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     ROGER WITTEKIND                 )      Appeal from the Circuit Court
                                     )      of the 14th Judicial Circuit,
          Plaintiff - Appellant,     )      Rock Island County, Illinois
                                     )      No. 90-SC-3806
          - vs-                      )
                                     )
     BEVERLY RUSK                    )      Honorable
                                     )      John M. Telleen
          Defendant - Appellee.      )      Presiding Judge
     _____________________________________________________________________

 

REPLY BRIEF

FOR

PLAINTIFF - APPELLANT

 

IMPORTANT NOTE:

On top of all the other false and unfair assumptions used by the courts, the judgment in 3-91-0162 replied to this by saying: "The plaintiff's other assertions are unsupported by legal authority and irrelevant to the case on appeal. We therefore shall not address them." Yet, this is straight out of the same precedent Duane Thompson used!


THIS HONORABLE COURT SHOULD REVERSE AND REMAND,

BASED UPON THE PRINCIPALS OF LAW STATED IN

MACK V. FIRST SECURITY BANK OF CHICAGO

158 Ill.App.3d 497, 110 Ill.Dec. 537, 511 N.E. 2d 714 (1st Dist. 1987).

APPELLEE IN HER BRIEF AND ARGUMENT HAS CITED THIS CASE

AS HER ONLY AUTHORITY, WHICH FULLY SUPPORTS

THE APPELLANT'S ARGUMENT.

Appellee's Brief and Argument has failed to state correctly the decision of the Appellate Court in the above Mack case regarding the directed verdict. At 110 Ill.Dec. page 542 the court reverses and remands the case.

ABSENCE OF PROBABLE CAUSE

Using the Mack case at 110 Ill.Dec. at 537: "Probable cause" is state of facts, in prosecutor's mind, that would lead person of ordinary care and prudence to believe or entertain honest and sound suspicion that accused committed offense charged.

In the case Burghardt v. Remiyac 152 Ill.Dec. at 370: However, under a 1918 Illinois Supreme Court decision, a criminal court's preliminary hearing finding of probable cause is not determinative on the question of whether there existed a probable cause defense to support summary judgment for malicious prosecution defendant.

As pointed out in the Appellee's Brief and Argument on page 5 the only basis the trial judge used to establish a probable cause was "The record shows that there was a probable cause hearing in front of Judge ..."

This should now be considered an Error of Law.

I could make some of the same arguments that were made in the Mack case at 110 Ill.Dec. at 541: The circumstances of the prosecution are inconsistent with good faith on the part of the prosecutor... I could show how many facts were never discovered until the trial. But there is a more important issue on the lack of a probable cause.

Since the defendant's counsel never showed any existence of an alleged probable cause for a 4 am phone call, and the statement "The record shows that there was a probable cause hearing in front of Judge Brinn." CANNOT determine a probable cause, Burghardt v. Remiyac 152 Ill.Dec. at 370. It would be correct to say "It was the defendant herself that showed an absence of probable cause for such proceedings."


PRESENCE OF MALICE

As in the Mack case the word malice must be correctly defined. These words are from the Mack case at 110 Ill.Dec. at 540: Malice, as an element of malicious prosecution, is defined as the actuation of a prosecution for an improper motive. An improper motive for a prosecution is any reason other than to bring the party to justice.

From plaintiff's exhibit number 2 page 6, appellant's opening remarks.

For starters you might think there are two people here. There's me the defendant, and there is if you want to call it a ghost or Beverly's delusion, this person that the people are saying committed a crime is over there. He doesn't exist. They've been trying to tell, they've been coming up with all sorts of crazy actions, you know telling all sorts of stories, trying to stick to their prejudices.

Their whole story is going to be based on prejudices. A story just because of their prejudices. He did mention something about the daughter's, the daughter's problem. I am well aware of that problem, and they know nothing of it. They are so prejudiced they refuse to see the facts, and it's just malice that is causing them to do this.

It's like again, it's like a ghost. They're afraid of a ghost. There's never anything to run from. And as far as telephone calls, I'd have to deny the one they say, but I am going to go on - I am going to go on motive where there was never any intent to harass.

In summary, the existence of a probable cause is not present, and the definition of the word malice in a malicious prosecution suit had to be defined properly. This Honorable Court should reverse and remand.