"Cases Pending" Highlights Cases to be Heard During Illinois Supreme Court's March Term

The Illinois Supreme Court's March Term begins on Monday, March 11, 2019. The Term will include oral argument in one criminal case and three civil cases on March 12th and 13th. Below is a listing of the cases that will be heard:

Tuesday, March 12, 2019:   People v. Darren Johnson, No. 123318

                                               McIntosh v. Walgreens Boots Alliance, Inc., No. 123626

Wednesday, March 13, 2019:       Ward v. Decatur Memorial Hospital, No. 123937

                                                            Nichols v. Fahrenkamp, No. 123990

Below is a summary of two of the cases to be argued. As always, more information about all pending criminal and civil cases is available in the ALA's Cases Pending newsletter.

People v. Darren Johnson, No. 123318
Defendant was charged with burglary and retail theft in connection with the allegation that he stole various items of merchandise from a Walmart with a total value less than $300. With regard to the burglary charge, he was specifically charged with knowingly entering Walmart without authority with intent to commit a theft ("burglary by unlawfully entering") rather than the other form of burglary, in which a defendant unlawfully remains within a building without authority with intent to commit a theft ("burglary by unlawfully remaining"). Under the "limited authority doctrine," authority to enter a business open to the public extends only to those who enter with a purpose consistent with the reason the building is open and not to those who enter with an intent to commit a theft inside. In People v. Bradford, 2016 IL 118674, the Court held that the limited authority doctrine does not extend to burglary by unlawfully remaining in cases in which the defendant lawfully enters during business hours and stays in designated public areas.


Before the Illinois Supreme Court, the State asserts that the limited authority doctrine, recognized in People v. Weaver, 41 Ill. 2d 434 (1968), continues to apply to burglary by unlawfully entering, including this case. The State notes that Bradford declined to extend the doctrine to burglary by unlawfully remaining but gave no hint that the doctrine was not still good law for burglary by unlawfully entering cases. Defendant disagrees, noting that subsequent to Weaver, the retail theft statute was enacted, reflecting a legislative intent to capture shoplifting activity through that offense rather than burglary. In essence, defendant asks the Court to decline to apply the limited authority doctrine to shoplifting cases. It is undisputed that burglary generally encompasses greater penalties than retail theft, so the question boils down to whether burglary was designed to punish the greater harm posed by a person who forms the intent to steal before entering a retail store (so that burglary by unlawfully entering can still apply in this case) or the greater harm posed by a person who exceeds the authority granted in an open retail store by either entering when the store is not open to the public or by going into areas of the store in which the public is not allowed (so that burglary by unlawfully entering cannot still apply in this case).

Ward v. Decatur Memorial Hospital, No. 123937
This appeal addresses whether an order is final for purposes of res judicata when certain counts of a complaint are dismissed without prejudice, while other counts are simply dismissed without any indication of whether they were dismissed with or without prejudice, and the plaintiff is granted leave to replead.

The plaintiff filed his first lawsuit against the defendant over alleged negligence in the medical treatment of his brother. The circuit court dismissed all but one count of that complaint. It specified that some of the counts were dismissed without prejudice, but did not specify whether several others were dismissed with or without prejudice. Nevertheless, the court gave the plaintiff leave to file an amended complaint. The plaintiff filed numerous amended complaints, each of which was dismissed by the trial court with leave to amend, but again unclear as to whether the counts were dismissed with or without prejudice. Eventually, the plaintiff filed a third amended complaint, which the defendant answered. Shortly before trial, the plaintiff moved for leave to file a fourth amended complaint, and the trial court denied that motion. Plaintiff then voluntarily dismissed the lawsuit. 

The plaintiff then filed a new lawsuit based on a complaint nearly identical to his proposed fourth amended complaint in the prior lawsuit. The defendant moved to dismiss on the ground that the claims were barred by res judicata and the principle against claim splitting under Hudson v. City of Chicago, 228 Ill. 2d 462 (2008). The circuit court agreed and dismissed the refiled lawsuit.  

The Fourth District Appellate Court reversed, holding that the various dismissals—even those that did not clearly indicate they were “without prejudice”—were not final because the circuit court had given the plaintiff leave to replead. The appellate court distinguished Hudson, which held that res judicata applies when one count of a complaint is dismissed with prejudice, the plaintiff voluntarily dismisses the remaining count, and the plaintiff files a new lawsuit asserting the voluntarily dismissed count. The appellate court noted that Hudson did not involve a dismissal with leave to replead. It also cited Foxcroft Townhome Owners Association v. Hoffman Rosner Corp., 96 Ill. 2d 150 (1983), for the proposition that when a plaintiff is given leave to file an amended complaint, it must replead counts previously dismissed with prejudice in the amended complaint, or else the dismissed claims would be deemed abandoned and not appealable. The appellate court reasoned that it would be illogical to apply res judicata when a plaintiff must replead all previously dismissed counts under Foxcroft.

In its petition for leave to appeal, the defendant argues that the Fourth District’s decision conflicts with the First District’s decision in Kiefer v. Rust-Oleum Corp., 394 Ill. App. 3d 485 (1st Dist. 2009), and Hudson. The defendant claims that the appellate court’s decision will encourage claim splitting, which is what res judicata is designed to avoid. In his answer to the petition for leave to appeal, plaintiff contends that the Fourth District correctly interpreted Hudson and Foxcroft.


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