Appeal from the Circuit Court of Cook County. No. 99 L 6 Honorable Edward R. Burr, Judge Presiding.
The opinion of the court was delivered by: Justice Greiman
Plaintiff Melissa Johnson, a former employee of a Target store in Evanston, was arrested for retail theft from the store and was terminated from her employment. Ruben Garcia, a former Target security guard, signed the criminal complaint against the plaintiff that commenced criminal proceedings against her. After the charges were dismissed on the State's motion to strike the case off the call with leave to reinstate, the plaintiff brought suit against Target and Garcia for false arrest and malicious prosecution.
After a five-day jury trial, the jury tendered a verdict in favor of Target and Garcia on the false arrest claims and against Target and Garcia for the malicious prosecution claims. The trial court denied Target's posttrial motion for judgment notwithstanding the verdict, for a new trial, or a remittitur, and later denied Target and Garcia's motion to enter a nunc pro tunc order to correct the court's order and dismiss Garcia as a defendant. Defendants now appeal and argue: (1) that the trial court erred in denying the defendants' motion for entry of a nunc pro tunc order dismissing Garcia as a defendant; (2) the trial court erred in not granting Target's motion for judgment notwithstanding the verdict or for a new trial; (3) the jury's verdict against Target is against the manifest weight of the evidence; (4) the trial court erred in instructing the jury; and (5) the punitive and compensatory damages awarded by the jury were not supported by the evidence.
Because we find that the jury intentionally dismissed Garcia as a defendant and that Target had the requisite probable cause to arrest the plaintiff and commence prosecution against her, we reverse, whereas the dissent would have us reverse and remand. Notwithstanding the errors relating to the jury's verdict and judgment, however, we also find the plethora of evidence cited both in our decision and in the dissent does not reveal a scintilla of evidence that would allow a finder of fact to determine that Target acted with malice - another essential element to a cause of action for malicious prosecution.
By way of background, Target operates a chain of retail stores and maintains a security function at each store that it refers to as "assets protection." As to be expected, the assets protection department is responsible for preventing, investigating, and processing incidents of customer and employee theft. Positions within the assets protection department include the district assets protection team leader (DAPTL), the assets protection team leader (APTL), the senior assets protection specialist (Senior APS), and the assets protection specialist (APS). The DAPTL is responsible for assets protection at several stores within his or her district, the APTL is responsible for assets protection at a particular store, and the Senior APS and APS are hourly security employees.
Target has a general policy that requires its cashiers to separately scan the bar code of each item presented for purchase, even if a customer purchases several of the same items, and then place the item in the customer's bag. When an item is scanned, the bar code and the price are recorded by a computer and are then printed on a receipt. According to policy, therefore, when assets protection personnel observe a cashier hand-keying merchandise information into the computer instead of scanning and bagging, that raises a red flag that something is being done improperly.
On January 16, 1998, plaintiff was a supervisor for Target's in-store cafeteria, Food Avenue, and her responsibilities included food service, food preparation, and operating the cash register. Apparently because Food Avenue was a separate entity within Target, "she did not know all Target policy." Prior to that date, she had a verbal exchange with Garcia, who was a Senior APS, regarding her fiance. Specifically, she testified at trial that she was engaged to Victor, Victor has a stepmother named Alice, Alice's family did not like Victor dating the plaintiff, Garcia is friends with Alice, and Garcia told the plaintiff that she and Victor should not be dating.
Following her shift that day, plaintiff was shopping in the store while waiting for another Target employee, Gwen Curtis, to get off work. When Curtis's shift ended, she joined plaintiff shopping in the store and began using the same shopping cart. Unbeknownst to them, they were under surveillance by APS Corey Claybon because of what was described as their "suspicious" selection of merchandise. When they finished shopping, Curtis and the plaintiff entered the checkout line where Ronna Campos was working as a cashier. According to plaintiff, she "barely knew" Campos.
When plaintiff and Curtis entered Campos's checkout line, APS Claybon went to the assets protection office and began viewing them and recording their transaction on a video monitor. He also used a system called POSSI, which allows assets protection personnel to watch an image of the receipt of a transaction on a video monitor as the items are rung up by a cashier. This allows assets protection workers to compare what they observe with the actual receipt of the transaction. Not long after the transaction began, APS Claybon summoned Garcia to the assets protection office.
The videotape and the receipts reveal the following in the Campos/Curtis transaction: Curtis was first in line and had her merchandise rung by Campos. Campos overrode the system and hand-keyed three binders for $2.56, $1.24, and $1.24, and made no attempt to scan the binders; Campos hand-keyed the price of a shirt for $1.52, even though Target prices do not end in the number "2," and did not attempt to scan the shirt; Campos charged different amounts for two identical pink fleece pants, and then passed a third pair into Curtis's bag without scanning or keying in the price; Campos picked up a small, unidentifiable item without scanning it and handed it to Curtis, who placed it in her shopping bag; and Campos keyed a sweatshirt for $10.40, voided the transaction, and then placed the sweatshirt into Curtis's bag without charging her for it.
After Campos concluded the Curtis transaction, she began to ring the plaintiff's items. The first items on the conveyor belt were six binders of different designs and styles. Before the binders were rung, Curtis, plaintiff and Campos had a discussion while indicating toward the tag on one of the binders. Plaintiff then pointed to the register while saying something to Campos, and Campos hand-keyed the price of one binder at $1.24, hit the "quantity" key on the register, and charged plaintiff $1.24 for eight additional binders. Campos engaged in this behavior despite the fact that the binders had tags with item numbers visible that, according to Target policy, should have been individually scanned. Moreover, some binders were black with velcro closures, some had the word "Bulls" in red letters down the spine, and some were blue, leading to the conclusion that the items would have had different item numbers even if they were the same price. Plaintiff notes that during her transaction with Campos, Donna Anderson and Keena Williams, the leader on duty, were present and approved the price charged for the binders. However, neither Anderson nor Williams was present when the binders were rung.
As Garcia continued observing the plaintiff's transaction, APS Claybon allegedly went onto the sales floor to determine the retail price of the binders at issue and reported to Garcia that the binder he checked had a retail price of $13.99. After plaintiff paid $30.75 for her items, she and Curtis went to leave the store through the employee exit, and an alarm sounded. Allegedly, Claybon checked the plaintiff's receipt and bag, found that she had six binders and was charged for nine, and told her to get three more binders. After finding no additional binders, she was told by Donna Anderson, the cashier supervisor, that she should get a refund. She then went back to where Claybon was standing, talked briefly with him, and then entered the refund line. While waiting in line, she had a conversation with Garcia, who had approached her and stated that he wanted to talk with her immediately. She got off line without obtaining a refund and went with Garcia to an office.
Following the transaction, Garcia also requested that Campos and Curtis come into the assets protection office for questioning. According to Target policy, one other Target employee sat in as a witness during each interview and prepared a written report of the interviews. Campos was interviewed in the presence of employee witness Ruth Walker. When asked about the undercharge for the binders, Campos informed Garcia that plaintiff "gave her the price of the binders."
After plaintiff entered the office assigned to her, Garcia and an employee witness, Sherrice Ifelowo, entered. Garcia told the plaintiff that she had merchandise in her bag for which she had not paid the correct price. Plaintiff stated that she "selected several [binders] herself. Ask [sic] about the price, she [plaintiff] replied that it was discounted below stickered price. That is what she told the cashier. So cashier rang it up below marked price."
Based on the videotape, the receipts, and the interviews, Garcia and Claybon decided to call the Evanston police. After reviewing the videotape and the documents, the police officers spoke to the plaintiff, Curtis, and Campos, placed them under arrest, and took them to the police station. That evening, Garcia was called to the police station to sign criminal complaints prepared by the police against all three individuals. As a result of the arrest, plaintiff felt "horrible." Approximately two or three days after he signed the complaints, Garcia contacted the Evanston police department and inquired whether a court date had been assigned. The sergeant who answered Garcia's call allegedly stated that no court date had been assigned to the case.
During the last week of January 1998, the Evanston Target's APTL, Brad Fiala, was promoted to a field analyst position outside of the Evanston store. Approximately at the same time, Robert Lawson was transferred to the APTL position at the Evanston store and Barb Silnes became the DAPTL. Not long after, on February 20, 1998, Garcia's and Claybon's employment with Target ended.
A few weeks after he began working at the Evanston store, Lawson received a subpoena for either Garcia or Claybon to appear in court on the criminal proceedings pending against plaintiff, Curtis, and Campos. After receiving the subpoena, Lawson and Silnes reviewed all three case files, and Silnes conducted a separate investigation to confirm the actual price of the binders. According to Silnes, she ran the two department class and item number codes on Curtis's and plaintiffs' receipts through Target's computer and found that the binders had retail values of $16.99 and $20.99, and had never been on clearance. Silnes also testified that she knew that binders priced between that binders priced between $13.99 and $20.99 would not be marked down to $1.24, as once an item is marked down to 90% of its retail price, Target sends it to a salvage company.
Based on their review of the information available to them, Lawson and Silnes concluded that plaintiff knowingly received under-rung merchandise. Specifically, Silnes testified that "everything combined gives me a clear picture of what happened. * * * It was [that] these people were stealing." Accordingly, Lawson and Silnes claim that they attempted to contact Garcia and Claybon to appear in court on the matter. Lawson and Silnes were unable to reach Claybon, but Lawson claimed that he spoke with Garcia. Lawson asserted that Garcia was "on the fence" about whether he would appear for the court date. Garcia, however, testified that no one ever told him about the court dates for the criminal case and that, if he had been told of the dates, he "definitely" would have been there.
In defendants' brief on appeal, they state that Lawson went to court for Target on the first day of trial, March 6, 1998, and then again on April 9, 1998. In fact, Target claims that when Lawson appeared with a videotape and corresponding documents ready to testify on April 9, the assistant State's Attorney advised him that he would not be permitted to testify because he was not present in the Evanston store on the day of the incident. The court then continued the matter until May 13. However, in Target's answer to plaintiff's interrogatories, it states that Lawson only went to court on May 13, 1998. Target now asserts that date is incorrect.
Lawson stated that after appearing in court on April 9, 1998, he told the assistant State's Attorney that because both Claybon and Garcia no longer worked for Target, Target had no one available to testify who witnessed the theft firsthand. On May 13, 1998, Silnes also spoke to the assistant State's Attorney and informed her that Target had the videotape of the incident and supporting documentation, but that she could not compel Garcia to testify. Lawson testified in his deposition that, later that day, he told the assistant State's Attorney that Target wanted to have the case dismissed, upon instructions from Silnes. Accordingly, the State struck the case from the docket with leave to reinstate (motion to SOL).
On January 4, 1999, plaintiff brought this action against the defendants alleging two counts of false arrest and two counts of malicious prosecution. During deliberations and prior to the verdict, the jury asked the trial court whether it could be permitted to read a statement into the record. After a consultation and agreement between the parties, the court gave the jury permission to read its statement. In the end, on December 4, 2001, the jury found in favor of Target and Garcia on the false arrest claims and against Target and Garcia for the malicious prosecution claims. However, the verdict form did not distinguish between the defendants or between malicious commencement and malicious continuation of prosecution. As such, the jury was unable to distinguish between Garcia and Target in recording its verdict for the malicious prosecution claim.
Nevertheless, immediately after the verdict form was read and prior to the jury being discharged, the jury foreman read a unanimously signed statement into the record that found Garcia "not guilty" of malicious prosecution. Plaintiff's attorney then prepared an order, stating that "the jury finding in favor of plaintiff Johnson as to counts III and IV malicious prosecution only, awards plaintiff $75,000 in compensatory damages." At the conclusion of the sentence, a caret was added with the words "against both defendants."
After being granted an extension of time in which to file a posttrial motion, on February 4, 2002, Target timely moved for judgment notwithstanding the verdict, for a new trial, and for remittitur seeking a reduction in damages. Garcia states that he did not join in Target's posttrial motion because "the jury had exonerated him of all liability." On April 4, 2002, the trial court denied Target's motion. On April 15, 2002, Target and Garcia filed a motion requesting the trial court to enter a nunc pro tunc order correcting the December 4, 2001, order by dismissing Garcia as a defendant. Specifically, the motion sought to correct two clerical errors: first, it sought to correct the reference in the order to count III, because count III was a malicious prosecution claim brought by another plaintiff who was dismissed from the action on summary judgment; second, the motion stated that the order's reference to the damages being awarded against "both defendants" did not reflect the jury's verdict. On May 6, 2002, the trial court denied Target and Garcia's motion.
Also on May 6, 2002, Target appealed from the judgment entered on the jury verdict of December 4, 2001, and the court's order of April 4, 2002, denying the motion for judgment notwithstanding the verdict, for a new trial, or for a remittitur. Target also appealed the court's May 6, 2002, order, which denied defendants' motion requesting the court to enter a nunc pro tunc order dismissing Garcia as a defendant.
On May 6, 2002, in a separate notice of appeal, Garcia "join[ed] in the appeal of the judgment entered on the jury verdict of December 4, 2001, and the court's order of April 4, 2002, denying Target's motion for judgment notwithstanding the verdict of December 4, 2001, for a new trial or for a remittitur," as well as the court's order of May 6, 2002. Garcia, alone, also appealed from the "judgment entered on the jury verdict of December 4, 2991, and the court's order of April 4, 2002, denying Target's motion for judgment notwithstanding the verdict of December 4, 2001, for a new trial or for a remittitur." On June 5, 2002, this court granted defendants' motion to consolidate the appeals.
On May 22, 2002, plaintiff filed a motion with this court to dismiss Garcia as an appellant for lack of jurisdiction, and this court took the motion with the case. As plaintiff notes, Supreme Court Rule 303(a)(1) provides that a notice of appeal must be filed "within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, * * * within 30 days after the entry of the order disposing of the last pending post-judgment motion." 155 Ill. 2d R. 303(a)(1). Section 2-1202 of the Code of Civil Procedure, which governs the timing of posttrial motions, also requires that such motions be filed within 30 days of the entry of judgment. 735 ILCS 5/2-1202 (West 2000). In this case, therefore, plaintiff asserts that the last date for Garcia to file a posttrial motion or, failing that, notice of appeal, was on January 3, 2002.
In addition, plaintiff notes, "the fact that one party files a timely posttrial motion does not excuse another party's obligation to file its posttrial motion within the statutory 30-day period after entry of judgment. Burnidge Corp. v. Stelford, 309 Ill. App. 3d 576, 579, 723 N.E.2d 394 (2000)." Kim v. Alvey, Inc., 322 Ill. App. 3d 657, 665-66 (2001). Accordingly, the fact that Target, alone, filed a motion for extension of time to file a posttrial motion on December 12, 2001, and then, alone, filed a motion for judgment notwithstanding the verdict, for a new trial, or for remittitur on February 4, 2002, does not extend the time to appeal to Garcia. And since Garcia filed his joint posttrial motion on April 15, 2002, and his joint notice of appeal on May 6, 2002, plaintiff concludes that this court has no jurisdiction over any appeal as to him and that he must be dismissed as an appellant.
With respect to Target, plaintiff argues that the April 15, 2002, motion was a successive posttrial motion and, therefore, is impermissible because it was filed more that 30 days after the judgment or any extension of time allowed for the filing of the postjudgment motion. See Sears v. Sears, 85 Ill. 2d 253, 259 (1981); In re Marriage of Stone, 158 Ill. App. 3d 708, 713 (1987).
Defendants' respond that Garcia timely appealed from the trial court's denial of his joint motion for a nunc pro tunc order. As defendants relate:
"[N]otwithstanding the general rule that the circuit court retains jurisdiction only for 30 days after entry of a final order, a court may modify its judgment nunc pro tunc at any time. Beck[ v. Stepp], 144 Ill. 2d [232,] 238, 579 N.E.2d [824,] 827 [(1991)]. Nunc pro tunc orders are employed by courts to correct clerical errors in written orders and thereby make final orders entered in a case conform to the actual judgment of the court. Beck, 144 Ill. 2d at 238, 579 N.E.2d at 827 (a court may enter a nunc pro tunc order 'to correct a clerical error or matter of form so that the record conforms to the judgment actually rendered by the court'; the purpose of such an order 'is to correct the record of judgment, not to alter the actual judgment of the court'); Gegenhuber[ v. Hystopolis Production, Inc.], 277 Ill. App. 3d [429,] 432, 660 N.E.2d [107,] 110 [(1995)]." In re Marriage of Breslow, 306 Ill. App. 3d 41, 50 (1999).
In the present case, therefore, where defendants were seeking an order to correct the reference to damages being awarded against "both defendants" as not being reflective of the jury's verdict, and the order's reference to count III -a count brought by an erstwhile plaintiff- the defendants assert that their April 15, 2002, motion sought a nunc pro tunc order. And because the time for appealing the trial court's denial of their motion to correct ran from the date the trial court denied their motion (People ex rel. Byrnes v. Standard, 9 Ill. 2d 372, 375 (1956)), Garcia's appeal, which was filed the same day the trial court denied the motion to correct, was timely.
With respect to Target, defendants argue that the April 15, 2002, motion raised a supplementary issue invoking the continuing power of the trial court to control its own process and, therefore, was not a posttrial motion. See Couch v. State Farm Insurance Co., 279 Ill. App. 3d 1050, 1055 (1996), citing Klier v. Siegel, 200 Ill. App. 3d 121, 125 (1990) (held that a request for a setoff does not need to be raised in a timely posttrial motion where it does not challenge the final judgment itself). In such circumstances, defendants argue, the trial court retains jurisdiction to modify the judgment more than 30 days after it becomes final. Klier, 200 Ill. App. 3d at 125-26.
Defendants also claim that this court has jurisdiction over Garcia's appeal from the judgment entered on the verdict because his appeal was timely filed under Supreme Court Rule 303(a)(3) (155 Ill. 2d R. 303(a)(3)). Rule 303(a)(3) provides:
"If a timely notice of appeal is filed and served by a party, any other party, within 10 days after service upon him or her, or within 30 days from the entry of the judgment or order being appealed, or within 30 days of the entry of the order disposing of the last pending post-judgment motion, whichever is later, may join in the appeal, appeal separately, or cross-appeal by filing a notice of appeal, indicating which type of appeal is being taken." 155 Ill. 2d R. 303(a)(3).
Under this section, defendants assert that Garcia had 10 days from the date of Target's timely notice of appeal to file an appeal from the jury's verdict. Accordingly, where Garcia joined in Target's appeal and filed a separate appeal on the same day Target filed its appeal, Garcia's appeal from the jury's verdict was also timely.
Since it is undisputed that the trial court had jurisdiction at all times to hear defendants' motion to correct and because the time for the appeal of the trial court's order denying that motion, as dictated by the supreme court rules, ran from the time of entry of the court's order, we find that Garcia's appeal from the court's disposition of the motion to correct - which was filed the same day the trial court denied the motion to correct - was timely. See Breslow, 306 Ill. App. 3d at 51 (and cases cited therein). Accordingly, we have jurisdiction over Garcia with respect to his challenge of the trial court's refusal to enter a nunc pro tunc order.
In addition, as Garcia notes, Supreme Court Rule 303(a)(3) allows him to join an appeal where "a timely notice of appeal is filed and served by * * * any other party, within 10 days after service upon him." 155 Ill. 2d R. 303(a)(3). Where the trial court ruled on Target's timely motion for judgment notwithstanding the verdict, for a new trial, or for remittitur on April 4, 2002, and Target filed its notice of appeal on May 6, 2002, Target's appeal fell within the 30-day period mandated by Supreme Court Rule 303(a)(1) and, thus, was timely. 155 Ill. 2d R. 303(a)(1). See In re Estate of Malloy, 96 Ill. App. 3d 1020, 1025 (1981) (held that under the rule requiring the filing of a notice of appeal within 30 days of entry of final judgment, a notice of appeal was timely where the filing occurred 32 days after court's written order and the two days immediately preceding filing were a Sunday and a holiday). Because Garcia joined in both that appeal and appealed separately on the same day Target appealed the jury's verdict - May 6 , 2002, we find that both Garcia's joint and separate appeals from the trial court's April 4, 2002, order were timely and, therefore, we have jurisdiction over them as well. Plaintiff's citation to section 2-1202 of the Code of Civil Procedure is inapposite, as it only governs the timing of posttrial motions to preserve issues for appellate review. For these reasons, we deny plaintiff's motion to dismiss.
We must then decide whether the trial court erred in refusing to grant a nunc pro tunc order dismissing Garcia, which is reviewable de novo. Gounaris v. City of Chicago, 321 Ill. App. 3d 487, 493 (2001). Plaintiff suggests that, where the judgment signed by the court reflected what the jury verdict form held, to change the verdict would be to newly construe the judgment using ex post facto reasoning. As noted in Breslow, a case cited by defendants, nunc pro tunc orders can only be utilized by courts to correct clerical error so that the record conforms to the court's judgment; not to alter the court's judgment. Breslow, 306 Ill. App. 3d at 50. Accordingly, where the jury's verdict and judgment was that Garcia was liable, defendants' attempt to change that to a "not guilty" is not an issue of clerical error, but one of reasoning and determination. And because a clerical error cannot involve reasoning and determination (First Bank of Oak Park v. Rezek, 179 Ill. App. 3d 956, 959 (1989)), it was impossible that a nunc pro tunc could afford the relief that defendants sought.
That said, we note that while the jury was instructed that it could find against Target and not against Garcia for plaintiff's malicious prosecution claim, it was not provided a means to render such a verdict because the verdict form did not distinguish between the defendants for plaintiff's claims. In other words, the jury was unable to discern between Garcia and Target in entering its verdict for the malicious prosecution claim. Furthermore, the trial court instructed the jury that it was not to write or mark upon the verdict form.
Prior to returning its verdict, however, the jury asked the court whether it would be permitted to read a statement into the record. Counsel from both sides had no objections, and defense counsel telephoned the court reporter to ensure that the statement would be part of the record. Accordingly, immediately after the verdict form was read and the prior to the jury being discharged, the following statement was read before the court:
"Mr. Garcia, in lieu of the fact that we found you not guilty of malicious prosecution by our interpretation of the law given to us - the intent of the jury is that you will more responsibly fill out your paperwork/reports and do more thorough investigative work and be responsible for appearing in court."
In light of the fact that this statement was given unanimously, defendants argue that there is no doubt as to the jury's intention in rendering its verdict - namely, that Garcia is not liable for malicious prosecution. Accordingly, the trial court should have granted their motion for entry of nunc pro tunc order to have its final order conform to the jury's actual judgment.
According to the venerable Griffin v. Larned, 111 Ill. 432 (1884), both the form and the substance of the verdict are within the control of the jury until its discharge, and the jury may vary or correct that verdict before such discharge. In the present case, therefore, we think that the jury did the only thing it could do under the restrictions placed upon it: it ...