Appellate Law

Summary Judgment Sustained On Argument Trial Court Did Not Consider

By Steven R. Merican

Glen Howard had an argument with his roommate, Bethany Firmand. After Bethany brought two order of protection proceedings against Glen, he sued Bethany for malicious prosecution. A summary judgment was entered in Bethany?s favor because she ?had probable cause as a matter of law to initiate the underlying civil proceedings against Howard.?

The First District Illinois Appellate Court disagreed with that conclusion, but affirmed the summary judgment because Glen could not show that he suffered ?special injury,? an element of a cause of action for malicious prosecution.

Even though the trial court did not rule on the ?special injury? question, it was proper for the appellate court to consider. ?Although the trial court did not rule on this argument, Firmand did raise special injury in her motion for summary judgment. The issue is properly before the [appellate] court ? [A]ppellee may advance any argument in support of the judgment on appeal regardless of whether the trial court ruled on that argument, so long as the factual basis for the argument was before the trial court.?

Read the whole case, Howard v. Firmand, No. 1-06-2019 (12/17/07), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on March 24, 2008 (boomark / email).