SECOND DIVISION

									December 31, 2002

No. 1-00-2676

DAVID ALLEN,

	Plaintiff/Appellant,

		v.

ANDREW BERGER and THOMAS WOLF,

	Defendants/Appellees.

)

)

)

)

)

)

)

)

)

Appeal from the

Circuit Court of

Cook County

98 L 04682

Honorable 

Michael J. Hogan, 

Judge Presiding

	PRESIDING JUSTICE McBRIDE delivered the opinion of the

court:

	Plaintiff David Allen and his former business partners,

defendants Andrew Berger and Thomas Wolf, were jointly indicted

by a federal grand jury for engaging in bribery and competitive

bid rigging in order to obtain supply contracts with the Chicago

Housing Authority.  Berger and Wolf pled guilty; however, the

charges against Allen were dismissed.  Allen then sued Berger and

Wolf for malicious prosecution and conspiracy to maliciously

prosecute, contending they had knowingly made false accusations

against Allen after he alerted federal authorities to their

criminal activity.  Berger and Wolf moved to dismiss Allen's

action pursuant to section 2-615 of the Code of Civil Procedure

(735 ILCS 5/2-615 (West 1998)).  Both defendants argued that they

were not the cause of Allen's prosecution because they had merely

provided information in an ongoing investigation.  Berger and

Wolf further argued that merely testifying, even falsely, does not satisfy the causation element of a malicious prosecution

claim.  The motion to dismiss was granted.  On appeal, Allen

contends the trial court misapplied the relevant legal

principles.  Allen argues that he sufficiently alleged the

element of causation when he indicated that Berger and Wolf

knowingly made false accusations against Allen in statements to

the Federal Bureau of Investigation and United States Attorney,

statements that were subsequently repeated before the federal

grand jury which indicted the former partners.  For the reasons

that follow, we reverse.

	A section 2-615 motion to dismiss attacks the legal

sufficiency of a complaint and questions whether the allegations,

viewed in a light most favorable to the plaintiff, are sufficient

to state a cause of action upon which relief may be granted. 

Rodgers v. Peoples Gas, Light & Coke Co., 315 Ill. App. 3d 340, 345, 733 N.E.2d 835, 840 (2000).  All well-pled facts are taken

as true and all reasonable inferences from those facts are drawn

in favor of the plaintiff.  Rodgers, 315 Ill. App. 3d at 345, 733 N.E.2d at 840.  "A cause of action will not be dismissed on the

pleadings unless it clearly appears that no set of facts can be

proved which will entitle the plaintiff to recover."  Rodgers, 315 Ill. App. 3d at 345, 733 N.E.2d at 840.  The question of

whether a complaint states a cause of action is a question of

law; therefore, we review Allen's complaint de novo.  Rodgers, 315 Ill. App. 3d at 345, 733 N.E.2d at 840.

	To state a claim for malicious prosecution, Allen was

required to allege facts showing (1) commencement or continuation

of a judicial proceeding by the defendants, (2) termination of

the prosecution in Allen's favor in a manner indicative of

Allen's innocence, (3) the absence of probable cause for the

proceeding, (4) the presence of malice, and (5) resulting

damages. Swick v. Liautaud, 169 Ill. 2d 504, 512, 662 N.E.2d 1238, 1242 (1996); Vincent v. Williams, 279 Ill. App. 3d 1, 3-4, 664 N.E.2d 650, 652  (1996).  The first element is also referred

to as "legal causation."  See, e.g., Geisberger v. Vella, 62 Ill. App. 3d 941, 943, 379 N.E.2d 947, 948 (1978).

	The relevant portion of Allen's first amended two-count

complaint indicates the following.  Allen, Berger, Wolf, and another individual were equal partners in an Illinois industrial

supply company called Dart.  William Fletcher was the head of the

Chicago Housing Authority's office of purchasing and contracts. 

Berger bragged to Allen that the housing agency was awarding

supply contracts to Dart without soliciting or taking competitive

bids because Berger and Wolf were bribing Fletcher and Fletcher's

aide.  Berger and Wolf were also preparing fake competitive bids

which Fletcher and the aide used to make it appear the contracts

were properly awarded.

	Further, after Allen informed the Federal Bureau of

Investigation (FBI) about Berger and Wolf's activities, the FBI

and United States Attorney for the Northern District of Illinois (U.S. Attorney) began investigating Dart.  Allen cooperated with

the investigation by giving various statements, including reports

about conversations he was having with Berger.  The FBI and U.S.

Attorney assured Allen, repeatedly, that he was not being

investigated.

	When Berger began to suspect that Dart was under

investigation, he threatened to implicate Allen.  Berger and Wolf

then "acted in concert" to knowingly make false statements to the

FBI and/or U.S. Attorney.  They implicated Allen as the

"mastermind and kingpin of their scheme."  After the U.S.

Attorney read Berger's false accusations to the grand jury and

Wolf gave false testimony before the grand jury, Allen was

indicted.

	In Illinois, malicious prosecution actions are disfavored. 

Rodgers, 315 Ill. App. 3d at 345, 733 N.E.2d at 840; Joiner v. Benton Community Bank, 82 Ill. 2d 40, 44, 411 N.E.2d 229, 231 (1980).  Public policy encourages the exposure of crimes and

citizen cooperation, and these interests are furthered by

narrowly circumscribing the instances in which malicious prosecution actions may be brought.  Joiner, 82 Ill. 2d at 44-45, 411 N.E.2d at 231.  Citizens acting in good faith who have

probable cause to believe that crimes have been committed should

not be deterred from reporting them out of fear of unfounded

suits by those they have accused.  Joiner, 282 Ill. 2d at 45, 411 N.E.2d at 231.

	Consequently, a person who unwittingly gives a prosecuting

officer false information of another person's alleged crime is

not liable for malicious prosecution, unless the person takes an

active part in instituting criminal proceedings, by requesting,

directing, or pressuring the prosecuting officer into instituting

the proceedings.  See generally Geisberger, 62 Ill. App. 3d at 943, 379 N.E.2d at 949; Pratt v. Kilborn Motors, Inc., 48 Ill. App. 3d 932, 935, 363 N.E.2d 452, 454-55 (1977); Restatement (Second) Torts, §653 (1977); W. Keeton, Prosser & Keeton on Torts

§119 (5th ed. 1984).

	However, when a person makes a knowingly false report to a prosecuting officer, the resulting prosecution is attributable to

that person.  Rodgers, 315 Ill. App. 3d at 346, 733 N.E.2d at 840; Randall v. Lemke, 311 Ill. App. 3d 848, 850, 726 N.E.2d 183, 185 (2000); Geisberger, 62 Ill. App. 3d at 943, 379 N.E.2d at 949; and Pratt, 48 Ill. App. 3d at 935, 363 N.E.2d at 454-55.  This line of cases clearly indicates that when a person knowingly

subjects another to unwarranted criminal prosecution, he or she

may be held accountable for the damages that result.

	The most recent case, Rodgers, 315 Ill. App. 3d 340, 733 N.E.2d 835; is helpful, since it also involved allegations that

knowingly false accusations were made to a prosecutor and grand

jury.  In Rodgers, it was alleged that an employer asked a private investigating firm to fabricate a crime involving one of

its long-term managers, in order to justify terminating his employment.  Rodgers, 315 Ill. App. 3d at 344, 733 N.E.2d at 839.  The private investigators complied by manufacturing false

evidence and testimony indicating the manager was involved in

narcotics trafficking.  Rodgers, 315 Ill. App. 3d at 344, 733 N.E.2d at 839.  The false information was reported to the office

of the Cook County State's Attorney and to a grand jury that

indicted the employee on two counts of delivery of a controlled

substance.  Rodgers, 315 Ill. App. 3d at 344, 733 N.E.2d at 839.  The employer then recorded the false information in the manager's

personnel file and terminated his employment.  Rodgers, 315 Ill. App. 3d at 344, 733 N.E.2d at 839.  However, after the manager

was found not guilty of all charges (Rodgers, 315 Ill. App. 3d at 345, 733 N.E.2d at 839), he filed a multicount suit against his

former employer, the investigation firm, and the investigators,

which included allegations of malicious prosecution (Rodgers, 315 Ill. App. 3d at 343, 733 N.E.2d at 838).  The court noted the

allegations indicated the defendants lacked honest suspicions and

were not acting in good faith when they knowingly provided false

information to the State's Attorney's office and to the grand

jury, which resulted in the indictment.  Rodgers, 315 Ill. App. 3d at 346, 733 N.E.2d at 840.  Accordingly, the court found that

the former manager had sufficiently alleged that the defendants

caused the commencement of the criminal proceedings against him. 

Rodgers, 315 Ill. App. 3d at 346-47, 733 N.E.2d at 841.

	Allen does not cite Rodgers, a relatively recent case, in his opening brief, but rather relies on earlier decisions,

including Randall, 311 Ill. App. 3d 848, 726 N.E.2d 183, and Pratt, 48 Ill. App. 3d 932, 363 N.E.2d 452, and the Restatement (Second) of Torts, section 653, comment g.  Berger and Wolf

contend that these authorities are distinguishable, because they

did not involve the use of a grand jury.  In fact, Randall, 311 Ill. App. 3d 848, 726 N.E.2d 183, and Pratt, 48 Ill. App. 3d 932, 363 N.E.2d 452, did not involve grand juries.  However, these

cases adopted the reasoning contained in the Restatement (Second) of Torts, section 653, comment g, and the examples provided there

do not distinguish between prosecutions where the prosecutor

files an information or, as in the Allen's situation, where a

prosecutor presents evidence and testimony to a grand jury. 

Restatement (Second) of Torts, §653, comment g, Iillustrations 2,

3, 4, 5 (1977).  Therefore, we reject Berger and Wolf's argument

that because the grand jury was the vehicle used to charge Allen,

the authority Allen relies upon is not controlling.

	Having reviewed the complaint at issue, we conclude that

Allen sufficiently alleged that Berger and Wolf's knowingly false

accusations were the cause of Allen's prosecution for bribery and

bid rigging.  Although Allen's contact with the federal

authorities prompted an investigation into the supply company the

men co-owned, only two of the four co-owners, the ones that Allen

implicated in the bribery and bid rigging activities, were

subjected to scrutiny.  Allen did not implicate himself or the fourth partner, and Allen was repeatedly assured that he was not

a target of the resulting investigation into Berger and Wolf's

illegal efforts to obtain supply contracts with the Chicago

Housing Authority.  Allen came under investigation only after

Berger and Wolf gave intentionally false statements indicating

Allen was the instigator and a willing collaborator in the

scheme.  Although Allen was the first to speak with the

authorities, Berger and Wolf were the first to knowingly make

false accusations about Allen's involvement in the illegal acts.

	We cannot conclude that once Berger and Wolf came under

criminal investigation, they could freely subject their accuser,

or any other person for that matter, to unwarranted criminal

prosecution by knowingly making false accusations about that

person's complicity in the crimes under investigation.  The fact

that there was an ongoing investigation into Berger and Wolf's

activities would not warrant shielding them from liability for

the results of their alleged intentional fabrications about

Allen's collaboration in the same activities. 

	Taking the allegations of the complaint as true, and drawing

all reasonable inferences from those facts in Allen's favor

(Rodgers, 315 Ill. App. 3d at 345, 733 N.E.2d at 840), we find that Allen sufficiently pled that Berger and Wolf's knowingly

false statements to the prosecuting attorney set the prosecution

in motion and, therefore, caused Allen's indictment.  Rodgers, 315 Ill. App. 3d at 346, 733 N.E.2d at 840; Randall, 311 Ill. App. 3d at 850, 726 N.E.2d at 185; Geisberger, 62 Ill. App. 3d at 943, 379 N.E.2d at 949; Pratt, 48 Ill. App. 3d at 935, 363 N.E.2d at 454-55.  See also Restatement (Second) of Torts §653, comment g (1977); W. Keeton, Prosser & Keeton on Torts §119 (5th ed.

1984).  

	Accordingly, we also find that the trial court erred in

granting Berger and Wolf's motion to dismiss with prejudice.

	Berger and Wolf further argue, however, that Allen failed to

allege the criminal proceedings were terminated in a manner

indicative of Allen's innocence.  Favorable termination is one of

the necessary elements of a malicious prosecution action.  See

Swick, 169 Ill. 2d at 512, 662 N.E.2d at 1242.  Berger and Wolf raised the issue of favorable termination in a motion for summary

judgment, which was fully briefed in the trial court and

scheduled for hearing.  After granting Berger and Wolf's motion

to dismiss, the trial judge did not rule on the motion for

summary judgment.  Nevertheless, Berger and Wolf raise the

argument here, because we may affirm on any basis appearing in

the record.  Weedon v. Pfizer, Inc., 332 Ill. App. 3d 17, 31, 773 N.E.2d 720, 732  (2002).    	Allen responds that he sufficiently

alleged a favorable termination.

	In Swick, the supreme court stated: 

		"[A voluntary dismissal] is not indicative of

the innocence of the accused when [it] is the

result of an agreement or compromise with the accused, misconduct on the part of the

accused for the purpose of preventing trial,

mercy requested or accepted by the accused,

*** or the impossibility or impracticability

of bringing the accused to trial."  Swick, 169 Ill. 2d at 513, 662 N.E.2d at 1243.

	Additionally, "[t]he circumstances surrounding the

abandonment of the criminal proceedings must compel an inference

that there existed a lack of reasonable grounds to pursue the

criminal prosecution. [Citation.]  Otherwise, every time criminal

charges are [voluntarily dismissed] a civil malicious prosecution

action could result."  Swick, 169 Ill. 2d at 513-14, 662 N.E.2d at 1243.

	Furthermore, the plaintiff bears the burden of proving a

favorable termination and meets this burden only when he

establishes that the voluntary dismissal was entered for reasons

consistent with his innocence.  Swick, 169 Ill. 2d at 513, 662 N.E.2d at 1243.  

	Accordingly, we read Swick to mean that Allen was required to plead that the circumstances surrounding the abandonment of

the criminal proceedings would compel an inference that a lack of

reasonable grounds led to the dismissal of the criminal

proceedings.  Allen did not allege any of the circumstances that

led to the dismissal of the criminal proceedings.

	Allen's allegations were the following: (1) that the U.S. Attorney voluntarily dismissed the indictment as to Allen on June

20, 1997, and (2) that the criminal prosecution was "terminated

in his favor."  Under our reading of Swick, this would not be enough to plead or prove that the prosecution was terminated in

Allen's favor.

	We have also reviewed a transcript of the June 20, 1997,

proceedings, and a copy of a "notice" from the clerk of the

United States District Court for the Northern District of

Illinois informing Allen's criminal defense attorney about the

entry of the dismissal order.  However, neither the transcript

nor the notice discloses why the prosecuting attorney chose to

voluntarily dismiss the criminal proceedings in June of 1997. 

Thus, it is unclear whether the criminal proceedings were in fact

terminated in Allen's favor, as Allen concluded in his complaint.

	Nevertheless, because a cause of action should not be

dismissed on the pleadings unless it appears that no set of facts

can be proved which will entitle the plaintiff to recover

(Rodgers, 315 Ill. App. 3d at 345, 733 N.E.2d at 840), Allen should be given an opportunity to allege the circumstances

surrounding the voluntary dismissal under the guidelines

announced in Swick, 169 Ill. 2d at 513-14, 662 N.E.2d at 1242-43.

	Based on the proceeding analysis, we reverse the trial

court's order granting Berger and Wolf's motion to dismiss with

prejudice and remand this cause for further proceedings.  On

remand, Allen should be given an opportunity to replead in order to disclose the circumstances surrounding the voluntary

dismissal.  If Allen cannot plead facts that compel an inference

that a lack of reasonable grounds to proceed led to the voluntary

dismissal, his action should be dismissed.  See Swick, 169 Ill. 2d at 513-14, 662 N.E.2d at 1242-43.

	The order of the circuit court is reversed and remanded for

further proceedings consistent with this opinion.

	Reversed.

	CAHILL and BURKE, JJ., concurring.