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

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,

(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,

. 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.,

), 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,

. 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.

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,

(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,

. 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.,

.

¶ 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,

.

The failure to establish any one of the five elements will cause the malicious-prosecution claim

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to fail.

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.

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,

(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.)

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.

. 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.,

(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,

. 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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¶ 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,

(liability for malicious prosecution cannot be predicated on the

failure to act). We note, however, that plaintiff cites Pratt v. Kilborn Motors, Inc.,

(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.

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,

(quoting Fabiano v. City of Palos Hills,

(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.’ ”

(quoting Sang Ken

Kim v. City of Chicago,

(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,

. 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.

¶ 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,

(quoting Sang Ken Kim,

). 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,

; Rodgers v. Peoples Gas, Light & Coke Co.,

(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,

. Verzal’s statement seems to fall

outside of proper motives and into an improper motive. See Robinson v. Econ-O-Corporation,

Inc.,

(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,

. 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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(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,

. 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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