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02/09/94 DILLARD R. MISSELHORN AND AGNES I.

February 9, 1994

DILLARD R. MISSELHORN AND AGNES I. MISSELHORN, PLAINTIFFS-APPELLANTS,
v.
DENNIS DOYLE, STATES ATTORNEY FOR MONROE COUNTY, WALTER RIEBELING, JOHN COATES, MAYOR OF THE CITY OF COLUMBIA, ALAN HOLDEN, FRANCIS FROMME, BERNHARDT BERGMAN, SANDRA ROESSLER, CLYDE DAVIS, DAVID JANSON, JANET JANSON, JEROME BUSS, ALMA BUSS, ART BALTZ, ARLOU BALTZ, ELLEN BRUEGGEMAN, MICHAEL ROEDIGER, AND IONA JUENGLING, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of St. Clair County. No. 91-L-29. Honorable William A. Schuwerk, Judge Presiding.

Maag, Goldenhersh, Chapman

The opinion of the court was delivered by: Maag

JUSTICE MAAG delivered the opinion of the court:

In 1989, the plaintiffs, Dillard and Agnes Misselhorn, were arrested, charged, and convicted for simulating legal process. The convictions were reversed on appeal. (See People v. Dillard R. Misselhorn (1990), 207 Ill. App. 3d 1123, 604 N.E.2d 588 (unpublished order pursuant to Supreme Court Rule 23 (134 Ill. 2d R. 23)); People v. Agnes L. Misselhorn (1991), 212 Ill. App. 3d 1114, 614 N.E.2d 915 (unpublished order pursuant to Rule 23).) On August 2, 1991, the plaintiffs filed this suit against 17 defendants claiming that the defendants had maliciously prosecuted them in the earlier action. In their complaint, plaintiffs named the following persons as defendants: Dennis Doyle, State's Attorney for Monroe County; Walter Riebeling, Chief of Police for the City of Columbia; John Coates, Mayor of the City of Columbia; Alan Holden, Francis Fromme, Bernhardt Bergman, and Michael Roediger, all volunteer members of the Fire Department of the City of Columbia; Sandra Roessler, Clyde Davis, David Janson, Janet Janson, Jerome Buss, Alma Buss, Art Baltz, Arlou Baltz, and Ellen Brueggeman, all residents of the City of Columbia; and Iona Juengling, an employee of the United States Postal Service, who works in the City of Columbia. The original complaint contained identical counts alleging malicious prosecution, false arrest, and false imprisonment against each named defendant.

On September 9, 1991, the first-named defendant in this case, Doyle, filed a motion to dismiss based upon the State's Attorney's immunity from suit when acting in a prosecutorial capacity. An order voluntarily dismissing defendant Juengling was entered on September 27, 1991. On March 18, 1992, the court entered an order dismissing with prejudice the count against Doyle. The plaintiffs did not appeal that order. Doyle filed a motion for sanctions pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137) and requested attorney fees and costs. The court imposed a sanction of $4,424.38. The plaintiffs appealed, and this court affirmed, specifically stating that the trial court had determined that the plaintiffs' suit had not been filed in good faith but was instead filed by them to harass the office of the State's Attorney because of prior prosecutions. (See Misselhorn v. Doyle (5th Dist. May 25, 1993), No. 5-92-0435, order at 2 (unpublished order pursuant to Rule 23).) Neither the order dismissing the count against defendant Doyle nor the order nor the order dismissing the count against defendant Juengling is the subject of this appeal.

An order dated March 23, 1992, dismissed all of the counts against the remaining defendants with prejudice. The order specifically stated as follows:

"1. That Plaintiffs have failed to allege that said action has been brought within the two-year statute of limitations.

2. That as a matter of law there was probable cause to bring the criminal prosecution and, therefore, no action lies for malicious prosecution.

3. That the alleged cause of action against the named Defendants is privileged under Illinois Law and Defendants are immune in that any communications with the State's Attorney regarding the potential commission of a crime * * * enjoys absolute immunity from prosecution for malicious prosecution."

It is from this order that this appeal is taken.

The plaintiffs contend that the trial court erred in dismissing their complaint for failure to state a cause of action for malicious prosecution.

Illinois is a fact-pleading State. ( People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 308, 430 N.E.2d 1005, 1009.) In order to state a cause of action, a complaint must set forth a legally recognized cause of action and plead facts bringing the claim within that cause of action. Dismissal of the complaint is mandatory if one fails to meet both requirements. ( Fahner, 88 Ill. 2d at 308, 430 N.E.2d at 1009.) When the legal sufficiency of a complaint is challenged by a motion to dismiss, it must assume the truth of all facts properly pleaded; however, the court must ignore Conclusions of law and fact not supported by allegations of the specific facts upon which such Conclusions rest. Quake Construction, Inc. v. American Airlines, Inc. (1990), 141 Ill. 2d 281, 289, 565 N.E.2d 990, 994; Pierce v. Carpentier (1960), 20 Ill. 2d 526, 531, 169 N.E.2d 747, 750.

To state a cause of action for malicious prosecution, a plaintiff must allege facts showing (1) the commencement of an original criminal or civil judicial proceeding by the defendant; (2) termination of the proceeding in favor of the plaintiff; (3) absence of probable cause for such proceeding; (4) presence of malice; and (5) damages resulting to the plaintiff. ( Meerbrey v. Marshall Field & Co. (1990), 139 Ill. 2d 455, 473, 564 N.E.2d 1222, 1231.) The absence of any one of these elements bars recovery; therefore, the plaintiff must plead facts showing each of the above elements.

In the instant case, the plaintiffs merely alleged that each defendant "initiated the aforesaid proceedings with malicious intent and without probable cause." This statement is a Conclusion. The plaintiffs did not allege facts to support this Conclusion. Because the plaintiffs have failed to plead facts to support each element of malicious prosecution, they have failed to state a cause of action. (See Doyle v. Shlensky (1983), 120 Ill. App. 3d 807, 815, 458 N.E.2d 1120, 1127; McCutcheon v. Moran (1981), 99 Ill. App. 3d 421, 426, 425 N.E.2d 1130, 1134; Jacobson v. Rolley (1975), 29 ...


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