Appeal from the Circuit Court of Cook County Honorable John Laurie, Judge Presiding.
The opinion of the court was delivered by: Justice Karnezis
Plaintiff Pierre Ferguson appeals from an order of the circuit court dismissing his action for malicious prosecution pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619(5) (West 2000)) on the grounds that it was barred by the statute of limitations.
Ferguson was arrested on July 31, 1999, after he observed an ambulance drive the wrong way down a one way street and strike another vehicle. As Chicago police officers were investigating the accident, Ferguson approached to tell the officers what he had witnessed. He was ordered to return to his property and complied. When it appeared that the officers were accepting the ambulance driver's version of events, Ferguson again approached the officers to tell them that the ambulance's emergency lights and sirens had not been activated at the time the ambulance was driving down the street. At that time, officers walked into Ferguson's yard, arrested him and charged him with three misdemeanor offenses. Those charges were stricken with leave to reinstate on August 25, 2000. Ferguson demanded trial.
On January 29, 2002, Ferguson filed a one-count complaint for malicious prosecution against the City of Chicago as a result of the officers' wrongful actions. Ferguson alleged that Chicago police officers arrested him without probable cause because the officers knew that Ferguson had committed no criminal offense. In addition, Ferguson alleged that the officers provided false information to the State's Attorney's office when the officers stated that Ferguson had been swearing in a loud voice at the officers and refused to stop yelling. The officers also falsely relayed to the State's Attorney's office that Ferguson had resisted arrest and struck one of the officers in the chest.
In response, the City of Chicago moved for the dismissal of the complaint pursuant to section 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-619 (West 2000). First, the city alleged that the action was time barred because the Governmental and Local Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et. seq. (West 2000)) requires that a suit against a municipality be brought within one year from the date the cause of action accrued. The city argued that the cause of action in this case accrued on August 25, 2000, the date that the charges were stricken with leave to reinstate (SOL). Therefore, for the action to be timely, it had to have been filed no later than August 25, 2001. In addition, the city argued that Ferguson failed to state a cause of action for malicious prosecution because he failed to demonstrate that the underlying criminal case was terminated in his favor.
After a hearing, the court granted the motion to dismiss on the basis that it was barred by the statute of limitations. The court did not rule on the city's claim that Ferguson had failed to state a cause of action. It is from this order that Ferguson now appeals. We affirm.
To state a cause of action for malicious prosecution, a plaintiff must allege facts showing: " ' "(1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceedings; (4) the presence of malice; and (5) damages resulting to the plaintiff. " ' " (Emphasis added.) Swick v. Liautaud, 169 Ill. 2d 504, 512, 662 N.E.2d 1238, 1242 (1996), quoting Joiner v. Benton Community Bank, 82 Ill. 2d 40, 45, 411 N.E.2d 229 (1980), quoting Ritchey v. Maksin, 71 Ill. 2d 470, 475 (1978).
Ferguson named the City of Chicago, a municipality, as the defendant in this case. Therefore, the action fell under the ambit of the Tort Immunity Act (745 ILCS 10/8-101 (2000)). The Tort Immunity Act limits actions against municipalities and provides in relevant part:
"No civil action may be commenced in any court against a local entity or any of it's employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued." 745 ILCS 10/8-101 (West 2000).
Here, Ferguson argues that the trial court erred when it found that the statute of limitations for malicious prosecution in his case accrued on the date that the trial court entered an order striking the case with leave to reinstate (August 25, 2000). Ferguson urges us to consider that the cause of action did not actually accrue until after the expiration of the 160-day reinstatement period because when a criminal case is "SOL'd" and a demand for trial is asserted by a defendant who is not in custody, as in the case at bar, the charges can be reinstated at any time within the 160-day "speedy trial period" of section 103-5(b) of the Code of Criminal Procedure of 1963. 725 ILCS 5/103-5(b) (West 2000).
It is well settled that the statute of limitations for a malicious prosecution claim accrues on the date that the underlying criminal proceedings have terminated in a defendant's favor. Stanger v. Felix, 97 Ill. App. 3d 585, 586-87, 422 N.E.2d 1142, 1144 (1981); Ghosh v. Roy, 208 Ill. App. 3d 30, 32, 566 N.E.2d 873, 875 (1991). Therefore, the salient question before us is whether the SOL order entered in this case on August 25, 2000, can be construed as a "favorable termination."
An SOL, while not provided for by any rule or statute, is nonetheless common practice in the circuit court, especially in criminal cases. People ex rel. De Vos v. Laurin, 73 Ill. App. 3d 219, 222, 391 N.E.2d 164, 166 (1979). A case that is stricken remains an undisposed action and may still be placed on the docket and brought to trial so long as the court allows a subsequent motion to reinstate. People v. St. John, 369 Ill. 177, 178, 15 N.E.2d 858, 859 (1938). The case, ...