Szczesniak v. CJC Auto Parts, Inc.

2014 IL App (2d) 130636
No. 2-13-0636
Opinion filed October 29, 2014
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
DONALD SZCZESNIAK, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellant, )
)
v. ) No. 11-L-1258
)
CJC AUTO PARTS, INC., and GREGORY )
VERZAL, ) Honorable
) John T. Elsner,
Defendants-Appellees. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BIRKETT delivered the judgment of the court, with opinion
Justices Zenoff and Jorgensen concurred in the judgment and opinion.
OPINION
¶1 This case arose after plaintiff, Donald Szczesniak, was tried for knowingly passing to
defendant CJC Auto Parts, Inc. (CJC), checks for which there were insufficient funds (720 ILCS
5/17-1(B)(d) (West 2008)). At a bench trial, plaintiff was acquitted. Plaintiff then filed against
CJC and its owner/operator, defendant Gregory Verzal, a malicious-prosecution action, which
resulted in the entry of summary judgment in favor of defendants and against plaintiff. Plaintiff
appeals, contending that the trial court erred in granting summary judgment, because Verzal
knowingly filed a false police report. We affirm.
¶2 I. BACKGROUND
¶3 We summarize the facts of record. Verzal owns CJC, an automobile parts store, and
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regularly conducted business with plaintiff between 2003 and 2008. In July 2008, plaintiff
provided defendants with two postdated checks (claiming that this was in accord with his and
defendants’ custom), one for $330.84 and another for $717.01, drawn from different accounts.
When defendants attempted to cash the checks (after the date specified by plaintiff), both checks
were returned for insufficient funds. Plaintiff did not inform defendants that the accounts had
insufficient funds until seven days after defendants attempted to cash the checks. Plaintiff later
issued a third check (for $100 from a third account) in November 2008. This check was also
returned for insufficient funds. In addition to the $1,147.85 that plaintiff owed for the returned
checks, he also had a running credit account with defendants for other purchases.
¶4 Plaintiff made payments to defendants for the credit account; however, he did not make
payments on the debt from the returned checks. After plaintiff stopped making payments and
would not return defendants’ calls, Verzal went to the police. The police called plaintiff, who
insisted that he was making payments toward the debt from the returned checks, pursuant to a
payment plan. Plaintiff later admitted that no payment plan was actually in place. After a
roughly six-month independent investigation, the State charged plaintiff with knowingly writing
checks for which there were insufficient funds. See 720 ILCS 5/17-1(B)(d) (West 2008). In a
2011 bench trial, following the close of the State’s case-in-chief, the trial court entered a directed
finding of acquittal.
¶5 Thereafter, plaintiff filed a civil suit against defendants, asserting one count of malicious
prosecution. Subsequently, the trial court granted summary judgment in favor of defendants and
against plaintiff, reasoning that plaintiff had failed to show both that defendants had commenced
the criminal proceeding and that there was an absence of probable cause to prosecute plaintiff.
Plaintiff timely appeals.
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¶6 II. ANALYSIS
¶7 On appeal, plaintiff contends that the trial court erred in granting summary judgment in
favor of defendants. Specifically, plaintiff argues that summary judgment was precluded
because genuine issues of material fact exist regarding the essential elements of the tort of
malicious prosecution.
¶8 Before addressing the merits of the appeal, we first choose to discuss plaintiff’s brief and
its multiple violations of Illinois Supreme Court Rule 341 (eff. Feb. 6, 2013). Rule 341(h)(6)
requires the appellant to include a “Statement of Facts” outlining the pertinent facts “accurately
and fairly without argument or comment, and with appropriate reference to the pages of the
record on appeal.” Ill. S. Ct. R. 341(h)(6) (eff. Feb. 6, 2013). Plaintiff has violated this rule by
providing inaccurate facts, 1 being argumentative, 2 and failing to provide citations to the record
for numerous factual assertions. The Illinois Supreme Court Rules are not suggestions; they
have the force of law and must be complied with. People v. Campbell, 224 Ill. 2d 80, 87 (2006).
Where a brief has failed to comply with Rule 341(h)(6), we may strike the statement of facts or
dismiss the appeal should the circumstances warrant. Hall v. Naper Gold Hospitality LLC, 2012
IL App (2d) 111151, ¶ 9. In this case, because plaintiff’s violations do not hinder our review, we
will neither strike his statement of facts nor dismiss the appeal (McMackin v. Weberpal Roofing,
1
One example is the mischaracterization of Verzal’s statement to the police. Plaintiff
attempts to portray Verzal as having denied receiving payments for any of plaintiff’s debts, but
Verzal actually denied receiving payment only for the debt from the returned checks.
2
E.g., claiming that Verzal “lied” to the police and then further claiming that the lie was
the primary factor behind the commencement of the criminal proceeding.
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Inc., 2011 IL App (2d) 100461, ¶ 3), but we will disregard the noncompliant portions of
plaintiff’s statement of facts. We also admonish counsel to follow carefully the requirements of
the supreme court rules in future submissions. We now turn to whether the trial court properly
granted summary judgment in favor of defendants and against plaintiff.
¶9 Summary judgment is appropriate “if the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West
2012). In determining whether any genuine issue of material fact exists, the record and the
arguments “must be construed strictly against the movant and liberally in favor of the opponent.”
Mashal v. City of Chicago, 2012 IL 112341, ¶ 49. A genuine issue of material fact exists when
the parties dispute a material fact or, where the material facts are not in dispute, reasonable
persons could draw different inferences from the undisputed facts. Id. A party contesting
summary judgment is required to provide some factual basis in support of every element of his or
her claim. Brooks v. Brennan, 255 Ill. App. 3d 260, 262 (1994). Because summary judgment is
a drastic method of terminating litigation, it should be granted only where the moving party’s
entitlement “is clear and free from doubt.” Mashal, 2012 IL 112341, ¶ 49. A trial court’s ruling
on a motion for summary judgment is reviewed de novo. Bridgeview Health Care Center, Ltd. v.
State Farm Fire & Casualty Co., 2014 IL 116389, ¶ 12.
¶ 10 In order to establish a claim of malicious prosecution, a plaintiff must demonstrate: (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; (4) malice; and (5) damages. Gauger v. Hendle, 2011 IL App (2d) 100316, ¶ 99.
The failure to establish any one of the five elements will cause the malicious-prosecution claim
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to fail. Id. In granting summary judgment here, the trial court focused on elements (1) and (3)
(commencement and probable cause) and held that plaintiff had provided no evidence in support
of either element to demonstrate the existence of a genuine issue of material fact. Defendants
argue that summary judgment was proper because plaintiff supplied no evidence to support
elements (1), (3), and (4) (commencement, probable cause, and malice). We address each
contested element in turn.
¶ 11 The first element of malicious prosecution requires a plaintiff to show that the defendant
commenced or continued the original criminal proceeding. Id. Here, plaintiff contends that
defendants commenced a criminal proceeding against him when they contacted the police about
the returned checks and Verzal gave a statement to the police. A criminal proceeding is
commenced when a complaint, an information, or an indictment is filed. 725 ILCS 5/111-1
(West 2012). A citizen must do more than give false information to the police in order to be
deemed responsible for commencing a prosecution. Randall v. Lemke, 311 Ill. App. 3d 848, 850
(2000). A private citizen commences a criminal proceeding when he or she “knowingly gives
false information to a police officer, who then swears out a complaint.” (Emphasis in original.)
Id. Even if an informer knowingly provides false information, he or she is not liable for
“commencing” a criminal proceeding if the prosecution is based upon separate or independently
developed information. Id. at 851. Alternatively, a plaintiff must supply evidence showing that
the defendant continued the proceeding by actively encouraging the prosecution despite knowing
that no probable cause existed. Denton v. Allstate Insurance Co., 152 Ill. App. 3d 578, 584
(1986).
¶ 12 Plaintiff incorrectly claims that the record shows that defendants both commenced and
continued the proceeding. To establish that defendants commenced the proceeding, plaintiff
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contends that Verzal “lied” to the police by stating that he had not received payments from
plaintiff for the debt. However, a close reading of the record reveals that plaintiff has
misrepresented the evidence to reach his conclusion. Plaintiff mischaracterizes as a “lie”
Verzal’s statement to the police about not receiving payments for the debt. This is demonstrated
by noting that, in addition to owing defendants for the returned checks, plaintiff also owed
defendants for items previously purchased on his credit account. The record shows that, when
Verzal told the police that he had not received payment from plaintiff, he was speaking about the
returned checks only. As plaintiff had made no payments on the returned checks, Verzal’s
statement was not a lie, but was a correct statement of fact and thus does not support plaintiff’s
conclusion that defendants commenced the criminal proceeding.
¶ 13 Nevertheless, even if Verzal had lied to the police, defendants would still not be liable for
commencing the proceeding. After Verzal gave his statement, to Officer Klecka, the officer
contacted plaintiff and investigated the claim himself. Once Officer Klecka made his initial
report, the case was transferred to Officer Thiede, who conducted another independent
investigation. At the end of this six-month investigation, Officer Thiede determined that
sufficient evidence existed to seek a warrant for plaintiff’s arrest. Because the arrest was based
on the investigation by Officer Thiede, whether Verzal lied in his statement to Officer Klecka is
irrelevant because the arrest was based on separate and independent information developed by
Officer Thiede. Randall, 311 Ill. App. 3d at 851. Thus, not only was Verzal’s statement about
plaintiff’s failure to make payments true, it was superseded and rendered immaterial by the
independent investigations of two different police officers who developed sufficient evidence to
seek plaintiff’s arrest and prosecution.
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2014 IL App (2d) 130636
¶ 14 Plaintiff also asserts that defendants continued the proceeding, because Verzal failed to
inform the police that the parties had a payment plan. We initially note that plaintiff has not
directly supported his contention that failing to give information is the same as giving false
information. For this reason alone, we could resolve the issue in favor of defendants. Ill. S. Ct.
R. 341(h)(7) (eff. Feb. 6, 2013) (requiring supporting citation to pertinent authority); see also
Denton, 152 Ill. App. 3d at 584 (liability for malicious prosecution cannot be predicated on the
failure to act). We note, however, that plaintiff cites Pratt v. Kilborn Motors, Inc., 48 Ill. App.
3d 932 (1977). Plaintiff’s purpose in citing Pratt is to support a contention that probable cause
could not be established where a police investigation relied on an informant’s lies. Id. at 935-36
(citing Restatement of Torts, Explanatory Notes § 653 cmt. g, at 386 (1938)). This is a
somewhat different point than equating the withholding of information to the giving of false
information, but, in dictum, Pratt states that, where an informant has given a truthful account to
the police, but has withheld crucial information that would otherwise influence or stop the
prosecution, with the intent to paint a misleading picture and commence or continue the
prosecution, “[s]trong argument can be made that for the complainant to give truthful
information indicating the commission of the offense later charged and to withhold other
information that would prevent the conduct complained of from being a crime would also negate
the prosecutor’s exercise of discretion [and render the complainant liable for commencing or
continuing the prosecution].” Id. at 936. Pratt, however, is inapt, because plaintiff charges that
it was Verzal’s failure to inform the police about the existence of a payment plan that led to the
continuance of the criminal investigation and presumably the prosecution. In plaintiff’s
deposition, he admitted that there was no payment plan. Thus, plaintiff is effectively arguing
that the prosecution was continued because Verzal did not falsely inform the police that a
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payment plan existed. Plaintiff’s own testimony, acknowledging that there was, in fact, no
payment plan, dooms this line of argument to failure. Therefore, even if, as plaintiff argues,
Officer Thiede would not have pursued charges had Verzal stated that CJC had received some
payments and that a payment plan existed, such an argument is irrelevant, because the
hypothetical situation that would have caused Officer Thiede to conclude his investigation
without a prosecution did not actually exist. Plaintiff, then, cannot demonstrate the existence of
a genuine issue of material fact where he has failed to present any evidence to support his
arguments. Accordingly, the trial court properly determined that plaintiff could not show that
defendants either commenced or continued the proceeding.
¶ 15 Because plaintiff has failed to show that defendants either commenced or continued the
proceeding, plaintiff’s claim fails from the lack of an essential element of the claim, and our
analysis is complete. However, we continue to examine the remaining challenged elements to
provide alternative reasons why plaintiff’s claim fails. Accordingly, we turn to element (3), the
absence of probable cause.
¶ 16 “In a malicious-prosecution case, probable cause is defined as ‘a state of facts that would
lead a person of ordinary care and prudence to believe or to entertain an honest and sound
suspicion that the accused committed the offense charged.’ ” (Emphasis omitted.) Gauger, 2011
IL App (2d) 100316, ¶ 112 (quoting Fabiano v. City of Palos Hills, 336 Ill. App. 3d 635, 642
(2002)). “ ‘It is the state of mind of the person commencing the prosecution that is at issue—not
the actual facts of the case or the guilt or innocence of the accused.’ ” Id. (quoting Sang Ken
Kim v. City of Chicago, 368 Ill. App. 3d 648, 654 (2006)). The relevant time for probable cause
to have existed is when the criminal complaint was initiated. Id. ¶ 115. Whether probable cause
existed is a mixed question of law and fact. Fabiano, 336 Ill. App. 3d at 642. It is a question of
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fact as to whether the alleged circumstances were present, while it is a question of law as to
whether the circumstances present amounted to probable cause. Id.
¶ 17 Plaintiff argues that there was no probable cause to complain to the police about the
returned checks, because defendants did not believe that plaintiff had the necessary intent to
defraud when he drew the returned checks. This argument fails because it is not the beliefs of
defendants that are examined. Instead, it is the “ ‘state of mind of the person commencing the
prosecution.’ ” Gauger, 2011 IL App (2d) 100316, ¶ 112 (quoting Sang Ken Kim, 368 Ill. App.
3d at 654). As previously discussed, defendants did not commence the prosecution; Officer
Thiede commenced the prosecution. Therefore, evidence of defendants’ state of mind is
irrelevant. As plaintiff has pointed to no evidence indicating that Officer Thiede lacked probable
cause, he has not demonstrated the existence of a genuine issue of material fact, and summary
judgment was properly granted as to this element of malicious prosecution.
¶ 18 Plaintiff alternatively argues that Verzal’s deposition provides evidence that defendants
knew that no probable cause existed. This argument is misplaced because, again, it focuses on
defendants and not on Officer Thiede. Nevertheless, we address the argument on its own terms.
Specifically, plaintiff cites Verzal’s admission that he “understood that [plaintiff] was still trying
to make good on accounts.” Plaintiff’s reliance on this statement is unavailing, because it does
not indicate that defendants knew that plaintiff originally had no intent to defraud. Rather, the
statement shows only that defendants were aware that plaintiff was attempting to make amends
for acts that had financially injured defendants. Because Verzal’s statement does not indicate
that defendants believed that plaintiff had no intent to defraud when plaintiff wrote the checks,
plaintiff has failed to demonstrate that the record shows an absence of probable cause.
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Accordingly, we hold that plaintiff has failed to demonstrate the existence of a genuine issue of
material fact regarding the element of probable cause.
¶ 19 Finally, while not addressed by the trial court, we consider the parties’ arguments
regarding the element of malice. “Malice,” in the context of a malicious-prosecution claim, is
the commencement of a criminal proceeding for a purpose other than to bring a party to justice.
Gauger, 2011 IL App (2d) 100316, ¶ 122; Rodgers v. Peoples Gas, Light & Coke Co., 315 Ill.
App. 3d 340, 349 (2000).
¶ 20 Plaintiff asserts that there is a genuine issue of material fact as to whether defendants
acted with malice, pointing to Verzal’s statement that he sought to have the State collect the debt
through the criminal case. Malice, as explained, is the commencement of a proceeding under
improper motives. Gauger, 2011 IL App (2d) 100316, ¶ 122. Verzal’s statement seems to fall
outside of proper motives and into an improper motive. See Robinson v. Econ-O-Corporation,
Inc., 62 Ill. App. 3d 958, 961-62 (1978) (malice means that the party is motivated by indirect
and improper motives, which means any purpose other than bringing a guilty party to justice; the
defendant signed a complaint on a returned check in order to collect a debt, and this was held to
be “malice”). Gauger explains that “[m]alice may be inferred from a lack of probable cause only
where there is no credible evidence that refutes that inference.” Gauger, 2011 IL App (2d)
100316, ¶ 122. Plaintiff argues that Gauger is factually and procedurally inapposite, and we
agree that Gauger is not analogous to the facts of this case, but it does give a complete and
correct statement of the law of malicious prosecution, and this is the precise purpose for which
we rely on it.
¶ 21 That said, Gauger’s point about the inference of malice from a lack of probable cause is
both well established and somewhat overlooked by plaintiff. See Denton, 152 Ill. App. 3d at
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587-88 (noting that lack of probable cause must be “clearly proved” in order to infer the element
of malice). Plaintiff, of course, can argue that malice need not be inferred here, because Verzal’s
statement that he wanted to collect the debt expressly demonstrates his improper purpose and the
existence of malice. Verzal’s statement, however, is actually rebutted by his actions. If Verzal
had wanted only to “collect the debt,” he could have initiated a civil action on the returned
checks rather than going to the police. Further, among the penalties plaintiff faced in the
criminal prosecution was restitution of the amount of the returned checks. 730 ILCS 5/5-5-6
(West 2008). Verzal, who is not a legal expert, might have meant only that he expected a guilty
verdict and the imposition of restitution when he stated that he complained to the police in order
to collect the debt. Verzal’s statement, then, appears ambiguous and suggests that there is at
least a factual issue on the element of malice that might prevent the entry of summary judgment
if all of the other elements were satisfactorily demonstrated. As elements (1) and (3) are clearly
lacking, the determination that a factual issue exists regarding the imputation of malice to
Verzal’s actions is of no moment.
¶ 22 More importantly, and dispositive of the issue of malice, is the fact that plaintiff is
focusing on the wrong actor. Defendants did not initiate the criminal proceeding, as explained
above; it was Officer Thiede who signed the criminal complaint after a six-month independent
investigation, and it is malice on the part of Officer Thiede that would be relevant. Thus,
although Denton, which deals with the inference of malice, might not apply to Verzal’s actions,
it fully applies to Officer Thiede’s actions, and malice may be inferred only through clear proof
that there was no probable cause to prosecute when Officer Thiede signed the criminal
complaint. Denton, 152 Ill. App. 3d at 587-88. As we have seen, however, plaintiff presented
no evidence that Officer Thiede lacked probable cause when he signed the complaint, so plaintiff
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likewise could not establish the inference of malice in Officer Thiede’s actions. Accordingly, we
hold that plaintiff failed to establish malice, because defendants did not commence the criminal
prosecution and plaintiff did not present any evidence that Officer Thiede acted without probable
cause and with any purpose other than to bring a guilty party to justice. As to the element of
malice, the trial court properly granted summary judgment in favor of defendants.
¶ 23 III. CONCLUSION
¶ 24 For the foregoing reasons, the judgment of the circuit court of Du Page County is
affirmed.
¶ 25 Affirmed.
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