Illinois Official Reports 

Appellate Court

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

Appellate Court 

Caption

DONALD SZCZESNIAK, Plaintiff-Appellant, v. CJC AUTO 

PARTS, INC., and GREGORY VERZAL, Defendants-Appellees.

District & No. Second District

Docket No. 2-13-0636

Filed October 29, 2014

Held

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the 

Reporter of Decisions 

for the convenience of 

the reader.)

In an action for malicious prosecution arising from plaintiff’s acquittal 

in a criminal prosecution for using checks which were returned for 

insufficient funds to pay for automobile parts he purchased at 

defendant’s store, the trial court properly entered summary judgment 

for defendants, since the criminal prosecution was not commenced or 

continued by defendants, but by two police officers who conducted an 

independent investigation based on information provided by 

defendant owner, and, in the absence of any evidence that the police 

acted without probable cause or any purpose other than seeking 

justice, plaintiff failed to show any malice was involved.

Decision Under 

Review

Appeal from the Circuit Court of Du Page County, No. 11-L-1258; the 

Hon. John T. Elsner, Judge, presiding.

Judgment Affirmed.
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Counsel on

Appeal

William G. Hutul, of William G. Hutul, P.C., of Carol Stream, for 

appellant.

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

of Wheaton, for appellees.

Panel JUSTICE BIRKETT delivered the judgment of the court, with 

opinion.

Justices Zenoff and Jorgensen concurred in the judgment and opinion.

 OPINION 

¶ 1 This case arose after plaintiff, Donald Szczesniak, was tried for knowingly passing to 

defendant CJC Auto Parts, Inc. (CJC), checks for which there were insufficient funds (720 

ILCS 5/17-1(B)(d) (West 2008)). At a bench trial, plaintiff was acquitted. Plaintiff then filed 

against CJC and its owner/operator, defendant Gregory Verzal, a malicious-prosecution 

action, which resulted in the entry of summary judgment in favor of defendants and against 

plaintiff. Plaintiff appeals, contending that the trial court erred in granting summary 

judgment, because Verzal knowingly filed a false police report. We affirm. 

¶ 2 I. BACKGROUND 

¶ 3 We summarize the facts of record. Verzal owns CJC, an automobile parts store, and 

regularly conducted business with plaintiff between 2003 and 2008. In July 2008, plaintiff 

provided defendants with two postdated checks (claiming that this was in accord with his and 

defendants’ custom), one for $330.84 and another for $717.01, drawn from different 

accounts. When defendants attempted to cash the checks (after the date specified by 

plaintiff), both checks were returned for insufficient funds. Plaintiff did not inform 

defendants that the accounts had insufficient funds until seven days after defendants 

attempted to cash the checks. Plaintiff later issued a third check (for $100 from a third 

account) in November 2008. This check was also returned for insufficient funds. In addition 

to the $1,147.85 that plaintiff owed for the returned checks, he also had a running credit 

account with defendants for other purchases. 

¶ 4 Plaintiff made payments to defendants for the credit account; however, he did not make 

payments on the debt from the returned checks. After plaintiff stopped making payments and 

would not return defendants’ calls, Verzal went to the police. The police called plaintiff, who 

insisted that he was making payments toward the debt from the returned checks, pursuant to a 

payment plan. Plaintiff later admitted that no payment plan was actually in place. After a 

roughly six-month independent investigation, the State charged plaintiff with knowingly 

writing checks for which there were insufficient funds. See 720 ILCS 5/17-1(B)(d) (West 
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2008). In a 2011 bench trial, following the close of the State’s case-in-chief, the trial court 

entered a directed finding of acquittal. 

¶ 5 Thereafter, plaintiff filed a civil suit against defendants, asserting one count of malicious 

prosecution. Subsequently, the trial court granted summary judgment in favor of defendants 

and against plaintiff, reasoning that plaintiff had failed to show both that defendants had 

commenced the criminal proceeding and that there was an absence of probable cause to 

prosecute plaintiff. Plaintiff timely appeals. 

¶ 6 II. ANALYSIS 

¶ 7 On appeal, plaintiff contends that the trial court erred in granting summary judgment in 

favor of defendants. Specifically, plaintiff argues that summary judgment was precluded 

because genuine issues of material fact exist regarding the essential elements of the tort of 

malicious prosecution. 

¶ 8 Before addressing the merits of the appeal, we first choose to discuss plaintiff’s brief and 

its multiple violations of Illinois Supreme Court Rule 341 (eff. Feb. 6, 2013). Rule 341(h)(6) 

requires the appellant to include a “Statement of Facts” outlining the pertinent facts 

“accurately and fairly without argument or comment, and with appropriate reference to the 

pages of the record on appeal.” Ill. S. Ct. R. 341(h)(6) (eff. Feb. 6, 2013). Plaintiff has 

violated this rule by providing inaccurate facts,1

 being argumentative, 2 and failing to 

provide citations to the record for numerous factual assertions. The Illinois Supreme Court 

Rules are not suggestions; they have the force of law and must be complied with. People v. 

Campbell, 224 Ill. 2d 80, 87 (2006). Where a brief has failed to comply with Rule 341(h)(6), 

we may strike the statement of facts or dismiss the appeal should the circumstances warrant. 

Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, ¶ 9. In this case, because 

plaintiff’s violations do not hinder our review, we will neither strike his statement of facts 

nor dismiss the appeal (McMackin v. Weberpal Roofing, Inc., 2011 IL App (2d) 100461, ¶ 3), 

but we will disregard the noncompliant portions of plaintiff’s statement of facts. We also 

admonish counsel to follow carefully the requirements of the supreme court rules in future 

submissions. We now turn to whether the trial court properly granted summary judgment in 

favor of defendants and against plaintiff. 

¶ 9 Summary judgment is appropriate “if the pleadings, depositions, and admissions on file, 

together with the affidavits, if any, show that there is no genuine issue as to any material fact 

and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) 

(West 2012). In determining whether any genuine issue of material fact exists, the record and 

the arguments “must be construed strictly against the movant and liberally in favor of the 

opponent.” Mashal v. City of Chicago, 2012 IL 112341, ¶ 49. A genuine issue of material fact 

exists when the parties dispute a material fact or, where the material facts are not in dispute, 

reasonable persons could draw different inferences from the undisputed facts. Id. A party 

contesting summary judgment is required to provide some factual basis in support of every 

 

1One example is the mischaracterization of Verzal’s statement to the police. Plaintiff attempts to 

portray Verzal as having denied receiving payments for any of plaintiff’s debts, but Verzal actually 

denied receiving payment only for the debt from the returned checks. 

2E.g., claiming that Verzal “lied” to the police and then further claiming that the lie was the primary 

factor behind the commencement of the criminal proceeding. 
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element of his or her claim. Brooks v. Brennan, 255 Ill. App. 3d 260, 262 (1994). Because 

summary judgment is a drastic method of terminating litigation, it should be granted only 

where the moving party’s entitlement “is clear and free from doubt.” Mashal, 2012 IL 

112341, ¶ 49. A trial court’s ruling on a motion for summary judgment is reviewed de novo. 

Bridgeview Health Care Center, Ltd. v. State Farm Fire & Casualty Co., 2014 IL 116389, 

¶ 12. 

¶ 10 In order to establish a claim of malicious prosecution, a plaintiff must demonstrate: (1) 

the commencement or continuance of an original criminal or civil judicial proceeding by the 

defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of 

probable cause; (4) malice; and (5) damages. Gauger v. Hendle, 2011 IL App (2d) 100316, 

¶ 99. The failure to establish any one of the five elements will cause the 

malicious-prosecution claim to fail. Id. In granting summary judgment here, the trial court 

focused on elements (1) and (3) (commencement and probable cause) and held that plaintiff 

had provided no evidence in support of either element to demonstrate the existence of a 

genuine issue of material fact. Defendants argue that summary judgment was proper because 

plaintiff supplied no evidence to support elements (1), (3), and (4) (commencement, probable 

cause, and malice). We address each contested element in turn. 

¶ 11 The first element of malicious prosecution requires a plaintiff to show that the defendant 

commenced or continued the original criminal proceeding. Id. Here, plaintiff contends that 

defendants commenced a criminal proceeding against him when they contacted the police 

about the returned checks and Verzal gave a statement to the police. A criminal proceeding is 

commenced when a complaint, an information, or an indictment is filed. 725 ILCS 5/111-1 

(West 2012). A citizen must do more than give false information to the police in order to be 

deemed responsible for commencing a prosecution. Randall v. Lemke, 311 Ill. App. 3d 848, 

850 (2000). A private citizen commences a criminal proceeding when he or she “knowingly

gives false information to a police officer, who then swears out a complaint.” (Emphasis in 

original.) Id. Even if an informer knowingly provides false information, he or she is not liable 

for “commencing” a criminal proceeding if the prosecution is based upon separate or 

independently developed information. Id. at 851. Alternatively, a plaintiff must supply 

evidence showing that the defendant continued the proceeding by actively encouraging the 

prosecution despite knowing that no probable cause existed. Denton v. Allstate Insurance Co., 

152 Ill. App. 3d 578, 584 (1986). 

¶ 12 Plaintiff incorrectly claims that the record shows that defendants both commenced and 

continued the proceeding. To establish that defendants commenced the proceeding, plaintiff 

contends that Verzal “lied” to the police by stating that he had not received payments from 

plaintiff for the debt. However, a close reading of the record reveals that plaintiff has 

misrepresented the evidence to reach his conclusion. Plaintiff mischaracterizes as a “lie” 

Verzal’s statement to the police about not receiving payments for the debt. This is 

demonstrated by noting that, in addition to owing defendants for the returned checks, 

plaintiff also owed defendants for items previously purchased on his credit account. The 

record shows that, when Verzal told the police that he had not received payment from 

plaintiff, he was speaking about the returned checks only. As plaintiff had made no payments 

on the returned checks, Verzal’s statement was not a lie, but was a correct statement of fact 

and thus does not support plaintiff’s conclusion that defendants commenced the criminal 

proceeding. 
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¶ 13 Nevertheless, even if Verzal had lied to the police, defendants would still not be liable for 

commencing the proceeding. After Verzal gave his statement to Officer Klecka, the officer 

contacted plaintiff and investigated the claim himself. Once Officer Klecka made his initial 

report, the case was transferred to Officer Thiede, who conducted another independent 

investigation. At the end of this six-month investigation, Officer Thiede determined that 

sufficient evidence existed to seek a warrant for plaintiff’s arrest. Because the arrest was 

based on the investigation by Officer Thiede, whether Verzal lied in his statement to Officer 

Klecka is irrelevant because the arrest was based on separate and independent information 

developed by Officer Thiede. Randall, 311 Ill. App. 3d at 851. Thus, not only was Verzal’s 

statement about plaintiff’s failure to make payments true, it was superseded and rendered 

immaterial by the independent investigations of two different police officers who developed 

sufficient evidence to seek plaintiff’s arrest and prosecution. 

¶ 14 Plaintiff also asserts that defendants continued the proceeding, because Verzal failed to 

inform the police that the parties had a payment plan. We initially note that plaintiff has not 

directly supported his contention that failing to give information is the same as giving false 

information. For this reason alone, we could resolve the issue in favor of defendants. Ill. S. 

Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (requiring supporting citation to pertinent authority); see 

also Denton, 152 Ill. App. 3d at 584 (liability for malicious prosecution cannot be predicated 

on the failure to act). We note, however, that plaintiff cites Pratt v. Kilborn Motors, Inc., 48 

Ill. App. 3d 932 (1977). Plaintiff’s purpose in citing Pratt is to support a contention that 

probable cause could not be established where a police investigation relied on an informant’s 

lies. Id. at 935-36 (citing Restatement of Torts, Explanatory Notes § 653 cmt. g, at 386 

(1938)). This is a somewhat different point than equating the withholding of information to 

the giving of false information, but, in dictum, Pratt states that, where an informant has given 

a truthful account to the police, but has withheld crucial information that would otherwise 

influence or stop the prosecution, with the intent to paint a misleading picture and commence 

or continue the prosecution, “[s]trong argument can be made that for the complainant to give 

truthful information indicating the commission of the offense later charged and to withhold 

other information that would prevent the conduct complained of from being a crime would 

also negate the prosecutor’s exercise of discretion [and render the complainant liable for 

commencing or continuing the prosecution].” Id. at 936. Pratt, however, is inapt, because 

plaintiff charges that it was Verzal’s failure to inform the police about the existence of a 

payment plan that led to the continuance of the criminal investigation and presumably the 

prosecution. In plaintiff’s deposition, he admitted that there was no payment plan. Thus, 

plaintiff is effectively arguing that the prosecution was continued because Verzal did not 

falsely inform the police that a payment plan existed. Plaintiff’s own testimony, 

acknowledging that there was, in fact, no payment plan, dooms this line of argument to 

failure. Therefore, even if, as plaintiff argues, Officer Thiede would not have pursued 

charges had Verzal stated that CJC had received some payments and that a payment plan 

existed, such an argument is irrelevant, because the hypothetical situation that would have 

caused Officer Thiede to conclude his investigation without a prosecution did not actually 

exist. Plaintiff, then, cannot demonstrate the existence of a genuine issue of material fact 

where he has failed to present any evidence to support his arguments. Accordingly, the trial 

court properly determined that plaintiff could not show that defendants either commenced or 

continued the proceeding. 
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¶ 15 Because plaintiff has failed to show that defendants either commenced or continued the 

proceeding, plaintiff’s claim fails from the lack of an essential element of the claim, and our 

analysis is complete. However, we continue to examine the remaining challenged elements to 

provide alternative reasons why plaintiff’s claim fails. Accordingly, we turn to element (3), 

the absence of probable cause. 

¶ 16 “In a malicious-prosecution case, probable cause is defined as ‘a state of facts that would 

lead a person of ordinary care and prudence to believe or to entertain an honest and sound 

suspicion that the accused committed the offense charged.’ ” (Emphasis omitted.) Gauger, 

2011 IL App (2d) 100316, ¶ 112 (quoting Fabiano v. City of Palos Hills, 336 Ill. App. 3d 

635, 642 (2002)). “ ‘It is the state of mind of the person commencing the prosecution that is 

at issue–not the actual facts of the case or the guilt or innocence of the accused.’ ” Id.

(quoting Sang Ken Kim v. City of Chicago, 368 Ill. App. 3d 648, 654 (2006)). The relevant 

time for probable cause to have existed is when the criminal complaint was initiated. 

Id. ¶ 115. Whether probable cause existed is a mixed question of law and fact. Fabiano, 336 

Ill. App. 3d at 642. It is a question of fact as to whether the alleged circumstances were 

present, while it is a question of law as to whether the circumstances present amounted to 

probable cause. Id.

¶ 17 Plaintiff argues that there was no probable cause to complain to the police about the 

returned checks, because defendants did not believe that plaintiff had the necessary intent to 

defraud when he drew the returned checks. This argument fails because it is not the beliefs of 

defendants that are examined. Instead, it is the “ ‘state of mind of the person commencing the 

prosecution.’ ” Gauger, 2011 IL App (2d) 100316, ¶ 112 (quoting Sang Ken Kim, 368 Ill. 

App. 3d at 654). As previously discussed, defendants did not commence the prosecution; 

Officer Thiede commenced the prosecution. Therefore, evidence of defendants’ state of mind 

is irrelevant. As plaintiff has pointed to no evidence indicating that Officer Thiede lacked 

probable cause, he has not demonstrated the existence of a genuine issue of material fact, and 

summary judgment was properly granted as to this element of malicious prosecution. 

¶ 18 Plaintiff alternatively argues that Verzal’s deposition provides evidence that defendants 

knew that no probable cause existed. This argument is misplaced because, again, it focuses 

on defendants and not on Officer Thiede. Nevertheless, we address the argument on its own 

terms. Specifically, plaintiff cites Verzal’s admission that he “understood that [plaintiff] was 

still trying to make good on accounts.” Plaintiff’s reliance on this statement is unavailing, 

because it does not indicate that defendants knew that plaintiff originally had no intent to 

defraud. Rather, the statement shows only that defendants were aware that plaintiff was 

attempting to make amends for acts that had financially injured defendants. Because Verzal’s 

statement does not indicate that defendants believed that plaintiff had no intent to defraud 

when plaintiff wrote the checks, plaintiff has failed to demonstrate that the record shows an 

absence of probable cause. Accordingly, we hold that plaintiff has failed to demonstrate the 

existence of a genuine issue of material fact regarding the element of probable cause. 

¶ 19 Finally, while not addressed by the trial court, we consider the parties’ arguments 

regarding the element of malice. “Malice,” in the context of a malicious-prosecution claim, is 

the commencement of a criminal proceeding for a purpose other than to bring a party to 

justice. Gauger, 2011 IL App (2d) 100316, ¶ 122; Rodgers v. Peoples Gas, Light & Coke Co., 

315 Ill. App. 3d 340, 349 (2000). 
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¶ 20 Plaintiff asserts that there is a genuine issue of material fact as to whether defendants 

acted with malice, pointing to Verzal’s statement that he sought to have the State collect the 

debt through the criminal case. Malice, as explained, is the commencement of a proceeding 

under improper motives. Gauger, 2011 IL App (2d) 100316, ¶ 122. Verzal’s statement seems 

to fall outside of proper motives and into an improper motive. See Robinson v. 

Econ-O-Corporation, Inc., 62 Ill. App. 3d 958, 961-62 (1978) (malice means that the party is 

motivated by indirect and improper motives, which means any purpose other than bringing a 

guilty party to justice; the defendant signed a complaint on a returned check in order to 

collect a debt, and this was held to be “malice”). Gauger explains that “[m]alice may be 

inferred from a lack of probable cause only where there is no credible evidence that refutes 

that inference.” Gauger, 2011 IL App (2d) 100316, ¶ 122. Plaintiff argues that Gauger is 

factually and procedurally inapposite, and we agree that Gauger is not analogous to the facts 

of this case, but it does give a complete and correct statement of the law of malicious 

prosecution, and this is the precise purpose for which we rely on it. 

¶ 21 That said, Gauger’s point about the inference of malice from a lack of probable cause is 

both well established and somewhat overlooked by plaintiff. See Denton, 152 Ill. App. 3d at 

587-88 (noting that lack of probable cause must be “clearly proved” in order to infer the 

element of malice). Plaintiff, of course, can argue that malice need not be inferred here, 

because Verzal’s statement that he wanted to collect the debt expressly demonstrates his 

improper purpose and the existence of malice. Verzal’s statement, however, is actually 

rebutted by his actions. If Verzal had wanted only to “collect the debt,” he could have 

initiated a civil action on the returned checks rather than going to the police. Further, among 

the penalties plaintiff faced in the criminal prosecution was restitution of the amount of the 

returned checks. 730 ILCS 5/5-5-6 (West 2008). Verzal, who is not a legal expert, might 

have meant only that he expected a guilty verdict and the imposition of restitution when he 

stated that he complained to the police in order to collect the debt. Verzal’s statement, then, 

appears ambiguous and suggests that there is at least a factual issue on the element of malice 

that might prevent the entry of summary judgment if all of the other elements were 

satisfactorily demonstrated. As elements (1) and (3) are clearly lacking, the determination 

that a factual issue exists regarding the imputation of malice to Verzal’s actions is of no 

moment. 

¶ 22 More importantly, and dispositive of the issue of malice, is the fact that plaintiff is 

focusing on the wrong actor. Defendants did not initiate the criminal proceeding, as 

explained above; it was Officer Thiede who signed the criminal complaint after a six-month 

independent investigation, and it is malice on the part of Officer Thiede that would be 

relevant. Thus, although Denton, which deals with the inference of malice, might not apply to 

Verzal’s actions, it fully applies to Officer Thiede’s actions, and malice may be inferred only 

through clear proof that there was no probable cause to prosecute when Officer Thiede 

signed the criminal complaint. Denton, 152 Ill. App. 3d at 587-88. As we have seen, 

however, plaintiff presented no evidence that Officer Thiede lacked probable cause when he 

signed the complaint, so plaintiff likewise could not establish the inference of malice in 

Officer Thiede’s actions. Accordingly, we hold that plaintiff failed to establish malice, 

because defendants did not commence the criminal prosecution and plaintiff did not present 

any evidence that Officer Thiede acted without probable cause and with any purpose other 
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than to bring a guilty party to justice. As to the element of malice, the trial court properly 

granted summary judgment in favor of defendants. 

¶ 23 III. CONCLUSION 

¶ 24 For the foregoing reasons, the judgment of the circuit court of Du Page County is 

affirmed. 

¶ 25 Affirmed.