Poznanski v. Poznanska , 2023 IL App (3d) 220200-U ( 2023 )


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  •             NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
    in the limited circumstances allowed under Rule 23(e)(1).
    
    2023 IL App (3d) 220200-U
    Order filed March 6, 2023
    ____________________________________________________________________________
    IN THE
    APPELLATE COURT OF ILLINOIS
    THIRD DISTRICT
    2023
    PAUL M. POZNANSKI,                                )       Appeal from the Circuit Court
    )       of the 18th Judicial Circuit,
    Plaintiff-Appellant,                       )       Du Page County, Illinois.
    )
    v.                                         )       Appeal No. 3-22-0200
    )       Circuit No. 21-L-1336
    KAROLINA POZNANSKA,                               )
    )       The Honorable
    Defendant-Appellee.                        )       Angelo J. Kappas
    )       Judge, Presiding.
    ____________________________________________________________________________
    JUSTICE McDADE delivered the judgment of the court.
    Justices Albrecht and Brennan concurred in the judgment.
    ____________________________________________________________________________
    ORDER
    ¶1          Held: The trial court’s dismissals of malicious prosecution and abuse of process claims
    pursuant to sections 2-619 and 2-615, respectively, are affirmed because the
    defendant lacked the authority to initiate and prosecute a criminal proceeding and
    performed no improper acts in the use of legal process.
    ¶2          The plaintiff was charged with domestic battery based on claims made by his ex-wife, but
    those charges were dismissed after the complaining witnesses failed to appear at trial. The
    plaintiff then filed a civil complaint against his ex-wife, alleging malicious prosecution and
    abuse of process. The trial court granted the defendant’s section 2-619 motion to dismiss the
    malicious prosecution count and section 2-615 motion to dismiss the abuse of process count.
    Because the plaintiff’s complaint failed to make the showings needed to survive dismissal, we
    affirm.
    ¶3                                           I. BACKGROUND
    ¶4             In November 2019, plaintiff Paul M. Poznanski was arrested after his ex-wife, defendant
    Karolina Poznanska, reported to police that he had committed acts of domestic abuse against
    their minor son, N.P. Paul was subsequently charged with two misdemeanor counts of domestic
    battery. Because of those charges, the State of Illinois revoked Paul’s firearm owner’s
    identification card, concealed carry license, and firearm control card and required him to turn
    over his firearms until the charges were resolved. Until his arrest, Paul had been employed to
    provide personal private security and bodyguard services, but, after losing the ability to possess
    or use firearms, he was no longer able to perform that job. He was forced to seek far lower
    paying employment that did not involve firearms. According to Paul, the charges also prevented
    him from seeing N.P. for more than two years.
    ¶5             In July 2021, Paul and his privately retained criminal counsel and domestic violence
    expert appeared in court ready to proceed to trial on the domestic battery charges. Karolina and
    N.P., however, failed to appear. Because its complaining witnesses were not present, the State
    requested a continuance, but the trial court denied that request. The State then filed a motion to
    nolle prosequi all counts filed against Paul due to the absence of its complaining witnesses. The
    trial court granted the motion and dismissed both charges. Later, Paul discovered that Karolina
    had sent N.P. alone to Poland a few days before the trial, despite being aware of the trial date.
    ¶6             In December 2021, Paul filed a two-count civil complaint against Karolina, alleging
    malicious prosecution and abuse of process and requesting compensatory and punitive damages.
    2
    In his malicious prosecution count, Paul alleged that Karolina’s claims against him were
    “frivolous” and forced him to spend thousands of dollars to engage private criminal counsel and
    an expert witness. He was allegedly also harmed by being forced to find alternative employment
    after losing his prior post as an armed security guard. He contended that Karolina filed a false
    police complaint to gain an advantage in their ongoing battle over child support, extracurricular
    activity fees, and the responsibility for providing transportation for N.P.’s visitation with Paul.
    He added that she knowingly sent N.P. to Poland days before his trial and then failed to appear in
    court herself, leaving the State without its critical witnesses.
    ¶7          In Paul’s abuse of process count, he alleged Karolina “willfully and wantonly misused
    the criminal legal process” to gain an advantage in their post-dissolution conflicts over finances
    and transportation. Due to that misuse of process, Paul allegedly suffered serious financial injury
    and was unable to see his son for more than two years.
    ¶8          Karolina filed a motion to dismiss the complaint pursuant to section 2-619 of the Illinois
    Code of Civil Procedure (725 ILCS 5/2-619 (West 2020)) in February 2022, followed by a
    combined motion to dismiss all counts under both section 2-619 and section 2-615 (id. § 2-615).
    In her combined motion, she argued that Paul’s complaint failed to state sufficiently specific
    facts to avoid dismissal under section 2-615, that the attachments to his complaint showed that
    she did not bring the criminal charges filed against Paul, and that the criminal proceeding was
    not resolved in his favor.
    ¶9          After a hearing on the combined motions, the trial court granted Karolina’s section 2-619
    motion to dismiss, and denied her section 2-615 motion, on the malicious prosecution count and
    granted her section 2-615 motion to dismiss the abuse of process count. Consequently, the court
    dismissed both counts with prejudice. Paul filed a timely notice of appeal.
    3
    ¶ 10                                            II. ANALYSIS
    ¶ 11          This appeal involves the trial court’s dismissal of Paul’s malicious prosecution and abuse
    of process counts pursuant to sections 2-619 and 2-615, respectively. When reviewing a ruling
    on a motion to dismiss under either section 2-619 or 2-615, we apply a de novo standard of
    review. Randall v. Lemke, 
    311 Ill. App. 3d 848
    , 850 (2000) (stating the standard of review for
    section 2-615 motions); PNC Bank v. Kusmierz, 
    2022 IL 126606
    , ¶ 10 (stating the standard of
    review for section 2-619 motions). We address the parties’ arguments on the malicious
    prosecution count and the abuse of process count in that order.
    ¶ 12          To support his malicious prosecution claim, Paul had to prove, among other elements,
    “the commencement of an original criminal *** judicial proceeding by the defendant.”
    Misselhorn v. Doyle, 
    257 Ill. App. 3d 983
    , 986 (1994). To make that showing, Paul asserts that
    Karolina “had standing and full authority to bring criminal charges against [him] as [Karolina]
    was the one, and only one, that on November 16, 2019, filed two (2) misdemeanor counts against
    [Paul] for domestic battery against their son and verified those two (2) counts of domestic
    battery.” He maintains that complaint began the prosecution because the state’s attorney is
    obliged “[t]o commence and prosecute all actions, suits, indictments and prosecutions, civil and
    criminal, in the circuit court for his county, in which the people of the State or county may be
    concerned.” 55 ILCS 5/3-9005(a)(1) (West 2020). Once the State has filed a criminal complaint,
    the trial court was compelled to “examine upon oath or affirmation the complainant or any
    witnesses.” 725 ILCS 5/107-9(a) (West 2020). “A warrant shall be issued by the court for the
    arrest of the person complained against if it appears from the contents of the complaint and the
    examination of the complainant or other witnesses, if any, that the person against whom the
    complaint was made has committed an offense.” 
    Id.
     § 107-9(c).
    4
    ¶ 13           Relying on those provisions, Paul argues that, as the initial complainant, Karolina “not
    only had the requisite standing to complain against [Paul] for domestic battery, but was also [sic]
    her two (2) counts of sworn to and verified criminal misdemeanor complaints of domestic battery
    against [Paul] that directly led to his arrest and detainment (i.e., arrest).” Later, due to the failure
    of Karolina and N.P. to appear at Paul’s trial, the State was forced to dismiss all charges, again
    showing her critical role in the institution of the criminal proceedings. Paul’s argument
    concludes: “As such this malicious prosecution and abuse of judicial legal process matter against
    [Paul] was started, maintained and terminated solely by [Karolina].” (Emphasis in original.)
    ¶ 14           The trial court granted Karolina’s section 2-619 motion to dismiss Paul’s malicious
    prosecution claim. By pursuing dismissal under that section, Karolina admitted the legal
    sufficiency of his complaint but asserted an affirmative defense or other legal matter that defeats
    that claim or avoids its legal effect. See PNC Bank, 
    2022 IL 126606
    , ¶ 10 (explaining section 2-
    619 motions to dismiss). The affirmative defense asserted was her lack of authority to commence
    any criminal prosecution against Paul.
    ¶ 15           One of the duties of each Illinois state’s attorney is “[t]o commence and prosecute all
    actions and proceedings brought by any county officer in his official capacity.” 55 ILCS 5/3-
    9005(a)(3) (West 2020). Moreover, the state’s attorney is obliged “[t]o commence and prosecute
    all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his
    county, in which the people of the State or county may be concerned.” 
    Id.
     § 3-9005(a)(1).
    Under the plain language of those statutes, only the state’s attorney has the authority to
    “commence and prosecute” any criminal action in the State’s name. Neither statute permits an
    individual citizen such as Karolina to institute criminal court proceedings.
    5
    ¶ 16           While a “complaint” from an individual citizen may certainly serve as the impetus for a
    police investigation that could eventually lead to the state’s attorney filing a criminal
    “complaint” in the circuit court, those two types of “complaints” are distinct and not
    interchangeable. Here, the “complaint” filed by Karolina was, as a matter of law, insufficient to
    constitute the commencement of a criminal proceeding against Paul. As Justice Neville noted in
    his special concurrence in People v. Jackson, “ ‘The prosecutor serves the public interest and
    should act with integrity and balanced judgment to increase public safety both by pursuing
    appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue
    criminal charges in appropriate circumstances.’ ” (Emphasis added.) Jackson, 
    2021 IL 124818
    ,
    ¶ 53 (quoting ABA Standards for Criminal Justice, The Prosecution Function, Standard 3-1.2(b)
    (4th ed. 2017)) (Neville, J., specially concurring). The prosecutor, not the complaining witness or
    the police, has the sole discretion and authority to initiate legal process by filing criminal
    charges.
    ¶ 17           While Karolina filed a police report that ultimately resulted in the state’s attorney
    deciding to bring misdemeanor domestic battery charges against Paul, she had absolutely no
    authority to initiate that criminal process on her own. We conclude that she presented a valid
    affirmative defense to Paul’s malicious prosecution claim, namely that she could not, as a matter
    of law, commence any criminal action against Paul. The trial court correctly granted her section
    2-619 motion to dismiss on that basis.
    ¶ 18           We next examine whether the trial court properly granted Karolina’s section 2-615
    motion to dismiss Paul’s claim of abuse of process. A section 2-615 motion to dismiss challenges
    the allegations in the complaint and asks the court to determine whether, when viewed in the
    light most favorable to the plaintiff, the facts alleged are sufficient to state a cause of action.
    6
    While the plaintiff’s pleading need not prove the case, it must allege enough facts to state each of
    the elements of the claim. Neurosurgery & Spine Surgery, S.C. v. Goldman, 
    339 Ill. App. 3d 177
    ,
    182 (2003). A claim may be dismissed under section 2-615 only if it cannot be proven under any
    possible set of facts. Randall, 311 Ill. App. 3d at 850.
    ¶ 19           To establish a claim of abuse of process, Paul’s complaint had to allege facts showing:
    (1) an ulterior purpose, and (2) an improper act in the use of legal process. Keithley v. Stevens,
    
    238 Ill. 199
    , 200 (1909); Holiday Magic, Inc. v. Scott, 
    4 Ill. App. 3d 962
    , 966 (1972). Because
    abuse of process claims are disfavored in Illinois, we must strictly construe the elements of that
    cause of action. Neurosurgery, 339 Ill. App. 3d at 183. By itself, filing a lawsuit for an improper
    purpose does not constitute an abuse of process. Id.
    ¶ 20           To establish the first element of abuse of process, Paul’s complaint alleged that Karolina
    “willfully and wantonly misused the criminal legal process to accomplish her ulterior purpose of
    gaining an unfair advantage and leverage over [Paul] in their post-decree domestic relations
    matter to obtain more money from [him] than what was owed in child support, extra-curricular
    activities and to prevent her from driving [N.P.] to [Paul’s] residence in Willowbrook, Illinois
    which [Karolina] considered too far and out of her way.” Viewed on their face, those allegations
    provide facts that, if proven at trial and believed by the trier of fact, establish an ulterior purpose
    for Karolina’s report of domestic battery—seeking leverage and advantage in the parties’
    unrelated post-dissolution proceedings. Paul’s allegation of facts is sufficiently specific to
    adequately plead the first element of his abuse of process claim.
    ¶ 21           To establish the second element of his abuse of process claim and avoid dismissal under
    section 2-615, Paul had to allege an improper act by Karolina in the use of legal process.
    Keithley, 
    238 Ill. at 200
    ; Holiday Magic, 4 Ill. App. 3d at 966. “ ‘Process’ has been defined as
    7
    any means used by the court to acquire or to exercise its jurisdiction over a person or over
    specific property. [Community National Bank in Monmouth v.] McCrery, 156 Ill. App. 3d [580,]
    583 [(1987)]. Therefore, the issuance of a summons can be categorized as process.”
    Neurosurgery, 339 Ill. App. 3d at 183.
    ¶ 22           Here, the only act alleged by Paul that could meet that standard was Karolina’s report to
    the police that he had committed battery against N.P. Karolina’s report, however, did not impact
    the trial court’s “[acquisition] or exercise [of] its jurisdiction over a person or over specific
    property.” See Neurosurgery, 339 Ill. App. 3d at 183. Her report merely triggered an
    investigation by the authorities into her battery allegations. The trial court’s jurisdiction could
    not be implicated because, at that point, no “legal process” had begun. Her report simply created
    a potential basis for the future institution of legal process by the State. For that reason, it is
    insufficient to establish the second element of Paul’s abuse of process claim.
    ¶ 23           While, in Paul’s view, Karolina also “had standing and full authority to bring criminal
    charges against” him, we have already rejected that view. Because she could not bring or
    prosecute any criminal charges, none of her actions could constitute an improper use of legal
    process. The State is the entity that instituted and prosecuted all legal process against Paul, but he
    has not made the State a party to this case. Thus, the trial court properly granted Karolina’s
    section 2-615 motion to dismiss Paul’s abuse of process claim.
    ¶ 24                                            III. CONCLUSION
    For the foregoing reasons, we affirm the judgment of the circuit court of Du Page
    County.
    ¶ 25           Affirmed.
    8
    

Document Info

Docket Number: 3-22-0200

Citation Numbers: 2023 IL App (3d) 220200-U

Filed Date: 3/6/2023

Precedential Status: Non-Precedential

Modified Date: 3/6/2023