Organization promoting awareness of cults filed complaint against religious
organization and others, alleging conspiracy to engage in malicious
prosecution. The Circuit Court of Cook County, Kenneth L. Gillis and Julia M.
Nowicki, JJ., granted defendants' motion to dismiss for failure to state cause
of action, and plaintiff appealed. The Appellate Court, Greiman, J., held
that: (1) fact that eight of the lawsuits underlying plaintiff's claim had
ended in summary judgment for plaintiff did not satisfy the favorable
termination element of malicious prosecution; (2) plaintiff did not meet
"special injury" requirement with respect to harm allegedly suffered in
defending underlying actions; (3) allegation that defendants had brought
multiple frivolous lawsuits did not obviate the need to construe strictly the
requirement that those lawsuits must have terminated in plaintiff's favor;
and (4) plaintiff waived claim for abuse of process by raising it for first
time on appeal.
Affirmed.
[1] APPEAL AND ERROR
Appellate Court applies a de novo standard of review where a complaint is
dismissed for failure to state cause of action upon which relief could be
granted. S.H.A. 735 ILCS 5/2-615.
[2] APPEAL AND ERROR
To determine whether plaintiff has stated cause of action upon which relief
could be granted, Appellate Court must accept as true all well-pled facts in
complaint and must draw all reasonable inferences from those facts which are
favorable to plaintiff; Appellate Court does not, however, accept as true any
conclusions of law or fact contained within the complaint which are unsupported
by allegations of specific facts upon which those conclusions rest. S.H.A.
735 ILCS 5/2-615.
[3] MALICIOUS PROSECUTION
To sustain action for "malicious prosecution" based on a civil lawsuit,
plaintiff must allege facts sufficient to show that the lawsuit which plaintiff
claims was wrongfully filed was terminated in his favor, that the
wrongfully-filed lawsuit was brought maliciously and without probable cause,
and that the plaintiff suffered some special injury or special damage beyond
the usual expense, time, annoyance, or inconvenience in defending a lawsuit.
See publication Words and Phrases for other judicial constructions and
definitions.
[4] MALICIOUS PROSECUTION
Neither voluntary nor involuntary dismissals of lawsuits underlying a malicious
prosecution claim satisfy the favorable termination element of claim; this
rule obtains even though such dismissals may constitute adjudications on the
merits.
[5] MALICIOUS PROSECUTION
"Favorable termination" of a lawsuit on which a malicious prosecution claim
is based must be one which deals with the factual issue or issues of a case.
See publication Words and Phrases for other judicial constructions and
definitions.
[6] MALICIOUS PROSECUTION
Fact that eight of the lawsuits underlying plaintiff's malicious prosecution
claim had ended in summary judgment for plaintiff did not satisfy the favorable
termination element of claim, where plaintiff did not allege that actual
factual findings were entered in its favor but relied instead on the mere entry
of summary judgment.
[7] MALICIOUS PROSECUTION
For purposes of the favorable termination element of malicious prosecution
claim, mere grant of summary judgment in underlying suit does not necessarily
mean that the facts were decided in favor of any one party.
[8] MALICIOUS PROSECUTION
Organization which brought malicious prosecution claim failed to satisfy the
"special injury" requirement where it alleged that it had incurred
substantial attorney fees and other legal costs in connection with underlying
lawsuits by defendants, that its insurance costs had increased substantially
and it had become unable to obtain liability insurance for its directors and
officers, that its board members, paid staff, and volunteers had invested
substantial time in the litigation which could otherwise have been devoted to
public education activities and organization's own associational activities;
such allegations constituted the ordinary harm generated from any legal
actions.
See publication Words and Phrases for other judicial constructions and
definitions.
[9] MALICIOUS PROSECUTION
"Special injury" or "special damage" element of malicious prosecution claim
requires more than the usual expense, time, annoyance, or inconvenience
expended in defending a lawsuit; that element is usually identified with an
arrest or seizure of property or some constructive taking or interference with
the person or property.
See publication Words and Phrases for other judicial constructions and
definitions.
[10] MALICIOUS PROSECUTION
Allegation that defendant in malicious prosecution action filed multiple
frivolous lawsuits against plaintiff did not obviate the need to strictly
construe the requirement that such lawsuits must have terminated favorably in
plaintiff's favor.
[11] MALICIOUS PROSECUTION
Actions for malicious prosecution are disfavored in Illinois courts.
[12] APPEAL AND ERROR
Plaintiff in malicious prosecution action waived claim for abuse of process,
raised for the first time on appeal of dismissal for failure to state a claim,
where plaintiff by time of dismissal had already filed three complaints in
matter and expressly elected to stand on its complaint even when trial court
afforded it another opportunity to amend at the hearing on defendants' motion
to dismiss.
[13] APPEAL AND ERROR 69
Issues not raised in the trial court may not be raised for the first time on
appeal.
**218 *68 ***821 Appeal from the Circuit Court of Cook County;
Honorable Kenneth L. Gillis and Julia M. Nowicki, Judges presiding.
**219 ***822 John M. Beal, Chicago and James C. Schroeder, Robert M. Dow,
Jr., Craig A. Woods of Mayer, Brown & Platt, Chicago, for appellant.
R. Peter Carey, Uve R. Jerzey of Mandel, Lipton and Stevenson, Chicago and
Eric M. Lieberman, Laurie Edelstein of Rabinowitz, Boudin, Standard, Krinsky &
Lieberman, P.C., New York City, for appellees.
Justice GREIMAN delivered the opinion of the court:
Plaintiff Cult Awareness Network appeals the trial court's dismissal
with prejudice of its one-count second amended complaint alleging a cause of
action for conspiracy to engage in malicious prosecution against defendants
Church of Scientology International, Bowles & Moxon, and Church of Scientology
of Illinois.
On appeal plaintiff asserts that the trial court erred in dismissing
plaintiff's complaint for failure to state a cause of action for conspiracy to
engage in malicious prosecution and that this court should consider whether the
complaint states a cause of action for abuse of process even though plaintiff
failed to raise such cause of action until this appeal.
We affirm the dismissal of plaintiff's complaint and find that plaintiff
waived its abuse of process claim.
In January 1994 plaintiff first filed a five-count complaint against the
currently named defendants and 11 individual members of the Church of
Scientology. The complaint alleged (1) conspiracy to engage in malicious
prosecution; (2) malicious prosecution; (3) conspiracy to interfere with
right of assembly and association; (4) infringement of right of association
and assembly; and (5) maintenance. After defendants filed a section 2-615
motion to dismiss (735 ILCS 5/2-615 (West 1992)), plaintiff voluntarily
withdrew its complaint.
Thereafter, on June 8, 1994, plaintiff filed a four-count first amended
complaint against the same defendants named in the original complaint. Unlike
the original complaint, the first amended complaint did not include a cause of
action for malicious prosecution. Similar to the original complaint, however,
the first amended complaint alleged (1) conspiracy to engage in malicious
prosecution, (2) conspiracy to interfere with right of association and
assembly, (3) infringement *69 of right of association, and (4)
maintenance. On August 4, 1994, defendants filed a motion to dismiss pursuant
to section 2-615(b) and (e). Thereafter, the trial court dismissed the first
amended complaint with leave to replead only the count alleging conspiracy to
commit malicious prosecution as to certain specified underlying prosecutions.
On October 24, 1994, plaintiff filed its one-count second amended complaint,
which is now at issue, alleging only conspiracy to engage in malicious
prosecution. Plaintiff alleged that defendants conspired with each other to
file at least 24 unfounded lawsuits against plaintiff. The 24 lawsuits were
filed in various State and Federal courts in six or seven jurisdictions across
the United States. With only one exception, the essential claim in all the
lawsuits was that plaintiff unlawfully denied access to the various
complainants who were associated with scientology. The one exception was a
lawsuit filed by Jonathan Nordquist in which he alleged that plaintiff had
fraudulently induced him to do volunteer work for plaintiff.
On December 14, 1994, defendants filed a motion to dismiss with prejudice for
failure to state a cause of action pursuant to section 2-615(b).
Following a hearing on May 10, 1995, the trial court dismissed the
complaint with prejudice when plaintiff informed the trial court that it did
not wish to replead.
On appeal, plaintiff asserts that the requirements for a malicious prosecution
claim are satisfied in the allegations in its complaint. Plaintiff primarily
argues that the multiple underlying lawsuits distinguish its cause of action
from cases which involved only a single underlying lawsuit.
Defendants contend that plaintiff's complaint failed to state a claim for
malicious prosecution because it failed to make the required factual
allegations to satisfy the favorable termination requirement and failed to
allege special damages as required under Illinois law.
**220 ***823 [1][2] This court applies a de novo standard of review where
a complaint is dismissed pursuant to section 2-615 of the Code of Civil
Procedure (735 ILCS 5/2-615 (West 1992)). (Majumdar v. Lurie, 274
Ill.App.3d 267, 268, 210 Ill.Dec. 720, 653 N.E.2d 915 (1995).) To determine
whether the plaintiff has stated a cause of action upon which relief could be
granted, this court must accept as true all well-pled facts in its complaint
and must draw all reasonable inferences from those facts which are favorable to
the plaintiff. (Majumdar, 274 Ill.App.3d at 268, 210 Ill.Dec. 720, 653
N.E.2d 915.) This court, however, does not accept as true any conclusions of
law or fact contained within the complaint which are unsupported by allegations
of specific facts upon which those conclusions rest. Majumdar, *70 274
Ill.App.3d at 268, 210 Ill.Dec. 720, 653 N.E.2d 915 (reversed the dismissal of
the complaint).
[3] To sustain an action for malicious prosecution based on a civil lawsuit,
a plaintiff must allege facts sufficient to show that: (1) the lawsuit which
plaintiff claims was wrongfully filed was terminated in his favor; (2) the
wrongfully-filed lawsuit was brought maliciously and without probable cause;
and (3) the plaintiff suffered some special injury or special damage beyond the
usual expense, time, annoyance or inconvenience in defending a lawsuit.
Bank of Lyons v. Schultz, 78 Ill.2d 235, 239, 35 Ill.Dec. 758, 399 N.E.2d
1286 (1980); Levin v. King, 271 Ill.App.3d 728, 730, 208 Ill.Dec. 186, 648
N.E.2d 1108 (1995) (plaintiff failed to plead special damages).
Regarding the first element, the instant complaint alleges that the 24
lawsuits underlying plaintiff's malicious prosecution claim were variously
ended by summary judgments, motions to dismiss, dismissals with prejudice and
voluntary dismissals.
[4][5] Neither voluntary nor involuntary dismissals satisfy the favorable
termination element. (Bismarck Hotel Co. v. Sutherland, 175 Ill.App.3d 739,
748, 125 Ill.Dec. 15, 529 N.E.2d 1091 (1988) (Bismarck Hotel II ) (and cases
cited therein).) "A favorable termination for purposes of a malicious
prosecution claim is one which deals with the factual issue or issues of a
case." (Emphasis added.) (Bismarck Hotel II, 175 Ill.App.3d at 748, 125
Ill.Dec. 15, 529 N.E.2d 1091; Siegel v. City of Chicago, 127 Ill.App.2d 84,
108, 261 N.E.2d 802 (1970).) This rule obtains even though such dismissals may
constitute adjudications on the merits under Supreme Court Rule 273.
Bismarck Hotel II, 175 Ill.App.3d at 748, 125 Ill.Dec. 15, 529 N.E.2d 1091;
134 Ill.2d R. 273.
In Bismarck Hotel II the plaintiff-landlord had filed three forcible
entry and detainer actions against the defendant-tenant. (Bismarck Hotel
II, 175 Ill.App.3d 739, 125 Ill.Dec. 15, 529 N.E.2d 1091.) In the first
forcible entry and detainer action, the trial court granted the plaintiff-
landlord's motion for summary judgment and denied the defendant-tenant's same
motion. On appeal in the first action, this court reversed the summary
judgment entered in favor of the plaintiff and entered summary judgment in
favor of the defendant as to defendant's right to possession of the premises as
a month-to-month tenant. Bismarck Hotel Co. v. Sutherland, 92 Ill.App.3d
167, 175, 47 Ill.Dec. 512, 415 N.E.2d 517 (1980) (Bismarck Hotel I ).
Thereafter, a second forcible entry and detainer action was dismissed by the
circuit court as premature. The plaintiff's third forcible entry and detainer
action, which went through a bench trial, was on appeal in the Bismarck
Hotel II case. In the plaintiff's third lawsuit, the defendant filed a
counterclaim including a count alleging malicious use of process which the
trial court struck. On appeal, this *71 court held that the "plaintiff's
first forcible entry and detainer action for possession of the demised premises
terminated in defendant's favor" for purposes of malicious prosecution.
Bismarck Hotel II, 175 Ill.App.3d at 748, 125 Ill.Dec. 15, 529 N.E.2d 1091.
[6] From Bismarck Hotel II, the present plaintiff argues that, at a
minimum, the eight lawsuits which resulted in summary judgment for plaintiff
should suffice to satisfy the favorable termination element for its malicious
prosecution claim. We disagree.
[7] The summary judgment which was held to suffice for purposes of the
favorable **221 ***824 termination element in Bismarck Hotel II was
entered in favor of the defendant on appeal in Bismarck Hotel I where this
court discussed the case in detail and made factual findings favorable to him.
In contrast, the present complaint includes no allegations that actual
favorable findings were made and instead relies on the mere entry of the
summary judgment orders in its favor. A mere grant of summary judgment without
more does not necessarily mean that the facts were decided in favor of any one
party. See Downing v. Chicago Transit Authority, 162 Ill.2d 70, 77, 204
Ill.Dec. 755, 642 N.E.2d 456 (1994) ("[c]ourts cannot ignore the basis on which
the summary judgment was granted").
We find that the allegations of the complaint as to the dispositions of the
underlying lawsuits fail to satisfy the favorable termination element.
[8][9] The special injury or special damage element requires more than the
usual expense, time, annoyance or inconvenience expended in defending a
lawsuit. (Bank of Lyons, 78 Ill.2d at 239, 35 Ill.Dec. 758, 399 N.E.2d
1286; Levin, 271 Ill.App.3d at 730, 208 Ill.Dec. 186, 648 N.E.2d 1108.)
The special injury or special damage element of a malicious prosecution claim
"has usually been identified with an arrest or seizure of property or some
constructive taking or interference with the person or property." Levin,
271 Ill.App.3d at 731, 208 Ill.Dec. 186, 648 N.E.2d 1108.
In paragraph 91 of its complaint, plaintiff alleges its damages as
follows:
"91. CAN has been damaged by the multiplicity of actions brought by, at the
behest of, or with the assistance of defendants, as set forth above, [1] in
that it has incurred substantial attorneys fees and other legal costs in
connection with the defense of the aforesaid actions; [2] in that CAN's
insurance costs have increased substantially and CAN has become unable to
obtain directors and officers liability insurance; [3] in that CAN's board
members, paid staff, and volunteers have spent a substantial amount of time in
activities related to the ligation [sic]; and [4] in that CAN's board members,
paid staff, and volunteers have not spent the time that they have devoted to
the litigation related activities to engaging *72 in CAN's public education
activities and their own associational activities."
We find that the allegations for damages do not satisfy the special injury
requirement for purposes of a malicious prosecution claim but instead
constitute the ordinary harm generated from any legal actions.
[10] We also are not persuaded to find differently by the two cases on which
plaintiff relies to support the favorable termination requirement and the
special injury element, i.e., Shedd v. Patterson, 302 Ill. 355, 134 N.E.
705 (1922) and Payne v. Donegan, 9 Ill.App. 566 (1882). Plaintiff maintains
that Shedd and Payne demonstrate that the filing of multiple frivolous
lawsuits itself supports a finding of lack of probable cause, obviating the
need to strictly construe the favorable termination requirement to insure
compliance with that element.
Neither Shedd nor Payne directly addressed the favorable termination
element but rather turned upon the special injury element. Moreover, the
underlying lawsuits which initiated the malicious prosecution claim in those
cases were all actions asserting the same cause of action arising from the same
facts and were brought by the same plaintiff against the same defendants.
Furthermore, in Shedd, the successive suits occurred after the party accused
of malicious prosecution had his day in court and after "the final and
conclusive determination of his rights by this court." (Shedd, 302 Ill. at
360-61, 134 N.E. 705.) The Shedd court specifically found that
"In this case the courts had repeatedly decided that the defendant had no
grievance, and the substantial questions involved were finally and conclusively
settled in 1907 (citation omitted)." Shedd, 302 Ill. at 361, 134 N.E. 705.
[11] Moreover, actions for malicious prosecution have long been disfavored
in Illinois courts. (Shedd, 302 Ill. at 359, 134 N.E. 705; Levin, 271
Ill.App.3d at 730, 208 Ill.Dec. 186, 648 N.E.2d 1108.) In Shedd, the
supreme **222 ***825 court explained the disfavored status of a malicious
prosecution claim as follows:
"This court has regarded it reasonable that the action should be limited
because the courts of law are open to every citizen upon the penalty of lawful
costs, and he may have his rights determined without the risk of being sued and
having to respond in damages for seeking to enforce his right." Shedd, 302
Ill. at 359, 134 N.E. 705.
The Shedd court relied upon its prior decision in Smith v.
Michigan Buggy Co., 175 Ill. 619, 51 N.E. 569 (1898), where the supreme court
expressed its concern about the danger of such an action:
"[T]he danger is that litigation will be promoted and encouraged by
permitting such suits as the present action to be brought. This is so, because
the conclusion of one suit would be but the beginning *73 of another. A
defendant, who had secured a favorable result in the suit against him, would be
tempted to bring another suit for the purpose of showing, that there had been
malice and want of probable cause in the prosecution of the first suit which he
had won. Litigation would thus become interminable." Smith, 175 Ill. at
629, 51 N.E. 569.
We find that neither the favorable termination requirement nor the special
injury element is sufficiently pled in the complaint. Plaintiff urges us to
veer from the stringent requirements established for a malicious prosecution
claim; however, the principles established in case law are quite clear and we
cannot ignore them.
[12] Next plaintiff asserts that the flexibility of the waiver rule allows
this court to consider whether the factual allegations in a complaint state a
cause of action for abuse of process although that claim is not included in the
complaint and although plaintiff raised it for the first time on appeal.
[13] It is well-established that "issues not raised in the trial court may
not be raised for the first time on appeal." (Eagan v. Chicago Transit
Authority, 158 Ill.2d 527, 534, 199 Ill.Dec. 739, 634 N.E.2d 1093 (1994).) In
Eagan, the supreme court held that the plaintiff waived the issue of a
special duty exception to immunity conferred by statute (Metropolitan Transit
Authority Act) because he failed to raise it in his complaint and did not amend
his complaint to include this exception. Notably, the appellate court in
Eagan not only addressed the special duty exception but relied on it to find
that the defendant was not protected by this statutory immunity. The supreme
court, however, reversed the appellate court and held that the plaintiff had
waived the special duty exception and thus it was not properly before the
court. (Eagan, 158 Ill.2d at 534-35, 199 Ill.Dec. 739, 634 N.E.2d 1093.)
Like the present plaintiff, the Eagan plaintiff, upon the defendant's motion
to dismiss in the trial court, elected to stand by his complaint and did not
seek to amend. Eagan, 158 Ill.2d at 530, 199 Ill.Dec. 739, 634 N.E.2d 1093.
Plaintiffs already have filed three complaints in this matter and expressly
elected to stand on its complaint even when the trial court afforded it yet
another opportunity to amend at the hearing on defendants' motion to dismiss.
Plaintiffs admit that the abuse of process claim was never raised until this
appeal and we thus find the claim has been waived.
For all the foregoing reasons, we affirm the trial court's dismissal with
prejudice of plaintiff's second amended complaint.
Affirmed.
RIZZI, P.J., and CERDA, J., concur