PARKS v. NEUF

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Docket Number

No. 4-91-0152

Attorney(S)

Joseph W. Vigneri, of Decatur, for appellant. Burger, Fombelle, Zachry Rathbun, P.C., of Decatur, for appellee.

Judges

JUSTICE McCULLOUGH delivered the opinion of the court:

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Smart Summary

Factual and Procedural Background

Plaintiff Gloria Parks filed suit against defendant Marla S. Neuf, a private process server, alleging falsification of affidavits of service related to a separate small claims action filed by Illinois Bell. Parks claimed she was never personally served with a citation to discover assets or an order to show cause, despite affidavits stating otherwise, which led to her failure to appear in court and subsequent arrest. Initially, Parks sought damages for false arrest and intentional infliction of emotional distress; after several dismissals and amendments, the operative complaint (second-amended) asserted damages for falsification of affidavits of service. The trial court denied defendant’s motion to dismiss this count, and the issue was certified to the appellate court under Supreme Court Rule 308.

Legal Issues Presented

Is a civil cause of action for money damages for falsification of an affidavit of service by a private person on a return of a citation to discover assets or on a return of an order to show cause cognizable under Illinois law?

Arguments of the Parties

Defendant's Arguments

The falsification of affidavits amounts to perjury, and the law generally does not impose civil liability for perjury.

Plaintiff's Arguments

While perjury involving the main issues in a case does not give rise to a civil remedy, the alleged falsification here is collateral or adjunct to the underlying proceedings.
Therefore, a separate civil remedy should be recognized for the falsification of affidavits of service.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
John Allan Co. v. Brandow, 59 Ill. App.2d 328, 207 N.E.2d 339 (1965)	General rule that no civil action lies for damages caused by perjury or false testimony in judicial proceedings.	Distinguished on facts; court noted this case involved false process rather than false testimony or pleadings, thus the mischief of retrying cases was not implicated.
Dean v. Kirkland, 301 Ill. App. 495, 23 N.E.2d 180 (1939)	Supports the rule that no civil remedy exists for damages caused by perjury.	Referenced as part of the general rule but distinguished due to difference in factual context.
Ruehl Brothers Brewing Co. v. Atlas Brewing Co., 187 Ill. App. 392 (1914)	Rule against civil actions for damages based on false testimony or affidavits.	Quoted in John Allan to illustrate the policy against retrying cases on false evidence.
Loraitis v. Kukulka, 1 Ill.2d 533, 116 N.E.2d 329 (1953)	Filing false affidavits can constitute perjury.	Supported the proposition that false affidavits may be punishable but not necessarily subject to civil damages.
Amerco Field Office v. Onoforio, 22 Ill. App.3d 989, 317 N.E.2d 596 (1974)	False affidavits may give rise to contempt sanctions or perjury charges.	Referenced to show limited remedies available for false affidavits.
Bonney v. King, 201 Ill. 47, 66 N.E. 377 (1903)	Elements of abuse of process tort: ulterior purpose and improper use of process.	Used to define the legal standard for abuse of process applied to plaintiff’s claim.
Kurek v. Kavanagh, Scully, Sudow, White Frederick, 50 Ill. App.3d 1033, 365 N.E.2d 1191 (1977)	Elements required to establish abuse of process.	Applied to analyze plaintiff’s allegations and confirm sufficiency of abuse of process claim.
Kennedy v. First National Bank, 194 Ill. App.3d 1004, 551 N.E.2d 1002 (1990)	Abuse of process requires improper use of court process with ulterior motive.	Supported court’s conclusion that falsification of affidavits fits within abuse of process framework.
Holiday Magic, Inc. v. Scott, 4 Ill. App.3d 962, 282 N.E.2d 452 (1972)	Definition of "process" and limits on abuse of process claims.	Clarified that abuse of process applies where there is actual arrest or seizure of property; plaintiff’s arrest satisfied this.
Alberto-Culver Co. v. Andrea Dumon, Inc., 295 F. Supp. 1155 (N.D. Ill. 1969)	Improper use of process may give rise to abuse of process claim.	Supported the principle that abuse of process requires improper use of court process.
Liddell v. Smith, 345 F.2d 491 (7th Cir. 1965)	Cases involving false testimony or pleadings.	Distinguished from instant case because it involved false testimony rather than false service of process.

Court's Reasoning and Analysis

The court began by framing the certified question: whether a civil cause of action exists for damages arising from falsification of affidavits of service by a private process server. The court recognized the general rule that perjury or false testimony given in judicial proceedings does not give rise to civil liability, as established in Illinois precedent. However, the court distinguished this case on the basis that the falsification involved the process of service itself, not the substantive issues of the underlying litigation.

The court emphasized that the "mischief" of retrying cases based on false testimony, which underlies the rule barring civil damages for perjury, was not implicated here because the underlying debt dispute was not at issue. Instead, the falsification related to the procedural mechanism used to assert jurisdiction over the plaintiff.

Applying the tort of abuse of process, the court noted that such a claim requires proof of an ulterior motive and an improper use of the court process. The court found that the defendant’s falsification of affidavits to obtain fees constituted an improper use of process with an ulterior motive. Since the plaintiff suffered an actual arrest as a result, the abuse of process claim was viable.

Thus, the court concluded that a civil cause of action for abuse of process may be maintained for falsification of affidavits of service by a private process server, affirming the trial court’s denial of the motion to dismiss.

Holding and Implications

The court held that a civil cause of action for abuse of process is cognizable and may be maintained for falsification of an affidavit of service by a private process server.

The direct effect of this decision is to uphold the plaintiff’s claim and allow the abuse of process cause of action to proceed against the defendant. The court’s ruling clarifies that while perjury generally does not give rise to civil liability, falsification of process-related documents used to effectuate service can support an abuse of process claim. No new precedent beyond this application was established, but the decision underscores the availability of civil remedies when false affidavits lead to improper arrests and misuse of judicial process.

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GLORIA PARKS, formerly Gloria Marcy, Plaintiff-Appellee, v. MARLA S. NEUF, Defendant-Appellant.

JUSTICE McCULLOUGH delivered the opinion of the court:

Plaintiff Gloria Parks filed this action in the circuit court of Sangamon County to recover damages for false affidavits of service executed by defendant Marla S. Neuf, the private process server in a separate small claims action. Defendant's motion to dismiss count IV of plaintiff's second-amended complaint captioned "Falsification of Affidavit of Service" was denied. The following issue has been certified to this court pursuant to Supreme Court Rule 308 (134 Ill.2d R. 308): Is a civil cause of action for money damages for falsification of an affidavit of service by a private person on a return of a citation to discover assets or on a return of an order to show cause cognizable under the laws of the State of Illinois? We conclude an action for abuse of process may be maintained for falsification of an affidavit of service by a private process server.

In her original complaint, plaintiff alleged that on January 8, 1988, a judgment was entered against her in a small claims action filed by Illinois Bell. On May 3, 1988, a citation to discover assets was filed and purportedly personally served on plaintiff by defendant on May 3, 1988, at 1:12 p.m. Plaintiff further alleged defendant's affidavit of service was false. Because she was never served with the citation, plaintiff failed to appear in court on May 6, 1988, as required, and an order to show cause for failure to appear was entered. The order to show cause was purportedly personally served on plaintiff by defendant on June 14, 1988, at 2:35 p.m. According to plaintiff, this affidavit of service was also false, plaintiff was never served with the order to show cause and, thus, she failed to appear in court on June 17, 1988, as required. Plaintiff was arrested on December 17, 1988, for failing to appear in the citation proceedings.

Plaintiff originally sought damages for false arrest (count I) and intentional infliction of emotional distress (count II). The trial court dismissed count I of plaintiff's original complaint with prejudice, and count II was dismissed without prejudice. In her first-amended complaint, plaintiff included three counts: abuse of process, intentional infliction of emotional distress, and an unidentified cause of action which included allegations from counts II and III. Counts II and III of the first-amended complaint were dismissed with prejudice. Plaintiff was allowed to replead count IV of this first-amended complaint.

Plaintiff's second-amended complaint included one count (count IV) for damages of falsification of an affidavit of service. In this count, plaintiff alleged (1) that during her arrest, her picture was taken, showing her handcuffed, and was thereafter published in numerous newspapers; (2) defendant had a duty to plaintiff and the court as a private process server to file truthful affidavits of service; (3) defendant intentionally falsified affidavits of service when she knew or should have known the court would rely on them in issuing a warrant for plaintiff's arrest; and (4) as a direct and proximate result of defendant's actions, plaintiff was arrested, her arrest was published in the newspaper, and her reputation was thereby damaged. Defendant's motion to dismiss the second-amended complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2-615) was denied.

Defendant contends in this court that the falsification of affidavits in this case amounts to perjury and the law does not subject one who allegedly committed perjury to civil liability for such acts. Plaintiff agrees with defendant that when the perjury committed bears directly on the issue or point in question, no civil remedy is available to the one against whom the perjury operated. However, plaintiff urges the perjury involved in this matter does not bear directly on the issues in the citation proceedings, i.e., whether plaintiff is liable to Illinois Bell for an outstanding phone bill. Rather, the perjury here is collateral or adjunct to those proceedings and, therefore, a separate civil remedy should be recognized. In essence, plaintiff contends no remedy exists for the perjury involved in this case.

• 1 The parties focus their arguments on whether defendant's actions constitute perjury. Perjury has been defined as the wilful or corrupt taking of a false oath, lawfully administered in a judicial proceeding or in the course of justice, with respect to a matter material to the issue or point of inquiry. (70 C.J.S. Perjury § 2, at 248 (1987).) The filing of false affidavits can be the basis of a perjury charge (Ill. Rev. Stat. 1989, ch. 101, par. 5; Loraitis v. Kukulka (1953), 1 Ill.2d 533, 116 N.E.2d 329; Amerco Field Office v. Onoforio (1974), 22 Ill. App.3d 989, 992, 317 N.E.2d 596, 599), or may give rise to a court-imposed sanction for contempt of court (Ill. Rev. Stat. 1989, ch. 110, par. 2-203(c); Amerco, 22 Ill. App.3d at 992, 317 N.E.2d at 599). Except under limited circumstances or where authorized by statute, it is generally held an action for damages caused by perjury may not be maintained. (70 C.J.S. Perjury § 4, at 251 (1987).) The Illinois courts have long recognized this rule. ( John Allan Co. v. Brandow (1965), 59 Ill. App.2d 328, 207 N.E.2d 339; Dean v. Kirkland (1939), 301 Ill. App. 495, 23 N.E.2d 180; see also Hocker v. Welti (1926), 239 Ill. App. 392; Ruehl Brothers Brewing Co. v. Atlas Brewing Co. (1914), 187 Ill. App. 392.) As stated in John Allan:

"`[N]o action can be maintained on account of the false testimony of witnesses, or of a false statement filed in a judicial proceeding. It is recognized by the authorities that there may be individual cases in which great injustice may be done by this rule of law. The weight of such an argument, however, is overcome in the opinion of the courts asserting the rule, by the mischief of retrying every case in which the judgment or decree rendered or secured on false testimony, or false affidavits, or on contracts or documents whose genuineness or validity was in issue and which may afterwards be ascertained to be forged or fraudulent.'" (Emphasis added.) John Allan, 59 Ill. App.2d at 333, 207 N.E.2d at 342, quoting Ruehl, 187 Ill. App. at 398.

We find this case factually distinct from that involved in John Allan and other cases relied upon by the parties. The false statements in this case involved the process issued, not false testimony or pleadings as in John Allan, Dean v. Kirkland (1939), 301 Ill. App. 495, 23 N.E.2d 180, and Liddell v. Smith (7th Cir. 1965), 345 F.2d 491. The "mischief" of retrying a case as set out in John Allan is not present here; none of the substance of the Bell case concerning whether plaintiff owed the amount claimed by Bell is an issue in the instant case. In John Allan and the other cases finding no cause of action existed, the courts were concerned with undermining the judicial process. To say there is no cognizable cause of action here would in fact undermine the judicial process.

• 2, 3 We conclude that plaintiff's allegations constitute abuse of process for which there is an available remedy for the plaintiff in this case. To establish abuse of process, a plaintiff must establish (1) the existence of an ulterior purpose or motive for the use of regular court process; and (2) some act in the use of the process not proper in the regular prosecution of the proceeding. ( Bonney v. King (1903), 201 Ill. 47, 51, 66 N.E. 377, 378; Kurek v. Kavanagh, Scully, Sudow, White Frederick (1977), 50 Ill. App.3d 1033, 1038, 365 N.E.2d 1191, 1195; Kennedy v. First National Bank (1990), 194 Ill. App.3d 1004, 551 N.E.2d 1002.) The gist of this tort is contained within its title; an actionable tort does not exist unless there is some improper use of the process of the court. ( Holiday Magic, Inc. v. Scott (1972), 4 Ill. App.3d 962, 967, 282 N.E.2d 452, 455-56.) "Process" has been defined as "any means used by the court to acquire or to exercise its jurisdiction over a person or over specific property." ( Holiday, 4 Ill. App.3d at 968, 282 N.E.2d at 456.) The Illinois courts have found improper use of process only in those instances where the plaintiff has suffered an actual arrest or a seizure of property. Holiday, 4 Ill. App.3d at 969, 282 N.E.2d at 457, citing John Allan, 59 Ill. App.2d 328, 207 N.E.2d 339, and Alberto-Culver Co. v. Andrea Dumon, Inc. (N.D. Ill. 1969), 295 F. Supp. 1155.

• 4 Plaintiff's allegations meet the requirements for a cause of action for abuse of process. Defendant twice falsified affidavits of return of service of process for the ulterior purpose or motive of obtaining the fees provided for a private process server. Falsification of a return of service is clearly an act in the use of process not proper in the regular prosecution of the proceeding. As a result of defendant's actions, plaintiff was arrested.

In conclusion, we find a civil cause of action for abuse of process may be maintained for falsification of an affidavit of service by a private person. Accordingly, we affirm the trial court's denial of defendant's motion to dismiss plaintiff's cause of action.

Affirmed.

SPITZ and KNECHT, JJ., concur.