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Randall v. Lemke

March 10, 2000

ROBERT RANDALL, PLAINTIFF-APPELLANT,
v.
FRED LEMKE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County. No. 98--L--530 )Honorable Jack Hoogasian, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Bowman

Plaintiff, Robert Randall, appeals two orders of the circuit court of Lake County: (1) its dismissal of his first amended complaint against defendant, Fred Lemke; and (2) its quashing of his subpoena. He argues that (1) his complaint stated valid claims of malicious prosecution and false imprisonment; and (2) his subpoena requested relevant evidence. We affirm.

Plaintiff filed his first amended complaint on February 18, 1999. In count I, he asserted a claim of malicious prosecution. He alleged that, on February 1, 1998, defendant called the police and "falsely" reported that plaintiff was in his vehicle with a gun. For that reason alone, a police officer pulled over and arrested plaintiff. Plaintiff did not have a gun at the time. Charges were filed but dismissed for lack of probable cause. Defendant acted "willfully, wantonly, and with blatant disregard for" plaintiff's rights. Plaintiff suffered damages of more than $50,000.

Count II contained plaintiff's claim of false imprisonment. There he made the same allegations, with the following addition: "For the sole reason of the aforesaid actions of Defendant, Plaintiff was arrested and imprisoned against his will for charges unrelated to possession of a weapon."

On February 24, 1999, plaintiff issued a subpoena seeking the production of certain records of defendant's telephone calls.

Pursuant to section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 1998)), defendant moved to dismiss plaintiff's complaint. His argument was based partly upon the fact that plaintiff was arrested for and charged with offenses unrelated to defendant's alleged report to the police. Defendant also moved to quash plaintiff's subpoena.

The trial court granted both motions, stating in its written orders: "[Plaintiff] was arrested on Feb. 1, 1998 *** and was charged with No Headlights [court file number], DUI [court file number] and other traffic offenses and was not charged with any weapons offenses." Plaintiff appealed those orders.

A section 2--615 motion to dismiss attacks the legal sufficiency of a complaint. It presents the question whether the complaint's allegations, viewed in the light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted. A claim may not be dismissed on the pleadings unless no set of facts may be proved that will entitle the plaintiff to recover. Our review of an order of dismissal is de novo. Abbasi v. Paraskevoulakos, 187 Ill. 2d 386, 391 (1999).

To state a claim of malicious prosecution, a plaintiff must allege facts showing: (1) the defendant's commencement or continuation of an original criminal or civil proceeding; (2) the termination of the proceeding in the plaintiff's favor; (3) the absence of probable cause for the proceeding; (4) the defendant's malice; and (5) the plaintiff's damages. Swick v. Liautaud, 169 Ill. 2d 504, 512 (1996). We conclude that plaintiff failed to state a valid claim.

The commencement of a criminal proceeding is the filing of a complaint, an information, or an indictment. 725 ILCS 5/111--1 (West 1998). Thus, some official action is required; a citizen does not commence a prosecution when he merely gives false information to the proper authorities. Mulligan v. Village of Bradley, 131 Ill. App. 3d 513, 516 (1985). On the other hand, when a citizen knowingly gives false information to a police officer, who then swears out a complaint, the officer's action may be attributed to the citizen. Geisberger v. Vella, 62 Ill. App. 3d 941, 943 (1978).

Here, plaintiff alleged that charges were filed against him, fairly stating that a prosecution was commenced. He also alleged that defendant instigated the prosecution by "willfully" and "wantonly" making a "false report" to the police. Viewed in the light most favorable to plaintiff, this allegation conveys that defendant knowingly gave false information.

However, as plaintiff concedes in his reply brief, a fair reading of his complaint establishes that the charges filed against him had nothing to do with the information that defendant allegedly reported to the police. Defendant allegedly reported that plaintiff was carrying a gun, but plaintiff was charged only with unrelated offenses. Under these circumstances, could defendant have "commenced" the prosecution of plaintiff? Although we have found no Illinois case on point, we answer the question in the negative.

In the absence of Illinois authority, we deem persuasive the Restatement (Second) of Torts. See Pratt v. Kilborn Motors, Inc., 48 Ill. App. 3d 932, 935 (1977). Section 653, comment g states, in relevant part:

"When a private person gives to a prosecuting officer information that he believes to be true, and the officer in the exercise of his uncontrolled discretion initiates criminal proceedings based upon that information, the informer is not [subject to liability for malicious prosecution.] The exercise of the officer's discretion makes the ...


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