Appeal from the Circuit Court for the 14th Judicial Circuit, Rock Island County, Illinois No. 98-L-195 Honorable Ronald C. Taber Judge, Presiding
The opinion of the court was delivered by: Justice Breslin
We are asked to determine whether a party who was denied leave to appeal from a petition filed pursuant to Supreme Court Rule 306(a)(1) (166 Ill. 2d 206(a)(1)) after a new trial was granted is foreclosed from raising the same issues in a subsequent appeal. We hold that if the merits of the first petition were not addressed by the appellate court, then those issues are not foreclosed in a later appeal.
In November of 1998, plaintiff Agnes Stephens filed an action against the Moline Housing Authority and Steven Taylor (collectively, the Housing Authority) for malicious prosecution and violation of her civil rights. At trial, the jury was instructed that Agnes had the burden of proving that the Housing Authority maliciously and without probable cause commenced or continued a criminal prosecution against her.
After the jury announced that it had reached a verdict but before the verdict was announced, the trial court submitted to the jury a special interrogatory which asked: "If you find that Mr. Taylor commenced or continued a criminal proceeding against the plaintiff then do you find that Mr. Taylor acted with willful and wanton disregard for plaintiff's rights?"
The jury answered the special interrogatory in the negative and 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 special interrogatory and the verdict were inconsistent and that the special interrogatory controlled the verdict. In a subsequent motion, Agnes requested that the court vacate its judgment and enter judgment on the general verdict or, in the alternative, grant her a new trial. The trial court denied the request to vacate the judgment and enter judgment on the general verdict, but granted the request for a new trial. Notwithstanding the trial court's decision to grant a new trial, Agnes proceeded to file a petition for leave to appeal with this court pursuant to Supreme Court Rule 306(a)(1) (134 Ill. 2d R. 306(a)(1)). We denied Agnes' petition without addressing its merits.
At the conclusion of the second trial, the jury returned a verdict in favor of the Housing Authority on all claims. Afterwards, Agnes filed a motion claiming, inter alia, that the trial 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 to the analysis.
Agnes argues on appeal that the trial court improperly granted the Housing Authority's motion for a judgment n.o.v. after the first trial. This court applies a de novo standard when reviewing a 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 Housing Authority'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, we concluded that review of an order for a new trial was precluded from further review inasmuch as it was the subject of an earlier petition for leave to appeal which was denied. In reaching our conclusion, we observed that there appeared to be a conflict in the rulings of the Illinois Supreme Court on the issue and accordingly examined two supreme court cases that seemed in conflict.
The first case we examined was Robbins v. Professional Construction Co., 72 Ill. 2d 215, 380 N.E.2d 786 (1978), which affirmed a decision by the appellate court that the denial of a petition for leave to appeal on a question of whether a new trial order was proper precluded further review of the question on a later appeal. The second case we reviewed was Kemner v. Monsanto Co., 112 Ill. 2d 223, 492 N.E.2d 1327 (1986), which ruled that an appellate court's denial of a petition for interlocutory relief regarding a trial court's decision to deny a motion to dismiss based 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 only that a majority of the court could not be mustered to support the petition. Because Robbins concerned a new trial order and Kemner concerned a motion to dismiss based on forum non conveniens, we followed Robbins and refused to review the propriety of the trial court's order for a new trial as it was the subject of an earlier petition for leave to appeal. See Cronkhite, 251 Ill. App. 3d at 870, 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 order of 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, they forever waive their rights. See Simmons v. Chicago Housing Authority, 267 Ill. App. 3d 545, 641 N.E.2d 915 (1994) (finding that a party waived the right to contest an order granting a new trial because it failed to timely file a petition for leave to appeal). If a petition for leave to appeal is denied without reaching the merits of the petition and then the petition is treated as if it were res judicata, the parties will effectively have been deprived of the one review to which they are entitled. Accordingly, we hold that this court has jurisdiction over this appeal and Agnes is not precluded ...