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03/29/96 CHRISTOPHER M. VINCENT v. JAYSON WILLIAMS

March 29, 1996

CHRISTOPHER M. VINCENT, PLAINTIFF-APPELLANT,
v.
JAYSON WILLIAMS AND CHARLES BARKLEY, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE KENNETH L. GILLIS, JUDGE PRESIDING.

The Honorable Justice Wolfson delivered the opinion of the court: Campbell, P.j. and Buckley, J., concur.

The opinion of the court was delivered by: Wolfson

The Honorable Justice WOLFSON delivered the opinion of the court:

Plaintiff Christopher Vincent (Vincent) seeks his day in court after a tough night in a Chicago bar.

This four-count complaint, filed January 24, 1994, was brought against Jayson Williams (Williams) and Charles Barkley (Barkley).

In count I of the complaint, Vincent alleged that Williams committed a battery against him by hitting him over the head with a beer mug while they were out "socializing" on January 15, 1992. Williams denied the allegations and asserted the defense of self-defense. That count is pending.

Vincent further claimed that Williams and Barkley, both individually and in conspiracy with one another, falsely accused Vincent of threatening Williams with a knife. Vincent was arrested and charged with aggravated assault. The case was stricken on leave to reinstate when Williams and Barkley failed to appear in court. Based on these facts, Vincent sought recovery from Williams and Barkley for malicious prosecution, false imprisonment, and defamation in counts II, III, and IV, respectively.

Williams and Barkley each filed section 2-615 motions to dismiss counts II, III, and IV for failure to state a cause of action. They also filed section 2-619 motions to dismiss count IV as barred by the applicable statute of limitations.

The trial court entered an order granting the "Rule 2-615 and Rule 2-619 motions of both Williams and Barkley." Counts II through IV were dismissed with prejudice as to both Williams and Barkley. The order was made final and appealable by the court's finding of "no cause or reason to delay enforcement or appeal."

Now, on appeal, Vincent argues that the claims should not have been dismissed. We affirm the trial court's rulings on counts II and IV, but we reverse its ruling on count III.

OPINION

Count II: Malicious Prosecution

The trial court dismissed the malicious prosecution claim for failure to state a cause of action pursuant to section 2-615 of the Code of Civil Procedure. (735 ILCS 5/2-615 (West 1992).) To state a cause of action for malicious prosecution, one must allege facts showing: (1) the commencement or continuance of an original or criminal judicial proceeding by the defendant; (2) termination of the prosecution in favor of the plaintiff in a manner indicative of the innocence of the plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of malice; and, (5) damages resulting to the plaintiff. (Emphasis added.) Swick v. Liautaud, 1996 Ill. LEXIS 3, 11 BNA IER CAS 646, Docket No. 78313 (Ill. Sup. Ct. January 18, 1996); Joiner v. Benton Community Bank, 82 Ill. 2d 40, 411 N.E.2d 229, 44 Ill. Dec. 260 (1980).

Vincent's aggravated assault case was stricken on leave (SOL). This, said the court, was not a disposition in Vincent's favor for the purposes of a malicious prosecution claim.

Now, on appeal, Vincent argues that the trial court's decision "ignores * * * the modern reality" that an SOL is the manner in which cases are disposed of ...


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