Kevin S. Brady Writing Sample

MEMORANDUM

TO: Faisal Kutty FROM: Kevin S. Brady DATE: December 1, 2014 RE: Benedict and Cordelia Lear - Pool house classification

QUESTION PRESENTED

Under Illinois common law, would the Lears’ pool house be considered a part of the

dwelling when it is physical connected to the main house by a covered walkway, serves as a

setting for food and shelter accommodations, and is consistently used by the Lear family?

BRIEF ANSWER

Yes. The pool house owned by Mr. and Mrs. Lear is a dwelling. Under Illinois law, a

“dwelling” is a living quarters when at the time of the alleged offense the owners in their absence

intend within a reasonable time to reside. The Lears use their pool house throughout the year as

an alternate living quarters. Therefore, the Lears’ pool house is a dwelling.

STATEMENT OF FACTS

Benedict and Cordelia Lear (“the Lears”) reside on property that includes a main house,

garage, pool, and pool house. The Lears’ main house is a single-family structure with an

attached garage. A twenty-five foot covered walkway extends from the backdoor of the main

house to the pool house. The pool house contains a roof, solid walls, and consists of four rooms:

one bathroom, two dressing rooms, and a common area. The Lears use the pool house for

storage, watching college football, pool-related activities, and slumber parties. Such usage

occurs primarily in the spring, summer, and fall. Mrs. Lear often uses the pool house to read and

relax.

On August 10, 2014, the Lears’ pool house was burglarized. For most of that day, the

Lears were poolside in the backyard and pool house. In the evening, the Lears retired to the

basement to watch television. As the Lears prepared for bed, Mrs. Lear asked Mr. Lear to

retrieve her gold-decorated copy of King Lear from the pool house.

Once Mr. Lear reached the pool house, he turned on the lights, and witnessed “a state of

disarray.” Specifically, in the pool house, furniture was overturned, contents of drawers were

dumped on the floor, and muddy footprints marked the carpet. Mr. Lear subsequently discovered

that Mrs. Lear’s book was nowhere to be found and appeared to have been stolen.

Soon after, the Lears filed a report with the police. A claim was then filed with AnyState

Insurance Company (“AnyState”). The Lears had hoped to recover the value of Mrs. Lear’s

King Lear book. However, Iago Moor, Vice President for Claims, informed the Lears that

AnyState does not consider their pool house a dwelling. Therefore, the Lears’ claim was denied

because their policy only covers theft from a “dwelling place.”

DISCUSSION

The Lears’ pool house is a dwelling because of its physical structure, connection to the

main house, and usage throughout the calendar year.

Under Illinois law, a “dwelling” means living quarters in which at the time of the alleged

offense the owners in their absence intend within a reasonable period of time to reside. 720 Ill.

Comp. Stat. Ann. 5/2-6(b) (West 2002). A structure, attached to or detached from a multiunit

building, cannot be deemed a living quarters. People v. Thomas, 561 N.E.2d 57, 64 (Ill. 1990).

However, courts tend to consider how a structure is connected to a single-family home. People

v. Cunningham, 637 N.E.2d 1247, 1252 (Ill. App. Ct. 1994). A structure is more likely a

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dwelling if evidence proves usage of the structure for food and shelter, People v. McIntyre, 578

N.E.2d 314, 316 (Ill. App. Ct. 1991), and an owner’s intent to reside in the structure within a

reasonable time after their absence. People v. Smith, 568 N.E.2d 417, 420 (Ill. App. Ct. 1991).

The Illinois Supreme Court (“Court”) provided a framework of “dwelling” when it

examined a garage attached to a multiunit building. Thomas, 561 N.E.2d at 64. Sophie Dudek

owned a living unit with an attached garage. Id. Dudek lived in a multiunit building where all

garage units plus living units were attached and under the same roof. Id. Walter Thomas entered

Dudek’s garage to steal stored perfume products. Id. On appeal before the Court, Thomas

argued that because he entered Dudek’s attached garage, he committed residential burglary rather

than burglary. Id. The Court disagreed and held that an attached garage was not a “dwelling”

within the meaning of the residential burglary statute. Id. Dudek’s garage was not a structure to

be used as a living quarters. Id. The Court did not focus on whether the garage was attached.

Id. Instead, it explained that Dudek’s garage was not a dwelling because it was associated with a

multiunit building. Id.

In Cunningham, the Appellate Court of Illinois (“appellate court”) expanded off Thomas

to consider whether a garage attached to a single-family home is part of the dwelling under the

residential burglary statute. Cunningham, 637 N.E.2d at 1252. Here, Timothy Cunningham

entered the victims’ single-family home through an attached garage. Id. at 1249. Cunningham

used force to access the garage through a locked side door. Id. at 1252. The appellate court

concluded that the garage attached to the victims’ home was part of the dwelling. Id. It reasoned

that the garage and victims’ single-family home were connected by a door that led directly into

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the family room. Id. For these reasons, the court found it reasonable for a jury to consider the

garage a part of the victims’ dwelling. Id.

Additionally, the appellate court noted the victims’ usage of the attached garage. Id.

Photographs introduced into evidence showed there was no room to park cars in the garage. Id.

The victims used the garage primarily to store bicycles, tools, and toys. Id. Children also played

in the garage each day. Id. These observations were included in the appellate court’s

comparison to McIntyre.

In McIntyre, the appellate court ruled that certain activities make a structure a part of the

living quarters of a house. McIntyre, 578 N.E.2d at 316. Bruce McIntyre was convicted of

residential burglary. Id. at 314. McIntyre, along with another individual, entered Betty Houser’s

porch by tearing the screen near the door. Id. at 315. McIntyre and company were then able to

unlock the porch door. Id. On appeal, McIntyre argued that a screened porch attached to a house

is not part of the dwelling. Id. The appellate court disagreed stating that Houser’s porch was

used for dining activities consistent with those of a living quarters. Id. at 316.

Further, the appellate court addressed the consistent usage of Houser’s porch. Houser

kept furniture on the porch throughout the year. Id. Houser’s porch was routinely used in the

summer and winter for meals. Id. Likewise, in Smith, the appellate court focused on the owner’s

intent to reside in the structure. Smith, 568 N.E.2d at 420. Arthur Vahlkamp owned a vacation

home (also known as a “camp”) where he intended to reside as weather permitted. Id.

Vahlkamp resided most of the summer months at his camp. Id. at 417. During spring and fall,

he spent half of his time at the camp. Id. In the winter, Vahlkamp checked the camp and resided

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there when allowed. Id. The appellate court found Vahlkamp’s intent to reside reasonable and

sufficient to deem the camp a dwelling. Id. at 420.

The main house of the Lears is distinguishable from Thomas. The Lears’ main house is a

single-family unit with an attached garage. Dudek’s living unit plus attached garage shared the

same roof and were part of a multiunit building. Thomas, 561 N.E.2d at 64. The Lears’ pool

house was built with its own roof and solid walls. One may conclude that the holding in

Thomas does not apply to the Lears’ pool house because their main house is a single-family unit.

Moreover, in Thomas, the Court did not provide an objective method to determine whether a

structure attached to or detached from a single-family unit is a dwelling.

Similar to the victims’ attached garage in Cunningham, the Lears’ pool house is

connected to the main house by a twenty-five foot covered walkway. The covered walkway

extends from the pool house to the backdoor of the main house. Based on the court’s reasoning

in Cunningham, the Lears’ pool house could be considered a part of the single-family unit.

Cunningham, 637 N.E.2d at 1252.

AnyState could argue that the door to the Lears’ pool house was open. Unlike

Cunningham, force was not used to gain access to the pool house. In addition, the alleged

burglar walked up to the door of the pool house through the backyard instead of down the

covered walkway. AnyState could conclude that the Lears’ pool house is not a dwelling because

a door with a lock does not physically separate the main house from the pool house.

However, the Lears’ pool house is used for parties, pool related activities, and watching

college football. Furthermore, similar to Cunningham, the Lears’ kids use the pool house for

slumber parties. Also, as stated in the interview, the Lears store valuable personal items in the

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pool house. This is evident by the placement of Mrs. Lear’s gold-covered King Lear book. Such

facts tend to show activities by the Lears consistent with those normally conducted in a living

quarters.

Despite this, AnyState could argue the regularity in which the Lears use the pool house is

not consistent with that of a dwelling. The pool house is primarily used during the spring,

summer, and fall. AnyState could claim that these facts give rise to inconsistent usage and,

therefore, the pool house is not a dwelling.

The appellate court responded to a comparable argument in Smith. Vahlkamp used his

camp when weather permitted. Smith, 568 N.E.2d at 420. He did not use it during winter

months. The appellate court has found such usage satisfactory when the owner possesses an

intent to reside after a reasonable absence from the structure. Id. Comparably, Mrs. Lear often

retreats to the pool house for relaxation. Based upon the interview transcript, it appears Mrs.

Lear conducts this practice throughout the calendar year. If true, then the Lears position is

formidable. An Illinois court will classify the Lears’ pool house as a dwelling.

CONCLUSION

Overall, the issue of whether the Lears’ pool house is a dwelling may not be problematic.

Since Thomas, the appellate court has developed the Illinois legislature’s definition of dwelling.

The rules established by the appellate court give the Lears a basis to establish firm arguments.

AnyState has valid counterarguments to challenge the Lears’ position. In the end, the Lears can

successfully argue that their pool house is a dwelling under Illinois common law because of its

independent structure, relationship to the main house, food and shelter capabilities, and

consistent usage.

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