Talamine v. Apartment Finders, Inc.Talamine v. Apartment Finders, Inc.
ORDER
¶ 1 Held: The court did not err in granting summary judgment to defendants. We have no jurisdiction to consider plaintiff‘s claim that the trial court improperly denied him the right to seek punitive damages because the court‘s order was not final and appealable.
¶ 2 Plaintiff, Robert Talamine, appeals from an order of the circuit court granting summary judgment to defendants, Apartment Finders, Inc., Justin Elliott, and John McGeown, on plaintiff‘s claims of malicious prosecution and false imprisonment, and prevеnting plaintiff from
¶ 3 BACKGROUND
¶ 4 Plaintiff worked as a leasing agent for Apartment People since April of 2000. Defendant Elliott worked for Apartment People but left to start Apartment Finders. Defendant McGeown is Apartment Finders’ marketing director. Apartment People and Apartment Finders are business competitors.
¶ 5 On November 28, 2006, two of Apartment Finders PT Cruisers were damaged when the rear tires were punctured. Each of the vehicles had the Apartment Finders name and logo printed on its side. Apartment Finders vehicles are important to the operation of the business as they are used regularly by leasing agents to drive clients interested in renting an apartment to available apartments around town.
¶ 6 One of the vehicles damaged was assigned to Apartment Finders leasing аgent Robert Geniusz. On November 28, 2006, Geniusz parked the vehicle on Clark Street just south of the Apartment Finders office located at 906 W. Belmont Avenue. When he returned the next day, Geniusz discovered the left rear tire was flat and had a “gash on the side of the wall.” Geniusz stated that this was the second time in the month of November that his assigned vehicle had been vandalized. The rear right tire had been slashed in mid-November.
¶ 7 The other Apartmеnt Finders vehicle was assigned to Ben Treutler, and was parked around the corner of the Apartment Finders Belmont location on North Wilton Avenue. In Treutler‘s deposition, he stated that after he discovered his vehicle had a flat, he noticed a cut on the sidewall of the tire. The record shows that Treutler filed a police report of the incident on
¶ 8 On December 4, 2006, Cameron Southern visited Apartment Finders and asked to speak with management about witnessing a person vandalizing an Apartment Finders vehicle. The record shows that Southern came to Apartment Finders unsolicited, he had no connection to Apartment Finders or Apartment People, he was not a friend to anyone who worked for either company, and never used their services in the past. Southern testified that he met with defendants Elliott and McGeown at Apartment Finders and reported to them that on November 28, 2006, while walking on Clark Street, south of Belmont, he witnessed a white male crouching by the rear tire of an Apartment Finders’ vehicle and saw him jerk a sharp object into the tire. Southern stated that he sаw the man drive away in a silver vehicle and that he memorized the license plate number because he was suspicious about what he saw. After the man drove away, Southern approached the Apartment Finders vehicle and saw that the tire was flat. He then went home and recorded the license plate number in his school notebook. Southern stated he did not go to the police right away or to Apаrtment Finders because he did not want to get involved. Only after further reflection did he decide that the right thing to do was go to Apartment Finders and tell them what he witnessed. Southern stated that when he spoke to the defendants he supplied them with his contact information and the license plate number of the vehicle that he recorded.
¶ 9 Later that day, defendants contacted the Chicago Police. Officers Garcia and Palikij
¶ 10 After learning that Officer Garcia and Office Palikij were going to arrest plaintiff, defendant McGeown, the marketing director of Apartment Finders, headed to Apartment People to photograph the arrest. When plaintiff was brought outside in handcuffs, dеfendant McGeown took a series of pictures of the police arresting the plaintiff and escorting him into the squad car. McGeown than went back to Apartment Finders, uploaded the pictures to his computer, and posted three ads with pictures of the defendant being arrested on Craigslist. McGeown stated that he showed his postings to a few of his colleagues in the office, but did not show them to his bosses, one оf which is defendant Elliott. Sometime later, defendant Elliott spoke with McGeown about the postings and criticized him for posting them.
¶ 11 A fourth posting, which McGeown denies creating, purports to be from a customer who
¶ 12 Ultimately, the States Attorney‘s office dismissed the charges against plaintiff because Southern, the eyewitness, did not appear on two occasions. The prosecutor moved the court to strike the case with leave to reinstate. The case was not timely reinstated and was dismissed.
¶ 13 The prosecutor, Assistant State‘s Attorney Aakre, stated that defendants never informed her that they personally witnessed the incident and she always knew that Southern‘s testimony was essential to prosecute the case. Further, she also testified that had the case proceeded to trial, she would have amended the charge to reflect it dealt with the vehicle located on Clark Street, which is where Southern indicated he witnessed the tire being slashed, rather than the vehicle damaged on N. Wilton Ave.
¶ 14 Following the conclusion of the criminal case, plaintiff filed a civil suit against defendants. In his fourth amended complaint, plaintiff alleged: count I malicious prosecution, count II false imprisonment, count III defamation, and count IV false light invasion of privacy. Thereafter, defendant filed a motion for summary judgment. Relevant to this appeal, defendants argued as to count I, that the police had probable cause to arrest plaintiff based on the information provided by the independent witness and therefore they acted without malice. As to count II, defendants argued that they had a good faith basis to believe that plaintiff had
¶ 15 ANALYSIS
¶ 16 Plaintiff first contends that the circuit court erred in granting summary judgment in favor of defendants on the mаlicious prosecution count because genuine issues of material fact exist with respect to probable cause and malice. Specifically, plaintiff argues there are factual questions as to whether the defendants knowingly commenced a criminal proceeding against the plaintiff without having probable cause and with malicious intent.
¶ 17 Summary judgment is appropriate where “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.”
¶ 18 This court generally disfavors malicious prosecution actions because public policy seeks
¶ 19 Defendants argue that summary judgment was proper in this case where plaintiff could not establish the third and fourth elements of malicious prosecution: absence of probable cause and malice. Plaintiffs argue that genuine issues of material fact existed with respect to both of these elements precluding the entry of summary judgment in defendant‘s favor. We discuss each element in turn.
¶ 20 The want of probable cause is an indispensable element of a malicious prosecution cause of action. Johnson, 341 Ill. App. 3d at 72. Conversely, the failure by the plaintiff to establish a question as to whether there may have been a complete absence of probable cause is fatal to any claim of malicious prosecution. Id. Indeed, the mere fact that thеre appears to have been probable cause to institute a criminal proceeding, alone, is sufficient to establish an absolute bar
¶ 21 In the context of a malicious prosecution action, probable cause is defined as the existence of a “state of facts that would lead a person of ordinary caution and prudence to believe, or to entertain an honest and strоng suspicion, that the person arrested committed the offense charged.” Burghardt v. Remiyac, 207 Ill. App. 3d 402, 405 (1991). The existence of a state of facts and suspicions may be obtained and relied upon through information provided by third parties, such as an independent witness. Harpham v. Whitney, 77 Ill. 32, 40 (1875). A mistake or error not amounting to gross negligence will not affect the question of probable cause when there is an honest belief by the complainant, at the time of subscribing a criminal complaint, that another is probably guilty of an offense. Turner v. City of Chicago, 91 Ill. App. 3d 931, 935 (1980).
¶ 22 Here, at the very least, there is the indicia of probable cause. The record shows the defendants were supplied reliable information, i.e., the offender‘s license plate number, from eyewitness Southern. From the information provided by Southern, the police were able to link plaintiff to the offense by way of his license plate number. Subsеquently, defendants signed a criminal complaint alleging that plaintiff damaged property. The record shows that on December 4, 2006, Southern went to the Apartment Finders and reported to the defendants that, on November 28, 2006, he witnessed a man slash a tire of an Apartment Finders vehicle parked on Clark Street and flee in a silver vehicle. In his deposition, Southern stated that he recorded the license plate number of the silver vehicle shortly after witnessing the crime and provided that same number to the defendants. It was only after defendants Elliott and McGeown received this
¶ 23 Plaintiff argues several other issues of material fact exist with respect to his claim for malicious prosecution, including that the criminal complaint only charged him with allegedly slashing the tire of defendants’ vehicle located at 3205 N. Wilton, and that Southern did not observe this incident based on his testimony that he witnessed a vehicle being vandalized on Clark Street. Also, given the history of animоsity Apartment Finders had displayed against Apartment People, the defendants falsely told police that they had witnessed plaintiff slashing tires. However, these arguments do not change our conclusion that defendants had probable cause to institute criminal proceedings. The independent eyewitness account of Southern and the police investigation that connected plaintiff to the license plate information provided by Southern would lead defendants to entertain an honest and strong suspicion that plaintiff criminally damaged the vehicle. This finding alone is sufficient to affirm the circuit court‘s granting of summary judgment to defendants on this claim. “If it appears that there was probable cause to institute the proceedings, such fact alone constitutes an absolute bar to an action for malicious
¶ 24 Given our finding оn probable cause, we need not examine whether there are questions of fact as to malice and we affirm the circuit court summary judgment ruling as to plaintiff‘s malicious prosecution count.
¶ 25 Plaintiff next contends that the circuit court erred in granting summary judgment on the false imprisonment count because genuine issues of material fact exist as to whether defendants had reasonable grounds to direct officers to arrest plaintiff, or, alternatively, that defendants’ complaint was the sole basis for plaintiff‘s arrest.
¶ 26 False imprisonment is defined as an unreasonable restraint of an individual‘s liberty, against his will, that is caused or procured by the defendant. Hajawii v. Venture Stores, Inc., 125 Ill. App. 3d 22, 25 (1984). In Illinois, an arrest by an officer caused or procured by a private citizen is the same as if the private citizen made the arrest. Carey v. K-Way, Inc., 312 Ill. App. 3d 666, 669 (2000). Liability may be held against a private citizen if it is fоund that he caused an unwarranted arrest of a third-party. Id.
¶ 27 The essential elements of a cause of action for false imprisonment against a private citizen are: (1) the plaintiff was or caused to be arrested by the defendant; and (2) the defendant acted without having reasonable grounds to believe that the plaintiff committed an offense. Karow v. Student Inns, Inc., 43 Ill. App. 3d 878, 881, (1976). In other words, when the defendants are private citizens, as in this case, false imprisonment actions cannot be maintained when the citizens had reasonable grounds to believe that the plaintiff committed the offense commenced. The fact that the private citizen provided information that was the sole basis for an
¶ 28 As previously discussed, the record shows that prior to signing the criminal complaint against the plaintiff, defendants were contacted by an eyewitness who observed the vehicle being damaged, saw the offender leave in a car and provided the license plate number of the vehicle he saw leave the scene. After a search of that license plate number, the police informed defendants it traced to the plaintiff‘s vehicle. As a result, defendants commenced criminal proceedings against plaintiff and plaintiff was arrested.
¶ 29 We have previously found that there was probable cause to overcome a charge of malicious prosecution as a matter of law. As we have found that there was sufficient evidence to give defendants probable cause to have commenced a criminal proceeding against the plaintiff, we conclude, аs a matter of law, that defendants acted with reasonable grounds to believe plaintiff committed the offense charged. Conseqeuntly, no genuine issue of material fact exists to preclude the entry of summary judgment in favor of defendants as to planitff‘s false imprisonment count. Accordingly, we affirm the circuit court granting the defendants summary judgment.
¶ 30 Finally, plaintiff argues that the circuit court erred in prohibiting him from seeking punitive damages on his defamation and false light claims, counts III and IV respectively. The court granted summary judgment in favor of defendants on counts I and II, and denied defendant‘s summary judgment motion as to counts III and IV, defamation and false light invasion of privacy, respectively. In the same order, the circuit court denied plaintiff the right to
¶ 31 Although neither party has raised the issue, we do not have jurisdiction to consider plaintiff‘s argument on this issue because the order denying plaintiff the right to seek punitive damages on counts III and IV was not a final appealable order. See Adoption of S.G. v. S.G., 401 Ill. App. 3d 775, 780 (2010) (quoting Physicians Insurance Exchange v. Jennings, 316 Ill. App. 3d 443, 453 (2000)) (parties cannot confer jurisdiction on this court as ” ‘appellate jurisdiction cannot be conferred by agreement.’ “).
¶ 32 An order is final and appealable if it terminates the litigation between the parties on the merits or disposes of the rights of the parties either on the entire controversy or on a separate part thereof. Revolution Portfolio, LLC v. Beale, 332 Ill. App. 3d 595, 598 (2002). A voluntary dismissal renders all final orders immediately appealable; however, an otherwise non-final order does not become final and appealable upon voluntary dismissal of a suit. Hernandez v. Bernstein, 2011 IL App (1st) 102646, ¶ 10.
¶ 33 Here, the order denying plaintiff the right to seek punitive damages on counts III and IV was an interlocutory order that did not terminate the litigation between the parties on the merits or dispose of the rights of the parties on part or all of the controversy. The order dealt with one aspect of plaintiff‘s claim for relief on the two remaining counts. There is nothing in the record that indicates plaintiff could not replead or otherwise attempt to pursue recovery of punitive
¶ 34 CONCLUSION
¶ 35 Based on the foregoing, we affirm the judgment of the circuit court granting summary judgment in favor of defendants on counts I and II. We have no jurisdiction to consider plaintiff‘s claim regarding punitive damages.
¶ 36 Affirmed in part; dismissed in part.