Cult Awareness Network v. Church of Scientology
Annotate this Case
Cult Awareness v. Church of Scientology, No. 80868 (9/18/97)
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion to
request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The official copy of the following opinion
will be published by the Supreme Court's Reporter of Decisions in the Official Reports advance
sheets following final action by the Court.
Docket No. 80868--Agenda 10--March 1997.
CULT AWARENESS NETWORK, Appellant, v. CHURCH OF SCIENTOLOGY
INTERNATIONAL et al., Appellees.
Opinion filed September 18, 1997.
CHIEF JUSTICE FREEMAN delivered the opinion of the court:
Plaintiff, Cult Awareness Network, filed suit in the circuit court of Cook County against
defendants, Church of Scientology International and Church of Scientology of Illinois
(collectively, the Church of Scientology), as well as the law firm of Bowles & Moxon. In the
complaint, as amended, plaintiff alleged that defendants had engaged in a conspiracy to
maliciously prosecute numerous civil actions against plaintiff. The circuit court dismissed the suit
for failure to state a cause of action. The court ruled that (i) plaintiff had failed to allege a
favorable termination of the underlying actions and (ii) plaintiff had not satisfied the special
damage requirement for actions sounding in malicious prosecution. The appellate court affirmed
the order of dismissal (279 Ill. App. 3d 66), and we allowed plaintiff's petition for leave to
appeal (155 Ill. 2d R. 315(a)). For the reasons that follow, we reverse the judgments of the
appellate and circuit courts and remand the matter to the circuit court for further proceedings.
BACKGROUND
Because the circuit court dismissed this action pursuant to section 2--615 of the Code of
Civil Procedure, we must take the factually sufficient allegations contained in plaintiff's
complaint as true. See Doe v. Calumet City, 161 Ill. 2d 374, 381 (1994). Those allegations may
be summarized in the following manner.
Plaintiff is a not-for profit corporation engaged in, among other things, educating the
public with respect to religious rights, freedoms, and responsibilities. Defendants are two religious
corporations and their attorneys. Plaintiff claimed that defendants conspired with each other to
carry on a campaign of malicious prosecution for the express purpose of causing plaintiff's
bankruptcy and eventual disbandment. Specifically, plaintiff alleged that, between January 24,
1992, and July 1, 1993, various members of the Church of Scientology filed 21 lawsuits which
named plaintiff as the defendant.[fn1] Plaintiff further alleged that the lawsuits were filed in
several jurisdictions around the country, including Illinois, California, Massachusetts, Minnesota,
New York, and Washington, D.C. All but one of the suits alleged that plaintiff had violated
various state and federal civil rights laws by denying each complainant membership in plaintiff's
organization and/or access to its meetings. The lone cause of action that did not contain such
allegations was filed by a church member who claimed that plaintiff had fraudulently induced
him to do volunteer work. Each of the underlying suits was alleged to have terminated in
plaintiff's favor, either by summary judgment or by voluntary and involuntary dismissals.
After setting forth the details of the underlying suits, plaintiff further alleged that the
filing of each of the lawsuits constituted a "separate overt act" in furtherance of the alleged
conspiracy. In particular, plaintiff claimed that the Church of Scientology "suggested, instigated,
encouraged, and assisted the named plaintiffs in the [underlying] lawsuits and complaints."
Plaintiff also alleged that Bowles & Moxon provided assistance and support to the Church of
Scientology in each of the underlying lawsuits. According to plaintiff, each of those actions was
filed without probable cause. Finally, plaintiff claimed that it had suffered damages as a result
of the "multiplicity of actions brought by, at the behest of, or with the assistance of defendants."
For example, plaintiff alleged that it had incurred substantial attorney fees and increased costs
for liability insurance, among other things.
Defendants thereafter filed a motion to dismiss the complaint with prejudice for failure
to state a cause of action. In support of their motion, defendants argued that none of the
underlying suits had ended in a judicial termination that dealt with the factual issues of the case,
and thus plaintiff had failed to allege that the actions had terminated in its favor as required
under Illinois law. Moreover, defendants claimed that plaintiff had failed to satisfy Illinois'
special injury requirement. In their view, the damages alleged by plaintiff constituted nothing
more than the usual costs and anxiety associated with defending against an ordinary civil action.
The circuit court agreed with both points and granted the motion to dismiss.
As previously noted, the appellate court affirmed the judgment of the circuit court.
Although the court acknowledged that plaintiff had alleged that each of the underlying suits was
terminated in its favor, either by summary judgment or by dismissal (both voluntary and
involuntary), the court nevertheless held that such allegations were insufficient to satisfy the
favorable termination requirement as that term had been defined in previous appellate court
opinions. The court noted that, under Illinois law, " `[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.)" 279 Ill. App. 3d at 70, quoting Bismarck Hotel Co. v. Sutherland, 175 Ill.
App. 3d 739, 748 (1988). Plaintiff's allegations, however, failed to indicate that the factual issues
in the underlying actions had been adjudicated in plaintiff's favor. 279 Ill. App. 3d at 70. In
addition, the appellate court held that plaintiff's allegations for damages did not satisfy the
special injury requirement. Rather, the allegations merely constituted "the ordinary harm
generated from any legal actions." 279 Ill. App. 3d at 72. Finally, the court rejected plaintiff's
contention that the special damage requirement was satisfied by the multiple number of
underlying suits at issue in this case. 279 Ill. App. 3d at 70.
ANALYSIS
The dispositive issue for our review is whether plaintiff has alleged sufficient facts to
support a cause of action for civil conspiracy. However, because such an action necessarily
depends upon the commission of some underlying tort (see Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 63 (1994); Bonney v. King, 201 Ill. 47, 50 (1903)), the viability of plaintiff's complaint
in this case turns upon whether plaintiff has alleged enough facts to satisfy the elements of
malicious prosecution. Therefore, it is appropriate that we examine those elements in determining
the adequacy of plaintiff's charge.
In Illinois, the elements of malicious prosecution are well established. The plaintiff must
show that the defendant brought the underlying suit maliciously and without probable cause.
Moreover, the plaintiff must establish that the former action was terminated in his or her favor.
Finally, the plaintiff must plead and prove some "special injury" or special damage beyond the
usual expense, time or annoyance in defending a lawsuit. Bank of Lyons v. Schultz, 78 Ill. 2d 235,
239 (1980); Schwartz v. Schwartz, 366 Ill. 247, 250-53 (1937). In the present case, the parties
dispute whether plaintiff has satisfactorily pleaded (i) the requisite favorable termination of the
underlying suits and (ii) a special injury. We address each in turn.
Favorable Termination
The necessity of alleging a favorable termination in actions for malicious prosection is
a long-standing and deeply rooted principle in this court's jurisprudence. Indeed, as early as 1832,
this court concluded that the former proceeding must have been legally determined in favor of
the malicious prosecution plaintiff before the malicious prosecution action will lie. Feazle v.
Simpson, 2 Ill. 30 (1832). Although this court has, over the years, consistently acknowledged the
requirement (see Bank of Lyons, 78 Ill. 2d at 239; Schwartz, 366 Ill. at 250; Shedd v. Patterson,
302 Ill. 355, 359 (1922); Bonney, 201 Ill. at 50; Smith v. Michigan Buggy Co., 175 Ill. 619, 629
(1898)), it has not had the occasion to identify, with any precision, the types of judicial
determinations which constitute a "favorable termination" for purposes of malicious prosecution
suits. As a result, the contours of the requirement have been shaped by our appellate court, which
in 1970, announced that the favorable termination requirement could be satisfied only by "a
judgment which deals with the factual issue of the case, whether the judgment be rendered after
a trial or upon motion for summary judgment." (Emphasis added.) Siegel v. City of Chicago, 127
Ill. App. 2d 84, 108 (1970). Since that time, this holding has been relied upon without any
detailed analysis, by numerous appellate court decisions, including that which we review today.
See, e.g., Kurek v. Kavanagh, Scully, Sudow, White & Frederick, 50 Ill. App. 3d 1033, 1038
(1977); Executive Commercial Services, Ltd. v. Daskalakis, 74 Ill. App. 3d 760, 767 (1979);
Savage v. Seed, 81 Ill. App. 3d 744, 749 (1980); Smith v. Aaron, Aaron, Schimberg & Hess, 112
Ill. App. 3d 653, 657 (1983); Sutton v. Hofeld, 118 Ill. App. 3d 65, 68 (1983); Arora v. Chui,
279 Ill. App. 3d 321, 329 (1996). Therefore, the propriety of the appellate court's action in this
case is largely dependent upon the correctness of Siegel and it progeny.
In Siegel, the owners of certain property filed a multicount complaint for declaratory relief
against the City of Chicago. In the complaint, plaintiffs sought to nullify a zoning amendment
that would have permitted another defendant, Stein, to erect a high-rise apartment building near
plaintiffs' properties. Stein filed a counterclaim, alleging that one of the counts in plaintiffs'
complaint was filed without probable cause and with malice, thereby constituting malicious
prosecution. The circuit court, however, had previously dismissed the count which had given rise
to Stein's counterclaim, and, as result, dismissed Stein's counterclaim as well. The court ruled
that the dismissal of plaintiffs' count could not be viewed as a favorable termination for purposes
of Stein's malicious prosecution action. Stein appealed the ruling.
The appellate court affirmed the judgment of the circuit court, holding that a dismissal
of the former action could not qualify as a favorable termination in the context of a malicious
prosecution suit. The court predicated its holding on the fact that the favorable termination
requirement "goes to the question of probable cause." Siegel, 127 Ill. App. 2d at 107. As a result,
the court reasoned that
"the legal termination requirement necessitate[d] a judgment which deals
with the factual issue of the case, whether the judgment be rendered after a trial
or upon motion for summary judgment. However, it is not sufficient to simply
obtain a dismissal of the opponents' complaint, for such dismissal need bear no
logical relationship to the legitimacy of the assertions contained therein; therefore,
such dismissal lends no credence to the claim that the assertions were baseless."
(Emphasis added.) Siegel, 127 Ill. App. 2d at 108.
Consonant with this conclusion, the appellate court affirmed the dismissal of Stein's
counterclaim.
As noted above, the Siegel analysis has, throughout the years, been relied upon by
different panels of our appellate court, including the one which affirmed the circuit court's
judgment in this case. We note that several of these later appellate court opinions state that
voluntary dismissals do not satisfy the favorable termination requirement and cite this court's
decision in Bonney as authority for that proposition. See Kurek, 50 Ill. App. 3d at 1038; Withall
v. Capitol Federal Savings of America, 164 Ill. App. 3d 851, 856 (1987). The Siegel court,
however, did not rely on any of this court's opinions in formulating its analysis with respect to
the favorable termination requirement. Moreover, a close reading of the Bonney decision reveals
that the malicious prosecution plaintiff failed to allege that the underlying action claimed to have
been wrongfully brought was ever "legally terminated." Bonney, 201 Ill. at 50. We stress that this
court, in Bonney, never intimated, in any way, that voluntary dismissals did not satisfy the
favorable termination requirement, and those appellate court decisions which so hold are simply
incorrect as to this point.
Notwithstanding the above, defendants regard the appellate court's interpretation of the
favorable termination requirement as a reasonable means of limiting a cause of action which has
long been disfavored at law. They maintain that the Siegel holding finds support in this court's
previous opinions which have recognized that actions for malicious prosecution inhibit the free
access of the courts. In their view, a more expansive interpretation of the favorable termination
requirement would lead litigants to fear subsequent prosecution simply for "calling upon the
courts to determine [their] rights." Plaintiff, on the other hand, asks this court to overrule this line
of cases, claiming that the appellate court has been overly restrictive in its interpretation of the
favorable termination requirement. In support of its position, plaintiff points out that the holding
in Siegel and its progeny conflicts with the views of many courts in other jurisdictions and the
views of most modern commentators. As a result, although the tort of malicious prosecution is
recognized in Illinois, plaintiffs believe that the holding in Siegel has led to the virtual eradication
of the cause of action in this state. Although we are not unmindful of the concerns raised by
defendants, we agree with plaintiff that our appellate court's interpretation of the favorable
termination requirement is at odds with modern tort law.
We begin our review of this issue with a discussion of the Restatement (Second) of Torts,
which suggests looking beyond the type of disposition that was obtained in the previous action
when determining if that termination is, indeed, "favorable" for purposes of a malicious
prosecution action. Specifically, the Restatement provides as follows:
"Termination in favor of the person against whom civil proceedings are
brought. Civil proceedings may be terminated in favor of the person against whom
they are brought *** by (1) the favorable adjudication of the claim by a
competent tribunal, or (2) the withdrawal of the proceedings by the person
bringing them, or (3) the dismissal of the proceedings because of his failure to
prosecute them. A favorable adjudication may be by a judgment rendered by a
court after trial, or upon demurrer or its equivalent. In either case the adjudication
is a sufficient termination of the proceedings, unless an appeal is taken. ***
Whether a withdrawal or an abandonment constitutes a final termination
of the case in favor of the person against whom the proceedings are brought and
whether the withdrawal is evidence of a lack of probable cause for their initiation,
depends upon the circumstances under which the proceedings are withdrawn."
(Emphasis added.) Restatement (Second) of Torts sec. 674, Comment j (1977).
Unlike the holding in Siegel, the Restatement approach, which has been expressly adopted by
various courts across the nation (see, e.g., Barrett Mobile Home Transport, Inc. v. McGugin, 530 So. 2d 730, 735-36 (Ala. 1988); Frey v. Stoneman, 150 Ariz. 106, 110-11, 722 P.2d 274, 278-79
(1986); Nelson v. Miller, 233 Kan. 122, 125-26, 660 P.2d 1361, 1363-65 (1983); Christian v.
Lapidus, 833 S.W.2d 71, 74 (Tenn. 1992)), allows dispositions which do not reach the merits of
the underlying case to satisfy the favorable termination requirement in certain circumstances.
Under this approach, whether or not the requirement is met is to be determined not by the form
or title given to the disposition of the prior proceeding, but by the circumstances under which
that disposition is obtained. In addition to the above cases, we note that other courts, while not
expressly referring to the Restatement by name, have followed its approach. See Abbott v. United
Venture Capital, Inc., 718 F. Supp. 828, 833 (D. Nev. 1989) (compiling cases). Like those courts
which have expressly adopted the Restatement, these courts also recognize that the existence of
a favorable termination turns upon the circumstances under which the disposition is obtained. See
Weaver v. Superior Court, 95 Cal. App. 3d 166, 184-85, 156 Cal. Rptr. 745, 755-56 (1979);
Wong v. Tabor, 422 N.E.2d 1279, 1284-85 (Ind. App. 1981). As a result, terminations which do
not rise to the level of adjudications on the merits may satisfy the favorable termination
requirement. See, e.g., 52 Am. Jur. 2d Malicious Prosecution sec. 42 (1970). For example, if the
dismissal was merely a formal means of securing a negotiated settlement, it cannot serve as the
basis for a malicious prosecution action. See Barrett Mobile Home Transport, 530 So. 2d at 735-
36. See also Wong v. Tabor, 422 N.E.2d 1279, 1284-85 (Ind. App. 1981) (same). Likewise, a
malicious prosecution claim cannot be premised on a dismissal that was entered in order to
enable the plaintiff to file the claim in another forum. See Ramsey v. Leath, 706 F.2d 1166, 1170-
71 (11th Cir. 1983). Conversely, an involuntary dismissal resulting from plaintiff's failure to
comply with discovery serves as a favorable termination due to the fact that a party who fails to
produce evidence, in essence, fails to prosecute. See Lumpkin v. Friedman, 131 Cal. App. 3d 450,
182 Cal. Rptr. 378 (1982); see also Nagy v. McBurney, 120 R.I. 925, 392 A.2d 365 (1978)
(holding that involuntary dismissal for failure to file court-ordered bill of particulars constitutes
favorable termination).
We agree with the reasoning espoused by the courts of our sister states. We regard the
Restatement's treatment of the favorable termination requirement as more balanced than our
appellate court's interpretation as set forth in Siegel. Nevertheless, defendants criticize the
Restatement approach as being too sweeping in its scope. We disagree. Contrary to defendants'
arguments, we do not necessarily view the Restatement's position, as expressed in the case law,
as more expansive than our appellate court's interpretation. As the case law demonstrates, a
favorable termination is limited to only those legal dispositions that can give rise to an inference
of lack of probable cause. See also 54 C.J.S. Malicious Prosecution sec. 54 (1987) (dismissal
cannot serve as favorable termination if based solely on technical or procedural grounds). This,
of course, was one of the goals of the Siegel court. See Siegel, 127 Ill. App. 2d at 107
(acknowledging that even if the malicious prosecution plaintiff has obtained a favorable
termination in the underlying action, it "does not follow that [the underlying action had been]
initiated without foundation"). Unlike Siegel, however, the analysis set forth in the Restatement
contemplates that certain dispositions, although not obtained on the merits of the underlying facts,
may under certain circumstances give rise to an inference of a lack of probable cause. In contrast,
the Siegel rule has the unfortunate consequence of allowing those who utilize our courts for
wrongful purposes to do so with impunity so long as they obtain a nonfactual disposition of the
action. Under this approach, a disingenuous plaintiff can merely nonsuit his or her frivolous
lawsuit in order to guard against a future malicious prosecution action. See Arora, 279 Ill. App.
3d at 336 (McLaren, J., dissenting); see also Marbourg v. Smith, 11 Kan. 554, 562-63 (1873)
(recognizing, as early as 1873, the problems inherent in allowing a plaintiff to avoid a malicious
prosecution action by nonsuit). In our view, the Restatement's position best balances the right
of citizens to have free access to our courts and the right of the individual to be free from being
haled into court without reason, thereby better serving the interests of justice.
Defendants also maintain that the existence of our Rule 137 provides an additional reason
for this court not to depart from the appellate court's interpretation of the favorable termination
requirement. They submit that the rule provides an adequate remedy for suits not well grounded
in law or in fact. We must summarily reject this argument. Although Rule 137 was adopted as
a means of preventing false and frivolous filings, it was not meant to preempt our existing tort
law. The courts of this state have recognized, both before and after the adoption of Rule 137, the
viability of a cause of action sounding in malicious prosecution.
In addition, our decision to follow the Restatement view on this issue is consistent with
our recent opinion in Swick v. Liautaud, 169 Ill. 2d 504, 513 (1996). In Swick, we addressed
whether a nolle prosequi was a favorable termination in the context of malicious prosecution of
an underlying criminal action. This court, without dissent, adopted the Restatement's approach
to the question and held that a nolle prosequi may serve as a favorable termination unless the
prosecution was abandoned for reasons not indicative of the innocence of the accused. Swick, 169 Ill. 2d at 513. Indeed, we stressed that it was the circumstances surrounding the entry of the nolle
prosequi that must be examined and not the mere form or title of the disposition. Swick, 169 Ill. 2d at 513-14. We today provide similar guidelines for malicious prosecution suits which are
predicated upon prior civil proceedings.
Having adopted the Restatement approach, we find that plaintiff's complaint in this case,
which alleges that each of the underlying actions were terminated in its favor either by the entry
of summary judgment or by dismissal (voluntary and involuntary), satisfies the favorable
termination requirement, at least for purposes of defendant's motion to dismiss under section 2--
615. Whether or not these dispositions ultimately are proved by plaintiff to be indicative of a lack
of probable cause remains a question of fact which cannot be answered at this stage of the
litigation. See Swick, 169 Ill. 2d at 514 (recognizing that at trial, plaintiff must adduce evidence
to meet its burden of proof that the prior proceedings were terminated under circumstances
indicative of plaintiff's innocence). See also Nelson, 233 Kan. at 125-26, 660 P.2d at 1364;
Abbott, 718 F. Supp. at 834.
Accordingly, the circuit court erred in ruling that plaintiff had failed to sufficiently allege
the favorable termination of the underlying actions at issue.
Special Damage or Injury
We must next determine whether plaintiff's complaint adequately pleaded special injury
or damage. Like the favorable termination requirement, the necessity of pleading some special
injury or damage is firmly rooted in our jurisprudence. In one of the earliest references to the
requirement, this court, in 1898, examined whether damages can be recovered for the malicious
prosecution of an "ordinary civil suit, begun by personal service of process, and unaccompanied
either by an arrest of the person or by seizure of property." Smith v. Michigan Buggy Co., 175 Ill. 619, 624 (1898). The underlying suit in question in Smith was an unsuccessful action for
fraudulent misrepresentation brought by an employer against one its salesman. Citing both
American and English common law principles, this court determined that without the arrest of
the person or the seizure of the person's property or some "other special injury," a cause of
action for the malicious prosecution would not lie in civil actions. Smith, 175 Ill. at 627. In
reaching this conclusion, the court stressed its decision was grounded upon the fact that the courts
are open to every citizen to claim what "he deems to be his right without fear of being
prosecuted for heavy damages." Smith, 175 Ill. at 628. Thus, the ordinary trouble and expense
which arise from "ordinary forms of legal controversy, should be endured by the law-abiding
citizen as one of the inevitable burdens, which men must sustain under civil government."
(Emphasis added.) Smith, 175 Ill. at 629.
The issue of what type of lawsuit constitutes an "ordinary form of legal controversy" was
again addressed by this court some 22 years later in Norin v. Scheldt Manufacturing Co., 297 Ill. 521 (1921). There, the Scheldt Manufacturing Company filed a petition in bankruptcy against
Norin, requesting that Norin be adjudged a bankrupt. Scheldt filed the petition on publication
alone. When Norin failed to appear in the proceeding, the court entered a bankruptcy judgment
against him. Norin later learned of the bankruptcy action and began vacatur proceedings. During
the hearing to set aside the default, one of Scheldt's officers admitted he had known Norin's
place of residence at the time service by publication was obtained. Moreover, Scheldt admitted
that it had been unable to prove Norin's insolvency at the time it filed its petition. Accordingly,
the court vacated its previous judgment and dismissed the bankruptcy petition. Norin thereafter
brought suit against Scheldt to recover damages for the malicious prosecution of the bankruptcy
action. Scheldt contended that Norin had failed to satisfy the special injury requirement because
(i) the bankruptcy judgment had ultimately been vacated, and (ii) Norin's property had not been
seized. Scheldt concluded therefore that the bankruptcy litigation constituted a mere "ordinary"
civil action. On appeal, this court rejected that argument. In doing so, we concluded that the
bankruptcy action could not be considered ordinary because of the "far-reaching and drastic"
effects associated with that proceeding. Norin, 297 Ill. at 525. In fact, because of the peculiar,
sui generis nature of a bankruptcy action, this court deemed irrelevant the fact that Norin's
property was not seized. We explained that suits "which are themselves unusual in their effect
upon the defendant" fall outside the special injury requirement established in Smith. Norin, 297 Ill. at 527.
Subsequently, in Shedd v. Patterson, 302 Ill. 355 (1922), this court had further opportunity
to shape the contours of the special injury requirement. In that case, the plaintiff brought a
malicious prosecution action against defendant after the defendant had filed nine successive
lawsuits against plaintiff, all of which related to the foreclosure of a leasehold estate for unpaid
rents. The circuit court dismissed the action, and the appellate court affirmed. The appellate court
ruled that under this court's decisions in Smith and Norin, the nine unsuccessful prior actions
constituted "ordinary" litigation; therefore, plaintiff had not suffered any special injury. This court
thereafter granted plaintiff leave to appeal and reversed the judgment of the appellate court.
Although this court initially acknowledged that the Illinois courts are open to all litigants for the
settlement of their rights without fear of retributive litigation, it nevertheless held that Smith and
Norin could not be viewed as providing immunity in the case of successive suits after a party has
had his or her rights finally adjudicated. Shedd, 302 Ill. at 360. Specifically the court stated that
after a party has "had his day in court and his right has been conclusively determined," he may
not return to court to "harass" the same opponent about the same issues. Shedd, 302 Ill. at 360.
It is against this precedential backdrop, and, in particular, Shedd, that we must examine
whether the special injury rule has been satisfied by the facts as alleged in this case. Defendants
maintain that although multiple suits are involved here, the instant case is distinguishable from
Shedd because each of the prior actions here were brought by different plaintiffs in different
jurisdictions, concerning different sets of operative facts. Defendants also point out that each of
the prior actions in Shedd, unlike those here, were filed successively after the first action had
been finally and conclusively determined. Plaintiff, on the other hand, acknowledges the
dissimilarities between the cases, but nevertheless submits that the principles concerning multiple
suits announced in Shedd apply with equal force to the case at bar. Plaintiff contends that the
filing of 21 meritless lawsuits against plaintiff during a 17-month period constitutes a special
injury regardless of the fact that the suits were filed concurrently rather than consecutively.
Plaintiff submits, therefore, that it should be allowed a remedy for this harm.
We agree with defendants that Shedd is factually distinguishable from the case at bar. In
Shedd, this court was confronted with a single litigant who, having invoked the power of the
judiciary to decide his grievance and having lost, refused to accept the judgment of the court and
continued to litigate the matter. This court would not permit the court system to be used in such
a manner, and thus it stated in pertinent part:
"Law is the foundation of civil government, and its administration and the
means for its enforcement are essential to the maintenance of rights and the
stability of the social order. To that end courts are created and maintained at the
public expense, and are, and should be, open for the redress of grievances and the
enforcement of rights, but that affords no reason for requiring them to employ
their time to the prejudice of other litigants and the public business, to enable a
party whose rights have been finally and conclusively determined to harass the
same party about the same thing. *** In this case the courts had repeatedly
decided that the defendant had no grievance, and the substantial questions
involved were finally and conclusively settled [15 years earlier] in Patterson v.
Northern Trust Co. 231 Ill. 22." Shedd, 302 Ill. at 360-61.
Clearly, what concerned this court in Shedd, to a large extent, was the fact that a litigant who
had already been given his day in court, and had lost, continued to use the same purported
grievance as a subterfuge for conducting a personal crusade of harassment under the guise of
rightful litigation. In this case, however, the same plaintiff is not involved in repeated litigation
and the multiple suits in question were not filed successively but concurrently. Therefore, Shedd
is factually inapposite to the case at bar.
Nevertheless, the fact that Shedd is not factually on all fours with the present case does
not spell victory for defendants. A common theme with respect to the special injury rule which
runs throughout all of this court's opinions on the subject, including Shedd, is this court's
recognition of its responsibility to maintain a proper balance between the societal interest in
preventing harassing suits and in permitting the honest assertion of rights in our court rooms. See
Shedd, 302 Ill. at 360. As our case law amply demonstrates, it is this balance which lies at the
heart of the special injury rule (see Smith, 175 Ill. at 628-29; Norin, 297 Ill. at 526-27; see also
Friedman v. Dozorc, 412 Mich. 1, 67, 312 N.W.2d 585, 612 (1981) (Coleman, C.J., dissenting
in part and concurring in part); Note, Groundless Litigation and the Malicious Prosecution
Debate: A Historical Analysis, 88 Yale L.J. 1218, 1230 (1979)), and it is this balance, and not
the facts in Shedd, which ultimately must determine the propriety of the instant action. Ironically,
it is one of the critical differences between the facts in Shedd and the facts as alleged in this case
which compels the conclusion that this delicate balance has been upset in this case. In contrast
to Shedd, which involved only two litigants disputing the foreclosure of a leasehold estate, the
present case involves allegations that a large national corporation improperly induced its members
to engage in a national campaign of simultaneous malicious prosecution. Plaintiff has alleged that
the Church of Scientology instituted the simultaneous suits, not to resolve any legal dispute
between the parties, but to keep plaintiff from engaging in its business of disseminating
information regarding religious freedom. The invidiousness of the alleged conspiracy is best
reflected in the fact that plaintiff was sued 21 times over the course of a 17-month period in
jurisdictions ranging from New York to California. Such a sustained onslaught of litigation can
hardly be deemed "ordinary" if plaintiff can prove that the actions were brought without probable
cause and with malice. In view of these circumstances, we believe that plaintiff has set forth
facts, which if proved true, satisfy our special injury rule.
Notwithstanding the above, defendants submit that if this court were to conclude that the
special injury requirement has been met in this case, we would be infringing upon defendants'
exercise of their first amendment rights. Specifically, defendants rely upon several United States
Supreme Court decisions which have held that the litigation activities of a national membership
organization, including encouraging, financing, and coordinating a series of lawsuits challenging
discriminatory practices, are protected by the first amendment. See National Ass'n for the
Advancement of Colored People v. Button, 371 U.S. 415, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963);
United Mine Workers of America, District 12 v. Illinois State Bar Ass'n, 389 U.S. 217, 19 L. Ed. 2d 426, 88 S. Ct. 353 (1967). While we do not dispute the correctness of these Supreme Court
decisions, we do dispute the defendants' reliance upon them. The Constitution affords protection
to the honest litigator in search of resolutions to true legal disputes; however, it does not provide
the right to any individual to assist another, with money or otherwise, in the prosecution of a suit
which has been filed with malice and without probable cause. In any event, we stress that
defendants have challenged plaintiff's complaint by way of a section 2--615 motion to dismiss.
Such a motion merely addresses the allegations contained within the four corners of plaintiff's
complaint. Therefore, defendants' constitutional argument, which is a fact-dependent defense to
the action grounded in probable cause, cannot be considered in the context of the present motion
to dismiss. Nothing in our opinion prevents defendants from raising the first amendment's
protections at the appropriate juncture in this case.
As a final matter, we wish to stress that our holding with respect to the special injury
requirement should not be viewed as a rejection of the rule as set forth in our earlier opinions.
We further emphasize that today's decision should not be read to mitigate the strict requirement
that a malicious prosecution plaintiff show not only that the action complained of has been
terminated, but that it was commenced maliciously and without probable cause. These latter two
required elements are no easy hurdle for a plaintiff, as many courts and commentators have
noted. See Barrett, 530 So. 2d at 735-36; Friedman, 412 Mich. at 65-66, 312 N.W.2d at 611
(Coleman, C.J., dissenting in part and concurring in part); Kaufman v. Shefman, 169 Mich. App.
829, 840, 426 N.W.2d 819, 824 (1988); Restatement (Second) of Torts sec. 675, Comments a
through d (1976). An action for malicious prosecution remains one that is disfavored in law.
CONCLUSION
In view of the foregoing analysis, we hold that plaintiff has sufficiently alleged the
elements of the tort of malicious prosecution and, for purposes of this case, the tort of civil
conspiracy to commit malicious prosecution. The circuit court, therefore, erred in dismissing the
amended complaint. Accordingly, we reverse the judgments of the appellate and circuit courts,
and remand the matter to the circuit court for further proceedings consistent with this opinion.
Judgments reversed;
cause remanded.
JUSTICE McMORROW took no part in the consideration or decision of this case.
[fn1] We note that plaintiff has stated in its brief that 24 separate suits were filed during this
period. Moreover, the appellate court opinion also referred to plaintiff's allegations regarding 24
different actions. 279 Ill. App. 3d at 70. Nevertheless, our review of plaintiff's complaint reveals
that in one of the actions, identified in the complaint as the "Ward et al. Lawsuits," four different
church members were named as joint plaintiffs in a single suit. Therefore, only 21 lawsuits were
actually referenced in plaintiff's complaint.
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion to
request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The official copy of the following opinion
will be published by the Supreme Court's Reporter of Decisions in the Official Reports advance
sheets following final action by the Court.
Docket No. 80868--Agenda 10--March 1997.
CULT AWARENESS NETWORK, Appellant, v. CHURCH OF SCIENTOLOGY
INTERNATIONAL et al., Appellees.
Opinion filed September 18, 1997.
CHIEF JUSTICE FREEMAN delivered the opinion of the court:
Plaintiff, Cult Awareness Network, filed suit in the circuit court of Cook County against
defendants, Church of Scientology International and Church of Scientology of Illinois
(collectively, the Church of Scientology), as well as the law firm of Bowles & Moxon. In the
complaint, as amended, plaintiff alleged that defendants had engaged in a conspiracy to
maliciously prosecute numerous civil actions against plaintiff. The circuit court dismissed the suit
for failure to state a cause of action. The court ruled that (i) plaintiff had failed to allege a
favorable termination of the underlying actions and (ii) plaintiff had not satisfied the special
damage requirement for actions sounding in malicious prosecution. The appellate court affirmed
the order of dismissal (279 Ill. App. 3d 66), and we allowed plaintiff's petition for leave to
appeal (155 Ill. 2d R. 315(a)). For the reasons that follow, we reverse the judgments of the
appellate and circuit courts and remand the matter to the circuit court for further proceedings.
BACKGROUND
Because the circuit court dismissed this action pursuant to section 2--615 of the Code of
Civil Procedure, we must take the factually sufficient allegations contained in plaintiff's
complaint as true. See Doe v. Calumet City, 161 Ill. 2d 374, 381 (1994). Those allegations may
be summarized in the following manner.
Plaintiff is a not-for profit corporation engaged in, among other things, educating the
public with respect to religious rights, freedoms, and responsibilities. Defendants are two religious
corporations and their attorneys. Plaintiff claimed that defendants conspired with each other to
carry on a campaign of malicious prosecution for the express purpose of causing plaintiff's
bankruptcy and eventual disbandment. Specifically, plaintiff alleged that, between January 24,
1992, and July 1, 1993, various members of the Church of Scientology filed 21 lawsuits which
named plaintiff as the defendant.[fn1] Plaintiff further alleged that the lawsuits were filed in
several jurisdictions around the country, including Illinois, California, Massachusetts, Minnesota,
New York, and Washington, D.C. All but one of the suits alleged that plaintiff had violated
various state and federal civil rights laws by denying each complainant membership in plaintiff's
organization and/or access to its meetings. The lone cause of action that did not contain such
allegations was filed by a church member who claimed that plaintiff had fraudulently induced
him to do volunteer work. Each of the underlying suits was alleged to have terminated in
plaintiff's favor, either by summary judgment or by voluntary and involuntary dismissals.
After setting forth the details of the underlying suits, plaintiff further alleged that the
filing of each of the lawsuits constituted a "separate overt act" in furtherance of the alleged
conspiracy. In particular, plaintiff claimed that the Church of Scientology "suggested, instigated,
encouraged, and assisted the named plaintiffs in the [underlying] lawsuits and complaints."
Plaintiff also alleged that Bowles & Moxon provided assistance and support to the Church of
Scientology in each of the underlying lawsuits. According to plaintiff, each of those actions was
filed without probable cause. Finally, plaintiff claimed that it had suffered damages as a result
of the "multiplicity of actions brought by, at the behest of, or with the assistance of defendants."
For example, plaintiff alleged that it had incurred substantial attorney fees and increased costs
for liability insurance, among other things.
Defendants thereafter filed a motion to dismiss the complaint with prejudice for failure
to state a cause of action. In support of their motion, defendants argued that none of the
underlying suits had ended in a judicial termination that dealt with the factual issues of the case,
and thus plaintiff had failed to allege that the actions had terminated in its favor as required
under Illinois law. Moreover, defendants claimed that plaintiff had failed to satisfy Illinois'
special injury requirement. In their view, the damages alleged by plaintiff constituted nothing
more than the usual costs and anxiety associated with defending against an ordinary civil action.
The circuit court agreed with both points and granted the motion to dismiss.
As previously noted, the appellate court affirmed the judgment of the circuit court.
Although the court acknowledged that plaintiff had alleged that each of the underlying suits was
terminated in its favor, either by summary judgment or by dismissal (both voluntary and
involuntary), the court nevertheless held that such allegations were insufficient to satisfy the
favorable termination requirement as that term had been defined in previous appellate court
opinions. The court noted that, under Illinois law, " `[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.)" 279 Ill. App. 3d at 70, quoting Bismarck Hotel Co. v. Sutherland, 175 Ill.
App. 3d 739, 748 (1988). Plaintiff's allegations, however, failed to indicate that the factual issues
in the underlying actions had been adjudicated in plaintiff's favor. 279 Ill. App. 3d at 70. In
addition, the appellate court held that plaintiff's allegations for damages did not satisfy the
special injury requirement. Rather, the allegations merely constituted "the ordinary harm
generated from any legal actions." 279 Ill. App. 3d at 72. Finally, the court rejected plaintiff's
contention that the special damage requirement was satisfied by the multiple number of
underlying suits at issue in this case. 279 Ill. App. 3d at 70.
ANALYSIS
The dispositive issue for our review is whether plaintiff has alleged sufficient facts to
support a cause of action for civil conspiracy. However, because such an action necessarily
depends upon the commission of some underlying tort (see Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 63 (1994); Bonney v. King, 201 Ill. 47, 50 (1903)), the viability of plaintiff's complaint
in this case turns upon whether plaintiff has alleged enough facts to satisfy the elements of
malicious prosecution. Therefore, it is appropriate that we examine those elements in determining
the adequacy of plaintiff's charge.
In Illinois, the elements of malicious prosecution are well established. The plaintiff must
show that the defendant brought the underlying suit maliciously and without probable cause.
Moreover, the plaintiff must establish that the former action was terminated in his or her favor.
Finally, the plaintiff must plead and prove some "special injury" or special damage beyond the
usual expense, time or annoyance in defending a lawsuit. Bank of Lyons v. Schultz, 78 Ill. 2d 235,
239 (1980); Schwartz v. Schwartz, 366 Ill. 247, 250-53 (1937). In the present case, the parties
dispute whether plaintiff has satisfactorily pleaded (i) the requisite favorable termination of the
underlying suits and (ii) a special injury. We address each in turn.
Favorable Termination
The necessity of alleging a favorable termination in actions for malicious prosection is
a long-standing and deeply rooted principle in this court's jurisprudence. Indeed, as early as 1832,
this court concluded that the former proceeding must have been legally determined in favor of
the malicious prosecution plaintiff before the malicious prosecution action will lie. Feazle v.
Simpson, 2 Ill. 30 (1832). Although this court has, over the years, consistently acknowledged the
requirement (see Bank of Lyons, 78 Ill. 2d at 239; Schwartz, 366 Ill. at 250; Shedd v. Patterson,
302 Ill. 355, 359 (1922); Bonney, 201 Ill. at 50; Smith v. Michigan Buggy Co., 175 Ill. 619, 629
(1898)), it has not had the occasion to identify, with any precision, the types of judicial
determinations which constitute a "favorable termination" for purposes of malicious prosecution
suits. As a result, the contours of the requirement have been shaped by our appellate court, which
in 1970, announced that the favorable termination requirement could be satisfied only by "a
judgment which deals with the factual issue of the case, whether the judgment be rendered after
a trial or upon motion for summary judgment." (Emphasis added.) Siegel v. City of Chicago, 127
Ill. App. 2d 84, 108 (1970). Since that time, this holding has been relied upon without any
detailed analysis, by numerous appellate court decisions, including that which we review today.
See, e.g., Kurek v. Kavanagh, Scully, Sudow, White & Frederick, 50 Ill. App. 3d 1033, 1038
(1977); Executive Commercial Services, Ltd. v. Daskalakis, 74 Ill. App. 3d 760, 767 (1979);
Savage v. Seed, 81 Ill. App. 3d 744, 749 (1980); Smith v. Aaron, Aaron, Schimberg & Hess, 112
Ill. App. 3d 653, 657 (1983); Sutton v. Hofeld, 118 Ill. App. 3d 65, 68 (1983); Arora v. Chui,
279 Ill. App. 3d 321, 329 (1996). Therefore, the propriety of the appellate court's action in this
case is largely dependent upon the correctness of Siegel and it progeny.
In Siegel, the owners of certain property filed a multicount complaint for declaratory relief
against the City of Chicago. In the complaint, plaintiffs sought to nullify a zoning amendment
that would have permitted another defendant, Stein, to erect a high-rise apartment building near
plaintiffs' properties. Stein filed a counterclaim, alleging that one of the counts in plaintiffs'
complaint was filed without probable cause and with malice, thereby constituting malicious
prosecution. The circuit court, however, had previously dismissed the count which had given rise
to Stein's counterclaim, and, as result, dismissed Stein's counterclaim as well. The court ruled
that the dismissal of plaintiffs' count could not be viewed as a favorable termination for purposes
of Stein's malicious prosecution action. Stein appealed the ruling.
The appellate court affirmed the judgment of the circuit court, holding that a dismissal
of the former action could not qualify as a favorable termination in the context of a malicious
prosecution suit. The court predicated its holding on the fact that the favorable termination
requirement "goes to the question of probable cause." Siegel, 127 Ill. App. 2d at 107. As a result,
the court reasoned that
"the legal termination requirement necessitate[d] a judgment which deals
with the factual issue of the case, whether the judgment be rendered after a trial
or upon motion for summary judgment. However, it is not sufficient to simply
obtain a dismissal of the opponents' complaint, for such dismissal need bear no
logical relationship to the legitimacy of the assertions contained therein; therefore,
such dismissal lends no credence to the claim that the assertions were baseless."
(Emphasis added.) Siegel, 127 Ill. App. 2d at 108.
Consonant with this conclusion, the appellate court affirmed the dismissal of Stein's
counterclaim.
As noted above, the Siegel analysis has, throughout the years, been relied upon by
different panels of our appellate court, including the one which affirmed the circuit court's
judgment in this case. We note that several of these later appellate court opinions state that
voluntary dismissals do not satisfy the favorable termination requirement and cite this court's
decision in Bonney as authority for that proposition. See Kurek, 50 Ill. App. 3d at 1038; Withall
v. Capitol Federal Savings of America, 164 Ill. App. 3d 851, 856 (1987). The Siegel court,
however, did not rely on any of this court's opinions in formulating its analysis with respect to
the favorable termination requirement. Moreover, a close reading of the Bonney decision reveals
that the malicious prosecution plaintiff failed to allege that the underlying action claimed to have
been wrongfully brought was ever "legally terminated." Bonney, 201 Ill. at 50. We stress that this
court, in Bonney, never intimated, in any way, that voluntary dismissals did not satisfy the
favorable termination requirement, and those appellate court decisions which so hold are simply
incorrect as to this point.
Notwithstanding the above, defendants regard the appellate court's interpretation of the
favorable termination requirement as a reasonable means of limiting a cause of action which has
long been disfavored at law. They maintain that the Siegel holding finds support in this court's
previous opinions which have recognized that actions for malicious prosecution inhibit the free
access of the courts. In their view, a more expansive interpretation of the favorable termination
requirement would lead litigants to fear subsequent prosecution simply for "calling upon the
courts to determine [their] rights." Plaintiff, on the other hand, asks this court to overrule this line
of cases, claiming that the appellate court has been overly restrictive in its interpretation of the
favorable termination requirement. In support of its position, plaintiff points out that the holding
in Siegel and its progeny conflicts with the views of many courts in other jurisdictions and the
views of most modern commentators. As a result, although the tort of malicious prosecution is
recognized in Illinois, plaintiffs believe that the holding in Siegel has led to the virtual eradication
of the cause of action in this state. Although we are not unmindful of the concerns raised by
defendants, we agree with plaintiff that our appellate court's interpretation of the favorable
termination requirement is at odds with modern tort law.
We begin our review of this issue with a discussion of the Restatement (Second) of Torts,
which suggests looking beyond the type of disposition that was obtained in the previous action
when determining if that termination is, indeed, "favorable" for purposes of a malicious
prosecution action. Specifically, the Restatement provides as follows:
"Termination in favor of the person against whom civil proceedings are
brought. Civil proceedings may be terminated in favor of the person against whom
they are brought *** by (1) the favorable adjudication of the claim by a
competent tribunal, or (2) the withdrawal of the proceedings by the person
bringing them, or (3) the dismissal of the proceedings because of his failure to
prosecute them. A favorable adjudication may be by a judgment rendered by a
court after trial, or upon demurrer or its equivalent. In either case the adjudication
is a sufficient termination of the proceedings, unless an appeal is taken. ***
Whether a withdrawal or an abandonment constitutes a final termination
of the case in favor of the person against whom the proceedings are brought and
whether the withdrawal is evidence of a lack of probable cause for their initiation,
depends upon the circumstances under which the proceedings are withdrawn."
(Emphasis added.) Restatement (Second) of Torts sec. 674, Comment j (1977).
Unlike the holding in Siegel, the Restatement approach, which has been expressly adopted by
various courts across the nation (see, e.g., Barrett Mobile Home Transport, Inc. v. McGugin, 530 So. 2d 730, 735-36 (Ala. 1988); Frey v. Stoneman, 150 Ariz. 106, 110-11, 722 P.2d 274, 278-79
(1986); Nelson v. Miller, 233 Kan. 122, 125-26, 660 P.2d 1361, 1363-65 (1983); Christian v.
Lapidus, 833 S.W.2d 71, 74 (Tenn. 1992)), allows dispositions which do not reach the merits of
the underlying case to satisfy the favorable termination requirement in certain circumstances.
Under this approach, whether or not the requirement is met is to be determined not by the form
or title given to the disposition of the prior proceeding, but by the circumstances under which
that disposition is obtained. In addition to the above cases, we note that other courts, while not
expressly referring to the Restatement by name, have followed its approach. See Abbott v. United
Venture Capital, Inc., 718 F. Supp. 828, 833 (D. Nev. 1989) (compiling cases). Like those courts
which have expressly adopted the Restatement, these courts also recognize that the existence of
a favorable termination turns upon the circumstances under which the disposition is obtained. See
Weaver v. Superior Court, 95 Cal. App. 3d 166, 184-85, 156 Cal. Rptr. 745, 755-56 (1979);
Wong v. Tabor, 422 N.E.2d 1279, 1284-85 (Ind. App. 1981). As a result, terminations which do
not rise to the level of adjudications on the merits may satisfy the favorable termination
requirement. See, e.g., 52 Am. Jur. 2d Malicious Prosecution sec. 42 (1970). For example, if the
dismissal was merely a formal means of securing a negotiated settlement, it cannot serve as the
basis for a malicious prosecution action. See Barrett Mobile Home Transport, 530 So. 2d at 735-
36. See also Wong v. Tabor, 422 N.E.2d 1279, 1284-85 (Ind. App. 1981) (same). Likewise, a
malicious prosecution claim cannot be premised on a dismissal that was entered in order to
enable the plaintiff to file the claim in another forum. See Ramsey v. Leath, 706 F.2d 1166, 1170-
71 (11th Cir. 1983). Conversely, an involuntary dismissal resulting from plaintiff's failure to
comply with discovery serves as a favorable termination due to the fact that a party who fails to
produce evidence, in essence, fails to prosecute. See Lumpkin v. Friedman, 131 Cal. App. 3d 450,
182 Cal. Rptr. 378 (1982); see also Nagy v. McBurney, 120 R.I. 925, 392 A.2d 365 (1978)
(holding that involuntary dismissal for failure to file court-ordered bill of particulars constitutes
favorable termination).
We agree with the reasoning espoused by the courts of our sister states. We regard the
Restatement's treatment of the favorable termination requirement as more balanced than our
appellate court's interpretation as set forth in Siegel. Nevertheless, defendants criticize the
Restatement approach as being too sweeping in its scope. We disagree. Contrary to defendants'
arguments, we do not necessarily view the Restatement's position, as expressed in the case law,
as more expansive than our appellate court's interpretation. As the case law demonstrates, a
favorable termination is limited to only those legal dispositions that can give rise to an inference
of lack of probable cause. See also 54 C.J.S. Malicious Prosecution sec. 54 (1987) (dismissal
cannot serve as favorable termination if based solely on technical or procedural grounds). This,
of course, was one of the goals of the Siegel court. See Siegel, 127 Ill. App. 2d at 107
(acknowledging that even if the malicious prosecution plaintiff has obtained a favorable
termination in the underlying action, it "does not follow that [the underlying action had been]
initiated without foundation"). Unlike Siegel, however, the analysis set forth in the Restatement
contemplates that certain dispositions, although not obtained on the merits of the underlying facts,
may under certain circumstances give rise to an inference of a lack of probable cause. In contrast,
the Siegel rule has the unfortunate consequence of allowing those who utilize our courts for
wrongful purposes to do so with impunity so long as they obtain a nonfactual disposition of the
action. Under this approach, a disingenuous plaintiff can merely nonsuit his or her frivolous
lawsuit in order to guard against a future malicious prosecution action. See Arora, 279 Ill. App.
3d at 336 (McLaren, J., dissenting); see also Marbourg v. Smith, 11 Kan. 554, 562-63 (1873)
(recognizing, as early as 1873, the problems inherent in allowing a plaintiff to avoid a malicious
prosecution action by nonsuit). In our view, the Restatement's position best balances the right
of citizens to have free access to our courts and the right of the individual to be free from being
haled into court without reason, thereby better serving the interests of justice.
Defendants also maintain that the existence of our Rule 137 provides an additional reason
for this court not to depart from the appellate court's interpretation of the favorable termination
requirement. They submit that the rule provides an adequate remedy for suits not well grounded
in law or in fact. We must summarily reject this argument. Although Rule 137 was adopted as
a means of preventing false and frivolous filings, it was not meant to preempt our existing tort
law. The courts of this state have recognized, both before and after the adoption of Rule 137, the
viability of a cause of action sounding in malicious prosecution.
In addition, our decision to follow the Restatement view on this issue is consistent with
our recent opinion in Swick v. Liautaud, 169 Ill. 2d 504, 513 (1996). In Swick, we addressed
whether a nolle prosequi was a favorable termination in the context of malicious prosecution of
an underlying criminal action. This court, without dissent, adopted the Restatement's approach
to the question and held that a nolle prosequi may serve as a favorable termination unless the
prosecution was abandoned for reasons not indicative of the innocence of the accused. Swick, 169 Ill. 2d at 513. Indeed, we stressed that it was the circumstances surrounding the entry of the nolle
prosequi that must be examined and not the mere form or title of the disposition. Swick, 169 Ill. 2d at 513-14. We today provide similar guidelines for malicious prosecution suits which are
predicated upon prior civil proceedings.
Having adopted the Restatement approach, we find that plaintiff's complaint in this case,
which alleges that each of the underlying actions were terminated in its favor either by the entry
of summary judgment or by dismissal (voluntary and involuntary), satisfies the favorable
termination requirement, at least for purposes of defendant's motion to dismiss under section 2--
615. Whether or not these dispositions ultimately are proved by plaintiff to be indicative of a lack
of probable cause remains a question of fact which cannot be answered at this stage of the
litigation. See Swick, 169 Ill. 2d at 514 (recognizing that at trial, plaintiff must adduce evidence
to meet its burden of proof that the prior proceedings were terminated under circumstances
indicative of plaintiff's innocence). See also Nelson, 233 Kan. at 125-26, 660 P.2d at 1364;
Abbott, 718 F. Supp. at 834.
Accordingly, the circuit court erred in ruling that plaintiff had failed to sufficiently allege
the favorable termination of the underlying actions at issue.
Special Damage or Injury
We must next determine whether plaintiff's complaint adequately pleaded special injury
or damage. Like the favorable termination requirement, the necessity of pleading some special
injury or damage is firmly rooted in our jurisprudence. In one of the earliest references to the
requirement, this court, in 1898, examined whether damages can be recovered for the malicious
prosecution of an "ordinary civil suit, begun by personal service of process, and unaccompanied
either by an arrest of the person or by seizure of property." Smith v. Michigan Buggy Co., 175 Ill. 619, 624 (1898). The underlying suit in question in Smith was an unsuccessful action for
fraudulent misrepresentation brought by an employer against one its salesman. Citing both
American and English common law principles, this court determined that without the arrest of
the person or the seizure of the person's property or some "other special injury," a cause of
action for the malicious prosecution would not lie in civil actions. Smith, 175 Ill. at 627. In
reaching this conclusion, the court stressed its decision was grounded upon the fact that the courts
are open to every citizen to claim what "he deems to be his right without fear of being
prosecuted for heavy damages." Smith, 175 Ill. at 628. Thus, the ordinary trouble and expense
which arise from "ordinary forms of legal controversy, should be endured by the law-abiding
citizen as one of the inevitable burdens, which men must sustain under civil government."
(Emphasis added.) Smith, 175 Ill. at 629.
The issue of what type of lawsuit constitutes an "ordinary form of legal controversy" was
again addressed by this court some 22 years later in Norin v. Scheldt Manufacturing Co., 297 Ill. 521 (1921). There, the Scheldt Manufacturing Company filed a petition in bankruptcy against
Norin, requesting that Norin be adjudged a bankrupt. Scheldt filed the petition on publication
alone. When Norin failed to appear in the proceeding, the court entered a bankruptcy judgment
against him. Norin later learned of the bankruptcy action and began vacatur proceedings. During
the hearing to set aside the default, one of Scheldt's officers admitted he had known Norin's
place of residence at the time service by publication was obtained. Moreover, Scheldt admitted
that it had been unable to prove Norin's insolvency at the time it filed its petition. Accordingly,
the court vacated its previous judgment and dismissed the bankruptcy petition. Norin thereafter
brought suit against Scheldt to recover damages for the malicious prosecution of the bankruptcy
action. Scheldt contended that Norin had failed to satisfy the special injury requirement because
(i) the bankruptcy judgment had ultimately been vacated, and (ii) Norin's property had not been
seized. Scheldt concluded therefore that the bankruptcy litigation constituted a mere "ordinary"
civil action. On appeal, this court rejected that argument. In doing so, we concluded that the
bankruptcy action could not be considered ordinary because of the "far-reaching and drastic"
effects associated with that proceeding. Norin, 297 Ill. at 525. In fact, because of the peculiar,
sui generis nature of a bankruptcy action, this court deemed irrelevant the fact that Norin's
property was not seized. We explained that suits "which are themselves unusual in their effect
upon the defendant" fall outside the special injury requirement established in Smith. Norin, 297 Ill. at 527.
Subsequently, in Shedd v. Patterson, 302 Ill. 355 (1922), this court had further opportunity
to shape the contours of the special injury requirement. In that case, the plaintiff brought a
malicious prosecution action against defendant after the defendant had filed nine successive
lawsuits against plaintiff, all of which related to the foreclosure of a leasehold estate for unpaid
rents. The circuit court dismissed the action, and the appellate court affirmed. The appellate court
ruled that under this court's decisions in Smith and Norin, the nine unsuccessful prior actions
constituted "ordinary" litigation; therefore, plaintiff had not suffered any special injury. This court
thereafter granted plaintiff leave to appeal and reversed the judgment of the appellate court.
Although this court initially acknowledged that the Illinois courts are open to all litigants for the
settlement of their rights without fear of retributive litigation, it nevertheless held that Smith and
Norin could not be viewed as providing immunity in the case of successive suits after a party has
had his or her rights finally adjudicated. Shedd, 302 Ill. at 360. Specifically the court stated that
after a party has "had his day in court and his right has been conclusively determined," he may
not return to court to "harass" the same opponent about the same issues. Shedd, 302 Ill. at 360.
It is against this precedential backdrop, and, in particular, Shedd, that we must examine
whether the special injury rule has been satisfied by the facts as alleged in this case. Defendants
maintain that although multiple suits are involved here, the instant case is distinguishable from
Shedd because each of the prior actions here were brought by different plaintiffs in different
jurisdictions, concerning different sets of operative facts. Defendants also point out that each of
the prior actions in Shedd, unlike those here, were filed successively after the first action had
been finally and conclusively determined. Plaintiff, on the other hand, acknowledges the
dissimilarities between the cases, but nevertheless submits that the principles concerning multiple
suits announced in Shedd apply with equal force to the case at bar. Plaintiff contends that the
filing of 21 meritless lawsuits against plaintiff during a 17-month period constitutes a special
injury regardless of the fact that the suits were filed concurrently rather than consecutively.
Plaintiff submits, therefore, that it should be allowed a remedy for this harm.
We agree with defendants that Shedd is factually distinguishable from the case at bar. In
Shedd, this court was confronted with a single litigant who, having invoked the power of the
judiciary to decide his grievance and having lost, refused to accept the judgment of the court and
continued to litigate the matter. This court would not permit the court system to be used in such
a manner, and thus it stated in pertinent part:
"Law is the foundation of civil government, and its administration and the
means for its enforcement are essential to the maintenance of rights and the
stability of the social order. To that end courts are created and maintained at the
public expense, and are, and should be, open for the redress of grievances and the
enforcement of rights, but that affords no reason for requiring them to employ
their time to the prejudice of other litigants and the public business, to enable a
party whose rights have been finally and conclusively determined to harass the
same party about the same thing. *** In this case the courts had repeatedly
decided that the defendant had no grievance, and the substantial questions
involved were finally and conclusively settled [15 years earlier] in Patterson v.
Northern Trust Co. 231 Ill. 22." Shedd, 302 Ill. at 360-61.
Clearly, what concerned this court in Shedd, to a large extent, was the fact that a litigant who
had already been given his day in court, and had lost, continued to use the same purported
grievance as a subterfuge for conducting a personal crusade of harassment under the guise of
rightful litigation. In this case, however, the same plaintiff is not involved in repeated litigation
and the multiple suits in question were not filed successively but concurrently. Therefore, Shedd
is factually inapposite to the case at bar.
Nevertheless, the fact that Shedd is not factually on all fours with the present case does
not spell victory for defendants. A common theme with respect to the special injury rule which
runs throughout all of this court's opinions on the subject, including Shedd, is this court's
recognition of its responsibility to maintain a proper balance between the societal interest in
preventing harassing suits and in permitting the honest assertion of rights in our court rooms. See
Shedd, 302 Ill. at 360. As our case law amply demonstrates, it is this balance which lies at the
heart of the special injury rule (see Smith, 175 Ill. at 628-29; Norin, 297 Ill. at 526-27; see also
Friedman v. Dozorc, 412 Mich. 1, 67, 312 N.W.2d 585, 612 (1981) (Coleman, C.J., dissenting
in part and concurring in part); Note, Groundless Litigation and the Malicious Prosecution
Debate: A Historical Analysis, 88 Yale L.J. 1218, 1230 (1979)), and it is this balance, and not
the facts in Shedd, which ultimately must determine the propriety of the instant action. Ironically,
it is one of the critical differences between the facts in Shedd and the facts as alleged in this case
which compels the conclusion that this delicate balance has been upset in this case. In contrast
to Shedd, which involved only two litigants disputing the foreclosure of a leasehold estate, the
present case involves allegations that a large national corporation improperly induced its members
to engage in a national campaign of simultaneous malicious prosecution. Plaintiff has alleged that
the Church of Scientology instituted the simultaneous suits, not to resolve any legal dispute
between the parties, but to keep plaintiff from engaging in its business of disseminating
information regarding religious freedom. The invidiousness of the alleged conspiracy is best
reflected in the fact that plaintiff was sued 21 times over the course of a 17-month period in
jurisdictions ranging from New York to California. Such a sustained onslaught of litigation can
hardly be deemed "ordinary" if plaintiff can prove that the actions were brought without probable
cause and with malice. In view of these circumstances, we believe that plaintiff has set forth
facts, which if proved true, satisfy our special injury rule.
Notwithstanding the above, defendants submit that if this court were to conclude that the
special injury requirement has been met in this case, we would be infringing upon defendants'
exercise of their first amendment rights. Specifically, defendants rely upon several United States
Supreme Court decisions which have held that the litigation activities of a national membership
organization, including encouraging, financing, and coordinating a series of lawsuits challenging
discriminatory practices, are protected by the first amendment. See National Ass'n for the
Advancement of Colored People v. Button, 371 U.S. 415, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963);
United Mine Workers of America, District 12 v. Illinois State Bar Ass'n, 389 U.S. 217, 19 L. Ed. 2d 426, 88 S. Ct. 353 (1967). While we do not dispute the correctness of these Supreme Court
decisions, we do dispute the defendants' reliance upon them. The Constitution affords protection
to the honest litigator in search of resolutions to true legal disputes; however, it does not provide
the right to any individual to assist another, with money or otherwise, in the prosecution of a suit
which has been filed with malice and without probable cause. In any event, we stress that
defendants have challenged plaintiff's complaint by way of a section 2--615 motion to dismiss.
Such a motion merely addresses the allegations contained within the four corners of plaintiff's
complaint. Therefore, defendants' constitutional argument, which is a fact-dependent defense to
the action grounded in probable cause, cannot be considered in the context of the present motion
to dismiss. Nothing in our opinion prevents defendants from raising the first amendment's
protections at the appropriate juncture in this case.
As a final matter, we wish to stress that our holding with respect to the special injury
requirement should not be viewed as a rejection of the rule as set forth in our earlier opinions.
We further emphasize that today's decision should not be read to mitigate the strict requirement
that a malicious prosecution plaintiff show not only that the action complained of has been
terminated, but that it was commenced maliciously and without probable cause. These latter two
required elements are no easy hurdle for a plaintiff, as many courts and commentators have
noted. See Barrett, 530 So. 2d at 735-36; Friedman, 412 Mich. at 65-66, 312 N.W.2d at 611
(Coleman, C.J., dissenting in part and concurring in part); Kaufman v. Shefman, 169 Mich. App.
829, 840, 426 N.W.2d 819, 824 (1988); Restatement (Second) of Torts sec. 675, Comments a
through d (1976). An action for malicious prosecution remains one that is disfavored in law.
CONCLUSION
In view of the foregoing analysis, we hold that plaintiff has sufficiently alleged the
elements of the tort of malicious prosecution and, for purposes of this case, the tort of civil
conspiracy to commit malicious prosecution. The circuit court, therefore, erred in dismissing the
amended complaint. Accordingly, we reverse the judgments of the appellate and circuit courts,
and remand the matter to the circuit court for further proceedings consistent with this opinion.
Judgments reversed;
cause remanded.
JUSTICE McMORROW took no part in the consideration or decision of this case.
[fn1] We note that plaintiff has stated in its brief that 24 separate suits were filed during this
period. Moreover, the appellate court opinion also referred to plaintiff's allegations regarding 24
different actions. 279 Ill. App. 3d at 70. Nevertheless, our review of plaintiff's complaint reveals
that in one of the actions, identified in the complaint as the "Ward et al. Lawsuits," four different
church members were named as joint plaintiffs in a single suit. Therefore, only 21 lawsuits were
actually referenced in plaintiff's complaint.
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