                         Docket No. 109041.


                        IN THE
                   SUPREME COURT
                          OF
                 THE STATE OF ILLINOIS




JAMES HURLBERT, Appellant, v. ANDREW J. CHARLES et al.,
                     Appellees.

                 Opinion filed September 23, 2010.



   JUSTICE THOMAS delivered the judgment of the court, with
opinion.
   Chief Justice Fitzgerald and Justices Freeman, Kilbride, Garman,
Karmeier, and Burke concurred in the judgment and opinion.



                              OPINION

    In October 2003, plaintiff, James Hurlbert, was arrested for
driving under the influence of alcohol (625 ILCS 5/11–501 (West
2004)). Thereafter, plaintiff filed a petition to rescind the statutory
summary suspension of his driver’s license (625 ILCS 5/2–118.1(b)
(West 2004)). The circuit court denied plaintiff’s petition, finding that
defendant, Andrew J. Charles, a police officer employed by the City
of Urbana, Illinois, had probable cause to arrest plaintiff. The circuit
court of Champaign County later granted a motion to dismiss the DUI
with prejudice.
    Plaintiff then filed a complaint for malicious prosecution against
defendants, the City of Urbana and Charles. Plaintiff’s claim for
malicious prosecution was based upon his arrest for DUI. Defendants
filed a motion for summary judgment, arguing that the circuit court’s
finding of probable cause at the hearing on plaintiff’s petition to
rescind his statutory summary suspension collaterally estopped
relitigation of the issue of probable cause in plaintiff’s claim for
malicious prosecution. The circuit court agreed with defendants, and
granted their motion for summary judgment. The appellate court
affirmed. 393 Ill. App. 3d 211.

                           BACKGROUND
    In October 2003, Sergeant Charles was on duty when he received
a stolen-vehicle report concerning a Dodge pickup truck. Around 2
a.m., Charles saw plaintiff’s pickup truck drive past him in the
opposite direction. Plaintiff’s pickup truck closely matched the
description of the stolen pickup truck, so Charles turned around to
follow plaintiff. When Charles caught up with plaintiff’s truck, he
determined that the truck was not stolen because the license plate did
not match the stolen truck’s license plate number. Charles did,
however, eventually arrest plaintiff for DUI. 625 ILCS 5/11–501
(West 2004). Plaintiff was taken to the Champaign County jail, where
he declined to take a Breathalyzer test. Accordingly, plaintiff’s
driving privileges were summarily suspended by the Illinois Secretary
of State. See 625 ILCS 5/11–501.1(c) (West 2004).
    In November 2003, plaintiff filed a timely petition to rescind the
statutory summary suspension of his driver’s license. See 625 ILCS
5/2–118.1(b) (West 2004). Plaintiff’s petition to rescind alleged, inter
alia, that Sergeant Charles did not have reasonable grounds to believe
that plaintiff was driving under the influence of alcohol. At the
hearing on plaintiff’s petition to rescind, Charles testified that after he
determined that plaintiff’s pickup truck was not the stolen truck, he
observed plaintiff’s truck drifting into the other lane. Charles turned
on his video camera, and again observed plaintiff’s truck drifting into
the other lane. Charles curbed plaintiff’s vehicle, although the truck
continued to roll forward at least 150 to 200 yards after Charles
signaled for it to stop. Charles testified that when he approached
plaintiff, plaintiff smelled of alcohol and admitted that he had
consumed two or three beers that night. Charles testified that plaintiff
slurred his words slightly and could not provide a driver’s license or

                                   -2-
proof of insurance. Officer Bain arrived on the scene and recorded the
sobriety tests that Charles administered to plaintiff. Charles testified
that plaintiff exhibited signs of impairment on each of the field
sobriety tests.
     Plaintiff testified at the hearing on his petition to rescind. Plaintiff
denied that he told Charles that he had two or three beers. Rather,
plaintiff testified that he told Charles that he had three mixed drinks
on the night of the arrest. Plaintiff denied that he had drifted into the
other lane while Charles was following him and testified that he
stopped his truck as soon as he realized that Charles wanted to curb
him and not just pass him. Plaintiff’s counsel argued that Charles did
not have probable cause to pull plaintiff over.
     The trial court denied plaintiff’s petition to rescind. The trial court
set forth its own observations concerning the video of plaintiff’s
driving and his field sobriety tests, and held that, given all the
observations that Charles had of plaintiff’s driving, “a person of
common sense would believe that the driver was under the influence
of alcohol” and that there was probable cause to arrest. Plaintiff did
not appeal the denial of his petition to rescind. In August 2004, the
trial court granted a motion to dismiss the DUI with prejudice,
although the record does not set forth the grounds for the dismissal.
     In September 2004, plaintiff filed, pro se, a second petition to
rescind his statutory summary suspension. The trial court denied that
petition in November 2004. Plaintiff then filed a third pro se petition
to rescind, which the trial court also denied.
     On September 24, 2007, plaintiff filed his complaint against
defendants for malicious prosecution. Plaintiff filed a first amended
complaint in January 2008. Plaintiff’s first amended complaint
alleged, in pertinent part, that Charles pursued a DUI arrest despite
the fact that plaintiff did not exhibit any indicia of impairment from
the consumption of alcohol, and that Charles acted with malice, in
that he acted in the complete absence of probable cause and abused
his position of authority.
     Defendants filed a motion for summary judgment, arguing that the
trial court’s probable cause determination at the statutory summary
suspension hearing collaterally estopped plaintiff from proving that
Charles lacked probable cause to arrest plaintiff in the malicious


                                    -3-
prosecution action. Defendants also argued that plaintiff lacked
sufficient evidence to prove malice, an essential element in a claim
for malicious prosecution.
     Plaintiff responded that pursuant to this court’s decision in People
v. Moore, 138 Ill. 2d 162 (1990), collateral estoppel did not apply to
statutory summary suspension hearings, so that issues decided in
those hearings could be relitigated in subsequent proceedings. In
Moore, this court held that the results of a statutory summary
suspension hearing cannot act as a bar to litigating the same issues in
later criminal DUI proceedings. Moore, 138 Ill. 2d at 166. Plaintiff
also argued that a genuine issue of material fact existed as to the issue
of malice.
     In reply, defendants contended that this court’s decision in Moore
was limited to criminal prosecutions for DUI following statutory
summary suspension hearings, so that Moore did not prohibit the
application of collateral estoppel in plaintiff’s claim for malicious
prosecution.
     The trial court agreed with defendants, finding that the probable
cause finding at plaintiff’s statutory summary suspension hearing
collaterally estopped relitigation of the issue. The trial court found
that Moore was limited on its face to an application of collateral
estoppel in the subsequent DUI proceedings. The trial court found
that the policy underlying Moore was not intended to prohibit the use
of collateral estoppel in subsequent civil cases. Therefore, because the
issue of probable cause had been decided in plaintiff’s statutory
summary suspension proceeding, plaintiff could not relitigate the
issue in his action for malicious prosecution. Given its finding, the
trial court did not address defendants’ argument that plaintiff lacked
sufficient evidence to prove malice. Accordingly, the trial court
entered summary judgment in favor of defendants on plaintiff’s claim
for malicious prosecution.
     The appellate court affirmed the trial court’s order granting
summary judgment in favor of defendants. 393 Ill. App. 3d 211. The
appellate court agreed with the trial court that Moore was limited to
the facts before the court in that case. 393 Ill. App. 3d at 217. The
appellate court held that the policy reasons underlying the Moore
decision were not applicable to subsequent civil proceedings. 393 Ill.
App. 3d at 217. The appellate court stated that, in contrast to DUI

                                  -4-
cases, the State would not begin treating statutory summary
suspension hearings as minitrials because of the threat of collateral
estoppel in later civil litigation. 393 Ill. App. 3d at 217. Because the
plaintiff had fully and fairly litigated the issue of probable cause at his
statutory summary suspension hearing, the appellate court held that
collateral estoppel barred relitigation of the issue in the malicious
prosecution case. 393 Ill. App. 3d at 218. Given its holding, the
appellate court did not address defendant’s claim that plaintiff did not
raise a question of material fact of whether Sergeant Charles acted
with malice. The appellate court therefore affirmed the trial court’s
order granting summary judgment in favor of defendants. 393 Ill.
App. 3d at 218.
    This court allowed plaintiff’s petition for leave to appeal. 210 Ill.
2d R. 315.

                               ANALYSIS
    On appeal, plaintiff argues that the lower courts erred in holding
that the probable cause finding at plaintiff’s statutory summary
suspension proceeding collaterally estopped relitigation of probable
cause in plaintiff’s claim for malicious prosecution. Plaintiff contends
that this court’s decision in Moore is controlling, and that the lower
courts improperly distinguished Moore in finding that collateral
estoppel applied in this case.
    Whether the doctrine of collateral estoppel applies in this case
presents a question of law. Accordingly, our review of the issue is de
novo. In re A.W., 231 Ill. 2d 92, 99 (2008).
    In finding that Moore was distinguishable from this case, and that
collateral estoppel barred relitigation of the issue of probable cause
in plaintiff’s claim for malicious prosecution, the lower courts found
that all the elements of collateral estoppel had been met. Accordingly,
we first address whether, absent application of the Moore decision,
collateral estoppel applies to plaintiff’s claim for malicious
prosecution.
    The doctrine of collateral estoppel bars relitigation of an issue that
was already decided in a prior case. A.W., 231 Ill. 2d at 99. The three
requirements for the application of collateral estoppel are that:
          “(1) the issue decided in the prior adjudication is identical

                                   -5-
        with the one presented in the suit in question, (2) there was a
        final judgment on the merits in the prior adjudication, and (3)
        the party against whom estoppel is asserted was a party or in
        privity with a party to the prior adjudication.” Gumma v.
        White, 216 Ill. 2d 23, 38 (2005).
    The appellate court held that the elements of collateral estoppel
were met in this case. 393 Ill. App. 3d at 216. We agree. Both
statutory summary suspension hearings and malicious prosecution
actions require determinations of probable cause. One of the issues in
a summary suspension hearing is whether the arresting officer had
reasonable grounds to believe that the person was driving while under
the influence of alcohol. 625 ILCS 5/2–118.1(b)(2) (West 2004).
Reasonable grounds to believe the person is driving while under the
influence is synonymous with probable cause. See Moore, 138 Ill. 2d
at 167 (one of the issues considered in statutory summary suspension
hearings is “whether the arresting officer had probable cause to
believe that the person was driving while under the influence”); see
also People v. Peak, 29 Ill. 2d 343, 347 (1963) (“probable cause or
reasonable grounds [to arrest] means something less than the
evidence which would result in a conviction”).
    Likewise, to state a claim for malicious prosecution, a plaintiff
must allege facts showing: (1) the defendant commenced or continued
an original criminal or civil judicial proceeding; (2) the proceeding
terminated in favor of the plaintiff; (3) there was an absence of
probable cause for such proceeding; (4) the presence of malice; and
(5) damages resulting to the plaintiff. (Emphasis added.) Swick v.
Liautaud, 169 Ill. 2d 504, 512 (1996).
    The probable cause issue decided in the statutory summary
suspension hearing is identical to the probable cause issue presented
in the instant malicious prosecution action. Likewise, there was a
final judgment on the merits in the statutory summary suspension
hearing, and plaintiff, the party against whom estoppel is asserted in
this case, was a party to the prior adjudication. Therefore, the
elements of collateral estoppel were met in this case.
    Having found that the elements of collateral estoppel were met in
this case, we next must decide whether, as the lower courts found,
collateral estoppel bars relitigation of probable cause in plaintiff’s
claim for malicious prosecution or whether, as in Moore, the probable

                                 -6-
cause finding in plaintiff’s statutory summary suspension hearing
does not bar relitigation of the issue of probable cause.
     In Moore, this court addressed a conflict in the appellate court
concerning whether the results of statutory summary suspension
hearings can act as collateral estoppel to prevent questions decided at
the hearing from being relitigated in the later criminal proceedings.
Moore, 138 Ill. 2d at 167. Although several panels of the appellate
court held that the doctrine of collateral estoppel did not apply to bar
relitigation in a later criminal proceeding, the appellate court in
Moore held that collateral estoppel did apply. Moore, 138 Ill. 2d at
167. This court reversed the appellate court, holding that although the
case appeared to contain all the elements necessary for application of
the doctrine of collateral estoppel, the results of a statutory summary
suspension hearing nonetheless could not act as a bar to litigating the
same issues in later criminal DUI proceedings. Moore, 138 Ill. 2d at
166.
     Moore noted that summary suspension hearings are civil in
nature, and the court in those hearings may rely on law enforcement
officers’ official reports in the absence of the officers themselves.
Moore, 138 Ill. 2d at 167. This court agreed with the Moore appellate
court that the distinctions between the functions of a statutory
summary suspension hearing in a DUI case and a preliminary hearing
in a criminal case can often be slight and perhaps insignificant, but
nonetheless found that the differences in the procedures involved
were very real. Moore, 138 Ill. 2d at 169. License suspension
proceedings are to be swift and of limited scope. Moore, 138 Ill. 2d
at 169. As the appellate court in People v. Stice, 168 Ill. App. 3d 662
(1988), found, if license suspension proceedings were given
preclusive effect, that would render the legislative purpose
meaningless. Moore, 138 Ill. 2d at 169. Specifically, this court stated
that:
         “the practical effect [of giving preclusive effect to license
         suspension proceedings] would be that the State or
         municipality could not rely on the sworn police report at these
         proceedings but, rather, would be required to have the
         arresting officer, and other witnesses, testify. The goal of
         conducting swift hearings for the sole purpose of determining
         whether a court has sufficient reason to rescind summary

                                  -7-
         suspension of a motorist’s driving privileges will be thwarted.
         Given this probable result, and the fact that no injustice will
         be done to either party by declining to give preclusive effect
         to these license suspension hearings, we decline to do so.”
         Moore, 138 Ill. 2d at 169.
    This court also rejected a case-by-case approach, which would
hold that collateral estoppel would apply when the record revealed
that the statutory summary suspension hearing provided a full and fair
disposition of an issue, but would not apply when the issue was
resolved in a cursory fashion. Moore, 138 Ill. 2d at 169. This court
concluded that the case-by-case approach would be unworkable,
because “[g]iven even the possibility that the results of a summary
suspension hearing would act as collateral estoppel, the State would
likely find it necessary to treat the suspension hearing as an integral
part of the criminal trial rather than merely an administrative device
at the disposal of the defendant.” Moore, 138 Ill. 2d at 169-70.
    As noted, the lower courts in this case found that the decision in
Moore was limited to subsequent criminal DUI proceedings and did
not apply to subsequent civil proceedings. Plaintiff argues that the
lower courts erred in finding that the decision in Moore rested on the
nature of the subsequent proceeding in that case. Plaintiff asserts that
Moore in fact rested its decision on the nature of the statutory
summary suspension process and not on the subsequent action in
which the doctrine of collateral estoppel is sought to be applied.
Further, the court in Moore specifically rejected a case-by-case
approach with respect to the application of collateral estoppel.
    In response, defendants argue that the primary reason for rejecting
collateral estoppel in Moore was the impact collateral estoppel would
have on criminal DUI prosecutions. Moore rejected a case-by-case
approach for those same reasons. There is no reason for such a rule
as it applies to a subsequent lawsuit for malicious prosecution.
    Defendants further contend that application of a case-by-case
analysis of collateral estoppel to a subsequent civil lawsuit for
malicious prosecution is consistent with the legislative intent of
providing a quick and expeditious hearing on the suspension of a
person’s driver’s license. Thus, in this case, plaintiff initiated the
statutory summary suspension hearing, was represented by counsel,
and presented the testimony of all witnesses to the stop and arrest of

                                  -8-
plaintiff. Therefore, application of collateral estoppel would be
consistent with principles of equity.
    Upon review, we agree with plaintiff that the court in Moore
rested its decision on the nature of the statutory summary suspension
process and not on the nature of the subsequent action in which the
doctrine of collateral estoppel was sought to be applied. In holding
that collateral estoppel would not act as a bar to litigating the same
issues in the criminal DUI proceeding that had been litigated in the
statutory summary suspension hearing, Moore specifically noted that
to hold otherwise would render the legislative purpose behind the
statutory summary suspension statute meaningless. Moore, 138 Ill. 2d
at 169. The goal of conducting swift hearings for the sole purpose of
determining whether a court has sufficient reason to rescind the
summary suspension of a motorist’s driving privileges would be
thwarted. Moore, 138 Ill. 2d at 169. Based upon this analysis, we
agree with plaintiff that the Moore court was focused on the nature of
the summary suspension proceedings and not on the nature of the
subsequent DUI proceedings.
    Defendants, however, argue that the Moore court’s rationale does
not apply when considering the effect of collateral estoppel on a
subsequent civil lawsuit for malicious prosecution, because a
subsequent civil lawsuit for malicious prosecution is much less likely
than a criminal DUI prosecution.
    We disagree. The gravamen of Moore’s holding was the fact that
giving a preclusive effect to the results of a statutory summary
suspension hearing would render the legislative purpose behind the
statutory summary suspension hearing meaningless. This holding was
not based upon the likelihood that a DUI prosecution would follow
statutory summary suspension hearings or upon the number of DUI
prosecutions that follow statutory summary suspension hearings.
Rather, the holding was based upon the likelihood that the State,
given the possibility that the results of the statutory summary
suspension hearing would be given preclusive effect, would be less
likely to simply rely on police reports as evidence, but instead would
elect to call witnesses and conduct full blown hearings. Such
concerns are no less valid with regard to civil litigation.
    We also disagree with defendants that application of a case-by-
case analysis to subsequent civil litigation would be consistent with

                                 -9-
the legislative intent of providing a quick and expeditious hearing on
the suspension of a person’s driver’s license. As the Moore court
found in rejecting a case-by-case analysis for subsequent DUI
prosecutions, given even the possibility that the results of a statutory
summary suspension hearing would act as collateral estoppel in any
subsequent litigation, the State would likely deem it necessary to treat
the suspension hearing as an integral part of a criminal trial rather
than merely as an administrative device at defendant’s disposal.
Moore, 138 Ill. 2d at 169-70. These concerns apply to civil litigation
as well as criminal litigation. Given even the possibility that collateral
estoppel would apply to any potential future civil litigation, however
remote, parties to a statutory summary suspension hearing would
likely deem it prudent and necessary to conduct a full and complete
hearing on the issues raised in that hearing, thereby undermining the
very purpose of the statute to provide for expeditious review of the
statutory summary suspension.
     Finally, we note that in this case, as in Moore, declining to give
preclusive effect to license suspension hearings in subsequent civil
litigation would not cause any injustice to either party. For those
reasons, we hold that our decision in Moore controls this case and
that the results of plaintiff’s statutory summary suspension hearing do
not have a collateral estoppel effect on plaintiff’s claim for malicious
prosecution.
     Defendants, however, also argue that the circuit court’s order
granting their motion for summary judgment may be affirmed on the
alternative basis that plaintiff failed to present evidence of malice.
Because malice is an essential element of a claim for malicious
prosecution, defendants argue that absent evidence of malice,
plaintiff’s claim for malicious prosecution cannot stand.
     Defendants are correct that malice is an essential element of a
claim for malicious prosecution. However, because the lower courts
granted summary judgment in favor of defendants on the basis of
collateral estoppel, neither court addressed whether plaintiff had
sufficiently alleged malice in his claim for malicious prosecution.
Accordingly, we decline to address the issue for the first time in this
appeal and instead remand the cause to the trial court for
consideration of this issue. See Carter v. SSC Odin Operating Co.,
237 Ill. 2d 30, 51 (2010); Schwartz v. Cortelloni, 177 Ill. 2d 166, 184

                                  -10-
(1997).

                           CONCLUSION
    For all of the foregoing reasons, we reverse the judgments of the
circuit and appellate courts, and remand this cause to the circuit court
for further proceedings.

                                             Reversed and remanded.




                                 -11-
