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.

By Kimberly Glasford 
Law Clerk to Hon. Terrence J. Lavin, Illinois Appellate Court, 
First District 

In cases where procedural facts trigger a confluence of jurisdictional rules, the appellate court’s discussions of jurisdiction often don’t end well for the appellants. Perhaps then it’s refreshing to read a discussion finding jurisdiction is present and accounted for, such as the recent decision in The Bank of New York Mellon v. Wojcik, 2019 IL App (1st) 180845. 

Ewa Wojcik mortgaged her condominium. Upon her failure to cure a default, the Bank of New York Mellon commenced a foreclosure action. In response, she and Anthony Avado, with whom she had become a tenant in common, denied receiving requisite notices. The trial court resolved the parties’ cross-motions for summary judgment in favor of the bank and entered a judgment of foreclosure and sale. The court also found there was no reason to delay an appeal under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). Wojcik and Avado then appealed from the denial of their summary judgment motion. The Bank of New York Mellon, 2019 IL App (1st) 180845, ¶¶ 1, 5-8, 10. 

On appeal, the reviewing court reiterated that judgments resolving fewer than all claims are not appealable absent “an express written finding that there is no just reason for delaying either enforcement or appeal or both.” Id. ¶ 14 (quoting Ill. S. Ct. R. 304(a) (Mar. 8, 2016)). Additionally, a foreclosure judgment is ordinarily not final and appealable until the trial court has approved the sale and distribution of the property. The Bank of New York Mellon, 2019 IL App (1st) 180845, ¶ 15. Moreover, an order denying summary judgment is generally interlocutory and not subject to appeal. Id. ¶ 16. An exception exists, however, where the parties have filed cross-motions for summary judgment. Id. 

The appellate court determined that it had jurisdiction over the appeal from the denial of summary judgment and the foreclosure judgment because the parties had filed cross-motions and the trial court had entered a Rule 304(a) finding. Id. ¶ 17. Jurisdiction aside, the trial court properly entered summary judgment in favor of the bank. Contrary to Illinois Supreme Court Rule 133(c), Wojcik and Avado had failed to provide specific facts supporting their denial that the bank had tendered certain notices, a condition precedent to filing this foreclosure action. Id. ¶¶ 20-22. 

The appellate court’s decision shows that it is possible to appeal from a judgment of foreclosure and the denial of summary judgment, but you can bet your bottom dollar that jurisdiction will be found lacking unless cross-motions are filed and a Rule 304(a) finding is entered. 

By: Austin Bartlett

       BartlettChen LLC

Charlie was a special person. I first met him several years ago through a mutual friend, Stacey Mandell. Both clerked for Justice Hutchinson and thought the world of her. From the first time I met Charlie, I was struck by his enthusiasm and love for the law. He was also a lot of fun.

After a few years, I persuaded Charlie to join my prior law firm. I had the privilege of working alongside him every day. Charlie was an impressive lawyer. He was a gifted writer and excellent strategist. We worked together on several appeals and dispositive motions, and I believe I learned more from him than he from me. Charlie also had a tremendous capacity for hard work. Even while battling cancer and the inevitable fatigue that it and chemotherapy brings, Charlie beat it back to do the work he set out to do. But most of all, Charlie was just a joy to be around. His goodness, kindness, and exuberance were palpable. I always felt buoyed after spending time with him.

I left my old law firm about a year ago to start my own, but Charlie and I remained in touch. Around this same time, his condition worsened. We spoke frequently about our day, his health, the law, and both of our hopes for the future. No matter what tribulation Charlie was going through health wise, he always seemed more concerned with how I was doing. Although he had every right in the world to be self-absorbed, he looked outward to see how he could help others.

Charlie was my friend. I’ll always be grateful for his friendship. Both personally and professionally, he made me better and set a standard that I aspire to. I’ll miss him dearly.

By: John M. Fitzgerald
       Tabet DiVito & Rothstein LLC


Charlie Ingrassia always made me smile. Few people I know suffered as much as Charlie did. But you wouldn’t know it from talking to him. No matter what was happening in his life, Charlie was infectiously happy, unwaveringly positive, enthusiastic about developments in the law, and devoted to the work of the Appellate Lawyers Association. Even when his health declined, cancer aggressively returned, and one of his legs was amputated, he never indulged in even a hint of self-pity. I will never forget an email in which he explained that, through the process of losing a leg, he had gained a new perspective on life. Or the call in which he apologetically explained that his contributions to The Brief would be temporarily limited because additional tumor growth had been detected; he seemed genuinely more concerned about the pace of new updates to The Brief than about the newly discovered tumor growth. I last saw him, fittingly, at an ALA luncheon at the Union League Club. He was clearly pleased just to be there among his friends and among the appellate justices he so admired, even though getting there had obviously been extremely difficult for him.


Charlie passed away this past week. He was 39.


More than any other lawyer I’ve known, he passionately loved the law. He spoke excitedly and knowledgeably about new appellate opinions, amendments to the rules governing appellate practice, and legal principles. No one I know had a better command of the Illinois Supreme Court Rules. Clerking for Justice Susan F. Hutchinson was a job that he clearly loved, for a boss he adored. He carried the same enthusiasm to the Adler Murphy firm when he transitioned to private practice.


Charlie made The Brief a go-to resource for everyone who wants to learn more about recent developments in the appellate world. He made ALA gatherings more enjoyable, more memorable and more meaningful just through his presence.


The ALA is a place where appellate lawyers and judges make lasting friendships. It’s one of the qualities that makes us a strong bar association. Of all the friends I’ve made through the ALA, Charlie stands in a class of his own. Many, many other people would say the same about Charlie. It is a gross understatement to say that we will miss him for many years to come.

By Melody Gaal
Tabet DiVito & Rothstein LLC

In Byrne v. Hayes Beer Distrib. Co., 2018 IL App (1st) 172612, Justice Hyman relied heavily on an unpublished Rule 23 order, suggesting that, while Rule 23 binds parties, the trial courts and the appellate courts are not prohibited from “adopting the reasoning of an unpublished order.”Id. ¶ 22. Justice Mason, while concurring in the result of the case, disagreed with the majority’s reliance on a Rule 23 order.
   
In Byrne, a delivery driver filed a complaint with the Illinois Department of Labor arguing that his employer, a beer distribution company, violated section 9 of the Illinois Wage Payment and Collection Act, 820 ILCS 115/9, by deducting money from his commissions, without the required written consent, for beer that he did not remove from the shelves before it became stale. Id. ¶ 1. The Department of Labor found that the underlying issue arose out of an interpretation of the parties’ collective bargaining agreement (“CBA”) and was thus preempted by section 301 of the federal Labor Management Relations Act, 29 U.S.C. § 185. On administrative review, the circuit court disagreed, finding that the Department’s decision to dismiss Byrne’s claim was erroneous because the underlying issue involved the “legality of the wage reduction under the Wage Act, which did not require interpreting the CBA, and thus, was not preempted by section 301.” Id. ¶ 2.   

The appellate court agreed with the circuit court and ruled that section 301 did not preempt Byrne’s claim. In so holding, the majority relied heavily on a Rule 23 order—an order that was cited by both parties and the circuit court: Carletto v. Quantum Foods, Inc., No. 1-05-3163 (2006). The court cited Carletto for the proposition that “only when a claim is directly founded on the rights created by the CBA and the resolution of the state law claim requires an interpretation of the CBA” will the state law claim be preempted. Id. ¶ 24 (internal quotation omitted). Because Byrne’s claim did “not require reference to or interpretation of the CBA,” his claims were not preempted and instead arose solely out of section 9 of the Wage Act. Id. ¶ 32. 

Rule 23 provides that an unpublished order “is not precedential and may not be cited by any party except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case.” Ill. S. Ct. R. 23(e). Yet, in contrast to other appellate court decisions, the First District in Bryne appeared to approve of citation to an unpublished order by the circuit courts and the appellate courts. The court reasoned that, while Rule 23 may not be cited by any party except for the purposes specified in the rule, “nothing in the rule expressly prohibits a trial court or the appellate court from adopting the reasoning of an unpublished order.” Id. ¶ 22 (emphasis added). 

While concurring with the result, Justice Mason wrote to express her disagreement with the majority’s “citation and extensive discussion of a Rule 23 order.” Id. ¶ 45. Justice Mason described the majority’s interpretation as “at odds with our court’s longstanding refusal to consider orders entered under Rule 23(b) whether cited by parties or by trial courts.” Id. ¶ 47 (emphasis added). The concurrence identified a key fairness problem with the majority’s interpretation of Rule 23, which would “allow[] a court to cite ‘persuasive’ Rule 23 orders, while prohibiting the parties from doing the same.” Id. ¶ 48. “How can we,” noted the concurrence, “criticize parties who in the future, following the court’s lead, discuss Rule 23 orders for their ‘persuasive’ reasoning when we do it ourselves?” Id. ¶ 49. The concurrence concluded that, unless and until the Illinois Supreme Court amends Rule 23 to abolish the distinction between precedential opinions and nonprecedential Rule 23 orders, courts should “honor that decision by enforcing the rule as written.” Id. ¶ 50. 

What should litigants take away from the Byrne decision? On the one hand, Byrne renders it even more tempting for litigants who find a Rule 23 order on all fours with their own case to cite it in their pleadings, despite the clear language in Rule 23 to the contrary. On the other hand, given the weight of authority refusing to consider Rule 23 orders, that decision may not prove to be favorable to litigants in the way that it was for the plaintiff in Byrne. Unless Rule 23 is amended, the best approach may be to do what the concurrence recommended courts do, or simply “rely on the same authorities and employ the same reasoning as [the Rule 23 order] without referencing that case at all.” Id. ¶ 48.

UPDATE: Due to the extreme weather forecast for January 31, this event will be rescheduled. A new date will be announced soon. 


On Thursday, January 31, 2019, the Appellate Lawyers Association will host a reception honoring the Justices of the Illinois Appellate Court, First District. This year's special honorees are retired Illinois Supreme Court Justice Charles E. Freeman and Illinois Supreme Court Justice P. Scott Neville, Jr. 


The reception is located at Hotel Allegro, 171 West Randolph Street, Chicago, Illinois., from 5 p.m. to 7 p.m. Hors d'oeuvres will be served. Additional details and registration information may be found after the jump. 


Cost: $50 for public-sector ALA members; $55 for private-sector ALA members; $60 for public-sector nonmembers; and $65 for private-sector nonmembers.

PLEASE NOTE: Registrations processed on-site will be charged an additional $5.00 administrative fee.Questions? Call (630) 416-1166, ext. 303

Register:

1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process. 

2. Mail your completed registration form along with a check payable to ALA to:

Chris Teed 
Appellate Lawyers Association 
1717 North Naper Boulevard, Suite 102 
Naperville, IL 60563

Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 416-9798. Additionally, payment is expected from no-shows.

By: Carson R. Griffis
       Hinshaw & Culbertson LLP


Most Illinois appellate practitioners know that, under Illinois Supreme Court Rule 302(a)(1), they can directly appeal a decision striking down a statute as unconstitutional to the Illinois Supreme Court. But what they may not realize is that such appeals are limited to appeals from "final judgments" finding laws unconstitutional. This is an important limit on the scope of Rule 302(a)(1). It was also the subject of the Illinois Supreme Court's recent decision in Gonzalez v. Union Health Service, Inc., 2018 IL 123025.


In Gonzalez, the plaintiff filed a medical malpractice lawsuit against the defendant. The defendant moved to dismiss the lawsuit because it was immune from suit under the Voluntary Health Services Plans Act (215 ILCS 165/26). The trial court denied the defendant's motion to dismiss, finding that the 1988 amendments to the Voluntary Health Services Plans Act were unconstitutional special legislation. 


The defendant directly appealed to the Illinois Supreme Court, citing Rule 302(a)(1) and the Court's supervisory authority as the bases of the Court's jurisdiction. The Court rejected the notion that Rule 302(a)(1) applied because a denial of a motion to dismiss is not a "final judgment." Rather, it is an interlocutory order. The Court noted that it had only entertained Rule 302(a)(1) appeals from interlocutory orders in two limited circumstances: 1) when the interlocutory order was otherwise appealable (e.g., an order granting or denying a request for an injunction); or 2) the order granted summary judgment in a declaratory judgment action challenging the validity of the statute. Because neither of those circumstances existed, Rule 302(a)(1) did not apply.


But the Court didn't stop there. Citing its broad supervisory authority, the Court elected to review the circuit court's order anyway. The Court found that the trial court erred in denying the motion to dismiss because, even if the 1988 amendments were unconstitutional, the prior version of the law would remain in effect. And the defendant still enjoyed immunity under the old version of the law, meaning that the constitutionality of the 1988 amendments was irrelevant from the start. Thus, the Court vacated the trial court's order striking down the amendments and remanded for further proceedings.


Gonzalez is important for two reasons. First, it clarifies that Rule 302(a)(1) usually applies to final judgments and lays out the two narrow exceptions to that general rule. Second, it demonstrates that Rule 302(a)(1) isn't the only way to seek immediate appellate review of an interlocutory order finding a statute unconstitutional. Practitioners may be able to ask the Illinois Supreme Court to invoke its supervisory authority through a motion for a supervisory order. Or they might seek review in the Illinois Appellate Court via a motion for a certified question under Rule 308. While Gonzalez may have limited Rule 302(a)(1), it didn't close the doors of the reviewing courts when important constitutional questions are at issue. 

On March 1, 2019, the U.S. District Court for the Northern District of Illinois will celebrate its 200th anniversary at the Harold Washington Library Center. The event will commemorate the Court's bicentennial anniversary with a series of special events, beginning with the 200th Anniversary Celebration honoring the Court's impact on the community and the nation.


Emmy Award and Edward R. Murrow Award-winning Chicago journalist Phil Rogers, who has covered the Court for decades, will offer remarks. The celebration will also include the release of an inspirational documentary film highlighting the places, cases, and people that have shaped the Court and the community.


U.S. Senator Dick Durbin will receive special recognition and attend if his schedule permits.

Where: Harold Washington Library Center, 400 South State Street, Chicago, Illinois 60605 


When: Friday, March 1, 2019, 3 p.m.


Ticket information will be forthcoming from the Northern District of Illinois Court Historical Association.

On Friday, January 25, 2019, from 12:00 p.m. to 1:30 p.m., the Chicago Chapter of the Federal Bar Association will host a fascinating discussion by award-winning author and First District Appellate Court Justice David Ellis on the use of storytelling by lawyers to persuade an audience. A prolific author, Justice Ellis has published 14 novels, including several with acclaimed fiction writer James Patterson. Through his fiction writing, distinguished service on the bench, and his time as a practicing lawyer, Justice Ellis has a tremendous breadth of experience to share on writing, effective storytelling, and the art of persuasion. 


The event will take place at The Chicago Bar Association, 321 South Plymouth Court, Corboy Hall, Chicago, Illinois 60604. One hour of CLE will be provided to participants, and lunch is included in the fee. There is a reduced rate for young lawyers (anyone under 40 with less than 10 years of practice experience). Those interested can register here.

By Louis J. Manetti, Jr.

Hinshaw & Culbertson, LLP

Judge Easterbrook recently issued a chambers opinion that reminds appellate litigants that not all software functions are equally useful for determining the word count for an appellate brief. In Vermillion v. Corizon Health, Inc., Judge Easterbrook was alerted to the case when the appellees moved for permission to file a brief in excess of the 14,000 word limit. 906 F.3d 696, 696 (7th Cir. 2018). The appellees explained that although the appellant had certified that his brief contained less than 14,000 words, it actually contained 16,850 words. Id. The appellees asked for leave to file a brief containing 408 words on top of that already-excessive sum. Id.

The Court confirmed that the appellant’s brief was, in fact, over the allowed word limit, struck the brief, and ordered the appellant to show cause why he shouldn’t be penalized for falsely certifying the word count. Id. In response, the appellant asked the Court to reinstate his brief because there were 15,315 words reported in the “Properties” tab of Microsoft Word. Id. He claimed that if the words expressed in Federal Rule of Appellate Procedure 32(f) were subtracted, and that, by his understanding, words in the brief citing “the record and appendix” were also excluded under the rule, he was under the word cap. Id. at 696-97.

Judge Easterbrook pointed out two problems with this claim. First, the “Properties” tab in the Word software does not give an accurate representation of the word count as the Seventh Circuit defines it. Id. at 697. That specific tab omits footnotes from the word count, and under Court rules footnotes count towards the total amount. Id. This alone amounted to over 1,000 words in the appellant’s brief. Id.

Second, Judge Easterbrook held that the appellant was misreading what kinds of words were excluded by Rule 32(f). The appellant argued that citations to the record and the appendix must not be included in the word count because they are not mentioned in Rule 32(f). Id. But Rule 32(f) is a list of exclusions: “Only those matters that are mentioned in Rule 32(f)’s list are excluded. Everything else counts.” Id. (emphasis in original).

In the end, Judge Easterbrook ordered the appellant to file a conforming brief, and noted that each party would be subject to the 14,000 word limit. Id. The case serves as a useful reminder that appellate litigants should take care to comply with the word limits imposed by the Federal Rules of Appellate Procedure.