ILLINOIS OFFICIAL REPORTS

Appellate Court

Independence Plus, Inc. v. Walter, 2012 IL App (1st) 111877

Appellate Court

Caption

INDEPENDENCE PLUS, INC., Plaintiff-Appellant, v. FRANCES

WALTER, KRISTEN PRINZ, and BELLOWS AND BELLOWS, P.C.,

Defendants-Appellees.

 District & No. First District, Fifth Division

Docket No. 1-11-1877

Filed December 14, 2012

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.)

The malicious prosecution action plaintiff filed against a discharged

employee and her attorneys after the employee’s administrative

complaints and civil action challenging her termination were dismissed

was properly dismissed for failing to state a cause of action, since the

facts alleged by plaintiff failed to establish the requisite element of

special injury.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 09-L-011922; the

Hon. Charles R. Winkler, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Claudia Oney, of Oney & Arthur, P.C., and Herman J. Marino, both of

Chicago, for appellant.

David G. Harding, of Chicago, for appellee Frances Walter.

Daniel B. Meyer and Edward C. Eberspacher IV, both of Chicago, for

appellee Kristen Prinz.

Michael Resis, Ellen L. Green, and Andrew Seiber, all of

SmithAmundsen LLC, of Chicago, for appelleeBellows & Bellows, P.C.

Panel JUSTICE PALMER delivered the judgment of the court, with opinion.

Presiding Justice McBride and Justice Howse concurred in the judgment

and opinion.

OPINION

¶ 1 Plaintiff Independence Plus, Inc. (IPI), appeals from the dismissal of its malicious

prosecution suit against defendants Frances Walter, Kristen Prinz and Prinz’s law firm,

Bellows and Bellows, P.C. (Bellows).

¶ 2 The facts behind the underlying proceedings are as follows. IPI, a company that

specializes in providing in-home private duty nursing care, hired Walter in May 2006 and

fired her in November of that same year, allegedly for threatening another staff member

following a series of emotional outbursts. Subsequently, Walter filed a series of

administrative complaints against IPI, namely, (1) a complaint under the Personnel Record

Review Act (820 ILCS 40/1 et seq. (West 2008)) with the Illinois Department of Labor, (2)

a complaint under the Wage Payment and Collection Act (820 ILCS 115/1 et seq. (West

2008)) with the Illinois Department of Labor, and (3) a charge of discrimination with the

Illinois Department of Human Rights, alleging sexual harassment, age discrimination and

retaliation. These complaints were all dismissed. Additionally, Walter filed a complaint in

the circuit court against IPI, seeking damages for retaliatory discharge and wrongful

termination. Walter voluntarily dismissed this action on August 17, 2009. In both her action

before the circuit court and in her administrative complaints, Walter was represented by

Prinz and by Prinz’s law firm, Bellows.

¶ 3 On October 7, 2009, IPI filed the instant complaint for malicious prosecution against

Walter, Prinz and Bellows. Defendants moved to dismiss IPI’s complaint under section 2-

615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2008)), contending, inter alia,

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that IPI had failed to allege special injury, as required to recover for malicious prosecution.

The trial court initially denied defendants’ motion, but upon reconsideration, the court

granted it and dismissed IPI’s complaint. IPI now appeals. For the reasons that follow, we

affirm.

¶ 4 I. BACKGROUND

¶ 5 IPI’s amended complaint, which frames the issues now before us, alleges the following.

IPI hired Walter as a clinical manager on May 5, 2006. By October 2006, Walter’s conduct

had become “increasingly erratic and abusive”; she had screaming arguments with staff and

locked herself in her office. On November 16, 2006, Walter sent threatening emails to

another IPI employee. IPI launched an investigation into her actions and fired her on

November 27, 2006.

¶ 6 Following her termination, Walter, through her attorneyPrinz, filed a total of four actions

against IPI, all of which were allegedly filed without probable cause and with malice solely

for the purpose of harassing and debilitating IPI. As noted earlier, these actions consist of (1)

a Personnel Record Review Act complaint with the Illinois Department of Labor, (2) a Wage

Payment and Collection Act complaint with the Illinois Department of Labor, and (3) a

charge of discrimination with the Illinois Department of Human Rights, all three of which

were filed on May 25, 2007, and (4) a circuit court complaint against IPI, filed on November

15, 2007.

¶ 7 IPI’s complaint discusses each of these actions in turn. Walter’s first action, under the

Personnel Record Review Act, was an attempt to access “certain unidentified documents”

that she claimed were a part of her personnel file at IPI. However, according to IPI, such

documents did not exist, Walter was aware that they did not exist, and, in any event, had such

documents existed, Walter could have obtained them through her other civil actions,

rendering this complaint “duplicative and unnecessary.” This complaint was dismissed in

favor of IPI on January 2, 2008.

¶ 8 In Walter’s second action, a wage claim filed with the Illinois Department of Labor, she

sought to recover wages based upon her allegation that, when she was hired, IPI promised

her a raise if she had a positive six-month performance evaluation. IPI alleged that this claim

was both factually unsound, since IPI had made no such promise in the first place and Walter

did not receive a positive six-month evaluation, and legally without merit, since the Wage

Payment and Collection Act only covers earned wages, not promised raises. This complaint

was dismissed in favor of IPI on August 7, 2007.

¶ 9 Walter’s third action was a charge of discrimination, filed with the Illinois Department

of Human Rights, in which she alleged that she was subjected to sexual harassment and age

discrimination by another IPI employee and that IPI fired her in retaliation for reporting this

conduct. This complaint was dismissed in favor of IPI on August 28, 2008. The Illinois

Department of Human Rights specifically found that its investigation did not reveal that

Walter was sexually harassed or harassed because of her age, and it also specifically found

that IPI did not fire Walter in retaliation but because of her “escalating behavior” toward

another IPI employee.

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¶ 10 Walter’s fourth and final action was a complaint for retaliatory discharge and wrongful

termination filed in the circuit court against IPI on November 15, 2007, when two of her

administrative complaints were still pending. The wrongful termination count was both

duplicative of and preempted by Walter’s charge of discrimination filed with the Illinois

Department of Human Rights, and after IPI filed a motion to dismiss this count, Walter

voluntarilydismissed it in March 2008. Meanwhile, in herretaliatorydischarge count, Walter

claimed, for the first time, that IPI had terminated her employment because she complained

about patient care. IPIstates that this claim was a complete fabrication and not credible, since

Walter, as a licensed nurse, had a statutory duty to report any failure of care, and she had

made no such report. In any event, Walter voluntarily dismissed her retaliatory discharge

count on August 17, 2009.

¶ 11 Walter also amended her circuit court complaint to add two more counts, both of which,

according to IPI, were equallynonmeritorious, and both of which were eventuallyvoluntarily

dismissed by Walter. First, after the Illinois Department of Human Rights dismissed her

charge of discrimination, Walter attempted to seek review of that decision in the circuit

court, despite being aware that under the applicable statute, the circuit court lacked

jurisdiction over such a claim. Second, Walter amended her complaint to add a count for

spoliation, which IPI argues was without merit because spoliation is not an independent

cause of action in Illinois. As noted, Walter subsequently voluntarily dismissed these two 1

counts, on August 17, 2009.

¶ 12 With regard to the injury it suffered as a result of Walter’s four actions, IPI alleged that

Walter’s allegations that IPIwas engaged in illegal and improper conduct had “an immediate

an[d] direct debilitating effect on IPI’s ability to conduct business,” because IPI is in a

“highlyregulated industry.” IPIfurther alleged that, throughout the course of Walter’s circuit

court action against IPI, defendants inflicted injury on IPI by issuing “outrageous discovery

demands” for the sole purpose of causing financial difficulty to IPI:

“For example, Defendants demanded Defendant Walter’s hard drive years after Walter’s

employment was terminated. When IPI reconstructed Defendant Walter’s hard drive,

Defendants failed to make arrangements to examine it. Defendants then demanded IPI’s

server [backup] tapes that were in use during Walter’s six-month employ. After

recovering them, Defendants failed to examine them or even take possession of them.

Defendants demanded thousands of pages of private nursing information and patient care

records, requiring hours of redaction by Plaintiff, which Defendants failed to examine

*** as well. Defendants also demanded IPI produce the names and contact information

of hundreds of IPI employees in orderto search for disgruntled employees and inform IPI

employees that IPI was defending a [lawsuit] alleging improper payment of employees

and dangerous policies and procedures affecting patient care.”

¶ 13 IPI’s complaint furtherstates that on January 21, 2009, IPI filed its original complaint in

See Boyd v. TravelersInsurance Co., 166 Ill. 2d 188, 192-93 (1995)(an action for negligent 1

spoliation can be stated under existing negligence law without need for the creation of an

independent cause of action for spoliation).

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the circuit court against Walter, seeking damages for malicious prosecution. (That case was

the predecessor to this action. For clarity, we shall refer to it as “the January 2009 action.”)

Walter, represented by Prinz and Bellows, filed a motion to dismiss IPI’s complaint. Prior

to any hearing on that motion, IPIfiled a motion to voluntarily dismissits complaint without

prejudice. The trial court denied Walter’s motion and granted IPI’s motion. Walter then

sought to appeal the trial court’s denial of her motion to dismiss, even though, according to

IPI, she was aware that such order was not final and appealable. Subsequently, this court

dismissed Walter’s appeal for lack of appellate jurisdiction.

¶ 14 On October 7, 2009, IPI filed the instant complaint, seeking damages for malicious

prosecution for Walter’s four actions as well as for her appeal in IPI’s January 2009 action.

¶ 15 Defendants moved to dismiss IPI’s complaint under section 2-615 of the Code of Civil

Procedure (735 ILCS 5/2-615 (West 2008)), contending, among other things, that IPI had

failed to state a cause of action for malicious prosecution because it had not alleged that it

suffered any special injury. Defendants’ other contentions in their motion to dismiss are not

at issue in this appeal and therefore need not be discussed here. The trial court initially

denied defendants’ motion. However, defendants filed a motion to reconsider, and the trial

court granted that motion in an order issued on May 23, 2011. The court found that IPI had

merelyalleged “reputational harm and ordinaryexpenses and injuries incidental to defending

a lawsuit,” which were insufficient to constitute special injury under Illinois law.

Accordingly, the trial court dismissed IPI’s complaint. IPI now appeals.

¶ 16 II. ANALYSIS

¶ 17 In this appeal, the sole issue is whether the trial court erred in dismissing IPI’s malicious

prosecution complaint for failure to adequately plead the element of special injury. In

2

reviewing the sufficiency of a complaint under a section 2-615 motion to dismiss, we accept

as true all well-pled facts and all reasonable inferences that may be drawn from those facts,

and we construe the allegations of the complaint in the light most favorable to the plaintiff.

Young v. Bryco Arms, 213 Ill. 2d 433, 441 (2004). We review the trial court’s order granting

defendants’ section 2-615 motion de novo. Id. at 440.

¶ 18 To prevail on a claim for malicious prosecution, the plaintiff must plead and prove that

(1) the defendant brought the underlying suits maliciously and without probable cause, (2)

the underlying suits were terminated in favor of plaintiff, and (3) the plaintiff suffered

“special injury” beyond the usual expense, time and annoyance involved in defending a

lawsuit. Cult AwarenessNetwork v. Church of Scientology International, 177 Ill. 2d 267, 272

(1997). Special injury has been defined as “ ‘injury not necessarily resulting in any and all

suits prosecuted to recover for like causes of action.’ ” Doyle v. Shlensky, 120 Ill. App. 3d

807, 817 (1983) (quoting Schwartz v. Schwartz, 366 Ill. 247, 250 (1937)); see also Reed v.

Although defendants state for the record in their brief that they do not concede that IPI 2

properly pled the remaining two elements of malicious prosecution, the arguments and authority

presented in defendants’ brief are focused exclusively on the element of special injury. Accordingly,

we shall confine our analysis to that element.

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Doctor’s Associates, Inc., 355 Ill. App. 3d 865, 875 (2005) (the plaintiffs’ litigation costs

“constitute nothing more than ordinary litigation expenses and are not considered special

damages”); Keefe v. Aluminum Co. of America, 166 Ill. App. 3d 316, 319 (1988) (where the

plaintiff was forced to spend time and money to defend himself and his personal and business

affairs were examined in the course of discovery, such “litigation inconveniences” did not

constitute special injury, since they are “common to most lawsuits”); Petrick v. Kaminski,

68 Ill. App. 3d 649, 651 (1979) (affirming dismissal of suit for malicious prosecution of a

debt collection action where the plaintiff’s claimed damages were shame and humiliation,

lost wages, lost credit rating and expense of attorney fees, since such damages were “matters

attendant to the ordinary civil suit”).

¶ 19 The reasoning behind the special injury requirement lies in the fact that the law does not

look with favor upon malicious prosecution suits, because of the general principle that the

courts should be open for litigants to settle their rights without fearing prosecution for doing

so. Schwartz, 366 Ill. at 250; Shedd v. Patterson, 302 Ill. 355, 359 (1922) (cause of action

for malicious prosecution is limited because “the courts of law are open to every citizen upon

the penalty of lawful costs, and he may have his rights determined without the risk of being

sued and having to respond in damages for seeking to enforce his right”). As our supreme

court has explained:

“[T]he courts are open to every citizen to claim what ‘he deems to be his right without

fear of being prosecuted for heavy damages.’ [Citation.] 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.) [Citation.]” Cult Awareness, 177 Ill. 2d at 280-81

(quoting Smith v. Michigan Buggy Co., 175 Ill. 619, 628-29 (1898)).

However, the societal interest in permitting the honest assertion of rights in our court rooms

must be balanced against the societal interest in preventing harassment through lawsuits. Cult

Awareness, 177 Ill. 2d at 284.

¶ 20 Here, plaintiffs allege that they have adequately alleged special injury in three ways: (1)

defendants made false allegations of illegal conduct on the part of IPI, (2) defendants filed

a total of four claims against IPI, thereby subjecting IPI to a “sustained onslaught of

litigation”; and (3) defendants abused the discovery process for the sole purposes of

harassing and causing expense to IPI. We consider these contentions in turn.

¶ 21 A. False Allegations of Illegal Conduct

¶ 22 IPI’s first contention is that it suffered special injury because defendants falsely accused

it of illegal and improper conduct in order to inflict “direct damage to the business of IPI.”

In particular, IPI claims that it was injured by Walter’s allegation in the underlying circuit

court action that IPI terminated her employment in retaliation for complaining about patient

care. Although IPI’s complaint does not give any further detail about this allegation, IPI

asserted during oral argument before this court that the complained-of failure of care, if true,

would have constituted a felony.

¶ 23 At the outset, we note that virtually all civil actions sounding in tort involve accusations

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of illegal or improper conduct in some capacity. Such accusations are hardly “special” but,

rather, are entirely ordinary consequences of litigation. See Reed, 355 Ill. App. 3d at 875

(ordinary litigation expenses are not considered special damages); Keefe, 166 Ill. App. 3d at

319 (litigation inconveniences that are common to most lawsuits do not constitute special

injury). This is particularly true for a retaliatory discharge claim, such as the one at issue in

the underlying action, which is premised upon allegations that the plaintiff was discharged

in retaliation for her reporting of illegal or improper conduct. See Jacobson v. Knepper &

Moga, P.C., 185 Ill. 2d 372, 376 (1998) (discussing elements of a retaliatory discharge

claim). In the underlying action, Walter claimed that IPI’s ostensible reasons for firing her

were merely a pretext for retaliation because she had complained about patient care. Thus,

Walter’s alleged complaint about patient care was not unrelated to her retaliatory discharge

claim, as implied by counsel for IPI during oral argument but, rather, an integral part of that

claim. Such allegations of illegal or improper conduct would be a part of “ ‘any and all suits

prosecuted to recover for like causes of action.’ ” Doyle, 120 Ill. App. 3d at 817 (quoting

Schwartz, 366 Ill. at 250).

¶ 24 IPI nevertheless contends that, in this particular case, defendants’ accusations of illegal

and improper conduct caused “special injury” to IPI in two ways: first, it suffered harm to

its reputation; and second, it was required to spend “an exceptional amount of its resources”

in defending against these accusations. In this regard, IPI notes that it is in a “highly

regulated industry,” such that claims of illegal and improper conduct would be particularly

harmful to IPI’s business.

¶ 25 With regard to the reputational harm alleged by IPI, it is well established that injury to

one’s reputation “is an unfortunate consequence of most litigation and does not constitute

a special loss.” Doyle, 120 Ill. App. 3d at 817; see also Stopka v. Lesser, 82 Ill. App. 3d 323,

325 (1980); Balthazar v. Dowling, 65 Ill. App. 3d 824, 826 (1978). For instance, in Stopka,

82 Ill. App. 3d at 324, the plaintiff physician brought a malicious prosecution suit against an

attorney who had filed an allegedly baseless malpractice suit against him. The Stopka court

affirmed the dismissal of his complaint for failure to adequately allege special injury. Id. at

325. In doing so, the court explicitly held that the “ ‘necessity for defending one’s

reputation’ ” was considered “ ‘ordinary injury’ ” as a matter of law and was insufficient to

support a claim for malicious prosecution. Id. (quoting Lyddon v. Shaw, 56 Ill. App. 3d 815,

818 (1978)). Similarly, in Balthazar, 65 Ill. App. 3d at 826, the court found that the plaintiff

physicians had failed to show special injury as a result of a malpractice suit where they

asserted that their malpractice premiums had risen and their professional reputations had

been impaired. We additionally note that the physician-plaintiffs in both Stopka and

Balthazar were members of a “highly regulated industry,” namely, the practice of medicine,

and yet such status did not render their claims of reputational harm cognizable in the context

of a malicious prosecution claim. Likewise, the fact that IPI conducts business in a highly

regulated industry does not transform reputational harm into special injury. Nor does IPI

present us with any authority that would support such a proposition.

¶ 26 IPI’s allegation that it was required to spend a significant amount of resources to defend

against defendants’ claims is similarly insufficient to constitute special injury. Litigation

costs are merely “ordinary injuries” that would result from any litigation and are therefore

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not special in nature. See Doyle, 120 Ill. App. 3d at 817-18; Reed, 355 Ill. App. 3d at 875;

Petrick, 68 Ill. App. 3d at 651. Consequently, we must reject IPI’s contention that it

adequately alleged special injury based upon defendants’ accusations of illegal and improper

conduct.

¶ 27 B. Multiplicity of Actions

¶ 28 Notwithstanding the foregoing, IPI contends that the multiplicityof baseless actions filed

by the defendants in this case forms a campaign of harassment that is greater than the sum

of its parts and that, when viewed as a whole, can hardly be considered ordinary. In that

regard, IPI claims that this case is analogous to Cult Awareness, 177 Ill. 2d 267, and Shedd,

302 Ill. 355, both cases in which our supreme court found that a “sustained onslaught of

litigation” (Cult Awareness, 177 Ill. 2d at 285) was sufficient to satisfy the special injury

requirement. Defendants, on the other hand, contend that both Cult Awareness and Shedd are

factually inapposite in that the complained-of conduct here is not nearly as egregious as the

conduct involved in those cases. We agree with defendants.

¶ 29 The plaintiff in Cult Awareness was a not-for-profit corporation engaged in educating the

public with respect to religious rights, freedoms and responsibilities. Id. at 269. Plaintiff

brought a malicious prosecution suit against the Church of Scientology, alleging that the

Church of Scientology induced its members to bring a total of 21 meritless suits against

plaintiff in a 17-month time span for the express purpose of driving plaintiff to bankruptcy.

Id. Our supreme court held that these allegations, if true, were sufficient to satisfy the special

injury rule:

“[T]he 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.” Id. at 285.

¶ 30 Plaintiff contends that the “sustained onslaught of litigation” instigated by the defendant

in Cult Awarenessis analogous to the multiple actions brought by the defendants here, going

so far as to state that in this regard, this case is “[i]dentical to Cult Awareness.” We disagree.

The actions filed by Walter and her counsel–three administrative complaints and a single

circuit court complaint in Illinois–are not comparable in scope to the situation in Cult

Awareness, where a large organization induced its members to engage in a national campaign

of litigation that comprised a total of 21 actions.

¶ 31 Nor is this case analogous to Shedd, 302 Ill. 355. In that case, the defendant had filed

nine successive lawsuits against the plaintiff relating to the foreclosure of a leasehold estate

for unpaid rents. Id. at 356. The Shedd court found that the plaintiff had adequately alleged

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special injury, since the defendant continued to bring successive lawsuits against the plaintiff

despite the fact that the substantive issues in the case “had been finally and conclusively

adjudicated against the defendant” and the courts “had repeatedly decided that the defendant

had no grievance.” Id. at 361-62.

¶ 32 Bycontrast, the three administrative complaints filed byWalter and her counsel were not

successive actions attempting to relitigate substantive issues that had already been decided

but, rather, were filed simultaneously and addressed separate and distinct issues. As noted,

Walter’s complaint filed under the Personnel Record Review Act was an attempt to obtain

documents that Walter claimed were part of her personnel file at IPI. Her wage claim was an

attempt to obtain compensation that she claimed was owed to her under the Illinois Wage

Payment and Collection Act based on an alleged promised raise. Finally, her discrimination

charge with the Illinois Department of Human Rights was premised on allegations of sexual

harassment, age discrimination and retaliatory discharge. These three complaints were

concurrent actions litigating separate matters, not successive actions litigating the same

matter, as was the case in Shedd.

¶ 33 IPI alleges that Walter’s Personnel Record Review Act complaint was “duplicative and

unnecessary” in that, if such documents existed, she could have obtained them via her other

civil actions. However, even taking that allegation as true, as we must upon considering a

section 2-615 motion to dismiss, this complaint was not an attempt to relitigate an issue that

had already been substantively decided against her. On the contrary, it was filed concurrently

with her other administrative complaints and prior to her circuit court action. Thus, it cannot

be said to be analogous to the claims of the Shedd defendant.

¶ 34 The only action brought by defendants in this case that was arguably comparable to the

successive actions brought in Shedd was her circuit court action, to the extent that it was an

attempt to relitigate the allegations of retaliatory discharge that Walter had previously raised

in her complaint with the Illinois Department of Human Rights. However, we note that

Walter’s circuit court claim for retaliatory discharge was not entirely duplicative of her prior

complaint. Rather, it was at least partiallypremised upon distinct factual allegations, namely,

Walter’s claim that IPI dismissed her in retaliation for her complaints about the quality of

patient care. In any event, a single, partially duplicative action cannot fairly be compared to

the multiplicity of actions that were brought in Shedd to relitigate substantive issues that had

already been conclusively decided by the courts.

¶ 35 Rather, we find this case to be analogous to Howard v. Firmand, 378 Ill. App. 3d 147,

153 (2007), where the court found that successive actions filed by the defendant against the

plaintiff did not rise to the level of harassment found in Cult Awareness and in Shedd and

therefore were insufficient to constitute special injury.

¶ 36 The facts of Howard are as follows: the plaintiff and the defendant initially lived

together, but, following an argument, the defendant moved out. Id. at 148. The defendant

then filed two successive petitions seeking orders of protection against the plaintiff, alleging

that the plaintiff had physically abused her. Id. Both petitions were denied. Id. The plaintiff

subsequently brought a malicious prosecution suit against the defendant. Id. at 148-49. The

trial court dismissed his complaint at the summary judgment stage, and the Howard court

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affirmed, explaining:

“The facts here do not rise to the level of harassment that concerned the court in

Shedd and Cult. There was no onslaught of litigation here. Nor did [the defendant] bring

several successive petitions against [the plaintiff]. [The defendant] filed two section

214(a) petitions and alleged different facts in each. The only injury suffered by [the

plaintiff] was the customary expense, time and annoyance in defending against the

litigation. These injuries are not sufficient to sustain a cause of action for malicious

prosecution.” Id. at 153.

¶ 37 Likewise, as has been discussed, we find that the facts of this case do not rise to the level

of harassment that concerned the court in Shedd and Cult Awareness. Although this case is

not exactly like Howard, we find it to be significantly closer to the facts of Howard than it

is to the conspiracy in Cult Awareness, where the plaintiff was sued 21 times in a 17-month

period in jurisdictions across the country, or even to the nine successive actions filed by the

defendant in Shedd. Consequently, like the court in Howard, we reject IPI’s argument that

the multiple actions filed by defendant constitute special injury to IPI.

¶ 38 C. Discovery Abuse

¶ 39 IPI finally contends that it incurred special injury as a result of defendants’ abuse of the

discoveryprocess duringWalter’s circuit court action. IPI’s allegations in this regard fall into

two categories. First, IPI alleges that defendants made expensive discovery demands for the

sole apparent purpose of causing economic harm to IPI. Specifically, IPI alleges that

defendants demanded Walter’s hard drive, server backup tapes that were in use during

Walter’s employment and “thousands of pages” of private nursing information and patient

care records; however, when IPI produced these items, defendants failed to even examine

them. Second, IPI alleges that defendants demanded the names and contact information of

IPI employees so that they could contact those employees and inform them that IPI had been

accused of improper payment of employees and improper patient care.

¶ 40 IPI’s allegations regarding the cost of complying with discovery demands do not amount

to special injury. A defendant in a typical lawsuit can expect that the plaintiff will make

various discovery demands, and the defendant can also expect that complying with those

demands may be both expensive and time-consuming, particularly if the defendant is a

business with extensive records that may potentially be relevant to the case. Such

inconvenience and expenditure is a routine, if unfortunate, part of the litigation process and

does not constitute special injury for purposes of a malicious prosecution action. See Keefe,

166 Ill. App. 3d at 319 (having one’s personal and business affairs examined in the course

of discovery is an inconvenience “common to most lawsuits” and is not special in nature).

¶ 41 IPI nevertheless argues that the discovery expenditures it incurred here went beyond the

normal costs of litigation because the discovery demands at issue were made solely for

purposes of harassing and causing economic harm to IPI. Indeed, IPI claims that defendants

made these discovery requests, in part, so that they could search for disgruntled employees

and inform them that IPI had been accused of improper payment of employees and patient

care procedures. We cannot accept the argument that IPI’s expenditures in this regard

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constitute special injury, because such an interpretation of the element of special injury

would render it nearly toothless by way of conflating it with the element of malice and lack

of probable cause. Probable cause has been defined as a state of facts that would lead an

ordinary person to have “ ‘an honest and sound suspicion’ ” that her claim is meritorious. Ely

v. National Super Markets, Inc., 149 Ill. App. 3d 752, 757-58 (1986) (quoting Carbaugh v.

Peat, 40 Ill. App. 2d 37, 47 (1963)). Where a plaintiff lacks even an honest suspicion that her

claim has merit, then her suit is not brought for the honest vindication of rights, and any

discovery demands that she makes in the course of that suit are likely to be for harassment

of one form or another. If the inconvenience and expense of such discovery demands could

be considered special injury, then the special injury requirement would lose nearly all of its

vitality as an element separate and distinct from that of malice and lack of probable cause.

IPI has not presented any authority that would support such a change in the law. On the

contrary, our supreme court in Cult Awareness emphasized the continuing vitality of the

special injury requirement. Cult Awareness, 177 Ill. 2d at 286 (stating that “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”). Consequently, we reject IPI’s

contention that the expense it incurred in complying with defendants’ discovery demands

constitutes a special injury.

¶ 42 We note in passing that even where a party fails to meet the requirement of special injury

for purposes of a malicious prosecution suit, that party may still obtain relief for an

opponent’s abuse of the discoveryprocess through sanctions underSupremeCourt Rules 137

and 219. Ill. S. Ct. R. 137 (eff. Feb. 1, 1994); R. 219 (eff. July 1, 2002). Rule 137 provides

that an attorney’s signature on a pleading, motion, or other paper constitutes a certificate

“that to the best of his knowledge, information, and belief formed after reasonable

inquiry it is well grounded in fact and is warranted by existing law or a good-faith

argument for the extension, modification, or reversal of existing law, and that it is not

interposed for any improper purpose, such as to harass or to cause unnecessary delay or

needless increase in the cost of litigation.” Ill. S. Ct. R. 137 (eff. Feb. 1, 1994).

It further provides that, where an attorney violates this rule, the trial court may impose

appropriate sanctions upon the attorney or her client. Id. Likewise, under Rule 219(c), the

trial court is authorized to respond to discovery abuses by imposing sanctions upon the

offending party, including reasonable expenses incurred as a result of the abuse as well as

a monetary penalty in case of willful abuse. Ill. S. Ct. R. 219 (eff. July 1, 2002).

¶ 43 Plaintiff correctly points out that the availability of such relief does not preempt recovery

for malicious prosecution as long as all elements of the tort have been satisfied. See Cult

Awareness, 177 Ill. 2d at 279 (“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.”). However, for all the reasons that have

been discussed above, we find that the element of special injury has not been satisfied under

the facts as alleged by IPI in its complaint.

¶ 44 Accordingly, the judgment of the trial court dismissing IPI’s complaint for failure to state

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a cause of action for malicious prosecution is affirmed.

¶ 45 Affirmed.

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