                                  Illinois Official Reports

                                          Appellate Court



                   Szczesniak v. CJC Auto Parts, Inc., 2014 IL App (2d) 130636



Appellate Court              DONALD SZCZESNIAK, Plaintiff-Appellant, v. CJC AUTO
Caption                      PARTS, INC., and GREGORY VERZAL, Defendants-Appellees.



District & No.               Second District
                             Docket No. 2-13-0636



Filed                        October 29, 2014



Held                         In an action for malicious prosecution arising from plaintiff’s acquittal
(Note: This syllabus         in a criminal prosecution for using checks which were returned for
constitutes no part of the   insufficient funds to pay for automobile parts he purchased at
opinion of the court but     defendant’s store, the trial court properly entered summary judgment
has been prepared by the     for defendants, since the criminal prosecution was not commenced or
Reporter of Decisions        continued by defendants, but by two police officers who conducted an
for the convenience of       independent investigation based on information provided by
the reader.)                 defendant owner, and, in the absence of any evidence that the police
                             acted without probable cause or any purpose other than seeking
                             justice, plaintiff failed to show any malice was involved.



Decision Under               Appeal from the Circuit Court of Du Page County, No. 11-L-1258; the
Review                       Hon. John T. Elsner, Judge, presiding.




Judgment                     Affirmed.
     Counsel on               William G. Hutul, of William G. Hutul, P.C., of Carol Stream, for
     Appeal                   appellant.

                              Douglas J. Esp and Laura M. Maul, both of Esp Kreuzer Cores LLP,
                              of Wheaton, for appellees.



     Panel                    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



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     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.

¶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, 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

         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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       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 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
       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.


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¶ 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.
¶ 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 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.


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¶ 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 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. 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).


                                                  -6-
¶ 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
       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 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



                                                  -7-
       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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