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FACTS

In November of 1998, plaintiff Agnes Stephens filed an actionagainst the Moline Housing Authority and Steven Taylor(collectively, the Housing Authority) for malicious prosecution andviolation of her civil rights. At trial, the jury was instructedthat Agnes had the burden of proving that the Housing Authoritymaliciously and without probable cause commenced or continued acriminal prosecution against her.

After the jury announced that it had reached a verdict butbefore the verdict was announced, the trial court submitted to thejury a special interrogatory which asked: "If you find that Mr.Taylor commenced or continued a criminal proceeding against theplaintiff then do you find that Mr. Taylor acted with willful andwanton disregard for plaintiff's rights?"

The jury answered the special interrogatory in the negativeand awarded Agnes a verdict in the amount of $150,000. The court,however, entered a judgment notwithstanding the verdict (judgment n.o.v.) in favor of the Housing Authority, finding that the specialinterrogatory and the verdict were inconsistent and that thespecial interrogatory controlled the verdict. In a subsequentmotion, Agnes requested that the court vacate its judgment andenter judgment on the general verdict or, in the alternative, granther a new trial. The trial court denied the request to vacate thejudgment and enter judgment on the general verdict, but granted therequest for a new trial. Notwithstanding the trial court'sdecision to grant a new trial, Agnes proceeded to file a petitionfor leave to appeal with this court pursuant to Supreme Court Rule306(a)(1) (134 Ill. 2d R. 306(a)(1)). We denied Agnes' petitionwithout addressing its merits.

At the conclusion of the second trial, the jury returned averdict in favor of the Housing Authority on all claims. Afterwards, Agnes filed a motion claiming, inter alia, that thetrial court committed an error when it granted the judgment n.o.v.in the first trial and when it subsequently granted the new trial. The motion was denied, and Agnes appealed a second time.

Additional facts will be set forth as they become pertinent tothe analysis.

ANALYSIS

Agnes argues on appeal that the trial court improperly grantedthe Housing Authority's motion for a judgment n.o.v. after thefirst trial. This court applies a de novo standard when reviewinga trial court's decision to grant a judgment n.o.v. motion. Koehler v. Neighbors, 322 Ill. App. 3d 440, 751 N.E.2d 149 (2001).

As a preliminary matter, we must consider the HousingAuthority's contention that, based on our prior decision in Cronkhite v. Feeley, 251 Ill. App. 3d 868, 623 N.E.2d 748 (1993),this court lacks subject matter jurisdiction over this appeal.

In Cronkhite, 251 Ill. App. 3d at 869, 623 N.E.2d at 750, weconcluded that review of an order for a new trial was precludedfrom further review inasmuch as it was the subject of an earlierpetition for leave to appeal which was denied. In reaching ourconclusion, we observed that there appeared to be a conflict in therulings of the Illinois Supreme Court on the issue and accordinglyexamined two supreme court cases that seemed in conflict.

The first case we examined was Robbins v. ProfessionalConstruction Co., 72 Ill. 2d 215, 380 N.E.2d 786 (1978), whichaffirmed a decision by the appellate court that the denial of apetition for leave to appeal on a question of whether a new trialorder was proper precluded further review of the question on alater appeal. The second case we reviewed was Kemner v. MonsantoCo., 112 Ill. 2d 223, 492 N.E.2d 1327 (1986), which ruled that anappellate court's denial of a petition for interlocutory reliefregarding a trial court's decision to deny a motion to dismissbased on forum non conveniens was not "an exotic form of res judicata" (112 Ill. 2d at 241, 492 N.E.2d at 1335) and meant onlythat a majority of the court could not be mustered to support thepetition. Because Robbins concerned a new trial order and Kemnerconcerned a motion to dismiss based on forum non conveniens, wefollowed Robbins and refused to review the propriety of the trialcourt's order for a new trial as it was the subject of an earlierpetition for leave to appeal. See Cronkhite, 251 Ill. App. 3d at870, 623 N.E.2d at 750.

Upon further consideration, we find the reasoning in Kemner more persuasive. Parties are entitled to one appeal from an orderof the trial court granting a new trial. See 134 Ill. 2d R.306(a)(1). If parties do not appeal the grant of a new trial, theyforever waive their rights. See Simmons v. Chicago HousingAuthority, 267 Ill. App. 3d 545, 641 N.E.2d 915 (1994) (findingthat a party waived the right to contest an order granting a newtrial because it failed to timely file a petition for leave toappeal). If a petition for leave to appeal is denied withoutreaching the merits of the petition and then the petition istreated as if it were res judicata, the parties will effectivelyhave been deprived of the one review to which they are entitled. Accordingly, we hold that this court has jurisdiction over thisappeal and Agnes is not precluded from raising the issue that thetrial court erroneously granted the Housing Authority's judgment n.o.v. motion after the first trial. To the extent thatCronkiteis inconsistent with this opinion, it is overturned.

We now consider the substance of Agnes' argument. Agnesasserts that the trial court erred when it granted the HousingAuthority's judgment n.o.v. motion. According to Agnes, thespecial interrogatory and the general verdict were not inconsistentwith one another, the special interrogatory did not cover all theissues at trial, and the jury could have reasonably reached itsverdict while still finding that the Housing Authority's actionswere not willful and wanton. The Housing Authority responds thatthe trial court's grant of the motion for a judgment n.o.v. wasreasonable because in answering the special interrogatory the jurymade a finding that it did not act intentionally or maliciously. The Housing Authority also responds that Agnes is not entitled toargue that the special interrogatory was improper because she wasgranted the new trial which she had requested as alternative reliefand did not object to the special interrogatory at trial.

Section 2-208 of the Local Governmental and GovernmentalEmployees Tort Immunity Act (Immunity Act) provides that "[a]public employee is not liable for injury caused by his institutingor prosecuting any judicial or administrative proceeding within thescope of his employment, unless he acts maliciously and without probable cause." (Emphasis added.) 745 ILCS 10/2-208 (West 2000). To prove the tort of malicious prosecution, a plaintiff is requiredto show the following: (1) the commencement or continuation of anoriginal criminal or civil judicial proceeding by the defendant;(2) the termination of the proceeding in favor of the plaintiff;(3) the absence of probable cause for such proceeding; (4) thepresence of malice on the part of the defendant; and (5) resultingdamages to the plaintiff. Illinois Nurses Ass'n v. Board ofTrustees of University of Illinois, 318 Ill. App. 3d 519, 741N.E.2d 1014 (2000). Malice is defined as the intent withoutjustification or excuse to commit a wrongful act. Illinois NursesAss'n, 318 Ill. App. 3d at 534, 741 N.E.2d at 1025.

The jury in this case was instructed that in order for Agnesto prove her case for malicious prosecution she was required toshow, inter alia, that the Housing Authority's conduct wasmalicious and without probable cause. See 745 ILCS 10/2-208 (West2000). The jury was also instructed as follows:

"When I use the term 'malice' I mean the actuation of aprosecution for an improper motive. An improper motivefor a prosecution is any reason other than to bring theparty to justice. Malice may be inferred from theabsence of probable cause when the circumstances whichexist are inconsistent with good faith by the action andwhere the absence of probable cause has been clearlyproved."

Before the jury announced its verdict, however, it received aspecial interrogatory from the trial court which asked: "If youfind that Mr. Taylor commenced or continued a criminal proceedingagainst the plaintiff then do you find that Mr. Taylor acted withwillful and wanton disregard for plaintiff's rights?"

We hold that the jury's verdict in favor of Agnes on hermalicious prosecution claim and its determination in response tothe special interrogatory that the Housing Authority's actions werenot willful and wanton are not irreconcilable with one another. The jury was instructed that if it believed that there was noprobable cause, then it could infer malice. Accordingly, aconsideration of the willful and wanton standard was not necessary. See Mack v. First Security Bank of Chicago, 158 Ill. App. 3d 497,511 N.E.2d 714 (1987). Moreover, the jury was never given aninstruction or a definition of the willful and wanton standard. Therefore, it had no occasion to consider the standard when makingits decision. Because we determine that the jury could havereached its decision without finding that the Housing Authority'sactions were willful and wanton, we affirm. See Bilderback v.Admiral Co., 227 Ill. App. 3d 268, 591 N.E.2d 36 (1992) (providingthat an inconsistency between a special interrogatory and a generalverdict exists only when the answer to the special interrogatory isclearly and absolutely irreconcilable with the general verdict).

Regarding the Housing Authority's contention that Agnes is notentitled to relief because she was granted the new trial that shehad requested, we disagree. The issue Agnes raised in this appealis whether the trial court improperly granted the judgment n.o.v.motion. That issue was not addressed by this court on its merits,and Agnes was not able to raise the issue previously because therehad not yet been a final judgment in the case. See Matyskiel v.Bernat, 85 Ill. App. 2d 175, 228 N.E.2d 746 (1967) (providing thatan order granting a new trial is interlocutory in nature). Accordingly, Agnes is not barred from raising the issue in thisappeal. See Craigmiles v. Egan, 248 Ill. App. 3d 911, 618 N.E.2d1242 (1993) (determining that a denial of leave to appeal underSupreme Court Rule 306 is not a bar to further raising of theissues involved).

We also do not agree with the Housing Authority's contentionthat Agnes should not be able to argue that the specialinterrogatory was improper because she did not object to theinterrogatory at trial. Although failing to object to a specialinterrogatory when proffered will ordinarily waive any claim oferror in giving the special interrogatory, a party's contentionthat an answer to a special interrogatory is not inconsistent withthe general verdict is not waived notwithstanding that party'sfailure to object to the interrogatory when proffered. LaPook v.City of Chicago, 211 Ill. App. 3d 856, 570 N.E.2d 708 (1991). Consequently, Agnes did not waive her right to assert that theanswer to the special interrogatory was not inconsistent with thegeneral verdict. As a result, we reverse and hold that the trialcourt erred when it denied Agnes' motion for a judgment on theverdict. The jury's verdict of $150,000 is hereby reinstated.

For the foregoing reasons, the judgment of the circuit court of Rock Island County isreversed.

Reversed.

HOMER, J., concurring

HOLDRIDGE, J., dissenting.

JUSTICE HOLDRIDGE, dissenting:

Through its verdict, the jury found that the Housing Authority acted with malice. Through its answer to the special interrogatory, however, the jury found that the HousingAuthority did not act with willful and wanton disregard for Agnes' rights. The majorityconcludes that the answer to the special interrogatory is not irreconcilable with the verdict. Theplain meaning of the words "malicious," "willful," and "wanton" tells a different story.

An act is willful if it is deliberate(1) and done in accordance with one's will. The AmericanHeritage Dictionary of the English Language 1466 (1969). Essentially, willful conduct isintentional conduct. Since malice has an intent component (see Illinois Nurses Ass'n v. Board ofTrustees of University of Illinois, 318 Ill. App. 3d 519 (2000)), a person who acts maliciouslyalso acts willfully.

An act is wanton if it is "[m]aliciously cruel" or merciless. The American HeritageDictionary of the English Language 1444 (1969). According to Black's Law Dictionary, theword wanton signifies "[u]nreasonably or maliciously risking harm while being utterly indifferentto the consequences." Black's Law Dictionary 1576 (7th Ed. 1999). These definitions show thatmalicious conduct is also wanton conduct.

I do not see how the Housing Authority could have acted maliciously yet not willfully andwantonly. Neither does the majority give an adequate explanation for its contrary view. Thejury's ability to infer malice from an absence of probable cause merely speaks to the method offinding malice; it does not change the essential meaning of that term. Furthermore, the absenceof an instruction on willful and wanton conduct (and the fact that the jury did not consider thatstandard in reaching its verdict) simply does not prove the majority's point. Nothing about thosecircumstances diffuses the conflict illustrated by the above-cited definitions.

The trial court recognized a legitimate inconsistency between the verdict and the answerto the special interrogatory. I agree with the court and thus dissent from the majority's opinionreversing its judgment.

1. The word deliberate signals premeditated or intentionalaction. The American Heritage Dictionary of the English Language349 (1969).