Illinois Supreme and Appellate Court Case Summaries

By Laurence J. Dunford (LJD), Robert Clifford( RJC) and Timothy J. Joyce(TJJ)

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3 Appellate Cases Posted 1-31-13

1. Domestic Relations: Affirmed: When deciding issues pertaining to custody, the trial court has broad discretion, and its judgment is afforded 'great deference' because the trial court is in a superior position to judge the credibility of witnesses and determine the best interests of the child. A reviewing court will not disturb a trial court's decision to modify the terms of a custody agreement unless its decision is against the manifest weight of the evidence and constitutes an abuse of discretion. Section 610(b) of the Act (750 ILCS 5/610(b) (West 2008)) allows for the modification of a prior child custody order under certain limited circumstances. Modification of a custody order is warranted only if there has been: (1) a change of circumstances and (2) modification is necessary to serve the best interests of the child. Relevant factors for changes of custody enumerated. Although it is within the court's discretion to seek independent expert advice, it is well settled that a court is not bound to abide by the opinions or implement the recommendations of its court appointed expert. Pucinski, J.

No. 2013 IL App (1st) 121145 In re Marriage of Debra N. Filed 1-31-13 (LJD)

Petitioner Debra N. appeals an order of the circuit court modifying the joint custody agreement that had been previously reached by the parties and awarding sole custody of their minor child, Aubrey, to respondent Michael S. On appeal, Debra argues that the circuit court's decision to modify the terms of the parties' custody arrangement and award sole custody of their daughter to Michael was against the manifest weight of the evidence. For the reasons set forth herein, we affirm the judgment of the circuit court.

2. Administrative Review/Sex Offender Registration: Reversed: In an administrative review case, we review the decision of the agency, not that of the trial court. A n agency's findings of fact are considered prima facie true and correct and will not be disturbed unless they are contrary to the manifest weight of the evidence. An administrative agency's decision on a question of law, such as the interpretation of a statute, is reviewed de novo. Pursuant to section 3(b) of the Act, a sex offender does not violate the Act unless he fails to register within 10 days of "establishing a *** temporary domicile." A temporary domicile is not established until the sex offender resides in a certain location for 10 or more days. Lytton, J.

No. 2013 IL App (3rd) 120103 Honzik v. The Department of State Police Filed 1-31-13 (LJD)

Plaintiff, Thomas Honzik, a registered sex offender, was notified in 2009 that his registration period had been extended because he failed to timely register a change of address in 2003. Plaintiff filed a petition to rescind the extension of his sex offender registration period with the Director of State Police. The Director denied plaintiff's petition. Plaintiff then filed a complaint for administrative review in the circuit court. The court affirmed the Director's decision. We reverse.

3. Traffic Court/ Affirmed: The Juvenile Justice Act provides that minors may be prosecuted in adult criminal court for certain matters, such as traffic as long as detention is in accordance with the provisions of the Act. Our supreme court has ruled that the concurrent jurisdiction statute does not violate a minor's equal protection or due process rights. To be convicted of aggravated reckless driving, the State must prove that defendant drove her vehicle with willful or wanton disregard for the safety of persons or property and the violation resulted in great bodily harm to another. Three categories of of reckless driving listed. McDade, J.

No. 2013 IL App (3rd) 120201 People v. Markley Filed 1-31-13 (LJD)

Defendant, Meagan M. Markley, was convicted of two counts of aggravated reckless driving (625 ILCS 5/11-503(a)(1) (West 2010)) and sentenced to 24 months' imprisonment. On appeal, defendant argues that: (1) the trial court erred in failing to dismiss the matter or transfer it to the juvenile court; (2) the concurrent jurisdiction statute violates the federal and state constitutions; (3) the trial court erred in convicting her of aggravated reckless driving; and (4) her sentence was an abuse of discretion. We affirm.

1 Appellate Case Posted 1-30-13

1. Post Conviction Petition: Affirmed: A petition is frivolous or patently without merit only if the petition has no arguable basis either in law or in fact. Id. at 12. A claim of ineffective assistance of counsel is reviewed under the test established in Strickland, which requires the defendant to show that counsel’s performance was Deficient and that prejudice resulted from that deficient performance. The affidavit requirements found in sections 122-1(b) and 122-2 are wholly distinctive and should be construed independently as they serve independent purposes. Although a petition may not be summarily dismissed for violating section 122-1(b), it may be for violating section 122-2. Birkett, J, Schostok, J., specially concurs.

No. 2013 IL App (2nd) 110598 People v. Gardner Filed 1-29-13 (LJD)

Defendant, Michael C. Gardner, was found guilty of home invasion (720 ILCS 5/12-11(a)(2) (West 2006)), after a jury trial. He was sentenced to 20 years’ imprisonment. Defendant filed a direct appeal, arguing that the trial court failed to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007). This court affirmed the judgment of the trial court. People v. Gardner, No. 2- 09-0429 (2010) (unpublished order under Supreme Court Rule 23). Defendant filed a pro se postconviction petition on March 2, 2011, pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). The trial court dismissed the petition as frivolous and patently without merit. Defendant appeals, arguing that his petition was improperly dismissed at the first stage where it contained the gist of a constitutional claim, specifically that counsel failed to call a witness to refute the victim’s injuries, a necessary element of home invasion. According to defendant, had the witness been called to refute the injury evidence, he would have been guilty of only the lesser included offense of criminal trespass to a residence. We affirm.

1 Appellate Case Posted 1-29-13

1. Domestic Relations: Affirmed: Mootness discussed. The payment or satisfaction of a money judgment by a judgment debtor does not bar the prosecution of *** an appeal by such judgment debtor. However, voluntary payment of a judgment waives the right of an appeal. The general rule in civil cases is that when a judgment has been voluntarily paid or its benefits accepted the question becomes moot. An act that waives a right to appeal “must be voluntary in the sense that the party is not required by the decree to do the act,” and “[p]payment of a judgment in obedience to a decree does not affect the right to question the decree by writ of error and does not operate as a release of errors even if there is an agreement that a decree shall be executed as entered. Factors for the trial court to consider in awarding attorney's fees listed and discussed. Spence, J.

No. 2013 IL App (2nd) 111146 In re Marriage of Sobieski Filed 1-29-13 (LJD)

Respondent, Jon Sobieski, appeals from the judgment of the Du Page County circuit court dissolving his marriage to petitioner, Therese Sobieski, and from the order denying his motion to reconsider. Specifically, Jon contends that the trial court erred in ordering him to pay $43,180.50 of Therese’s attorney fees and also erred in setting his monthly child support at $4,800. For the reasons set forth herein, we affirm the judgment of the trial court.

1 Appellate Case Posted 1-28-13

1. Labor Law: Reversed: Three standards of review of Administrative Decisions are set out and discussed. In order to ensure that a pro-union bias will not impair a supervisor's ability to apply the employer's policies to subordinates in accordance with the employer's best interests, the Act provides that a bargaining unit may not contain both supervisors and non-supervisors. The Act excludes supervisors from bargaining units that contain their subordinates, in order to avoid the conflict of interest that arises when supervisors, who must apply the employer's policies to the subordinates, are subject to control by the same union representing the subordinates. Four-part test to determine whether an employee meets the definition of "supervisor" under section 3(r) of the Act listed and reviewed.. Turner, J.

No. 2013 IL App (4th) 110825 The Department of Central Management Services v. The Illinois Labor Relations Board Filed 1-28-13 (LJD)

Petitioner, the Department of Central Management Services (CMS), the Illinois Department of Transportation (IDOT), brings this action for direct review of a decision by the Illinois Labor Relations Board, State Panel (Board), granting the majority interest petition brought by the International Union of Operating Engineers, Local 150 (Union) to represent certain IDOT employees. The Board, adopting the administrative law judge's (ALJ) findings, concluded the field technicians and one technical manager were not supervisors within the meaning of section 3(r) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/3(r) (West 2010)) and thus were eligible for inclusion in the collective-bargaining unit. On appeal, petitioner argues the Board's certification of representation was against the manifest weight of the evidence, clearly erroneous, and/or contrary to law because the petitioned-for employees are supervisory employees under the Act. We reverse.

1 Supreme Court Cases Posted 1-25-13

1. Property Owners Associations: Reversed in part and affirmed in part: In this decision, the Illinois Supreme Court held that the circuit court of La Salle County had been correct in all of its rulings, which rejected the plaintiff’s claims. The supreme court approved the trial court’s holding that the association retained the right to enforce its own traffic rules and regulations, stop and detain drivers, and issue citations. In so doing, the security officers did not unlawfully assert police powers. The supreme court also said that it had not been contrary to statute for the association to use amber oscillating lights on its vehicles and that plaintiff had not established the elements of the claim for false imprisonment which he made. The appellate court was reversed insofar as it reached a different result in favor of the plaintiff. Some of the circuit court’s rulings in the defendants’ favor had not been addressed by the appellate court, amounting to an affirmance, and those were upheld here. Therefore, the appellate court judgment stands reversed in part and affirmed in part. All of the trial court’s rulings in favor of the defendants were upheld. Justice Thomas delivered the judgment of the court, with opinion. Chief Justice Kilbride and Justices Freeman, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2013 IL 113907 Poris v. Lake Holiday Property Owners Association Filed 1-25-13 (RJC)

Lake Holiday is a private lake community in La Salle County. The plaintiff has owned property in the development since 1994 and is a member of the Lake Holiday Property Owners Association, an Illinois not-for-profit corporation. The association has traffic rules, including rules against speeding. It provides for fines, and maintains a security department. On October 20, 2008, plaintiff was on a road on the private grounds when he was stopped for speeding by a security officer and received a citation. He responded by filing a suit in circuit court raising numerous issues, on all of which the trial court awarded summary judgment in favor of the defendant association, its board of directors, and its security chief.

2. Probate: Reversed and remanded: In this decision, the supreme court said that the results below were incorrect. In bringing her tort action, plaintiff was not challenging the will, but seeking damages from O’Meara for wrongfully influencing the decedent. Furthermore, the denial of her request to depose the personal banker had been erroneous, leaving her, in any case, with no available remedy in the probate proceeding. Earlier case authority concerning plaintiffs who could have filed claims in probate and failed to do so was, thus, not applicable. The cause should not have been dismissed and was remanded to the circuit court for further proceedings. The circuit and appellate courts were reversed. Justice Freeman delivered the judgment of the court, with opinion . Chief Justice Kilbride and Justices Thomas, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2013 IL 114044 Bjork v. O'Meara Filed 1-25-13 (RJC)

This action to recover damages for the tort of intentional interference with a testamentary expectancy was filed in the circuit court of Cook County. The decedent, Frank Dama, died in 2009. Plaintiff Colleen Bjork had been a hospice worker for decedent’s late wife, while the defendant, Frank O’Meara, had been the decedent’s dentist. Neither is related to decedent. The decedent had taken initial steps, in 2005, to set the plaintiff up as a pay-on-death beneficiary of one of his bank accounts, which was worth over half a million dollars. Plaintiff had signed papers with the decedent’s personal banker concerning this. After his demise, that bank informed plaintiff that she was not a beneficiary of any of decedent’s accounts with it. After the will was admitted to probate, O’Meara was appointed as the independent representative of the estate. The will contained a general residuary clause leaving the entire estate to O’Meara and his wife. Plaintiff was not a beneficiary. In the probate proceeding, plaintiff tried to find out what had happened. Pursuant to a citation for discovery, the bank produced some documents, but plaintiff alleged she needed more information. She filed a petition to depose the decedent’s personal banker, with whom she had dealt in the setting up of the pay-on-death beneficiary account, but her request was denied. The estate assets were distributed, the estate was closed, and plaintiff filed this lawsuit. It was dismissed as not having been filed within the period for filing will contests, and the appellate court affirmed.

3. Criminal Law/Post-Conviction Hearing Act: Affirmed: What is before the Illinois Supreme Court in this appeal is English’s attempt to obtain postconviction relief. Subsequent to the events discussed above, the Illinois Supreme Court held in People v. Morgan, 197 Ill. 2d 404 (2001), and People v. Pelt, 207 Ill. 2d 434 (2003), that a predicate felony underlying a felony-murder charge must have an independent felonious purpose, rather than being inherent in the act of murder itself. English relied on these decisions in seeking postconviction relief. The circuit court’s ultimate refusal to grant it was affirmed by the appellate court in 2011. In this decision in English’s appeal, the supreme court found the doctrine of forfeiture to be dispositive. Although English argued at postconviction that the State had not proceeded on the knowing-murder charge because this would mean that it would not have to prove a knowing and intentional killing beyond a reasonable doubt, thus denying him due process and a fair trial, the supreme court said that this issue could have been raised on direct appeal and was not, even though Morgan and Pelt had not yet been decided at that time. The supreme court said that, although English’s argument had less support in the law at the time of his direct appeal than it has today, nevertheless it was available to him at that time. Thus, the “independent felonious purpose analysis” relied on by English at postconviction has been forfeited. Although English also made the argument that any such forfeiture should be excused because appellate counsel was ineffective in failing to raise this issue in the direct appeal, the supreme court said that counsel had not performed unreasonably because the performance can only be judged on the state of the law at the time of the direct appeal. Appellate counsel is not required to raise issues not reasonably believed to be meritorious.The result reached is compelled by the limited scope of a postconviction proceeding. The appellate court was affirmed. Justice Karmeier delivered the judgment of the court, with opinion. Chief Justice Kilbride and Justices Thomas, Garman, and Theis concurred in the judgment and opinion. Justice Freeman specially concurred, with opinion, joined by Justice Burke.

No. 2013 IL 112890 People v. English Filed 1-25-13 (RJC)

A three-year-old girl died in Kewanee in 1995. She was the daughter of this defendant’s live-in girlfriend. Autopsy results showed massive head injuries and evidence of suffocation. The defendant’s pretrial statements initially indicated that he came into the child’s bedroom and found her lifeless, but he also later admitted hitting her. He did not testify at his 1996 Henry County jury trial, at which a knowing murder charge was dismissed by the State. This left only the charges of aggravated battery of a child and felony murder. The defendant objected that proceeding in this manner removed the possibility of an involuntary manslaughter instruction, but he was overruled. The jury found guilt of felony murder and aggravated battery of a child. Mandatory natural-life imprisonment was the sentence. The conviction was affirmed by the appellate court on direct appeal in 2000, but the cause was remanded for resentencing, and a 50-year term was later imposed.

1 Appellate Case Posted 1-25-13

1. Civil Procedure: Affirmed: Elements of a Petition under 2-702 set out. A person who secures a certificate of innocence may file a petition in the state's Court of Claims seeking compensation. Our review of the plain language of section 2-702(g) of the Code, leads us to conclude the legislature intended the remedies set forth in this section, allowing a petitioner to obtain a certificate of innocence, should be personal to the individual who was wrongly convicted rather than to one suing on his or her behalf. It does not survive the death of the person incarcerated. Hall, J.

No. 2013 IL App (4th) 113449 Rudy v. People Filed 1-25-13 (LJD)

Following two trials and several appeals, the Supreme Court ruled that the State failed to prove that the infant's death resulted from defendant's criminal agency. Following her death from cancer, plaintiff was appointed executor to recover Winnebago County's expense of medical of the defendant. Sharon Rudy filed a petition in Cook County circuit court seeking to obtain a certificate of innocence in order for defendant's estate to pursue a claim for damages in the Court of Claims for defendant's alleged wrongful conviction and imprisonment pursuant to section 2-702 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-702 (West 2008)). The trial court denied the petition, and thereafter, denied a motion to reconsider. Sharon Rudy now appeals on behalf of defendant's estate. For the reasons that follow, we affirm.

2 Appellate Cases Posted 1-23-13

1. Criminal Procedure: Reversed and Remanded: Under Rule 604(d), a defendant seeking to withdraw his plea is entitled to a hearing that is meaningful, but only in the very limited sense that it is not a mere charade performed for the purpose of reinstating an appeal. Rule 604(d) requires the trial court to hold a hearing on a motion properly filed under that rule regardless of how detailed the motion is. Turner, J.

No. 2013 IL App (4th) 111042 People v. Maxwell Filed 1-23-13 (LJD)

In May 2011, defendant, Ruth A. Maxwell, pleaded guilty to one count of driving under the influence (DUI). In July 2011, the Champaign County circuit court sentenced defendant to 180 days in the county jail and 18 months' conditional discharge. Thereafter, defendant filed a second motion to withdraw her guilty plea and an emergency motion to reconsider her sentence. In October 2011, the court denied the two motions without a hearing. Defendant appeals, asserting the trial court erred by denying her second motion to withdraw her guilty plea and her emergency motion to reconsider her sentence without a hearing. We reverse the denial of defendant's motion to withdraw her guilty plea and remand with directions.

2. Domestic Relations: Affirmed: In order to succeed on a petition for relief under section 2-1401, a petitioner must set forth allegations supporting: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting the defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2-1401 petition. Ordinarily, the petition is used to bring facts to the attention of the trial court which, if known at the time of judgment, would have precluded the entry of the judgment. Id. Relief is available under section 2-1401 to set aside a settlement agreement that is unconscionable or entered into as a result of duress, coercion, or fraud. A marital settlement agreement is unconscionable if there is " 'an absence of a meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.' In certain circumstances, however, an agreement may be so one-sided or oppressive that it can be found unconscionable even without taking into account the conditions under which the agreement was made, or whether the complaining party had a meaningful choice. Sterba, J.

No. 2013 IL App (1st) 113751 In re Marriage of Callahan Filed 1-23-13 (LJD)

The marriage between petitioner-appellant Michael Callahan and respondent-appellee Rosemary Callahan was dissolved on September 10, 2008, in a judgment of dissolution that incorporated the parties' marital settlement agreement (MAS). Two years later, respondent filed a motion to vacate the judgment of dissolution under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)), alleging that the MSA was unconscionable and that: (1) petitioner fraudulently induced her to sign the MSA by misrepresenting its contents; and (2) petitioner's counsel ade misrepresentations of fact and law during the prove-up hearing. Petitioner appeals from the order of the circuit court granting respondent's motion for summary judgment on count II of the petition to vacate. Petitioner argues that the court erred in granting summary judgment when there was no evidence of respondent's due diligence in bringing the motion and where he was not permitted to depose respondent. For the following reasons, we affirm.

5 Appellate Cases Posted 1-22-13

1. Contracts/Defamation: Affirmed: The trial court did not err in granting defendants’ motions to dismiss. The breach of contract claim was negated by plaintiffs’ verified allegations in the complaint and the exhibits attached thereto. Plaintiffs’ claim of libel per se and slander per se were properly dismissed because plaintiffs’ factual allegations were conclusory and the statements at issue (i) were not defamatory per se, (ii) they were subject to a qualified privilege that plaintiffs failed to overcome, or (iii) they were subject to an innocent construction. Finally, plaintiffs’ claim of civil conspiracy was properly dismissed because plaintiffs failed to properly allege an underlying tort and because plaintiffs’ factual allegations were conclusory. Delort, J.

No. 2013 IL App (1st) 120891 Coghlan v. Beck Filed 1-22-13 (RJC)

Plaintiffs, Angelika Coghlan and Catwalk Consulting, Inc. (Catwalk), filed a nine-count amended complaint against Valerie Beck, Rebecca Busch, Medical Business Associates, Inc. (MBA), the National Association of Women Business Owners, Inc. (NAWBO), and the National Association
of Women Business Owners-Chicago Chapter (NAWBO-Chicago) (collectively, defendants). Plaintiffs alleged breach of contract, libel per se, slander per se, and civil conspiracy. The trial court granted defendants’ motions to dismiss brought under sections 2-615 and 2-619.1 of the Code of
Civil Procedure (Code) (735 ILCS 5/2-615, 2-619.1 (West 2010)). On appeal, plaintiffs contend that the trial court erred in (i) finding that plaintiffs’ exhibits to the complaint defeated their breach of contract claim (count I); (ii) dismissing plaintiffs’ claims of libel per se and slander per se against Beck (counts II, III, and VIII); (iii) dismissing their claim for conspiracy to commit libel per se against Beck and Busch (count V); (iv) finding that Busch’s statements in a letter either were subject to a qualified privilege that plaintiffs’ allegations did not overcome or were capable of an innocent construction (count IV); (v) finding that Beck’s actions were privileged and certain claims against NAWBO-Chicago were not sufficiently specific to determine the nature of the defamatory act (counts VI, VII, and IX); and (vi) dismissing their claim alleging vicarious liability against NAWBO (counts VI, VII, and IX). We affirm.

2. Criminal Law/Sentencing: Vacated in part and remand: Defendant is only entitled to a per diem monetary credit for days that he was actually physically incarcerated and not for those days that he was on home confinement. Accordingly, that portion of the sentencing order applying the $5-per-day credit for 50 days that defendant was on home confinement is vacated. On remand, the circuit court must determine the number of days defendant was actually incarcerated to determine the amount of the monetary credit due. Also, DNA analysis fee assessed at sentencing under section 5-4-3 of the Code of Corrections (730 ILCS 5/5-4-3 (West 2010)) is vacated because his DNA is already in the database. Connors, J.

No. 2013 IL App (1st) 112472 People v. Riley Filed 1-22-13 (RJC)

Following a bench trial, defendant DeJuan Riley was convicted of possession of cannabis. The trial court sentenced him to two years’ imprisonment and assessed nearly $1,200 in fines and fees, some of which were offset by credits. On appeal, defendant argues that the trial court erred in: (1) failing to give him a $5-per-day credit for all of the days he spent in home confinement; and (2) assessing a fee for the DNA database despite the fact that his DNA had previously been collected. For the following reasons, we vacate in part and remand for further proceedings.

3. Arbitration/interlocutory rulings: Affirmed: The parties’ dispute over the discovery order remains unripe for adjudication, and it will remain unripe until the arbitrators issue their final award. Plaintiff therefore has not stated a claim for a declaratory judgment and her complaint must be dismissed. See 735 ILCS 5/2-615 (West 2010). Of course, we take no position on the substantive merits of plaintiff’s contentions regarding the arbitrators’ discovery ruling and she is free to pursue that issue as part of a motion to vacate the arbitration award (see 710 ILCS 5/12(a)(3) (West 2010)), but not before arbitration is complete and not in the guise of a declaratory judgment action. Connors, J.

No. 2013 IL App (1st) 121843 Klehr v. Illinois Farmers Insurance Company Filed 1-22-13 (RJC)

This case has involved three separate declaratory judgment actions and two separate appeals over a span of more than five years, and the delays in resolving plaintiff’s insurance claim are all but entirely due to plaintiff’s repeated attempts to inject the courts into the arbitration process. The question is if a valid arbitration agreement exists and the parties have begun but not completed the arbitration process, can one of the parties obtain judicial review of the arbitrators’ interlocutory ruling on a discovery issue by filing a declaratory judgment action in the circuit court? This question is at the heart of this case and appears to be one of first impression in Illinois and, so far as we can tell, nationally. The circuit court decided that it lacked subject-matter jurisdiction in such a situation and dismissed the complaint. We affirm, though on a different ground.

4. Real Estate: Affirmed: The fair sale price of a one-half interest in a single-family home must be significantly discounted from the amount calculated by merely dividing the price of the entire property by two. Established principles of real estate appraisal, as set forth in case law from other jurisdictions, particularly tax and bankruptcy cases, support this rule. Taking these principles into account, the sale was just, and the sale price was not unconscionable. Delort, J.

No. 2013 IL App (1st) 121147 NAB Bank v. LaSalle Bank, N.A. Filed 1-22-13 (RJC)

This case involves a dispute about the sale price generated at a forced judicial sale of an undivided half-interest in a parcel of real estate. It illustrates the high burden judgment debtors face when trying to overturn such sales because the sale price was too low or the sale was unjust. Fundamental principles of economics and real estate valuation, well recognized in case law, dictate that sales such as the one at issue here are unlikely to generate a price close to the actual appraised value of the subject property. Based on that authority, the court below held that the sale price was neither unjust nor unconscionable. We affirm.

5. UCC/Interpleader: Reversed and remanded: The issue is whether Fairfield National Bank had authority to change the beneficiaries on the certificates of deposit. The Act and the Uniform Commercial Code allow financial institutions to respond in good faith to the manifested intentions of their clients. The Uniform Commercial Code gives financial institutions the right to accept, and account, for a reasonable time after the death of a client, and Malinda instructed the interpleader through precise written instruments. Summary judgment in favor of defendant Chanslers is unwarranted. The interpleader had authority to accept the written instruments from Malinda. On remand, if the trial court determines that the interpleader accepted the written instruments, then the change of beneficiaries was effective under the Act and the interpleader is not subject to liability for having accepted the instruments. Goldenhersh, J.

No. 2013 IL App (5th) 110530 Fairfield National Bank v. Chansler Filed 1-22-13 (RJC)

Plaintiff, Fairfield National Bank, filed an action in interpleader in the miscellaneous remedies division of the circuit court of Hamilton County requesting an order determining the rights of respective defendants for two certificates of deposit. The circuit court entered summary judgment in favor of defendants Abigail and Cordelia Chansler, finding that the designated beneficiaries on the certificates of deposit had not been changed in the timely manner required by the Illinois Trust and Payable on Death Accounts Act (Act) (205 ILCS 625/1 to 15 (West 2010)). Defendant Belinda Munsell, individually and as independent executor of the estate of Malinda G. Munsell, deceased, appealed. We reverse and remand.

3 Appellate Cases Posted 1-18-13

1. Criminal Law: Affirmed: Trial court properly summarily dismissed pro se post-conviction petition where affidavit in support of petition was not notarized. Schostok, J. (Burke, J., dissenting).

No. 2013 IL App (2d) 110805 People v. Hommerson Filed 1-18-13 (TJJ)

The defendant, Peter Hommerson, filed a pro se postconviction petition, alleging that trial counsel was ineffective at his trial, at which he was found guilty of the first-degree murders of Marvin and Kay Lichtman. The defendant argued, inter alia, that trial counsel was ineffective for failing to impeach prosecution witnesses, investigate and call other witnesses whose testimony would have refuted the State’s witnesses’ claims, present exculpatory evidence, challenge a search warrant, and move to dismiss the charges on speedy trial grounds. The defendant also cited counsel’s failure to report prosecutorial misconduct and alleged that both defense counsel and the prosecutor withheld evidence that would have established his innocence. Relying on this court’s opinion in People v. Carr, 407 Ill. App. 3d 513, 515 (2011), the trial court summarily dismissed the petition solely because the petition lacked a valid, notarized affidavit attesting to the veracity of its contents, as required by section 122-1(b) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(b) (West 2010)). The defendant now appeals the dismissal of his pro se postconviction petition, contending that in light of this court’s recent opinion in People v. Turner, 2012 IL App (2d) 100819, which was published after Carr, the lack of a notarized section 122-1(b) affidavit is an inappropriate basis for a first-stage dismissal of a postconviction petition and therefore the trial court erred in dismissing his petition solely on this basis. The State urges us to adhere to our decision in Carr and to affirm the dismissal of the defendant’s petition. We agree with the State and therefore affirm the trial court’s decision.

2. Criminal Law: Reversed and remanded: Trial court erred in dismissing successive post-conviction petition in murder case where two witnesses identified defendant as offender, where newly discovered evidence alleged pattern of misconduct of investigating detective in suggesting identifications of offenders. Taylor, J.

No. 2013 IL App (1st) 101476 People v. Almodovar Filed 1-18-13 (TJJ)

Defendant was charged with involvement in a 1994 drive-by shooting, due in part to the investigative efforts of Detective Reynaldo Guevara. Following trial, defendant was found guilty of first degree murder, attempted murder, and aggravated battery with a firearm, and he was sentenced to a term of natural life in prison. In 1998, defendant filed his first petition for postconviction relief, contending that the prosecution had failed to produce material evidence that would have exculpated him, in violation of Brady v. Maryland, 373 U.S. 83 (1963). In particular, defendant alleged that the prosecution failed to disclose that key prosecution witnesses Jackueline Grande and Kennelly Saez, who identified defendant in a lineup and at trial, had been shown a photograph of the defendant by Detective Guevara shortly before they viewed the lineup. After a hearing, the circuit court denied the petition. In 2010, defendant filed a pro se motion for leave to file a successive postconviction petition. This motion is the subject of the instant appeal. In this motion, defendant alleged that newly discovered evidence supported his Brady claim, namely, evidence that Detective Guevara was involved in a pattern of flagrant misconduct whereby he manipulated witnesses to falsely identify individuals in multiple other cases. The circuit court denied defendant’s motion, and defendant now appeals. For the reasons that follow, we reverse and remand.

3. Employment Law/Unemployment Benefits: Reversed: Department of Employment Security decision that plaintiff voluntarily left employment was not clearly erroneous, and trial court order reversing Department decision was error. Gordon, J.

No. 2013 IL App (1st) 103016 Lojek v. Illinois Department of Employment Security Filed 1-18-13 (TJJ)

After plaintiff Dorota Lojek's employment with defendant ABM Janitorial Services (ABM) ended after 22 years on the job, she applied to the Illinois Department of Employment Security (IDES) for unemployment insurance benefits pursuant to the Illinois Unemployment Insurance Act (the Act) (820 ILCS 405/100 et seq. (West 2010)). The claims adjudicator determined that plaintiff was ineligible for benefits. Plaintiff appealed the adjudicator's decision to a hearing referee. The hearing referee held a telephone hearing, during which he heard the testimony of plaintiff's supervisor and the testimony of plaintiff, who required the assistance of an interpreter. The hearing referee determined that plaintiff voluntarily terminated her employment with ABM and was therefore ineligible for unemployment insurance benefits. 820 ILCS 405/601(A) (West 2010). The IDES Board of Review (the Board) affirmed the hearing referee's decision. Plaintiff filed a complaint for administrative review in the trial court, and the trial court reversed the decision of the Board. IDES appealed the trial court's order, and, for the following reasons, we reverse the order of the trial court and reinstate the Board's decision.

2 Appellate Cases Posted 1-17-13

1. Domestic Violence Act/Municipal Liability: Affirmed: Domestic Violence Act properly supported cause of action and jury verdict of $2 million against City for failure of police to arrest offender in response to decedent's several calls regarding a violent argument; jury could properly conclude that officers' acts and inactions constituted wilful and wanton conduct; jury could conclude that officers' conduct was a proximate cause of decedent's death; and expert witness testimony regarding probable cause to arrest offender was proper. Lavin, J.

No. 2013 IL App (1st) 111596 Fenton v. The City of Chicago Filed 1-17-13 (TJJ)

In this appeal, we are asked to consider whether a jury rightly held the City of Chicago liable for the actions of two of its police officers. Those officers twice responded to the 911 calls of Henry Fenton related to a violent argument, only to remove the agitator, Rovale Brim, from the premises in zero-degree weather in the middle of the night, with instructions to wait outside for at least an hour before his girlfriend would give him a ride to another location. Only minutes after the officers left him on the sidewalk, a block from the scene, Rovale returned home where he beat and stabbed Fenton, his mother's boyfriend, leading to Fenton's death. After a lengthy jury trial, which notably included an expert witness who testified critically about the conduct of the officers, the jury returned a verdict in excess of $2 million. The jury's verdict also included answers to special interrogatories which substantiated its finding that the involved officers acted wilfully and wantonly in their official activities.

2. Insurance Coverage: Reversed: Insurance company had do duty to defend law firm for suit alleging civil conspiracy to violate liquor laws in connection with the establishment of a restaurant, where the lawyer putatively covered by the terms of the policy was acting in connection with the a business the lawyer had an interest in, and the insurer therefore had no duty to defend the lawyer or the firm pursuant to a stated exclusion in the policy. Fitzgerald Smith, J.

No. 2013 IL App (1st) 120402 American Zurich Insurance Company v. Wilcox and Christopoulos, L.L.C. Filed 1-17-13 (TJJ)

This cause arises out of a declaratory judgment action filed by the plaintiff-appellant, American Zurich Insurance Co., against the defendant-appellee, the law firm of Wilcox & Christopoulos, L.L.C., and the defendant, Mark Wilcox, wherein American Zurich sought a declaration that it was not obligated to defend Wilcox or the Wilcox law firm in an underlying claim for civil conspiracy brought by Michael Demnicki against, inter alia, Wilcox and the firm. The underlying claim alleges inter alia, that Wilcox and the Wilcox law firm were involved in a civil conspiracy to open and operate a restaurant/lounge by illegal means. Because at all relevant times the Wilcox law firm had a lawyers professional liability insurance policy with American Zurich, it tendered the defense of the underlying claim to American Zurich. However, American Zurich denied coverage and refused to defend or indemnify either Wilcox or the law firm against any action by Demnicki. After discovery, the parties filed cross-motions for summary judgment seeking a declaration regarding American Zurich's duty to defend Wilcox and the firm. The circuit court held that American Zurich had a duty to defend the Wilcox law firm but no duty to defend Wilcox individually. The court therefore granted American Zurich's motion for summary judgement as to Wilcox but denied the motion as to the Wilcox firm. For the reasons that follow, we reverse.

3 Appellate Cases Posted 1-14-13

1. Medical Negligence: Reversed and Remanded: If a plaintiff failed to comply within the initial 90-day period, the court could grant the plaintiff additional time to file the necessary report and attorney affidavit. Id. The decision whether to grant that additional time would be within the trial court’s discretion and would not be disturbed by a reviewing court absent a manifest abuse of discretion. Schostok, J

No. 2013 IL App (2nd) 120651 Stoelting v. Betzelos Filed 1-17-13 (LJD)

At issue in this appeal is whether the dismissal of the medical malpractice complaint that plaintiff, Cameron Stoelting, filed against defendant, Steven J. Betzelos, was properly dismissed with prejudice when plaintiff’s attorney failed to file an attorney affidavit as required by section 2-622 of the Code of Civil Procedure (Code) (735 ILCS 5/2-622 (West 1994))1 and the court believed that it had no discretion to grant plaintiff additional time to file the necessary document. For the reasons that follow, we determine that dismissal with prejudice was improper. Accordingly, we reverse and remand.

2. Criminal Law: Reversed: For a house to qualify as a dwelling, the owners or occupants must reside in the house at the time of the offense or must intend to do so within a reasonable time. Spence, J.

No. 2013 IL App (2nd) 110524 People v. Roberts Filed 1-17-13 (LJD)

Following a jury trial in the circuit court of McHenry County, defendant, Brett A. Roberts, was found guilty of residential burglary (720 ILCS 5/19-3(a) (West 2010)) and was sentenced to a 10-year prison term. Defendant argues on appeal that he is guilty only of burglary, not residential burglary. At issue is whether a vacant house is a “dwelling” within the meaning of the residential burglary statute, where the owners had placed the property for sale but had secured no purchaser and had moved out of the state with no plans to return to the house. We hold that such a house is not a dwelling in the pertinent sense and we therefore reduce defendant’s conviction to burglary.

3. Domestic Relations: Affirmed: Several cases have construed Bogan to stand for the proposition that a bifurcated judgment of dissolution can be appealed when the circuit court makes a finding pursuant to Rule 304(a) that no just reason exists to delay enforcement or appeal or both. Parties can be said to be living "separate and apart" even if they reside in the same house. Relevant considerations to whether the parties were living separate lives include whether the parties had ceased marital relations and the type of communication, or lack thereof, between the parties. The decision to enter a bifurcated judgment is a matter within the circuit court's discretion and we will not disturb that decision absent an abuse of that discretion. Carter, J.

No. 2013 IL App (2nd) 120099 In re Marriage of Tomlins Filed 1-17-13 (LJD)

The petitioner, Margaret Tomlins, filed a petition for dissolution of her marriage to the respondent, Christopher Glenn. After a hearing on grounds for dissolution, the circuit court entered a bifurcated judgment, which dissolved the marriage and reserved other issues for future resolution. On appeal, Christopher argues, inter alia, that the court erred when it found that grounds existed to justify the dissolution of his marriage to Margaret and when it entered the bifurcated judgment. We affirm.

3 Appellate Cases Posted 1-11-13

1. Chancery/Civil Procedure: Affirmed in part and Reversed in part: The reviewing court should interpret the assertions of the complaint in the light most favorable to the plaintiff by accepting as true all well-pleaded facts and the reasonable inferences that can be drawn from them. An exhibit attached to a complaint becomes part of the pleading for every purpose, including the decision on a motion to dismiss. Where an exhibit contradicts the allegations in a complaint, the exhibit controls. To successfully allege a cause of action for declaratory judgment, the complaint must sufficiently state an actual and legal controversy and a request for declaration of rights. To state a claim for unjust enrichment, "a plaintiff must allege that the defendant has unjustly retained a benefit to the plaintiff's detriment, and that defendant's retention of the benefit violates the fundamental principles of justice, equity, and good conscience." Unjust enrichment is not an independent cause of action. "it is condition that may be brought about by unlawful or improper conduct as defined by law, such as fraud, duress, or undue influence", or, alternatively, it may be based on contracts which are implied in law. Although a plaintiff may plead claims alternatively based on express contract and an unjust enrichment, the unjust enrichment claim cannot include allegations of an express contract. The courts will not imply a contract where there exists an express contract between the parties on the same subject matter." Promissory Fraud Doctrine and its exceptions discussed. Hoffman, J.

No. 2013 IL App (1st) 120645 Gagnon v. Schickel Filed 1-11-13 (LJD)

The plaintiff, Michael Gagnon, appeals from the trial court's judgment finding in favor of the appellee, Deborah Schickel, on several counts of his 15-count complaint against her and two other defendants, Michael Laird and Mark Iles, Jr.1, who are not parties to this appeal. On appeal, the plaintiff argues that the trial court erred in dismissing three of the counts of his complaint prior to trial and in finding in favor of Schickel on three additional counts following trial. For the reasons that follow, we affirm the trial court's dismissal of the first three counts of the plaintiff's complaint, but we reverse the trial court's rejection of three additional claims following a trial. We remand the cause with directions for the trial court to make further findings in accordance with the views expressed herein, and to order damages as appropriate.

2. Insurance Law: Affirmed: The interpretation of an insurance policy requires the court is to ascertain and give effect to the intention of the parties as expressed in the agreement. [Citation.] In performing that task, the court must construe the policy as a whole, taking into account the type of insurance purchased, the nature of the risks involved, and the overall purpose of the contract. Where the terms of the policy are unambiguous, we will give them their plain and ordinary meaning and apply them as written. Moreover, a policy provision is not rendered ambiguous merely because the parties disagree as to its meaning; rather, an ambiguity only exists where the policy language is susceptible to more than one reasonable interpretation. Taylor, J.

No. 2013 IL App (1st) 113340 Ware v. First Specialty Insurance Corporation Filed 1-11-13 (LJD)

At approximately 12:30 a.m. on June 29, 2003, a three-story porch located at the rear of the property at 713 West Wrightwood in Chicago, Illinois collapsed during a party, resulting in the deaths of 12 individuals and injuries to 29 more. Those individuals and their estates (collectively plaintiffs) ultimately settled their claims with the building owner and others (collectively defendants) in the underlying tort action and obtained an assignment of rights against appellant, First Specialty Insurance Corporation (First Specialty). Plaintiffs then filed this declaratory action against First Specialty, arguing that because the porch collapse constituted more than one occurrence, First Specialty was liable to them for the aggregate limit of the relevant insurance policy, $2 million, rather than the $1 million per occurrence limit that First Specialty had already paid. The trial court granted summary judgment in favor of First Specialty and plaintiffs appealed.

3. Labor Law: Reversed: 3 Standards of Review of an administrative decision set out. Managerial employees under the traditional test are those employees who are "engaged predominately in executive and management functions and [are] charged with the responsibility of directing the effectuation of management policies and practices." Two elements of managerial employees discussed. Managerial employees under the alternative test are those employees who are "generally clothed with all the powers and privileges" of their management supervisor. Such employees are considered managerial as a matter of law because they have independent authority as assistants to the management supervisor, and they, in effect, act as surrogates. Steigmann, J.

No. 2013 IL App (4th) 110877 The Department of Central Management Services v. The Illinois Labor Relations Board Filed 1-11-13 (LJD)

In February 2010, respondent, the American Federation of State, County, and Municipal Employees, Council 31 (AFSCME), filed a majority interest representation petition under the Illinois Public Labor Relations Act (Act) (5 ILCS 315/1 to 27 (West 2010)) with the Illinois Labor Relations Board (Board), seeking to include attorney-assistant employees of the petitioner, the Department of Central Management Services (CMS), in AFSCME's existing RC- 10 bargaining unit. CMS appeals, arguing that the Board erred by (1) concluding that the disputed PSA 8s (1) were not managerial under the Act and (2) finding that employees who are exempt from the Illinois Personnel Code under section 4d(1) (20 ILCS 415/4d(1) (West 2010)) should be included in the bargaining unit. Because we agree with CMS that the Board's determination that the disputed PSA 8s were not managerial employees was clearly erroneous, we reverse.

3 Appellate Cases Posted 1-10-13

1. Employment Law/Minimum Wage: Reversed and remanded: In case where Illinois Department of Labor concluded that employer had paid employees less for certain claimed overtime than required under Minimum Wage Law, trial court grant of summary judgment to employer was error, where there was a genuine issue of material fact as to whether employees were paid on "salary" basis or a "fee" basis, and trial court conclusion that some employees not entitled to recovery for failure to appear for depositions was also error. Pucinski, J.

No. 2013 IL App (1st) 111605 Resurrection Home Health Services v. Shannon Filed 1-10-13 (TJJ)

We determine the circuit court erred in granting summary judgment for two reasons. First, the court erred as a matter of law in finding that Resurrection's wage structure was a "salary basis" of compensation under the applicable federal regulations incorporated by the Illinois Minimum Wage Law. Second, there is a genuine issue of material fact whether the work performed by Resurrection employees qualifies under the "fee basis" test in the federal regulations. Thus, granting summary judgment to Resurrection was inappropriate and we reverse and remand for further proceedings. Due to the existence of genuine issues of material fact, the denial of the Department's cross-motion for summary judgment was not erroneous and therefore we affirm that order denying the Department's motion. We also determine that the circuit court's order barring the Department's claims under the Illinois Minimum Wage Law as to certain employees who did not appear for deposition was an abuse of discretion, as there was no evidence the non-appearing witnesses failed to appear for their depositions at the instance of or in collusion with the Department. There also was no basis for the order where the Department had an independent right and duty to maintain an action under the Illinois Minimum Wage Law on behalf of the non-appearing employee witnesses.

2. Negligence Law: Affirmed: In action for injuries stemming from an auto accident, statements from plaintiff's counsel calling defense expert a "hired gun," who based his "career" testifying for defendants, were based on the evidence and did not warrant a new trial; trial court rulings permitting some witness to testify and barring others were proper; and damage award of over $700,000 for neurological deficits claimed by plaintiff was proper. Fitzgerald Smith, J.

No. 2013 IL App (1st) 112412 Klingelhoets v. Charlton-Perrin Filed 1-10-13 (TJJ)

Plaintiff-appellee Gwen Klingelhoets (plaintiff) brought a negligence action against defendant-appellant Stacia Charlton-Perrin (defendant) arising from an automobile accident. Following a jury trial, the trial court entered judgment on the verdict in favor of plaintiff and against defendant in the amount of $713,601.82. Defendant now appeals, contending that the trial court erred in allowing plaintiff to make "repeated and unfair attacks" in opening statement and closing argument, in not permitting defendant to call a certain witness, in denying her motions to bar two other witnesses, and in allowing the jury to hear testimony that plaintiff did not continue with treatment because of its cost. She also contends that the jury's verdict was against the manifest weight of the evidence. Defendant asks that we reverse the judgment entered upon the jury verdict and remand with directions to grant a new trial or a remittitur. For the following reasons, we affirm.

3. Negligence Law: Reversed: In action for injuries stemming from a worker's fall in 2001 at a site constructed by defendant in 1990, and repaired by defendant in 1994, defendant's work in 1994 was not "an improvement to real property, but was repair of an existing structure, and plaintiff's action was thus barred by the 10-year statute of repose. Welch, J. (Chapman, J., dissenting)

No. 2013 IL App (5th) 110428 Schott v. Halloran Construction Company, Inc. Filed 1-10-13 (TJJ)

We reject the plaintiffs' argument is that the portion of the retaining wall from which Lawrence stepped or fell was not damaged by rain and was not repaired or rebuilt in 1994. The portion of the wall from which Lawrence stepped or fell was the original retaining wall built by Halloran Construction in 1990, more than 10 years prior to the accident. We see no reason why an improvement to some portion of the property other than that on which the plaintiffs were injured should extend or renew the statute of repose with respect to their injuries. Accordingly, the plaintiffs' claim is barred by the 10-year statute of repose. Because the plaintiffs' action against the defendant is barred by the 10-year construction statute of repose, we reverse the judgment of the circuit court of St. Clair County denying the defendant's posttrial motion for a judgment notwithstanding the verdict.

2 Appellate Cases Posted 1-9-13

1. Sexually Dangerous Persons Act: Affirmed: Testimony of prosecution's psychiatrists in which they based their opinion, in part, upon police reports and other similar type reports detailing victims' claims, and testimony as to the details of those claims as part of the psychiatrists' bases for their opinion that respondent was a sexually dangerous person, did not violate Crawford v. Washington, and evidence was sufficient to prove that respondent was a sexually dangerous person. Appleton, J.

No. 2013 IL App (4th) 120068 In re: the Detention of Hunter Filed 1-9-13 (TJJ)

Respondent, Anthony L. Hunter, was charged with aggravated criminal sexual assault and criminal sexual assault. While those criminal charges were pending, the State instituted a civil commitment proceeding, pursuant to Illinois's Sexually Dangerous Persons Act. After a jury trial, the circuit court declared respondent a sexually dangerous person and ordered his commitment. Respondent's posttrial motion was denied, and he appealed. Respondent argues his commitment as a sexually dangerous person should be reversed because (1) the Act is unconstitutional, on its face and as applied, as violative of the confrontational clause, or in the alternative, (2) the State's evidence was insufficient to satisfy the demonstrated-propensities requirement of the Act. We find no constitutional violation and affirm.

2. Criminal Law: Affirmed in part and remanded: Defendant's conviction for aggravated criminal sexual abuse upheld despite defendant's claim that reasonable doubt existed because case was premised on dispute between what defendant said and what complaining witness said, but case remanded for trial court to conduct in camera review of DCFS records in order to determine whether materials subpoenaed from DCFS contained privileged materials. Schmidt, J.

No. 2013 IL App (3d) 110152 People v. Escareno Filed 1-8-13 (TJJ)

Defendant, Enrique G. Escareno, was convicted of two counts of aggravated criminal sexual abuse and sentenced to two concurrent terms of eight years' imprisonment. Defendant appeals, arguing that: (1) the evidence was not sufficient to prove him guilty beyond a reasonable doubt; and (2) he was deprived of his constitutional right to present a defense when the trial court denied his motion to subpoena records without first conducting an in camera review of the records. We find the evidence was sufficient to convict defendant but remand the cause for an in camera review of the records requested in defendant's subpoena.

1 Appellate Case Posted 1-7-13

1. Public Pensions: Affirmed: Teachers' Retirement Service decision that school district was not exempt from assessment requiring it to make additional contributions to Service to help finance certain administrators' pensions was proper where the administrators' "retirement incentive rights" were not paid under contracts properly exempting the payments. Pope, J.

No. 2013 IL App (4th) 120419 The Board of Education of Schaumburg Community Consolidated School District No. 54 v. The Teachers' Retirement System of the State of Illinois Filed 1-7-13 (TJJ)

On October 28, 2011, the Board of Trustees for the Teachers' Retirement System of the State of Illinois voted to uphold the recommended decision of TRS's claims hearing committee. In re Schaumburg Community Consolidated School District No. 54, The Board of Trustees of the Teachers' Retirement System. The Committee recommended denying the Board of Education of Schaumburg Community Consolidated School District No. 54's request for an exemption from an assessment issued pursuant to section 16-158(f) of the Illinois Pension Code against the District because the District provided some of its administrators raises in excess of 6% in the years preceding their retirements pursuant to the District's voluntary retirement program (Retirement Program). In April 2012, the circuit court denied the District’s request for administrative review. The District appeals, arguing TRS’s interpretation of section 16-158(g) of the Pension Code and sections 1650.483 and 1650.484 of title 80 of the Illinois Administrative Code is contrary to law and the plain language of its own regulations. We affirm the circuit court's affirmance of TRS’s decision.

1 Appellate Case Posted 1-4-13

1. Public Employee Labor Law: Affirmed: Illinois Labor Relations Board retained jurisdiction to resolve union's election petition, despite fact that more than 120 days had elapsed from the date the petition was filed until the Board's decision, and Board's decision that employee group was not composed of supervisors or managers was not clearly erroneous. Knecht, J.

No. 2012 IL App (4th) 120419 The Secretary of State v. The Illinois Labor Relations Board Filed 11-29-12 (TJJ)

The Secretary of State seeks review of a final decision and order of the Illinois Labor Relations Board, State Panel, certifying Service Employees International Union, Local 73, as the exclusive bargaining representative of "approximately 116" individuals employed by the Secretary. The Secretary contends (1) the Board lacked jurisdiction to address the Union's representation petition, and (2) the Board's determinations (a) the individuals were not supervisors under section 3(r) of the Illinois Public Labor Relations Act and (b) were not managers under section 3(j) of the Labor Act were clearly erroneous. We affirm.

2 Appellate Cases Posted 1-3-13

1. Criminal Law: Affirmed: Police officer's testimony in domestic battery case that upon his arrival to scene he observed the complaining witness "disturbed and shaken," was sufficient indication so that her statement that "guy inside house had beaten her" was admissible against defendant as an excited utterance. Birkett, J.

No. 2013 IL App (2d) 110663 People v. DeSomer Filed 1-3-13 (TJJ)

Following a bench trial, defendant, Dirk W. DeSomer, was convicted of domestic battery and resisting a peace officer. Defendant appeals, contending that the trial court erred by admitting under the excited utterance exception to the hearsay rule a statement by defendant’s girlfriend, the alleged victim, that defendant was beating her. We affirm.

2. Trusts and Estates/Attorneys' Fees: Affirmed: Trial court grant of summary judgment to charitable groups in connection with claim by decedent's heirs that a gift to the charitable groups had adeemed was proper, in light of factual circumstances presented, but trail court order regarding attorneys' fees was entered at a time when trial court was without jurisdiction to enter order, and that order was therefore void and not subject to review by appellate court. Lavin, J.

No. 2012 IL App (1st) 112812 Koulogeorge v. Campbell Filed 12-31-12 (TJJ)

Plaintiffs-appellants, Charles R. Walgreen III, Leslie Ann Walgreen Pratt, and James Alan Walgreen (hereinafter, the Walgreen Beneficiaries), the children of the late Charles R. Walgreen, Jr., appeal from the circuit court orders denying their cross-motion for summary judgment and granting summary judgment in favor of defendants-appellees, Rotary/One Foundation, Inc., and the Rotary Foundation of Rotary International (hereinafter, collectively referred to as the Rotary Foundations). The center of the dispute concerns the proceeds of Walgreen’s living trust. The Walgreen Beneficiaries contend the trial court erred in failing to examine evidence showing that the late Charles R. Walgreen intended to, and did in fact, adeem or revoke his bequest to the Rotary Foundations. They also contend the trial court erred in failing to consider the issue of attorney fees. For the reasons to follow, we affirm.

3 Appellate Cases Posted 1-2-13

1. Domestic Relations: Affirmed: Oral agreement to terms of marital settlement agreement, made by husband while serving a penitentiary sentence for attack on his wife, was binding upon husband, and was not the product of mutual mistake or duress, and the trial court properly denied husband's later motion to vacate the settlement and dissolution of marriage. Schmidt. J.

No. 2012 IL App (3d) 110660 In re Marriage of Baecker Filed 12-31-12 (TJJ)

The petitioner, Garth Baecker, filed a petition for dissolution of marriage in the circuit court of Tazewell County on February 10, 2010. On June 10, 2010, Garth was convicted and sentenced to prison for attempting to kill the respondent, Terry Baecker. On March 23, 2011, the parties indicated that they had reached an agreement in the dissolution proceedings. The trial court read the terms of that oral agreement into the record and instructed counsel to prepare the final judgment. Garth, who was incarcerated in the Dixon Correctional Center throughout the course of this dissolution proceeding, refused to sign the prepared judgment incorporating the oral settlement. On April 19, 2011, Terry filed a motion to enforce the judgment and for entry of final judgment of dissolution. Shortly thereafter, on April 25, Garth filed a motion to vacate the oral settlement and set the matter for trial on all remaining issues. On June 7, 2011, the trial court heard the argument of the parties on their successive motions and entered a final judgment of dissolution of marriage, incorporating into the decree the oral settlement agreement over Garth's objection. Garth appeals, claiming, inter alia, that the trial court erred in denying his motion to vacate the oral settlement agreement of March 23, 2011, that the oral settlement agreement was not an enforceable contract for which there was a requisite "meeting of the minds," and that he was under duress and the victim of coercion at the time the settlement was reached. We affirm.

2. Public Employment Law: Affirmed: Discharged sheriff's deputy had right to arbitrate Merit Commission decision to discharge her pursuant to terms of collective bargaining agreement, notwithstanding claim that agreement had ended by its terms when deputy sought arbitration, and sheriff's complaint for declaratory judgment that deputy had no right to arbitration properly denied by trial court. Lytton, J.

No. 2012 IL App (3d) 110926 Thompson v. Policemen's Benevolent Labor Committee Filed 12-231-12 (TJJ)

Plaintiff John Thompson, sheriff of Bureau County, filed a declaratory judgment action against defendants, Policemen’s Benevolent Labor Committee (PBLC), Dawn M. Dove and the County of Bureau, seeking a declaration that he was not required to arbitrate a decision by the Bureau County Merit Commission to discharge Dove. The trial court granted summary judgment in favor of defendants. We affirm.

3. Workers' Compensation: Reversed: Commission decision that employee's "indentation" resulting from a furnace accident at work was not a "disfigurement" authorizing "prospective cosmetic medical treatment," was against the manifest weight of the evidence. Hudson, J. (Turner, J., conc. in part and dissenting in part).

No. 2012 IL App (3d) 110907WC Dye v. Illinois Workers' Compensation Comm'n Filed 12-31-12 (TJJ)

Claimant, Linda Dye, filed an application for adjustment of claim pursuant to the Workers’ Compensation Act seeking benefits for injuries she allegedly sustained while in the employ of respondent, Plymouth Tube. Following a hearing pursuant to section 19(b) of the Act, the arbitrator determined that claimant’s current condition of ill-being is causally related to her employment. However, he denied her claim for prospective cosmetic medical care and her request that penalties, additional compensation, and attorney fees be assessed against respondent. The Illinois Workers’ Compensation Commission (Commission) affirmed these findings, and the circuit court of La Salle County confirmed the decision of the Commission. On appeal, claimant insists that the Commission’s decision to deny authorization for prospective cosmetic medical care as well as its decision to deny the imposition of penalties, additional compensation, and attorney fees are against the manifest weight of the evidence. For the reasons which follow, we reverse the Commission’s denial of prospective cosmetic medical care, but affirm the denial of penalties, additional compensation, and attorney fees, and remand the matter for further proceedings in accordance with Thomas v. Industrial Comm’n, 78 Ill. 2d 327 (1980).