New Cases 02-08-05

Following a direct appeal of his conviction for murder, attempted murder, and aggravated discharge of a firearm, defendant Volney McGhee filed a postconviction petition, alleging denial of his constitutional right to effective assistance of trial and appellate counsel. The circuit court dismissed the petition at the second stage. We affirm.

2 Appellate Court Cases Posted 1-24-12

1. Declaratory Judgement: Reversed in Part and Affirmed in Part: The express power to arrest granted to private citizens (including security guards) in section 107-3 "necessarily implies the power to undertake less intrusive actions, such as a traffic stop or a brief detention to await pursuing police officers, so long as there are reasonable grounds to believe the person seized has committed an offense other than an ordinance violation." Security officers are without legal authority to stop and detain drivers for violating Association rules. Section 12-215(b) of the Illinois Vehicle Code prohibits the of use of "amber oscillating, rotating or flashing lights" except on specified vehicles, including "[v]ehicles used by a security company, alarm responder, or control agency." False imprisonment only requires that the plaintiff's liberty be restrained, not necessarily that the plaintiff actually be placed under arrest. Carey, 312 Ill. App. 3d at 669. This element is met if a person is compelled to go where he or she does not wish to go or to remain where he or she does not wish to remain. Lytton, J.

2. Real Estate Contracts: Affirmed: Where a plaintiff has moved for summary judgment, the materials relied upon must establish the validity of the plaintiff's factual position on all the contested elements of the cause of action. The issue in this case, however, is raised by defendant as an affirmative defense. "Contract construction and interpretation are generally well suited to disposition by summary judgment." An earnest money deposit in a real estate transaction is designed to protect the seller. It provides assurance to the seller that the buyer will perform and not walk away from the contract. Cook, J., dissent by Pope, J.

On May 3, 2010, Triple R Development, LLC (Triple R), and Colliers, Bennett and Kahnweiler, Inc. (CB & K), filed a complaint against Golfview Apartments I, L.P. (Golfview), stating that Golfview had defaulted on a real estate contract, and Triple R was entitled to the $230,000 deposit made by Golfview. On August 4, 2010, Triple R filed a motion for summary judgment. On August 17, 2010, Golfview filed its answer and affirmative defenses and then on September 2, 2010, filed a countermotion for summary judgment. On October 27, 2010, the court entered its order granting Triple R's motion for summary judgment. The court reserved the issue of attorney fees, set forth in count II of Triple R's complaint, but made a finding, pursuant to Illinois Supreme Court Rule 304(a).

7 Appellate Court Cases Posted 1-23-12

1. Domestic Relations/Child Support: Affirmed: Trial court order entered in 1990 modified child support under marital settlement agreement originally entered into in 1982, and the original "reduction provision" relating to pro rata reductions upon the emancipation of older children did not survive the modification and trial court properly applied the 1984 legislative enacted guidelines; interest owed by non-custodial father would be calculated from 1991, not 2000, per Wiszowaty v. Wiszowaty, 239 Ill.2d 483 (2011). Gordon, R., J. (Modified on denial of rehearing).

2. Criminal Law/Juvenile Delinquency: Appeal dismissed: State appeal in which the State sought interlocutory relief from a trial court ruling suppressing respondent's statement, in a manner similar to State appeals authorized by Supreme Court Rule 604, is not authorized under Rules 660 and 662 governing appeals in cases under the Juvenile Court Act. Carter, J.

3. Criminal Law: Affirmed: Trial court finding that defendant only "left" property at third party's home, and did not regularly "store" property there, was not against manifest weight of the evidence and defendant had no standing to claim the search and seizure of that property was unlawful, and minimum consecutive sentences for aggravated criminal sexual assault totaling 32 years did not violate due process or the proportionate penalties clause. Birkett, J.

4. Easements: Affirmed in part, reversed in part, and remanded: Trial court erred in determining that defendant landowner was an "assign" of county which had an easement on plaintiff's adjacent property so as to permit defendant landowner's detention of water onto plaintiff's property, and action by county and defendant landowner in extending water pipes 150-200 feet onto plaintiff's property violated the easement. McLaren, J.

5. Criminal Law: Affirmed: Trial court properly granted motion to quash search warrant and suppress evidence of test of urine involuntarily taken from defendant under terms of warrant and used to detect controlled substances in driver's urine, where warrant established probable cause for belief that defendant's blood would show intoxicating level of alcohol, but stated no facts upon which to base a conclusion that controlled substances were present in his urine. Hutchinson, J.

6. Criminal Law: Reversed: Trial court erred in refusing to permit defendant's wife to testify, over State's hearsay objection, regarding statement allegedly made by defendant to police officer where what was said was the gravamen of the charged offense of obstructing justice; trial court erred in admonishing defense witness that testimony of what he heard over cellphone could subject him to prosecution for eavesdropping; but case would not be remanded where evidence presented by State was insufficient to prove obstructing justice in any event, where defendant allegedly only told officer that he did not have a son, in connection with the officer's investigation of a "minor" traffic accident. Hutchinson, J.

7. Parental Rights: Reversed: Admission of doctor's report, issued three months after child received burn injuries, was not admissible under Section 2-18(4)(a) of Juvenile Court Act, as it was not "made in the regular course of business" of the hospital, and trial court finding that mother was an unfit parent due to an "injurious environment" stemming from boyfriend's conduct on the day in question would be reversed in the absence of any evidence that boyfriend had ever harmed any of mother's children in the past. McDade, J.

7 Supreme Court Cases Posted 1-20-12

1. Criminal Law/Self-defense/Jury instructions: Affirmed: Case law has held that evidence which supports a self-defense instruction will also support an instruction for second degree murder. The appellate court in this case followed this precedent in ruling as it did. In this decision, the Illinois Supreme Court found no reason to reach a different result. It held that the requirement stated in that earlier decision (People v. Lockett, 82 Ill. 2d 546 (1980)) is mandatory. The supreme court said that it is the role of a trial court to determine if there is any evidence in the record to support the giving of a self-defense instruction. However, it is the function of the jury to determine whether a defendant actually had a subjective belief that the use of force was necessary and, if he did, whether that belief was reasonable or unreasonable. This latter factual determination should not be taken away from the jury. This error was not a structural one which would automatically call for reversal. But, because the testimony was conflicting, neither was it harmless in the sense that the trial result would not have been different if the jury had been properly instructed. Garmin, J. delivered the judgment of the court, with opinion.

In March of 2004, a minor traffic accident occurred near West 43rd Street and South Lamon Avenue in Chicago. A crowd gathered, arguments ensued, and shots were fired. The uncle of one of the drivers received gunshot wounds but survived. He had been arguing with this defendant, Malvin Washington, who had come to the scene because the other vehicle involved, which had been damaged, belonged to his girlfriend. A bystander who was a relative of the first victim received fatal wounds. The recovered bullets all came from the same gun, and there was trial testimony as to the defendant’s use of a gun.
Washington was tried before a Cook County jury. Although an instruction on justifiable use of force in self-defense was requested and given, he was convicted of first degree murder and aggravated battery with a firearm, for which he received consecutive 55- and 10-year sentences. On appeal, he complained of the trial court’s refusal to give an additional instruction that would have found him guilty only of second degree murder for having had a subjective belief that the use of force was necessary under circumstances in which that belief was unreasonable. The appellate court agreed with this contention, reversed, and remanded for a new trial. The State appealed. The appellate court was affirmed in its reversal and its remand for a new trial.

2. Criminal Law/Closing arguments: Reversed: In this decision, the supreme court resolved a conflict that had developed within the appellate court. The supreme court held that the comments were improper under circumstances in which no evidence had been presented that officers risked their careers by testifying falsely. That said, the supreme court did not agree with the appellate court’s finding of plain error because the defendant’s version of events was highly improbable and the jury was instructed that arguments are not evidence. Thus, it could not be said that the evidence was closely balanced. In addition, as a prerequisite to plain-error review, neither could it be said that the error was so serious as to affect the fairness of the trial and challenge the integrity of the judicial process. However, such improper comments cannot be condoned and should be avoided in the future. Burke, J. delivered the judgment of the court, with opinion.

This Will County defendant appealed after he was sentenced to five years in prison on his jury conviction for unlawful possession of 0.8 grams of cocaine. On October 15, 2008, he had been stopped in Joliet Township for driving on a suspended license. He was asked to get out of his car and was searched, and different versions were presented at trial as to what happened next. A sergeant for the Will County Sheriff’s Police testified that he found a small plastic sandwich bag containing a white powdery substance in the defendant’s left front pocket. A deputy with the Will County Forest Preserve Police who was also at the scene testified that the sergeant pulled the bag out of defendant’s pocket and never dropped or retrieved anything from the ground. The substance later tested positive for cocaine. The defendant took the stand and testified that the drug was planted. He said the sergeant, while searching him, pointed to the ground with his foot. There, lying on the ground, was a piece of plastic with a white substance on it that the defendant had never seen before.The issue in this appeal arises from the fact that the prosecutor argued to the jury that the testimony of a police officer should be believed because he would not risk “his credibility, his job, and his freedom” by lying. However, no evidence was presented at trial that such consequences would occur. Defendant had not objected to this prosecutorial argument at trial, but, on appeal, asserted that it was plain error. The appellate court agreed that the statements were improper, found the evidence closely balanced, and reversed under the plain-error rule. The conviction was affirmed and the appellate court was reversed.

3. Civil/Motion to dismiss/SLAPP suits: Reversed: The Illinois Supreme Court construed the statute to mean that, for a motion to dismiss as a SLAPP to succeed, the plaintiff’s claim must be solely based on the movant’s rights of petition, speech, association, or participation in government. Thus, where a plaintiff files suit genuinely seeking relief for alleged defamation or intentional torts, the lawsuit is not solely based on the defendant’s constitutional rights and is not subject to dismissal as a SLAPP. The Act is not intended to protect those who commit tortious acts and then seek refuge in the immunity conferred by this statute. The supreme court declined to read into the statute a new privilege concerning defamation where the legislature had not made clear an intent to do so. It is possible that the defendants could spread lies about the plaintiff while at the same time genuinely petitioning government for redress, but such a situation cannot support dismissal as a SLAPP. The facts of this case, as alleged in the pleadings, do not show that the plaintiff’s lawsuit was based solely on the defendants’ exercise of their constitutional rights. The supreme court said that, here, “the true goal of plaintiff’s claims is not to interfere with and burden defendants’ free speech and petition rights, but to seek damages for the personal harm to his reputation from defendants’ alleged defamatory and tortious acts.” Thus, the defendants have not met their burden of showing that they are entitled to a SLAPP dismissal. Burke, J. delivered the judgment of the court, with opinion.

The plaintiff in this Lee County lawsuit was hired to be head basketball coach at Dixon High School in 1999, and, in 2003, he was given the additional position of athletic director. On April 23, 2008, the school board voted to remove him from his position as basketball coach. Two days later, on April 25, he filed this civil action for damages, naming numerous defendants and alleging that they campaigned to have him removed because they did not like his coaching style. He claimed defamation per se, false light invasion of privacy, civil conspiracy to intentionally interfere with prospective business advantage, and slander per se. The defendants moved to dismiss the complaint as a SLAPP (Strategic Lawsuit Against Public Participation) under the Citizen Participation Act. They were successful in the circuit court and in the appellate court. The purpose of the SLAPP legislation is to protect citizens who are attempting to speak freely or petition their government from being harassed by retaliatory meritless lawsuits which are intended to chill the exercise of their constitutional rights and intended to impose burdensome expenses upon them. The special form of dismissal allowed for by this statute is a summary one, without discovery, and with attorney fees being allowed. The typical example of a SLAPP involves citizens who are complaining about zoning and who are sued by developers. Both the circuit and appellate courts were reversed. On remand, the circuit court should consider any remaining grounds for dismissal raised by the defendants, including protected opinion, fair reporting privilege, and failure to plead the required elements, including actual malice.

4. Criminal Law/sentencing/Fees: Reversed: There is no indication that either the State or the trial court was seeking a public defender fee. The Lake County circuit clerk improperly imposed the fee on its own, and the fee must therefore be vacated. The appellate court erred in remanding the cause for a hearing on defendant’s ability to pay. That portion of the appellate court’s judgment that remanded the cause for notice and a hearing on defendant’s ability to pay is reversed, but affirmed it in all other respects. Thomas, J. delivered the judgment of the court, with opinion.

In the circuit court of Lake County, Elias Gutierrez pled guilty in 2007 to predatory criminal sexual assault of a child and received a 20-year sentence. In seeking review in the appellate court, he challenged various fines and fees which had been imposed. The one at issue here is the $250 public defender fee. Section 113-3.1(a) of the Code of Criminal Procedure requires notice to the defendant and a hearing on his ability to pay before the public defender fee allowed by law may be imposed. Here, no such procedure was followed. In Gutierrez’s appeal, the appellate court vacated the fee and ordered a remand for notice and a hearing concerning ability to pay. The defendant appealed. He claimed that the fee should have been vacated outright by the appellate court, without any remand. In this decision, the supreme court agreed, because no motion to impose the fee had been made by the prosecution and it had not been sought by the circuit court itself. Thus, there was no reason to conduct a hearing on ability to pay. The circuit court clerk had imposed the fee unilaterally, without any authority for doing so. This was improper and had to be vacated. The appellate court was reversed insofar as it had remanded.

5. Civil/SOJ: Appellate court judgment vacated; circuit court judgment reinstated; cause remanded.: The supreme court resolved this appeal as a matter of standing. The supreme court held that the appellate court had been correct when it held in Aussieker v. City of Bloomington, 355 Ill. App. 3d 498 (2005), that multiple plaintiffs in that case lacked standing to claim that the trial court there had erred in denying another plaintiff’s motion for substitution of judge as of right. In this decision, the supreme court said that once Alder, whose request to substitute as a matter of right had earlier been denied, was no longer in the case, no other defendant had standing to challenge that denial. Other defendants had either obtained the substitution they asked for or had not sought substitution. Thus, they obtained the relief they wanted and were not prejudiced. The supreme court refused to remand the cause to the circuit court for a new trial before a different judge, and vacated the appellate court’s decision which had done so. However, because other issues were raised before the appellate court which were not addressed there, the cause was remanded to the appellate court so that it could address the remaining questions. Thomas, J. delivered the judgment of the court, with opinion. Chief Justice Kilbride took no part in the decision.

In 2007, a jury award for over $20 million was entered in the circuit court of Cook County for the death of three persons in a 2002 collision in Wanatah, Indiana, between a passenger car and a tractor-trailer. There were multiple defendants, including the truck driver, his employer, and the owner of the load which was being carried. Other defendants later dismissed from the case included the owner of the tractor and the owner of the semit-trailer. The defense won a reversal and an order for a new trial from the appellate court, based on claimed error in the denial of a motion to dismiss a judge as a matter of right, without cause. Section 2-1001(a)(2) of the Code of Civil Procedure gives this privilege to all defendants once, provided no substantial ruling has yet been made in the case.
Illinois case law holds that any and all orders entered after the improper denial of a motion to substitute a judge as a matter of right are null and void. It was on this basis that the defense was able to have the appellate court set aside the jury award and order a new trial. The plaintiffs, who represent the decedents, are the appellants here.

The truck driver was an employee of defendant Alco of Wisconsin. Also named as a defendant was Alco, Inc. Statutory motions for substitution of judge as a matter of right were made in the names of both of these defendants and were granted. However, the second substitution, obtained by Alco, Inc., was challenged by plaintiffs, who asserted that this was merely an alternate name for the same entity, and that two different names should not be used to get two substitutions. It came to light that Alco, Inc., was the former name of the truck driver’s employer, later known as Alco of Wisconsin, and that a name change had taken place in 1989. The substitution of Judge Patricia Banks awarded to Alco, Inc., was reconsidered and then vacated. Subsequently, defendant Alder Group, the owner of the tractor, came forward and made its own motion for substitution as a matter of right as to Judge Banks. Plaintiffs objected, claiming that this could not occur because the determination of the status of Alco, Inc., which had just been made, was a substantial ruling in the case. Alder’s request was denied based on this theory and Judge Banks tried the case. The appellate court reversed, finding that the ruling was not “substantial” and could be challenged by any and all defendants. After leave to appeal was granted by the supreme court, plaintiffs moved to dismiss Alder Group with prejudice, releasing it from liability, and Alder agreed.

6. Criminal Law/sentencing/Fees: Affirmed in part and vacated in part: In this decision, the Illinois Supreme Court said that the court in the Schneider case saw the impetus behind the statutory requirements more clearly. Indeterminate sentences have generally been abolished in Illinois, but, in 2005, were resurrected as to certain specified sex offenses in order to create lifetime supervision for high-risk offenders and because of the risk of recidivism. The supreme court said that these new provisions contemplate indeterminate, not determinate, terms, and the appellate court should not have vacated what the circuit court had done. Theis, J. delivered the judgment of the court, with opinion.

In 2007, defendant Thomas Rinehart was convicted of criminal sexual assault and sentenced to 28 years’ imprisonment. The defendant appealed, and the appellate court affirmed his conviction and sentence, but remanded with instructions for the circuit court of Coles County to select a term of mandatory supervised release (MSR) within the range of three years to natural life contained in section 5-8-1(d)(4) of the Unified Code of Corrections (730 ILCS 5/5-8-1(d)(4) (West 2006)). 406 Ill. App. 3d 272. The State appealed. ¶ 2 The central issue before us, then, is whether the appellate court erred in holding that section 5-8-1(d)(4) requires the trial court to set a determinate MSR term within the statutory range. In his request for cross-relief, the defendant raises the issue of whether the trial court erred in allowing the State to pose various questions during voir dire. We affirm the defendant’s conviction and sentence, and vacate the appellate court’s order on MSR.

7. ARDC: Respondent suspended: In this decision, the Illinois Supreme Court did not agree with what the Review Board had done. As to the alleged misrepresentation to the bankruptcy court, the supreme court did not reach the issue of whether there was “materiality” because this would not affect the decision as to the proper form of discipline and because the remaining counts are a sufficient basis for imposing discipline. As to his appearance before the Seventh Circuit, although the attorney contended otherwise, the supreme court said that it was “undisputed that respondent engaged in conduct that constituted the practice of law while his license was suspended ***. These acts were not inadvertent, they were intentional. The effect *** was to perpetrate a fraud up on the court.” Thus, he is subject to discipline. As to the circuit court of Du Page County, the supreme court said that it is undisputed that he practiced law there by his appearances after the effective date of his suspension. The supreme court concluded that the respondent violated the Rules of Professional Conduct and, in addition, that his unauthorized practice of law involved dishonesty or misrepresentation. The supreme court said that, if respondent attorney had any doubts about his status, he could have resolved them by placing a phone call to the Supreme Court clerk’s office. The supreme court suspended the attorney from the practice of law for one year and directed that he notify all other jurisdictions in which he is licensed. Garman, J. delivered the judgment of the court, with opinion.

The attorney in this disciplinary proceeding was charged in 2007 with two counts of unauthorized practice of law and one count of misrepresentation to a tribunal, all stemming from the manner in which he handled a previously imposed 18-month suspension which began October 17, 2005. That earlier suspension had arisen from his convictions for two charges of misdemeanor driving under the influence of alcohol, one charge of misdemeanor driving on a revoked license, and three felony charges of driving on a revoked license, all of which he failed to report to the Attorney Registration and Disciplinary Commission as required. The complaint in the instant action was filed October 17, 2007, alleging that, after the effective date of his earlier suspension, the attorney engaged in the unauthorized practice of law in the circuit court of Du Page County, that, during his earlier suspension, he engaged in unauthorized practice before the United States Court of Appeals for the Seventh Circuit, and that he made misrepresentations to the United States Bankruptcy Court for the Northern District of Illinois. The Hearing Board found that misconduct had been proved and recommended suspension for two years. The Review Board recommended dismissal of all the charges, but the Administrator filed exceptions.

4 Appellate Court Cases Posted 1-20-12

1. Insurance Law: Affirmed: The statutory language, given its plain and ordinary meaning, best indicates the legislature's intent. In interpreting a statutory provision, courts evaluate the statute as a whole, "with each provision construed in connection with every other section." When the statutory language is clear and unambiguous, a court must give effect to the statute's plain meaning without resorting to extrinsic statutory construction aids. Insurance act creating the fund discussed. Workers' compensation claims under section 537.2 of the Code are not narrowly limited to claims brought by employees, but may extend to claims of policyholders of workers' compensation policies issued by insolvent insurers. $300,000 limit does not apply to self insurers under the Workers Compensation Act where the excess insurer becomes insolvent. Steele, J.

2. Asbestos Litigation: Certified question Answered: Whether a duty exists depends on whether the parties stood "in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff." 4 factors listed to impose a duty. Plaintiffs fail to cite any authority, either in Illinois or any other jurisdiction, establishing a duty to remove unloaded boxcars in such a manner as to prevent the movement of asbestos fibers accumulated upon the boxcars from asbestos plant operations or warn employees of the manufacturer prior to removing the unloaded boxcars. McCullough, J.

3. Criminal Law: Reversed and Remanded: A review of a trial court's ruling on a motion to suppress involves mixed questions of law and fact. "Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known" to the officer at the time he acts. The court rejected the defendant's argument, stating that the statute establishes two separate, exclusive requirements: (1) that a motorist must drive the vehicle as nearly as practicable entirely within one lane and (2) that a driver may not move from one lane of traffic until he or she has determined the move can be made safely. The court ruled that "when a motorist crosses over a lane line and is not driving as nearly as practicable within one lane, the motorist has violated the statute." Stewart, J.

4. Workers Compensation: Affirmed in part, Reversed in part and Remanded to Commission: An injured employee can establish his entitlement to PTD benefits under the Act in one of
three ways, namely: by a preponderance of medical evidence; by showing a diligent but unsuccessful job search; or by demonstrating that, because of age, training, education, experience, and condition, there are no available jobs for a person in his circumstance. once the employee has initially established that he falls in what as been termed the "odd-lot" category (one who, though not altogether incapacitated for work, is so handicapped that he will not be employed regularly in any well-known branch of the labor market [citation]), then the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available to the claimant. In the absence of medical evidence to support a claim of total disability or his having conducted a diligent but unsuccessful job search, the claimant, who is not obviously unemployable, had the burden of proving by as preponderance of the evidence that he is so handicapped that he will not be employed regularly in any well-known branch of the labor market. Hoffman, J., Stewart, J. Concurred in part and dissented in part .

2 Appellate Court Cases Posted 1-18-12

1. FOID: Affirmed: When the denial by the State Police is based on a determination that the applicant has a conviction for a forcible felony, then the applicant must seek relief in the trial court. Section 2-8 of the Criminal Code of 1961 defines forcible felony. Indecent solicitation of a child is not one of the enumerated offenses. Sexual abuse of a minor involves an act of violence against a child and that inherent in the act of soliciting a child for sex is the threat of violence against that child. 5 pictures in one e-mail was one offense. Schmidt, J., Wright, J. concurred in part and dissented in part

2. Criminal Law: Affirmed in part, vacated in part and remanded: The trial court has a duty to provide instruction to the jury where it has posed an explicit question or requested clarification on a point of the law arising from facts about which there is doubt or confusion. When a jury makes explicit its difficulties, the court should resolve them with specificity and accuracy. A court may, however, exercise its discretion and decline to answer a question from the jury in certain circumstances. Six factors set forth to consider in determining whether a photograph of a child constitutes "the lascivious or lewd exhibition of the genitals." "Nudity without lewdness is not child pornography." Turner, J.

4 Appellate Court Cases Posted 1-17-12

1. Domestic Relations: Affirmed in part and Reversed in part: Section 12-109 of the Code of Civil Procedure to provide that support orders are judgments against the person obligated to pay, and that "[e]very judgment *** arising by operation of law from child support orders shall bear interest thereon as provided in Section 2-1303." Parties in an agreed order may waive their statutory rights "so long as the waiver is knowing, voluntary, and intentional." A party did not relinquish her right to postjudgment interest where the agreed order did not contain an explicit waiver of that right. Although noncompliance with a child support order is prima facie evidence of indirect civil contempt, the burden then shifts to the party so charged to prove that he is unable to pay. The mere absence of compliance with support provisions is not sufficient to find the violating party in contempt, "unless the evidence shows the failure to comply was a willful [sic] and contumacious refusal to obey the court order." Harris, J.

Petitioner-appellant Cathy Kolessar (Kolessar), f/k/a Cathy Signore, appeals the order of the circuit court denying her two motions for reconsideration of its judgments on respondent-appellee Thomas A. Signore's (Signore) petitions for modification of unallocated support payments. On appeal, Kolessar contends (1) the trial court erred in denying her request for statutory interest on the past-due support; (2) the trial court erred in finding that Signore's first unilateral modification of his support payments was not willful or contumacious; and (3) the trial court erred in failing to find that Signore's second unilateral modification was without cause or justification. We reverse the court's determination as to statutory interest, but affirm the court's findings regarding Signore's unilateral modifications.

2. Federal Preemption/Crop Liens: Reversed: The key inquiry in all preemption cases is the objective or purpose of Congress in enacting the particular statute. The doctrine requires courts to examine the Federal statute in question to determine whether Congress intended it to supplant State laws on the same subject." 7 U. S. C. Section 1631(d) is a clear expression of an intent to preempt state law. A decision of the United States Supreme Court is binding on this court, federal circuit and district court decisions were recognized in Sprietsma as merely being persuasive. Under the Food Security Act], an effective financing statement must contain, inter alia, the name of the person indebted to the secured party." McDade, J, Holdridge, J., dissents

Plaintiff, the State Bank of Cherry, an Illinois banking corporation, filed a complaint against defendant, CGB Enterprises, Inc., to recover for failing to protect plaintiff’s security interest in crops defendant purchased from Lawrence Rogowski. Defendant filed a motion to dismiss plaintiff’s complaint on the grounds plaintiff’s notices failed to strictly comply with section 1631(e) of the Food Security Act of 1985 (7 U.S.C. § 1631(e) (2006)). Plaintiff filed a motion for summary judgment and defendant filed a cross-motion for judgment on the pleadings. The motions agreed that the dispositive question was whether section 1631(e) required strict compliance or substantial compliance. The circuit court of LaSalle County entered a judgment granting plaintiff’s motion for summary judgment and denying defendant’s motion for judgment on the pleadings. For the reasons that follow, we reverse.

3. Child Custody/Removal: Affirmed: We will not disturb the circuit court's best interests determination "unless it is clearly against the manifest weight of the evidence and it appears that a manifest injustice has occurred. The several factors identified by our supreme court that the circuit court should consider in assessing the child's best interests are listed. In reaching its decision, the court should consider all relevant evidence and any other factors that are warranted by the context of the particular case. Carter, J., O'Brien, J. dissents

The petitioner, Melissa Lee Coulter, filed a petition for removal with respect to Gwenyth, the child whom Melissa had with the respondent, Donald R. Coulter. After a hearing, the circuit court granted the petition. On appeal, Donald argues that removal was not in Gwenyth's best interests because it drastically impaired his visitation rights. We affirm.

4. Attorney's Liens/Fees/ Rule 137 and 375 Sanctions: Affirmed and Remanded for Determination of Fees: A motion for judgment on the pleadings tests the sufficiency of the pleadings by determining whether the plaintiff is entitled to the relief sought by his complaint. Illinois Rules of Professional Conduct prohibit an attorney from entering into an oral or implied contingency fee contract with a client, as said contracts are required to be in writing. A circuit court's decision whether to impose Rule 137 sanctions is entitled to considerable deference upon review and will not be reversed absent an abuse of discretion. Although an evidentiary hearing should always be held when a sanction award is based upon a pleading filed for an improper purpose, a hearing is unnecessary if the sanction award is due to the unreasonable nature of the pleading based on an objective standard. Spomer, J., Goldenhersh, concurred in part and dissented in part

The plaintiff, Lawrence J. Hess, appeals from the December 5, 2008, order of the circuit court of Montgomery County which granted a judgment on the pleadings to the defendants, Ronald O. Loyd and Cathy J. Loyd, pursuant to section 2-615(e) of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-615(e) (West 2008)). Mr. Hess and his attorney, Bruce A. Carr, also appeal from the January 30, 2009, order of the circuit court of Montgomery County, as amended by an order dated March 2, 2010, which was entered while this appeal was held in abeyance pursuant to an order entered by this court. Pursuant to the circuit court's orders, Mr. Hess and Mr. Carr are required to pay the Loyds a total of $9,873.83 for attorney fees and costs as sanctions pursuant to Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994). For the following reasons, we affirm all three o orders entered by the circuit court. Also before this court is the Loyds' motion for sanctions on appeal pursuant to Illinois Supreme Court Rule 375 (eff. Feb. 1, 1994), which was taken with the case. For the following reasons, we allow the motion and remand this case to the circuit court for a determination of the amount of sanctions on appeal. Finally, before this court is the defendants' emergency motion to supplement the record with this court's previous decision in Loyd v. Billiter, No. 5-09-0065 (Oct. 15, 2010) (unpublished order pursuant to Illinois Supreme Court Rule 23 (eff. May 30, 2008)). We hereby deny the motion as moot, as this court is fully cognizant of its prior decisions and has fully considered the relevance of that decision herein.

10 Appellate Court Cases Posted 1-10-12 & 1-11-12

1. Statute of Limitations/Probate: Affirmed: Where plaintiff was aware of probate proceedings and participated in them, subsequent action against defendant executor for tortious interference with a testamentary expectancy was subject to 6-month limitation in Section 8-1 of Probate Act, and plaintiff's action initiated after that period was barred. Murphy, J.

2. Underinsured Motorist Coverage: Affirmed in part, reversed in part, and remanded: In claims stemming from accident with multiple victims, where decedent's estate previously received settlement from its own insurer on an underinsured claim, and where settlement amount was in excess of remaining policy, decedent's estate would not be permitted to share in pool of remaining underinsured proceeds from other policy available to other victims of car accident, applying Janes v. Western States Insurance, 355 Ill.App.3d 1109 (2001). Goldenhersh, J.

3. Criminal Law: Affirmed: That trial judge was same judge who had reviewed and approved request for consensual overhear did not require judge to recuse himself from presiding over defendant's trial; requirements of overhear approval regarding review and sealing by issuing judge complied with notwithstanding three-month time lapse between approval and review; and trial counsel not ineffective for failing to move for substitution of judge. O'Brien, J.

4. Criminal Law: Reversed and remanded: After counsel was appointed to represent defendant in connection with defendant's petition under Post-Conviction Hearing Act, it was error for trial court to permit appointed counsel to "confess" State's motion to dismiss; proper procedure is for counsel to seek to withdraw and for trial court to give defendant opportunity to seek new counsel or represent himself at second stage of post-conviction proceedings. Appleton, J.

5. Criminal Law: Affirmed: Trial court properly granted State's motion to dismiss post-conviction petition and supplemental petitions where affidavits submitted by defendant did not constitute "newly discovered evidence" that showed "actual innocence"; claim of ineffective assistance of counsel barred by res judicata; no Brady violation found; and defendant not entitled to post-conviction ballistics testing pursuant to Section 116-3 of Code of Criminal Procedure. Turner, J.

6. Medical Malpractice: Affirmed: Trial court properly dismissed medical malpractice action where no duty existed so as to support claim for child's wrongful death where complaint alleged that mother had called hospital and spoke to unidentified person regarding child's condition, who told mother it was not necessary to come to hospital at that time, in absence of allegations establishing "a consensual relationship in which the patient knowingly seeks the physician's assistance and the physician knowingly accepts the person as a patient." Schmidt, J.

7. Mandatory Arbitration/Voluntary Dismissal: Reversed and remanded: Where plaintiff's suit was arbitrated pursuant to Supreme Court Rule 90 and plaintiff did not reject arbitration panel's award to defendant within 30-day period set forth in Rule 93, plaintiff did not have right to voluntary dismissal under Section 2-1009 of Civil Practice Act, and trial court ruling granting voluntary dismissal was error. Karnezis, J.

8. Mortgage Foreclosure Law/Service of Process: Reversed and remanded: In apparent case of first impression, in mortgage foreclosure action, plaintiff bank was entitled to "personal deficiency judgment" against mortgagor who was served via "abode service," and trial court order denying bank request for personal deficiency judgment was error. Rochford, J.

9. Criminal Law: Affirmed: Defendant's claim in Section 2-1401 petition, filed in 2010, that his 1998 conviction for predatory criminal sexual assault was involuntarily made for the trial court's failure to admonish him properly did not render his conviction "void," and the petition was properly dismissed as being outside Section 2-1401's two-year limitation. Birkett, J.

10. Criminal Law/Inmate Rights: Reversed and remanded: IDOC inmate's petition for writ of certiorari to contest prison "adjustment committee's" decision to revoke good-time credits and place sexual assault defendant in segregation for his attempt to secure photographs of pre-teen children, if true, stated a cause of action and was dismissed improperly by trial court, in light of prison rule prohibiting "possession" and defendant's claim that he only attempted to possess photos. Cook, J.

4 Appellate Court Cases Posted 01-10-12

1. Mandatory Arbitration: Reversed and Remanded: When section 2-1009 conflicts with a supreme court rule, there is no right to a voluntary dismissal and the supreme court rule controls. Rule 92(c) provides that when a rejection is not filed, a party may move the court to enter judgment on the award. To the extent that this rule conflicts with section 2-1009, the rule controls. Since no rejection of the award was filed, all that remained to be done in the case was for the court to enter judgment on the award. Swain did not have the right to proceed o trial and voluntarily dismiss her case because she never rejected the award. Karnezis, J.

Appellant Jozef Fryz appeals from the trial court's order granting the motion of appellee Linda Swain to voluntarily dismiss her cause of action pursuant to section 2- 1009(a) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1009(a) (West 2010)). On appeal, Fryz contends that because Swain did not reject the arbitrators' award, she could not voluntarily dismiss her case. Reversed and Remanded

2. Jurisdiction: Reversed:Absent the appearance of defendant or waiver of process, the service of summons "in the matter directed by statute" is necessary to create personal jurisdiction over a defendant. The two methods of personal service under the statutes listed and discussed. A foreclosure action is a quasi in rem action. The Foreclosure Law sets forth the general form of a foreclosure complaint. 735 ILCS 5/15- 1504(a) (West 2010). The statutory short-form complaint may include the "[n]ames of defendants claimed to be personally liable" for any deficiency (735 ILCS 5/15-1504(a)(3)(M) (West 2010)) and request a "personal judgment for a deficiency" in the event that "the sale of the mortgaged real estate fails to produce a sufficient amount to pay the amount found due." Although the Foreclosure Law does not include a definition of the phrase "personal service," it does specifically provide that service shall be in accordance with Article II of the Code of Civil Procedure, which notably includes the abode service provisions of section 2-203. Rochford, J.

Plaintiff-appellant, Metrobank, successor by merger with Chicago Community Bank, brought this action to foreclose a mortgage and obtain a personal deficiency judgment against defendant-appellee Frank R. Cannatello (defendant).1 Defendant failed to appear in this case after receiving notice via abode service. A default judgment was entered against him and the mortgaged property was sold. After the sale, the trial court denied plaintiff's request for a personal deficiency judgment, having found that defendant was not personally served as required under section 15-1508(e) of the Illinois Mortgage Foreclosure Law (Foreclosure Law). 735 ILCS 5/15-1508(e) (West 2010). It appears that no Illinois case has previously addressed whether a personal deficiency judgment may be entered against a defendant who failed to appear in the foreclosure action after abode service. We reverse.

3. Post Conviction Petition: Affirmed: Where jurisdiction is lacking, any resulting judgment rendered is void and may be attacked either directly or indirectly at any time. [Citation.] By contrast, a voidable judgment is one entered erroneously by a court having jurisdiction and is not subject to collateral attack. Birkett, J.,

Defendant, Roy E. Hubbard, appeals from the dismissal of his petition under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)). He asserts that his 1998 conviction of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(1)(a) (West 1996)) was void as a violation of his due process rights, the voidness of the conviction exempting his claim from the two-year limitations period of section 2-1401(c) of the Code We conclude that, notwithstanding a broader voidness standard in federal law and an obiter dictum in People v. Williams, 188 Ill. 2d 365 (1999), under 2012 IL App (2d) 101158 Illinois law a judgment is void solely when the court entering the judgment lacked jurisdiction. We therefore hold that the conviction was not void, meaning that defendant cannot escape the effect of the two-year limitations period. The court did not err in dismissing the petition; we affirm the dismissal.

4. Civil Practice: Reversed and Remanded: Dismissal of an action pursuant to section 2-615 is inappropriate where "the allegations of the complaint, when construed in the light most favorable to the plaintiff, are sufficient to establish a cause of action upon which relief may be ranted." A common law writ of certiorari is a general method for obtaining circuit court review of administrative actions when the act conferring power on the agency does not expressly adopt the Administrative Review Law [(735 ILCS 5/3-101 through 3-113 (West 2008))] and provides for no other form of review." The standards of review in such an action "are essentially the same as those under the Administrative Review Law." Particularly, "courts generally do not interfere with an agency's discretionary authority unless the exercise of that discretion is arbitrary and capricious [citation] or the agency action is against the manifest weight of the evidence [citation]." Cook, J.

In June 2010, plaintiff, Winfred Oliver, an inmate at Pontiac Correctional Center, filed a petition for a writ of certiorari in the circuit court, alleging defendants, prison officers and employees, deprived Oliver of due process in connection with prison disciplinary proceedings against him. In November 2010, the court dismissed Oliver's petition with prejudice. Oliver appeals, arguing dismissal was improper. We agree and reverse.

8 Appellate Court Cases Posted 01-09-12

1. Criminal Law: Affirmed: Based on the totality of the evidence in the record, the trial court acted within its discretion in finding that the State was duly diligent in its efforts to locate a witness prior to the expiration of the speedy trial term on June 1, 2009, and in granting a 30-day extension of time for. The defendant cannot show that there was a reasonable probability that the outcome of the trial would have been different but for defense counsel's single erroneous statement at issue. The trial court conducted an adequate inquiry into the defendant's pro se allegations of ineffective assistance of counsel. The defendant's claim of ineffective assistance of counsel lacked merit and the trial court properly denied the defendant's request to appoint new counsel. The trial court acted within its discretion in imposing a 30-year sentence to be served consecutively to the defendant's unrelated federal sentence. Cunningham, J.

Following a jury trial in the circuit court of Cook County, the defendant, James McKinney, was convicted of first-degree murder and sentenced to 30 years of imprisonment. On direct appeal, the defendant argues that: (1) the trial court violated his right to a speedy trial when it granted the State a 30-day extension of time beyond the speedy trial term; (2) the trial court erred in admitting evidence of the defendant's post-arrest silence; (3) the State misstated the law and improperly bolstered the credibility of witnesses' prior inconsistent statements during closing arguments; (4) the trial court erred in admitting evidence that codefendant Jerome Wilkins had pled guilty to the murder and in allowing the State to reference this evidence during its opening and closing arguments; (5) he received ineffective assistance of counsel when defense counsel made an erroneous remark during opening statements; (6) the trial court erred in failing to appoint new counsel for him following a Krankel hearing; and (7) the trial court improperly imposed a 30-year consecutive sentence.

2. Injunctions/Pension: Affirmed: Village has failed to show that there has been a change in law or fact warranting a modification of the injunction. The law may have changed in terms of surviving spouses’ entitlement to 3% cost-of-living increases, but the review law has not changed in terms of jurisdiction and the Board remains without jurisdiction to revisit its award to Sola. The trial court did not abuse its discretion in denying the Village’s motion to dissolve or vacate the injunction. Burke, J.

No. 2011 IL App (2d) 100608 Sola v. Roselle Police Pension Board Filed 01-06-12 (RJC)

In these consolidated appeals, the Village of Roselle (Village) challenges: (1) the denial of the Village’s motion to dissolve or vacate a permanent injunction (appeal No. 2-10-0608), and (2) the dismissal, granted in favor of Jeannette Sola and the Roselle Police Pension Board (Board) pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)), of the Village’s complaint for administrative review, certiorari, and mandamus (appeal No. 2-10-1107).

3. Criminal Law/Search & Seizure: Affirmed: Here the stop was based on a tip received from an informant. There is no evidence that the informant provided her name or that she contacted the police through an emergency number. Thus the tip must be treated as an anonymous one, and its reliability hinges on the existence of corroborative details observed by the police. In this regard, the evidence falls short. Schostok, J.

No. 2011 IL App (2d) 110110 People v. Smulik Filed 01-06-12 (RJC)

The State appeals from an order of the circuit court of Du Page County granting the motion of defendant, Jerry Smulik, to quash his arrest for driving under the influence of alcohol (DUI) and to suppress evidence. We affirm.

4. Criminal Law/Postconviction petition: Affirmed: Because the defendant was only sentenced to MSR for two years, his sentence was not authorized by statute and is therefore void. When the parties agree to a sentence that is unauthorized by statute, the entire plea agreement is void because the defendant was not properly admonished with regard to the possible penalties he might face. The only proper remedy is for the case to be remanded, and the defendant be given the opportunity to withdraw his guilty plea and proceed to trial if he chooses to do so. Any new plea agreement must include a statutorily authorized sentence. Schmidt, J. with Lytton, J. concurring in part and dissenting in part.

No. 2011 IL App (3d) 100198 People v. Strom Filed 01-05-12 (RJC)

On August 9, 2007, the defendant, Scott W. Strom, pled guilty to one count of criminal sexual assault. He then filed a postconviction petition which was denied after an evidentiary hearing. On appeal, the defendant argues that his case should be remanded to the trial court with instructions to impose a determinate three-year period of mandatory supervised release (MSR). We reverse and remand.

5. Child Custody: Affirmed in part and reversed in Part: In cases regarding custody, a strong presumption favors the result reached by the trial court, and the trial court is vested with great discretion because of its superior opportunity to observe and evaluate witnesses when determining the best interests of the child. The standards for an award of joint custody are the best interests of the child, the agreement of the parents and their mutual ability to cooperate, the geographic distance between parents, the desires of the child if he/she is of suitable age, and the relationships previously established between child and parents. Relevant factors listed to determine what is in the best interests of the child. Relevant factors for removal of the child from the jurisdiction set out in the opinion. In order to prove that removal is in a child's best interest, the custodial parent must prove more than his or her own desire to live with a new spouse. When a parent has diligently exercised visitation rights, a court should be reluctant to interfere with those rights by allowing removal for unpersuasive or inadequate reasons. Schmidt, J.

No. 2011 IL App (3d) 110302 Shinall v. Carter Filed 01-05-12 (LJD)

The respondent, Jeremy Carter, appeals from an order of the trial court denying joint custody and awarding his former girlfriend, Jessica Shinall, sole custody of their three-year-old daughter, Ava. Jeremy also appeals the trial court's order granting Jessica's petition for removal of Ava from Illinois to Colorado. We affirm in part and reverse in part.

6. Appellate Practice: Affirmed: When a case is no longer subject to the appellate process, the discretionary doctrine of the law of the case is superseded by the nondiscretionary doctrine of res judicata Appleton, J., Special concurrence by Turner, J.

No. 2011 IL App (4th) 110253 McNeil v. Ketchens Filed 11-30-11 (LJD)

Plaintiffs, Ross E. McNeil and Leslie K. McNeil, and one of the defendants, Milorad P. Ketchens, had a dispute over who owned a narrow triangle-shaped piece of the driveway at 609 West Stoughton Street in Urbana. In McNeil v. Ketchens, 397 Ill. App. 3d 75, 395 (2010), we resolved the dispute by holding that although the McNeils had not acquired this sliver of land by deed, they had acquired it by adverse possession. Accordingly, we affirmed the trial court's judgment in part and reversed it in part, without remanding the case. Ketchens appeals from both orders– which we affirm, not only because the orders caused him no prejudice, considering that they merely echoed our holdings in McNeil, but also because res judicata bars him from relitigating the ownership of the land. Therefore, we affirm the trial court's judgment.

7. Retalitory Discharge: Affirmed: A noncontracted employee is one who serves at the employer's will, and the employer may discharge such an employee for any reason or no reason. A "limited and narrow" exception, the tort of retaliatory discharge, exists for retaliatory firings that violate the public interest. Three elements of that tort are listed. The public-policy element of retaliatory discharge reflects the tort's role in striking "a proper balance *** among the employer's interest in operating a business efficiently and profitably, the employee's interest in earning a livelihood, and society's interest in seeing its public policies carried out." The various aspects of that element are discussed. Discussion of Illinois Rules of Evidence 902(11). Cook, J.

No. 2011 IL App (4th) 110421 Ulm v. Memorial Medical Center Filed 01-06-12 (LJD)

In March 2007, plaintiff Janet Ulm sued her former employer, defendant Memorial Medical Center, alleging (1) retaliatory discharge, (2) violation of the Whistleblower Act (740 ILCS 174/1 through 35 (West 2006)), (3) intentional infliction of emotional distress, (4) negligent infliction of motional distress, and (5) negligent supervision and training. In May 2011, the trial court granted defendant's motion for summary judgment on all counts. Plaintiff appeals, arguing summary judgment was inappropriate. We disagree and affirm.

8. Certified Question: Answer Yes: The scope of review of an interlocutory appeal brought under Rule 308 is strictly limited to the certified question. Powers of a non-home rule municipality set out and discussed. (Dillion's rule) The legislature's use of the word "may" indicates that a municipality's authority to grant such permits is a "permissive power, which [a municipality] may choose to exercise or not." Wexstten, J.

No. 2011 IL App (5th) 110075 Tri-Power Resources v. The City of Carlyle Filed 01-06-12 (LJD)

In the circuit court of Clinton County, seeking a declaratory judgment that as a nonhome-rule unit of government, the defendant, the City of Carlyle (the City), lacked the authority to prohibit the drilling or operation of an oil or gas well within its municipal limits, the plaintiff, Tri-Power esources, Inc. (Tri-Power), filed a motion for summary judgment on the issue. The circuit court denied the motion for summary judgment but granted Tri- Power's motion to certify the underlying question for interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010). We granted Tri-Power's application for leave to appeal and for the following reasons conclude that the City can prohibit the drilling or operation of an oil or gas well within its municipal limits.

6 Supreme Court Cases Posted 01-06-12

1. In Personam Jurisdiction: Reversed and Remanded: When the circuit court decides a jurisdictional question solely on the basis of documentary evidence” and without an evidentiary hearing, then “the question is addressed de novo on appeal. State Long Arm Statute discussed. Minimum Contacts also discussed. The minimum contacts needed for jurisdiction depends on whether the jurisdiction asserted is general or specific jurisdiction. General jurisdiction exists when defendant’s general business contacts with the forum state are continuous and systematic. Specific jurisdiction exists when the cause of action arose out of defendant’s contacts with the forum state. For a tort action, the state in which the injury occurs is then considered to be the state in which the tort occurred. Robert Gordon, J.

Plaintiff’s brother died during a helicopter crash in Illinois. Defendant SNFA, a French company, made a part for that helicopter, which plaintiff claims was defective and the cause of the crash. Defendant moved to dismiss on the ground that Illinois had no jurisdiction over it, and the trial court dismissed for lack of personal jurisdiction. For the reasons discussed below, we reverse and remand for further proceedings consistent with this opinion. The Illinois Supreme Court directed us to reconsider our opinion in this case in light of two opinions subsequently decided by the U.S. Supreme Court: J. McIntyre Machinery, Ltd. v. Nicastro, 131 S.Ct. 2780 (2011); and Goodyear v. Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846 (2011). We have reconsidered and find that these opinions only strengthen our conclusions.

2. Corporations/Contracts: Affirmed in part and Reversed in part and Remanded: Where the terms are unambiguous, a court must apply the language as written, given its plain, ordinary, and popular meaning. “A court will not interpret a contract in a manner that would nullify or render provisions meaningless, or in a way that is contrary to the plain and obvious meaning of the language used. [Citation.] Further, when parties agree to and insert language into a contract, it is presumed that it was done purposefully, so that the language employed is to be given effect.” Waiver may be established by conduct demonstrating that strict compliance with the contractual provision will not be required. An implied waiver of a right may be shown when the conduct of the person against whom waiver is asserted is inconsistent with any intention other than to waive the right. Lampkin, J. Robert Gordon, J., concurred in part and dissented in part.

Following a bench trial, a declaratory judgment was entered awarding plaintiff, Michael Downs, 2.5% equity interest in defendant company, Rosenthal Collins Group, L.L.C. (RCG), and the resulting profit/loss distributions since his termination from the company in 2004. The court additionally found that plaintiff was entitled to statutory prejudgment interest. The court, however, concluded that plaintiff did not have an additional 4% equity interest in RCG, as claimed by plaintiff. Based on the following, we reverse the judgment of the trial court finding that plaintiff
owns 2.5% of RCG and awarding him profits since 2004 and going forward. We consequently reverse the trial court’s award of prejudgment interest on that award. We, however, affirm the trial court’s judgment finding that plaintiff did not obtain an additional 4% equity interest in the company.

3. Domestic Relations/ Child Custody: Affirmed: Nine factors to be considered in Custody cases set out and discussed. The trial court's custodial decision rests on temperaments, personalities and capabilities of the parties, and the trial judge is in the best position to evaluate these factors. The trial court has broad discretion in determining custody and we will not disturb that determination on appeal unless it is against the manifest weight of the evidence. Quinn, J.

Respondent S.L. appeals a trial court order granting petitioner D.T. sole custody of the parties' two minor children. We affirm.

4. Crop Liens: Reversed: The stated purpose of the Food Security Act was to "remove [the] burden on and obstruction to interstate commerce" occasioned by "certain State laws." Thus the clear purpose of the Food Security Act is to supplant state law on the same subject. Section 1631(d) is a clear expression of an intent to preempt state law. While a decision of the United States Supreme Court is binding on this court, federal circuit and district court decisions interpreting federal statutes are recognized in Sprietsma as merely being persuasive. McDade, J., dissent by Holdridge, J.

5. ARDC: Reversed: The ARDC is the body created by the supreme court for the supervision, registration, and prosecution of disciplinary proceedings affecting members of the Illinois bar. Ill. S. Ct. R. 751(a) (eff. Jan. 1, 2010). Jerome Larkin, as Administrator, is the principal executive officer of the ARDC, having been appointed to that position by the Commissioners with the approval of the supreme court. The supreme court, pursuant to Supreme Court Rule 776, relies on members of the local bar and the circuit courts to identify lawyers who are unable to properly discharge their responsibilities to clients due to disability, disappearance, or death, and who have no partner, associate, executor, or other responsible party who is capable of conducting the lawyers’ affairs. The person appointed as the receiver serves as an officer of the court, securing and preserving the property in question on behalf of the court for the benefit of all concerned until such time as the court enters an order for the disposition of the property. Multitude of Rights of the attorney receiver set out in court. But no pay for doing it. Schmidt, J.

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission (ARDC), appeals the trial court’s order requiring the ARDC to pay attorney Daniel Kallan $33,750 for legal services rendered to the clients of Kenneth A. Grnacek. Kallan concedes that representing Grnacek’s clients was not one of his enumerated duties as a receiver under Supreme Court Rule 776 (eff. Mar. 25, 1991). We hold that Rule 776 does not authorize a trial court to order reimbursement to a receiver for legal services provided to the clients of an attorney whose practice is in receivership. We reverse.

6. Criminal Law/Right to act as own attorney: Reversed and Remanded: The Court recognized the accused's choice to proceed without an attorney, even though the decision may lead to his or her own detriment. However, the Court determined that the right to self-representation could be limited based on mental competency, noting that the right to proceed pro se would not affirm the dignity of a defendant who lacked the mental capacity to conduct his defense without the assistance of counsel.Subsequent cases applying Edwards have found that a defendant was properly denied the right to proceed pro se where (1) the defendant suffered from schizophrenia and refused to take his medication, (2) the defendant suffered from a severe mental illness with paranoid ideations, and (3) the defendant was schizophrenic, and a psychiatrist opined that he was incapable of controlling his outburst and would create "a spectacle" during trial Lytton, J.

Defendant Nicholas Sheley was convicted of aggravated battery (720 ILCS 5/12-4(b)(18) (West 2008)), aggravated assault (720 ILCS 5/12-2(a)(6) (West 2008)) and criminal damage to government supported property (720 ILCS 5/21-4(1)(a) (West 2008)). On appeal, defendant argues that the trial court erred in denying his request to proceed pro se because the court failed to find, pursuant to Indiana v. Edwards, 554 U.S. 164 (2008), that he suffer from a "severe mental illness" to the point that he could not conduct his own defense. We reverse and remand.

10 Supreme Court Cases Posted 01-04-12

1. Criminal Law: Affirmed: The United States Supreme Court has never indicated the second amendment allows a felon "to possess a firearm in a home or outside of a home." Judicial dicta should usually carry dispositive weight in an inferior court. UUW criminal statute is a constitutionally permissible restriction of the second amendment right to bear arms. Howse, J.

Following a bench trial, defendant Bernard Robinson was convicted of unlawful use of a weapon by a felon (UUW) (720 ILCS 5/24-1.1(a) (West 2008)). He was sentenced to 5 1/2 years' imprisonment. On appeal, defendant contends the UUW statute unconstitutionally infringes on his right to ear arms, in violation of the second amendment to the United States Constitution. For the reasons that follow, we affirm defendant's conviction and sentence.

2. Criminal Law: Affirmed: A ruling on a motion in limine is a matter within the discretion of the trial court and will not be reversed absent an abuse of that discretion. An abuse of discretion occurs only when the trial court's ruling is "arbitrary, fanciful, or unreasonable or where no reasonable man would take the view adopted by the trial court." A defendant has a fundamental constitutional right to confront the witnesses against him, which includes the right of cross-examination of witnesses to inquire into their bias, interest, or motive to testify falsely. However, the evidence offered to impeach must raise an inference that the witness has something to gain or lose by his testimony; the evidence must not be remote or uncertain. Moreover, a witness may not be impeached on collateral or irrelevant matters. Lampkin, J. dissent by Robert Gordon, J.

Following a jury trial defendant, Maurice Williams, was convicted of one count of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2006)). Defendant was sentenced to 30 months' probation and 5 months in the Cook County department of corrections, time served. 2. On appeal defendant contends that (1) the trial court violated his right to confront witnesses against him when the court did not allow him to question the detectives who shot him during his arrest about a prior incident where the same detectives shot and killed 1-09-3350 a fleeing suspect and the City of Chicago settled out of court with the estate of the deceased; and (2) the statute creating the offense of aggravated unlawful use of a weapon violates the individual right to bear arms. For the reasons that follow, we affirm.

3. Arbitration: Reversed & Remanded: An award may not be vacated for mere errors in judgment or mistakes of fact or law. However, an award may be vacated where “a gross error of law or fact appears on the award’s face.” A gross error of law exists only where it appears from the face of the award that the arbitrator was so mistaken as to the law that, if the arbitrator had been informed of the mistake, the award would have been different. Illinois Uniform Arbitration Act (the Arbitration Act) presents five additional circumstances in which an arbitration award shall be vacated. Those are listed in the opinion. Section 9 of the Act is not a prohibition upon the court’s authority to submit the issue to the arbitrator, where, as here, a party files an application to confirm, vacate or modify the arbitrator’s award.” “[P]arties are only bound to arbitrate those issues which by clear language they have agreed to arbitrate; arbitration agreements will not be extended by construction or implication.” Joseph Gordon, J.

Plaintiff Steven Clanton appeals from the circuit court’s confirmation of an arbitration award. Clanton was involved in two unrelated automobile accidents. The first was on November 9, 2001, with a vehicle driven by defendant-appellee Purnima Ray, and the second was on July 8, 2002, with a vehicle driven by defendant Mundeep Raina. Clanton Filed separate suits against Ray and Raina seeking compensation for his injuries. The suits were subsequently consolidated into the present action. The parties agreed to participate in voluntary binding arbitration. As part of their
arbitration agreement, the parties agreed to limit defendants’ liability as follows: Clanton’s award against Ray would be no less than $250,000 and no more than $600,000, while Clanton’s award against Raina would be fixed at $90,250.

4. Criminal Law: One Conviction vacated and the other affirmed: When a defendant is convicted of two offenses based upon the same, single physical act, the court must vacate the less-serious offense. The prejudice prong of this Strickland test may be satisfied if defendant can show that counsel’s deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. The failure to satisfy either the performance or the prejudice prong of the Strickland test will preclude a finding of ineffective assistance of counsel. Lampkin, J.

Following a jury trial, defendant Alejandro Alvarado was convicted of aggravated unlawful use of a weapon (AUUW) and sentenced to two years of probation. On appeal, he contends that: (1) his multiple convictions for AUUW violate the one-act, one-crime rule; (2) he received ineffective assistance from trial counsel, who elicited testimony concerning street gangs; (3) and his convictions under the AUUW statute should be vacated because the relevant provisions of the statute violate the constitutional guarantees of the right to keep and bear arms and equal protection. We vacate one conviction for AUUW and affirm the judgment of the circuit court in all other respects.

5. Administrative Review: Affirmed: Extensive discussion of he Charter School Act. Standards of review of Administrative Decisions discussed. Economic soundness requirement of section 27A-7(a)(9) of Charter School Act and facts relating to this case discussed and analyzed. Garcia, J.

The defendant Southland College Prep Charter School, Inc. (Southland) submitted an application to the plaintiff The Board of Education of Rich Township High School District No. 227 (District 227) to open a charter school within its boundaries in the fall of 2010. District 227 rejected Southland's proposal in February 2010. Pursuant to the Illinois Charter Schools Law (105 ILCS 5/27A-1 et seq. (West 2008)), Southland appealed the denial to the defendant Illinois State Board of Education (ISBE). In June 2010, the ISBE ruled Southland's proposal was both in compliance with the requirements of the Charter Schools Law and in the best interests of the students it was designed to serve and reversed the decision of District 227. District 227 filed a complaint for administrative review, which the circuit court of Cook County rejected. In the fall of 2010, the students of the first class at Southland College Prep Charter School began their studies.

6. Mandatory Arbitration/Rule 137 Sanctions: Affirmed: The parties disagree on what standard of review should be utilized by this court. Generally, a trial court’s decision to bar rejection of an arbitration award is reviewed for an abuse of discretion. Abuse of discretion occurs when the trial court rules arbitrarily or when its ruling exceeds the bounds of reason. However, a trial court’s ruling that depends solely on the court’s construction of a statute or a supreme court rule is reviewed de novo. De novo consideration means we perform the
same analysis that a trial judge would perform. Failure to provide at least 60 days' notice of an arbitration hearing date renders a judgment on an arbitration award voidable. Defense counsel had a professional responsibility to be on top of scheduled dates for court and arbitration hearings. Cunningham, J.

This appeal arises from a September 2, 2010 order entered by the circuit court of Cook County that debarred the defendant's rejection of an arbitration award, assessed attorney fees under Illinois Supreme Court Rule 91(b) (eff. June 1, 1993) for the defendant's failure to participate in the arbitration in good faith, and assessed additional attorney fees under Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994) for frivolous objections to the plaintiff's request to admit facts. The defendant filed a motion to reconsider the trial court's ruling. The trial court denied the defendant's motion to reconsider. Affirmed.

7. Attorney's Lien: Affirmed: Three requirements to create an attorney's lien set out. A minor with a meritorious cause of action is not left to the mercy of a self-constituted next friend to enforce the child’s rights. Severs, 89 Ill. 2d at 520. Rather, in the case of a parent, the law
holds that the parent may sue on behalf of his or her minor child only if it is in the best interests of the child and the parent does not have interests that conflict with those of the child. It has been the law of this state that a next friend whose interests are hostile to those of his or her ward is incompetent to act for the ward. This “no conflict” requirement means that a noncustodial parent with a child support arrearage is disqualified from serving as his or her minor child’s next friend for purposes of litigating a tort claim. We are unable to locate any case law holding that a client’s eventual disqualification from acting as a next friend invalidates an attorney’s lien. We determine that any work done by respondent after September 6, 2007, when it received notice that James was not authorized to file suit on Ian’s behalf, was done at respondent’s own peril. Hutchinson, J., with special concurrence by Schostok, J.

Respondent, the law firm of Kim MacCloskey & Associates, appeals the trial court’s judgment that adjudicated respondent’s attorney’s lien to zero and extinguished respondent’s claim for attorney fees pursuant to case law and the Attorneys Lien Act (the Act). 770 ILCS 5/1 (West 2006). Respondent contends that the trial court erred in interpreting the Act and abused its discretion when it determined that, pursuant to a quantum meruit theory, respondent was not entitled to attorney fees. We affirm.

8. Criminal Law: Affirmed: The review of a trial court’s ruling on a motion to suppress involves mixed questions of law and fact. The trial court’s factual findings are entitled to great deference. However, we review de novo the legal question of whether suppression is warranted under those facts. To claim the protection of the fourth amendment, a defendant must demonstrate that he or she personally has an expectation of privacy in the place searched and that his or her expectation is reasonable. The basis of the exception is the reduced expectation of privacy in an automobile and the exigency of the automobile’s mobility. The guiding principle in determining if exigent circumstances justify a warrantless entry is the reasonableness of the officer’s actions, and each case is based upon the totality of the circumstances known to the officer at the time of the warrantless entry. Given the officer’s reasonable belief that someone in the shanty was smoking cannabis, and his knowledge that the evidence likely would have been destroyed if he had delayed, the warrantless entry was reasonable under the fourth amendment. Burke, J.

Defendant, Ronald W. Slavin, was charged with possession of less than 2.5 grams of cannabis (720 ILCS 550/4(a) (West 2010)) and possession of drug paraphernalia (720 ILCS 600/3.5(a) (West 2010)). Defendant moved to suppress evidence that was obtained by a warrantless entry into and search of an ice fishing shanty within which he was fishing. The trial court denied the motion to suppress. Following a bench trial, defendant was found guilty of the charges and was sentenced to one year of conditional discharge and fined $750. On appeal, defendant contends the trial court erred by denying his motion to suppress evidence. We affirm.

9. Forum non Conveniens: Affirmed: The doctrine is applicable whether the defendant seeks transfer to a different county within the state (intrastate forum non conveniens) or dismissal in favor of a proposed forum in another state (interstate forum non conveniens). Both types of forum cases are governed by the same principles. Although this doctrine gives trial courts the discretion to decline jurisdiction, they should do so "only in exceptional circumstances." The public and private factors are set out and discussed. Chapman, J., dissent by Welch, J.

The defendant, Illinois Central Railroad Company, appeals a trial court order denying its motion to dismiss the plaintiff's complaint in favor of a Mississippi forum. The defendant argues that the court abused its discretion. We affirm.

10. Real Estate/Easements: Affirmed in part and Reversed in part and Remanded: Pursuant to the Moorman doctrine, a party may not recover in negligence for a purely economic loss. However, it is clear that under Illinois law, economic loss is recoverable where one intentionally makes false representations. A plaintiff may recover economic losses in negligence from a real estate broker. While a seller of real estate does not fall under this Moorman exception, and thus a plaintiff cannot recover for economic losses under a theory of negligence, a plaintiff may recover from a seller of real estate where intentional misrepresentation is sufficiently alleged. Spomer, J.

In this consolidated appeal, the plaintiffs, Joshua C. Olson, Lydia K. Olson, Elton Dintelman, Beverly Dintelman, Beryl L. Foreshee, Jr., Dorothy M. Foreshee, Kelly R. Blakely, and Daniel J. Lusicic, Jr., appeal from the September 20, 2010, order of the circuit court of Madison County, which dismissed all of their claims against the defendants, Hunter's Point Homes, LLC, James D. Hettler, Jason C. Coleman, Amy Sujanani (in the Olson and Foreshee cases), Diana Naney (in the Lusicic case), Tina Ziegler (in the Foreshee case), Tina Besserman (in the Blakely case), and Century 21 Bailey & Co. (Century 21). For the reasonsthat follow, we affirm in part and reverse in part and remand for further proceedings.

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