specially concurring:
While I agree that no special injury has been pled by Howard, I also agree with the trial court that Firmand was entitled to summary judgment because probable cause as a matter of law existed for Firmand’s filing of each petition for a plenary order of protection. The majority is correct that the appellate court’s split decision on the appeal of the denial of the second plenary order of protection affords Firmand no support for her claim of the existence of probable cause; however, I believe probable cause was conclusively established on the basis of the separate determinations by the two Champaign County circuit courts that Howard was not entitled to judgment under section 2 — 1110 of the Code of Civil Procedure (735 ILCS 5/2 — 1110 (West 2002)) at the close of each of Firmand’s cases.
Under section 2 — 1110, the trial court in considering a motion for judgment at the close of the plaintiff’s case engages in a weighing process of the evidence presented thus far. “The court must consider all of the evidence, including any favorable to the defendant, and is to pass on the credibility of witnesses, draw reasonable inferences from the testimony, and generally consider the weight and the quality of the evidence.” Kokinis v. Kotrich, 81 Ill. 2d 151, 154, 407 N.E.2d 43 (1980).1 The question before the trial court at the close of the plaintiffs case in the face of the section 2 — 1110 motion is whether the plaintiff is entitled to a verdict if the defendant rests without adducing any evidence. See Geske v. Geske, 343 Ill. App. 3d 881, 887-88, 799 N.E.2d 829 (2003) (Hoffman, P.J., dissenting) (in light of the procedural history of the bench trial leading to a reversal in the first appeal, where the trial court made inconsistent rulings by denying the section 2 — 1110 motion but entered judgment for the defendant when he rested without introducing any evidence, it was improper for the trial court to vacate “its order denying the defendant’s motion for a directed finding at the close of the plaintiffs case in chief, grant[ ] the motion, and again enter[ ] judgment in favor of the defendant”). In other words, the trial court determines whether the evidence at the close of the plaintiffs case preponderates in favor of the plaintiff. If so, the motion is denied and the case proceeds as if the section 2 — 1110 motion had not been made.2 Kokinis, 81 Ill. 2d at 155. This is precisely what occurred in each of the civil proceedings below in Champaign County.
In each proceeding below, the trial court denied Howard’s motion for judgment at the close of the plaintiffs case, necessarily finding that the preponderance of the evidence at that point favored Firmand. In other words, had Howard rested without introducing any evidence, the plenary order of protection would have been granted. See Geske, 343 Ill. App. 3d 881. From each trial court’s determination that Howard was not entitled to judgment at the close of each of Firmand’s cases, it necessarily follows that Firmand had established probable cause to support each of her petitions. “[Pjrobable cause is a flexible, common-sense standard. *** [I]t does not demand any showing that [is] *** more likely true than false.” Texas v. Brown, 460 U.S. 730, 742, 75 L. Ed. 2d 502, 514, 103 S. Ct. 1535, 1543 (1983). While a “numerically precise degree of certainty corresponding to ‘probable cause’ may not be helpful, it is clear that ‘only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.’ ” Illinois v. Gates, 462 U.S. 213, 235, 76 L. Ed. 2d 527, 546, 103 S. Ct. 2317, 2330 (1983), quoting Spinelli v. United States, 393 U.S. 410, 419, 21 L. Ed. 2d 637, 645, 89 S. Ct. 584, 590 (1969). It is incontrovertible that probable cause requires less of an evidentiary showing than a preponderance of the evidence.
The Champaign County trial courts having found in each instance that Howard was not entitled to judgment at the close of Firmand’s case, it necessarily follows that a preponderance of the evidence at that point favored Firmand and she had probable cause to support the filing of each of her petitions.
Further, this outcome is consistent with the trial court’s denial, in the first proceeding, of Howard’s motion for attorney fees, which he premised on his claim that Firmand’s allegations in her order of protection petition were untrue. In this respect, I also disagree with any suggestion by the majority that in the second proceeding, the trial court’s ultimate assessment of “finding Firmand’s testimony to be less credible than that offered by Howard and witnesses testifying on his behalf” (378 Ill. App. 3d at 148) should have any bearing on the question of probable cause.3 See Mangus v. Cock Robin Ice Cream Co., 52 Ill. App. 3d 110, 116, 367 N.E.2d 203, 207 (1977) (a mistake or error not amounting to gross negligence will not affect the question of probable cause; it is immaterial that the accused may thereafter be found not guilty). Probable cause was established at the close of each of Firmand’s cases; that additionally adduced evidence supported denying the petitions for a plenary order of protection can in no way undercut her initial showing of probable cause. See Keefe v. Aluminum Co. of America, 166 Ill. App. 3d 316, 318, 519 N.E.2d 955 (1988) (“judgment entered by the circuit court in a prior action constituted conclusive evidence of probable cause for instituting that action, even though that judgment was subsequently reversed on appeal”), citing Breytspraak v. Gordon, 333 Ill. App. 650, 77 N.E.2d 860 (1948) (abstract of op.). “ ‘The rationale for drawing the inference of conclusiveness’ *** ‘appears to be that a competent tribunal is not likely to render a decision for a party who lacked probable cause for initiating the action.’ ” Keefe, 166 Ill. App. 3d at 318, quoting Nagy v. McBurney, 120 R.I. 925, 931, 392 A.2d 365, 368 (1978). Stated differently, that subsequent testimony by Howard and other witnesses was sufficient to undermine Firmand’s testimony at the close of the entire proceedings is of no consequence. Firmand’s testimony was sufficient to overcome a section 2 — 1110 motion, and as a matter of common sense, once probable cause was established, no amount of additional evidence introduced after the plaintiffs case in chief could erase that finding. To the best of my knowledge, a finding of probable cause and an ultimately adverse decision based on additional evidence presented during a civil proceeding are not inconsistent as a matter of law. See Aboufariss v. City of De Kalb, 305 Ill. App. 3d 1054, 1062, 713 N.E.2d 804 (1999) (absent intentional misrepresentation or concealment of material facts, trial court’s subsequent finding that there was no probable cause for arrest is not significant to the probable cause analysis in malicious prosecution action), citing Forman v. Richmond Police Department, 104 F.3d 950, 962 (7th Cir. 1997). Still further, this outcome is supported by the disfavor of malicious prosecution actions “in Illinois on the ground that courts should be open to litigants for resolution of their rights without fear of prosecution for calling upon the courts to determine such rights.” Keefe, 166 Ill. App. 3d at 317.
Finally, I fully agree with the trial judge’s assessment of this case when he observed, “[T]he former couple engaged in a series of poorly advised, if not improperly manipulative, legal actions, utilizing an already over-burdened justice system” to continue their bitter dispute. In the face of such improper use of our court system, I believe a trial court may properly grant summary judgment to the defendant based on conclusive evidence of probable cause from the underlying action grounded on the denial of a section 2 — 1110 motion, so as to provide a means of driving a procedural stake into the heart (broken or otherwise) of a malicious prosecution action.
I would affirm the trial court’s ruling that probable cause was established as a matter of law to support the filing of the order of protection petitions by Firmand.
While the majority in Kokinis addressed overcoming a section 2 — 1110 motion in terms of establishing a prima facie case, Justice Ryan in his concurrence advocated a preponderance of the evidence standard. Kokinis, 81 Ill. 2d at 157-59 (Ryan, J., concurring). When a section 2 — 1110 motion is denied, it is fairly certain that the analysis and outcome are the same under either standard. See Jackson v. Navik, 37 Ill. App. 3d 88, 91-92, 346 N.E.2d 116 (1976) (courts have alternated between the prima facie case and the preponderance of the evidence standards).
The weighing process provision was added to the predecessor of section 2 — 1110 (section 64(5) of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 64(5))) in 1955. See Hawthorn Mellody Farms Dairy, Inc. v. Rosenberg, 11 Ill. App. 3d 739, 743, 297 N.E.2d 649 (1973). Because this case turns on the significance of the weighing process of section 2 — 1110, cases that predate the amendment have no bearing on this case.
I note that in the first order of protection proceeding, the trial court denied the attorney fees motion because the evidence had been “fairly close.”