Page 1
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`MICHAEL CARTWRIGHT et al., Plaintiffs-Appellees, v. WEXLER, WEXLER
`AND HELLER, LTD., et al., Defendants-Appellants
`
`No. 76-659
`
`Appellate Court of Illinois, First District, Fourth Division
`
`53 Ill. App. 3d 983; 369 N.E.2d 185; 1977 Ill. App. LEXIS 3562; 11 Ill. Dec. 731
`
`October 13, 1977, Filed
`
`[***1] APPEAL from the
`PRIOR HISTORY:
`Circuit Court of Cook County;
`the Hon. DANIEL
`COMAN, Judge, presiding.
`
`DISPOSITION: Affirmed in part and reversed in part.
`
`COUNSEL: Norman P. Wexler, of Wexler, Wexler and
`Heller, Ltd., of Chicago, for appellants.
`
`Anthony Intini, III, of Chicago (Benjamin DiGiacomo, of
`counsel), for appellees.
`
`JUDGES: Mr. JUSTICE LINN delivered the opinion of
`the court. DIERINGER, P. J., and JOHNSON, J., concur.
`
`OPINION BY: LINN
`
`OPINION
`
`[**186] This appeal arises from the refusal
`[*984]
`of the trial court to dismiss all of the counts of plaintiffs'
`amended complaint alleging a cause of action against the
`defendants-appellants for abuse of process. We reverse in
`part since we find that all of the counts should be
`dismissed.
`
`Plaintiffs filed their amended complaint against
`defendants in three counts, each count alleging an abuse
`of process arising from a previous suit instituted against
`plaintiffs. Count
`I of
`the complaint alleged the
`
`lease
`following: Plaintiffs had executed an apartment
`with defendant [*985] Catalpa Properties. The term of
`the lease was one year, terminating May 31, 1975, with
`rent at $ 334 per month. A security deposit equal to one
`rent was also [***2]
`month's
`required. Plaintiffs
`complied with the security deposit provision and made
`monthly rent payments until they vacated the apartment
`in November 1974.
`
`Upon plaintiffs' failure to pay rent, Catalpa assigned
`the lease to defendant DiCom Corporation, who filed suit
`[**187]
`against
`plaintiffs on March 26, 1975. The
`complaint was verified by defendant Steward, as agent of
`DiCom. Steward is an employee of the defendant law
`firm of Wexler, Wexler & Heller. A default judgment
`was entered on April 25, 1975, for $ 1,485.30. The
`judgment was entered two days after the sheriff's return
`of summons. DiCom then garnished plaintiffs' bank
`accounts in the amount of $ 1,526.90. Meanwhile, on
`December 26, 1974, Catalpa had relet
`the apartment
`vacated by plaintiffs for $ 355 per month for a one-year
`term commencing January 1, 1975.
`
`The complaint further alleged that Wexler, Wexler &
`Heller owed a duty to properly advise DiCom, and having
`negligently failed to do so, brought suit for rent against
`plaintiffs. This was done even though they possessed
`knowledge of all relevant facts. Plaintiffs alleged that
`defendants joined together
`to further
`their monetary
`interests by wrongfully [***3] depriving plaintiffs of
`their money and reputation through an abuse of process
`
`Biogen Exhibit 2005
`Coalition v. Biogen
`IPR2015-01136
`
`Page 1 of 3
`
`

`
`53 Ill. App. 3d 983, *985; 369 N.E.2d 185, **187;
`1977 Ill. App. LEXIS 3562, ***3; 11 Ill. Dec. 731
`
`Page 2
`
`and therefore sought compensatory and exemplary
`damages.
`
`Count II realleged the facts set forth in count I, but
`substituted an allegation that Wexler, Wexler & Heller
`had wilfully and wantonly failed to properly advise
`DiCom.
`
`the defendants conspired
`III alleged that
`Count
`together to further their monetary interests by depriving
`plaintiffs of their money and reputation through an abuse
`of process. The acts which were alleged to be in
`furtherance of the conspiracy were as follows: That
`Catalpa assigned plaintiffs' lease to DiCom, then relet the
`premises at a higher rental;
`that
`three months later,
`Wexler, Wexler & Heller, at a time when they knew or
`should have known that
`the premises had been relet
`through Steward, brought suit on behalf of DiCom
`against plaintiffs; that summons was never served on
`plaintiffs and that the sheriff's return was violative of
`supreme court rules; that defendants obtained judgment,
`knowing that the judgment was void and contrary to law,
`and then garnished plaintiffs' bank, causing plaintiffs a
`deprivation of money and reputation.
`
`Upon a motion to strike the complaint by [***4]
`defendants Steward and Wexler, Wexler & Heller, the
`trial court struck count II as to Steward and counts I and
`II as to Wexler, Wexler & Heller. Defendants bring this
`[*986] appeal, contending that all counts should have
`been dismissed as to them. *
`
`* At oral argument, plaintiffs-appellees informed
`this court that they had cross-appealed in this
`case. An examination of the record does not
`disclose that a notice of appeal had been entered
`by plaintiffs. Furthermore, in its brief, plaintiffs
`merely
`designate
`themselves
`as
`"plaintiffs-appellees." However, since plaintiffs
`arguments are addressed to the contention that the
`trial court erred in striking any counts of the
`complaint, a disposition of defendants' appeal will
`serve to dispose of the issues raised by plaintiffs.
`
`We note at the outset that the allegations of the
`existence of a conspiracy in count III of plaintiffs'
`amended complaint do not, standing alone, constitute an
`allegation of an actionable wrong upon which liability for
`damages may be [***5] predicated. Rather, it is the
`wrongful act sought to be accomplished by the alleged
`conspiracy, in this case an abuse of process, which may
`
`result in liability. ( Skolnick v. Nudelman (1966), 71 Ill.
`App. 2d 424, 218 N.E.2d 775.) Thus, our task will be to
`examine the complaint to determine whether sufficient
`facts are alleged to set forth the elements of an abuse of
`process.
`
`In order to properly plead a cause of action for abuse
`of process, the pleadings must allege (1) the existence of
`an ulterior purpose or motive; and (2) some act in the use
`of the legal process not proper in the regular prosecution
`of the proceedings. ( Bonney v. King (1903), 201 Ill. 47,
`66 N.E. 377; Holiday Magic, Inc. v. Scott (1972), 4 Ill.
`App. 3d 962, 282 N.E.2d 452.
`
`"The purpose of such an action is to
`accomplish some result which could not
`be accomplished through the suit itself.
`[Citations.] This must be something other
`than the successful completion of
`that
`[**188]
`particular
`lawsuit.
`[Citations.]
`The mere filing of a lawsuit, even with a
`malicious motive, does not constitute an
`abuse of process. [Citations.]" Kurek v.
`Cavanaugh, Scully, Sudow, White &
`Frederick [***6] (1977), 50 Ill. App. 3d
`1033, 1038, 365 N.E.2d 1191, 1194.
`
`The test to be applied in determining the sufficiency
`of the allegations pertaining to the second element of the
`action is whether process has been used to accomplish
`some end which is beyond the purview of the process, or
`which compels the party against whom it is used to do
`some collateral thing which he could not legally and
`regularly be compelled to do. Ewert v. Wieboldt Stores,
`Inc. (1976), 38 Ill. App. 3d 42, 347 N.E.2d 242.
`
`In the present case, plaintiffs have not alleged facts
`which would indicate that defendants did anything more
`than institute a lawsuit and, after a default judgment was
`entered, obtain satisfaction of their judgment through the
`regular procedures for garnishment. The complaint fails
`to allege an act by defendants in the use of legal process
`which was not proper in the prosecution of their action.
`
`[*987] For the foregoing reasons, the order of the
`trial court striking and dismissing count II as to Steward
`and counts I and II as to Wexler, Wexler & Heller, is
`affirmed. That portion of
`the order allowing the
`
`Page 2 of 3
`
`

`
`53 Ill. App. 3d 983, *987; 369 N.E.2d 185, **188;
`1977 Ill. App. LEXIS 3562, ***6; 11 Ill. Dec. 731
`
`Page 3
`
`remaining counts to stand against them is reversed and
`the remaining counts [***7] as to these defendants are
`likewise stricken and dismissed.
`
`Affirmed in part; reversed in part.
`
`Page 3 of 3