Stanger v. Felix

422 N.E.2d 1142, 97 Ill. App. 3d 585, 52 Ill. Dec. 933, 1981 Ill. App. LEXIS 2848
CourtAppellate Court of Illinois
DecidedJune 16, 1981
Docket80-1957
StatusPublished
Cited by17 cases

This text of 422 N.E.2d 1142 (Stanger v. Felix) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stanger v. Felix, 422 N.E.2d 1142, 97 Ill. App. 3d 585, 52 Ill. Dec. 933, 1981 Ill. App. LEXIS 2848 (Ill. Ct. App. 1981).

Opinion

Mr. PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

This appeal is taken from the dismissal of plaintiff’s fourth amended, two count malicious prosecution complaint, and from the denial of plaintiff’s motion for rehearing. Count I was dismissed for failure to comply with the relevant statute of limitations and count II for failure to state a cause of action. We affirm for the following reasons.

Count I of the amended complaint alleged, inter alia, that: on September 8, 1975, defendant Felix falsely, maliciously and without probable caused signed a criminal complaint charging plaintiff with trespass to property, which resulted in her arrest; a pretrial hearing on November 12, 1975, ultimately culminated in a dismissal of the trespass charge against her; and, as a result of the malicious prosecution, she experienced great anxiety, pain of mind and body; injury to her good name, reputation and credit; and was hindered and prevented from following and transacting her affairs and business for a long period of time. Count II alleged, inter alia, that: defendants Felix and Vita maliciously contrived to injure plaintiff’s good name, credit and reputation; wrongfully instituted a second criminal proceeding against plaintiff on February 23,1977, charging her with a 1977 assault and trespass; and these charges were dismissed on August 18, 1978. Damages similar to those alleged in count I were claimed.

Defendant Felix’ motion to dismiss count I under section 48(e) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(e)) was based, in part, upon the application of the two-year statute of limitations for malicious prosecution actions (III. Rev. Stat. 1975, ch. 83, par. 15) in that the cause alleged therein occurred in 1975 and the original complaint was not filed until 1979. Defendants Felix and Vita asserted that count II failed to state a cause of action under section 48 (i) because, although plaintiff alleged that the 1977 criminal proceeding against her had been dismissed, the proceeding did not “terminate in plaintiff’s favor” as that term is defined by the malicious prosecution case law. In support of this latter position, defendants submitted the order entered by the criminal court August 19, 1977, which provided that although the court considered the facts sufficient to find plaintiff guilty of the 1977 trespass and assault charges, an order of supervision would be more appropriate than a sentence otherwise permitted by the Code of Corrections. The trial court granted defendants’ motions as to both counts of plaintiff’s malicious prosecution complaint, and her action was dismissed.

In order to state a cause of action for malicious prosecution, plaintiff must allege facts showing: ‘“(1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of malice; and (5) damages resulting to the plaintiff.’ ” (Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 45, 411 N.E.2d 229, quoting from Ritchey v. Maksin (1978), 71 Ill. 2d 470, 475, 376 N.E.2d 991.) The malicious prosecution action does not accrue until the criminal proceeding has terminated in plaintiff’s favor; therefore, the limitations period does not begin to run until that termination date. (Executive Commercial Services, Ltd. v. Daskalakis (1979), 74 Ill. App. 3d 760, 766-67, 393 N.E.2d 1365; Myers v. Green (1972), 5 Ill. App. 3d 816, 284 N.E.2d 349.) Plaintiff here alleged in count I that the first criminal prosecution terminated in her favor in 1975. That cause would be thus barred by a two-year limitations period because the complaint was not filed until June 22, 1979, under section 14 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, par. 15), which provides that actions for damages for malicious prosecution, shall be commenced within two years next after the cause of action accrued.

Plaintiff’s theory is that count I of her complaint should be governed by section 15 of the Limitations Act, which extends the limitation period to five years for damage to personal property. (Ill. Rev. Stat. 1975, ch. 83, par. 16.) This is so, she insists, because she has there alleged an inability to transact her affairs and business which would constitute an injury to personal property. In analyzing plaintiff’s theory, we note, first, that sections 13, 14 and 15 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, pars. 14,15,16) were framed by the Legislature not “* * * upon the form of the particular action named but on the particular injury sued for or upon the obligation out of which the action grows.” (Handtoffski v. Chicago Consolidated Traction Co. (1916), 274 Ill. 282, 285, 113 N.E. 620.) Therefore, the focus for application of the sections is on the latter two bases, rather than on the former. Montague v. George J. London Memorial Hospital (1979), 78 Ill. App. 3d 298, 396 N.E.2d 1289; Schreiber v. Eastern Airlines, Inc. (1976), 38 Ill. App. 3d 556, 348 N.E.2d 218; Hundt v. Burhans (1973), 13 Ill. App. 3d 415, 300 N.E.2d 318; Menolascino v. Superior Felt & Bedding Co. (1942), 313 Ill. App. 557, 569, 40 N.E.2d 813.

In applying the Handtoffski rule, it is clear that consequential damages which result from one of the specified injuries defined in section 14 are not relevant in determining the applicable limitations period inasmuch as section 14 is designed to control actions for damages because of or on account of one of the particular injuries set forth therein. (Handtoffski, at 286.) On this basis, the court in Seymour v. Union News Co. (1953), 349 Ill. App. 197, 110 N.E.2d 475, held that plaintiff’s loss of earnings, as well as other damages, which resulted from an injury to the person, were not injuries to personal property for purposes of invoking the five year period under section 15 of the Limitations Act, but were, .instead, merely consequences of the particular injury, i.e., injury to the person, and were thereby governed by the two year period of section 14. To the same effect are Kolar v. City of Chicago (1973), 12 Ill. App. 3d 887, 890, 299 N.E.2d 479; Colucci v. Chicago Crime Com. (1975), 31 Ill. App. 3d 802, 334 N.E.2d 461; and Tom Olesker's Exciting World of Fashion, Inc. (1973), 16 Ill. App. 3d 709, 714, 306 N.E.2d 4549, rev'd on other grounds (1975), 61 Ill. 2d 129.

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Bluebook (online)
422 N.E.2d 1142, 97 Ill. App. 3d 585, 52 Ill. Dec. 933, 1981 Ill. App. LEXIS 2848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stanger-v-felix-illappct-1981.