed a section 2 -- 611 motion for fees and costs based on the fact that Capitol Federal's allegations against Withall were untrue and made without reasonable cause. The trial court granted the motion on December 23, 1983, and Capitol Federal appealed.

On November 21, 1984, Withall filed a five-count complaint alleging libel and abuse of process based on the section 2 -- 611 award. The gist of the action was that Capitol Federal had libelled Withall by filing the Union Realty suit and had otherwise abused process. That complaint was dismissed and the dismissal affirmed by this court in Withall v. Capitol Federal Savings of America (1987), 155 Ill. App. 3d 537, 508 N.E.2d 363.

On September 16, 1985, we affirmed the trial court's grant of the section 2 -- 611 award in the appeal taken by Capitol Federal in the original suit. On January 8, 1986, Withall filed a one-count complaint for malicious prosecution against Capitol Federal, basing the suit on the section 2 -- 611 award. Capitol Federal's motion to dismiss was denied and it now brings this appeal.

The elements for stating a cause of action for malicious prosecution are: "'(1) the commencement or continuance of an original . . . judicial proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of malice; and (5) damages resulting to the plaintiff.'" (Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 45, 411 N.E.2d 229, quoting Ritchey v. Maksin (1978), 71 Ill. 2d 470, 475, 376 N.E.2d 991.) Plaintiff here based his argument on the first two elements, claiming that his section 2 -- 611 petition constituted a continuation of an original proceeding and that this court's affirmance of the section 2 -- 611 award constituted termination in his favor.

Illinois does not look with favor on malicious prosecution suits (Schwartz v. Schwartz (1937), 366 Ill. 247, 8 N.E.2d 668; Lyddon v. Shaw (1978), 56 Ill. App. 3d 815, 372 N.E.2d 685), and our courts have construed these requirements strictly. In our view, Withall's complaint fails to state a cause of action for malicious prosecution.

The first requirement of a cause of action for malicious prosecution is that a suit be commenced or continued against the party who against the party who claims that he was maliciously prosecuted. Since an original judicial proceeding can never be commenced under section 2 -- 611, the question is whether the filing of a section 2 -- 611 motion after the original ...


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