Illinois Supreme and Appellate Court Case Summaries

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

 

    This page contains the current month's summaries, the most recent summaries provided first. 

Click on the case-name link to go directly to the full-text opinion.

Summary headings and authoring Justice (and separate opinion writers) in GREEN.

Case-name link in your browser's LINK COLOR.

Corrected or modified opinions noted by PURPLE headings.


Click here For Supreme Court & Appellate Opinions (with Summaries) posted during January 2014.

For the previous six months' summaries or to return to the Illinois Court Reports Home Page, click on the link below:

 Illinois Court Reports Home Page 



1 Appellate Court Case Posted 2-28-14

1.  Insurance Law: Reversed and Remanded: "Any party may seasonably move for judgment on the pleadings" pursuant to section 2-615(e) of the Code. 735 ILCS 5/2-615(e) (West 2010). Judgment on the pleadings is proper when the pleadings disclose no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.  Section 143a-2(4) of the Insurance Code defines an "underinsured motor vehicle" as one "whose ownership, maintenance or use has resulted in bodily injury or death to theinsured," and "for which the sum of the limits of liability under all bodily injury liability insurance policies or under bonds or other security" be maintained by the person responsible for the vehicle is less than the limits of underinsured coverage provided the insured under his policy at the time of the accident. The purpose of UDIM coverage is to put the insured in the same position as if injured by a motorist with insurance in the same amount as the UDIM policy.   Reyes, J.

No. 2014  IL App (1st) 123419 Allstate Property & Casualty Insurance Company v. Trujillo Filed 02-28-14   (LJD)


Defendant Dolores Trujillo (Trujillo) appeals an order of the circuit court of Cook County granting judgment on the pleadings to plaintiff Allstate Property & Casualty Insurance Company (Allstate) in a declaratory judgment action. On appeal, Trujillo contends the circuit court erred in ruling Allstate was entitled to set off her claim for underinsured motorist (UDIM) benefits with amounts Allstate paid under the bodily injury coverage of the same insurance policy, relating to an automobile collision involving multiple tortfeasors. For the following reasons, we reverse the judgment of the circuit court and remand the case for further proceedings.

1 Appellate Court Case Posted 2-27-14

1.  Post Conviction Petition: Reversed and Remanded:  To be entitled to relief under section 2-1401, a defendant must set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2-1401 petition for relief.  The two-year limitations period, however, does not apply to petitions brought on voidness grounds. Under the first prong of Strickland, the defendant must prove that his counsel's performance was deficient because it fell below an objective standard of reasonableness " 'under prevailing professional norms.' "Under the second prong, the defendant must show that "but for" counsel's deficient performance, there is a reasonable probability that the result of the proceeding would have been different.  Where a defendant is affirmatively misled by his counsel with respect to the collateral consequences of his sentence, such as sex offender registration, counsel is deficient for purposes of a Strickland analysis. Fitzgerald Smith, J.

No. 2014  IL App (1st) 122268 People v. Dodds  Filed 02-27-14   (LJD)

 This is an appeal from the circuit court's order dismissing a petition to vacate judgment filed by the defendant, Paul Dodds, pursuant to section 2-1401 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2000)). The defendant, who was charged with four counts of possession of child pornography (720 ILCS 5/11-20.1(a)(1) (West 2000)), pleaded guilty to one count in exchange for a sentence of 18 months' probation and the requirement that he register as a sex offender for a period of 10 years. Apparently, at the time of sentencing, defense counsel, the State and the trial judge all mistakenly believed that the defendant was required to register only for 10 years, rather than natural life, as required by the Illinois Sex Offender Registration Act (SORA) (730 ILCS 150/7 (West 2000)).

4 Appellate Court Cases Posted 2-26-14

1.  Employment: Affirmed:  A settlement agreement does not create a new debt, obligation, claim or liability; it a compromise of an existing disputed claim. " 'A compromise is an agreement to terminate, by means of mutual concessions, a claim that is disputed in good faith or unliquidated.' As settlement agreements do not create debt, obligation, claims, or liability, section 4-6
thus does not encompass settlement agreements. The express approval by the Board at a meeting was not required.  Pucinski, J.

No. 2014  IL App (1st) 123185  Wheeling Park District v. Arnold Filed 02-26-14   (LJD)


In this case we address whether an executive director of a park district has the authority to enter into a binding severance agreement terminating an employee without prior written approval of the board pursuant to section 4-6 of the Illinois Park District Code (70 ILCS 1205/4-6 (West 2008)). We hold the resignation agreement entered into by the executive director of the district was not subject to section 4-6 because, as a settlement agreement, it did not create any debt, obligation, claim or liability but, rather, settled and compromised an existing dispute. Thus, approval of the board was not required. The agreement was also a binding and valid contract and there was no effective revocation, as the terminated employee signed and delivered the contract to the board and the board fully performed.

2.  Medical Negligence: Certified Question Answered Yes: When reviewing a certified question pursuant to Supreme Court Rule 308, an appellate court is generally limited to answering the question certified by the trial court and will not determine the propriety of the underlying order.  A question certified by a trial court pursuant to Rule 308 is subject to de novo review.  “Wrongful birth” actions are suits brought by parents who allege that they would not have conceived a child or carried their child to term but for the negligence of the doctor who administered  neonatal testing or genetic testing andfailed to counsel them of the likelihood of giving birth to a physically or mentally impaired child. Plaintiffs who succeed in wrongful birth claims are entitled to recover extraordinary damages, including the medical, institutional and educational expenses that are necessary to properly manage and treat their child's congenital or genetic disorder.  The court went on to discuss the other two types of cases known as "wrongful life" and "wrongful pregnancy or wrongful conception" cases.  The main element in a "wrongful life" cases is that the child is helathy and normal.   "Wrongful pregnancy" are claims brought by parents of a child who is born following a negligently performed sterilization procedure.  The court discusses and analyzes "legal cause" and "cuase in fact".   Pucinski, J.

No. 2014  IL App (1st) 120378  Williams v. Rosner Filed 02-26-14   (LJD)


Plaintiffs Cynthia Williams and Kenneth Williams, individually, and as parents and next friends of Kennadi Williams, a minor, filed a complaint advancing claims of negligence and wrongful pregnancy against defendants Byron Rosner, M.D., and Reproductive Health Associates (Reproductive Health). Among the damages that plaintiffs sought to recover were the extraordinary expenses that they would incur in raising their daughter, who was born with sickle cell disease following an unsuccessful sterilization procedure.

3.  Criminal Law: Affirmed:  Generally, a defendant may not be convicted of an uncharged offense.  But when the evidence fails to prove beyond a reasonable doubt an element of the convicted offense, a reviewing court may enter judgment on a lesser-included offense, even where the lesser-included offense was not charged at trial.  In determining whether judgment may properly be entered on an uncharged lesser-included offense, we must use the charging instrument approach.  Under this test, an offense may be deemed a lesser-included offense even though every element of the lesser offense is not explicitly contained in the indictment so as long as the missing element can be reasonably inferred from the indictment allegations.  Hyman, J.

No. 2014  IL App (1st) 120514  People v. Sanchez  Filed 02-26-14   (LJD)


A jury convicted defendant Luis Sanchez, who was charged with aggravated battery of a peace officer (720 ILCS 5/12-4(b)(18) (West 2010)), of the lesser-included offense of resisting a peace officer. The court sentenced Sanchez to 364 days in Cook County jail. Sanchez raises two grounds for reversing his conviction: (1) resisting arrest does not qualify as a lesser-included offense of aggravated battery; and (2) denial of effective assistance of trial counsel. We affirm.

4.  Administrative Raview: Agency Affirmed; Circuit Court Reversed:  Judicial review of an administrative agency's discharge decision involves a two-step analysis.  The first step is to determine whether the Board's findings are against the manifest weight of the evidence.  The second step "is to determine whether the factual findings are sufficient to support the Board's conclusion that 'cause' exists for *** discharge." Section 14 of the State Police Act (20 ILCS 2610/14 (2006)) provides no State Police officer shall be removed "except for cause." The term "cause" "has been judicially defined as some substantial shortcoming which renders the employee's continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for his no longer holding the position."  "A reviewing court will not decide whether a less stringent punishment is appropriate and will overturn the Board's decision only if it is arbitrary and unreasonable or unrelated to the requirements of service."  Pope, J.

No. 2014  IL App (4th) 130041  Robbins v. The Department of State Police Merit Board   Filed 02-26-14   (LJD)


In June 2008, the Director of the Department of State Police, commonly referred to as the Illinois State Police (ISP), filed a complaint with the ISP Merit Board (Merit Board or Board) seeking the termination of plaintiff, Cynthia A. Robbins, based on allegations she committed 11 violations of the Illinois State Police Rules of Conduct (Rules). Following a hearing, the hearing officer found Robbins committed 8 of the 11 alleged violations.We vacate the December 13, 2012, order of the circuit court, reverse the March 12, 2010, May 2, 2011, and May 14, 2012, orders of the circuit court, and reinstate and affirm the Merit Board's April 2009 order discharging Robbins for cause.
the Merit Board's April 2009 order discharging Robbins for cause.

1 Appellate Court Case Posted 2-25-14

1.  Medical Studies & Credentialing Act:Affirmed:  A section 2-619(a)(9) motion admits the legal sufficiency of the complaint but asserts some affirmative matter that avoids the legal effect of or defeats the claim. An affirmative matter is a type of defense that negates the cause of action completely or refutes crucial conclusions of law or conclusions of material fact contained in or inferred from the complaint.  The Medical Studies Act contains “no language granting anyone a private right of action for a violation of its confidentiality provisions.”   The court discussed whether an implied right of action exists and listed the 4 elements of an implied right of action.  The court also discussed the purpose of the Credentialing Act and held it also contains no express or implied right of action.  Spence, J.

No. 2014  IL App (2nd) 130304  Davis v. Kewanee Hospital Filed 02-25-14   (LJD)


Plaintiff, Dr. Albert R. Davis, filed suit against defendant, Kewanee Hospital (the Hospital), seeking declaratory and injunctive relief based on alleged violations of section 8-2101 of the Code of Civil Procedure, commonly known as the Medical Studies Act (735 ILCS 5/8-2101 (West 2008)), and the Health Care Professional Credentials Data Collection Act (Credentials Act) (410 ILCS 517/15(h) (West 2008)).  The Hospital moved to dismiss the complaint on the basis that neither of the confidentiality exceptions applied. The trial court agreed and granted the Hospital’s motion to dismiss. Dr. Davis appeals, and we affirm.

1 Appellate Court Case Posted 2-24-14

1.  Invasion of Privacy: Affirmed:  An attorney is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if he has some relation to the proceeding.  A private litigant enjoys the same privilege concerning a proceeding to which he is a party. An absolute privilege provides a complete bar to a claim for defamation, regardless of the defendant's motive or the unreasonableness of his conduct. In Illinois, the "rules on absolute privileges to publish defamatory matter stated in §§ 583 to 592A apply to the publication of any matter that is an invasion of privacy."  Connors, J.

No. 2014  IL App (1st) 122677  Johnson v. Johnson and Bell, LTD. Filed 02-24-14   (LJD)


Plaintiff Merdelin Johnson (plaintiff) filed suit against defendants Johnson & Bell, Ltd. (Johnson & Bell), Target Corporation (Target), Robert Burke, and Jennifer Rose (collectively, defendants) alleging invasion of privacy, negligence, negligent infliction of emotional distress, and breach of contract. Defendants filed a motion pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2010)) to dismiss, contending that plaintiff's claims were barred by the absolute litigation privilege, res judicata, and collateral estoppel. The trial court granted defendants' motion to dismiss, and plaintiff now appeals.

6 Supreme Court Cases Posted 2-21-14

1. Criminal Law: Affirmed: In this case, the Illinois Supreme Court held that, if a person is, at the time of his arrest, in actual physical possession of an item, it is immediately associated with him and is searchable. The nature of the item or how long he has had it is not relevant. Here, the trial court’s finding that the wheeled luggage bag was within the defendant’s immediate control at the time of his arrest was not against the manifest weight of the evidence. Accordingly, the officers were allowed to search the bag pursuant to a search of the person incident to arrest. As part of the search, the officers were entitled to inspect the hair gel container found inside the luggage. The appellate court’s judgment affirming the denial of the motion to suppress was upheld. Chief Justice Garman delivered the judgment of the court, with opinion.  Justices Thomas, Kilbride, Karmeier, and Theis concurred in the judgment and opinion. Justice Burke dissented, with opinion, joined by Justice Freeman.

No. 2014 IL 113600    People v. Cregan    Filed 2-21-14 (RJC)

 

In this McLean County case, a drug conviction was challenged as based on the discovery of cocaine in the defendant’s luggage pursuant to a search which the defendant claimed was unreasonable, in violation of the fourth amendment to the United States Constitution. The defendant’s conviction and sentence of 5½ years were upheld by the appellate court, which found the search valid under the search-incident-to-arrest exception to the search warrant requirement. On November 3, 2009, this defendant got off the train at the station in Normal and was met by police officers who had an active civil arrest warrant for him for failure to pay child support. They had also learned that he was a documented gang member. The defendant was carrying a laundry bag over his shoulder and pulling a wheeled luggage bag. After the officers identified him, he was told to drop his bags and was arrested and handcuffed. Although Cregan asked if the person who had come to pick him up could take his bags, the officers refused and began searching the luggage bag, which was not locked. Inside a container of hair gel, a plastic bag containing powder cocaine was found. He was charged with unlawful possession of less than 15 grams of a controlled substance. At the stipulated bench trial which followed, the defendant sought unsuccessfully to suppress the cocaine, claiming that the search of his luggage was unconstitutional. The State claimed that there had been a valid search incident to an arrest. The evidence was admitted.  Precedent allows for a search incident to an arrest so that officers can protect themselves and prevent the destruction of evidence. In this case, the Illinois Supreme Court held that, if a person is, at the time of his arrest, in actual physical possession of an item, it is immediately associated with him and is searchable. The nature of the item or how long he has had it is not relevant. Here, the trial court’s finding that the wheeled luggage bag was within the defendant’s immediate control at the time of his arrest was not against the manifest weight of the evidence. Accordingly, the officers were allowed to search the bag pursuant to a search of the person incident to arrest. As part of the search, the officers were entitled to inspect the hair gel container found inside the luggage. The appellate court’s judgment affirming the denial of the motion to suppress was upheld.

2. Legal Malpractice/SOL: Reversed: The issue in this case is whether the six-year repose period in the statute quoted above applies only to professional services rendered to a client, i.e., to legal malpractice claims. The supreme court held in this decision that the statute unambiguously is not so limited. Rather, the six-year repose period applies to all claims against attorneys concerning their professional services, even if brought by nonclients. Plaintiff Evanston was not George Riseborough’s client. The second amended complaint, filed in 2009, was based on the agreement executed in 2000, and, thus was filed more than three years after the expiration of the six-year statute of repose.  Plaintiff Evanston had alternative theories, including that the second amended complaint related back to earlier pleadings and that there was error in an earlier dismissal of its claim as premature. These were found by the supreme court to have been forfeited. In addition, Evanston could not successfully argue that the earlier dismissal without prejudice for prematurity allowed it to circumvent the statute of repose by filing an amended complaint after the repose period had expired. The circuit court’s dismissal of the second amended complaint with prejudice as barred by the statute of repose was affirmed. The appellate court, which had interpreted the statute differently and held otherwise, was reversed.  Justice Burke delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, and Karmeier concurred in the judgment and opinion.  Justice Kilbride dissented, with opinion, joined by Justice Theis.

No. 2014 IL 114271    Evanston Insurance Company v. Riseborough   Filed 2-21-14 (RJC)

   

      This Cook County appeal deals with the applicability of a statute of repose. Section 13-214.3 of the Code of Civil Procedure, entitled “Attorneys,” states that an “action for damages based on tort, contract, or otherwise *** against any attorney arising out of an act or omission in the performance of professional services *** must be commenced within 2 years from the time the person bringing the action knew or reasonably should have known of the injury *** but *** not *** in any event more than 6 years after the date on which the act or omission occurred.” A statute of repose extinguishes an action after a defined period of time and is not tolled by the discovery rule.   The plaintiff in the action, Evanston Insurance Co., was the excess insurer of subcontractor International Crown, one of whose employees was injured in 1996 in the construction of a Green Oaks warehouse for which Kiferbaum Construction was the general contractor. There were several other subcontractors and insurers. In the employee’s personal injury action against general contractor Kiferbaum, that company was represented by the attorneys who are the defendants here. The personal injury action was settled for $4,887,500 in 2000.   Plaintiff Evanston Insurance Co. and other involved insurers denied coverage and sought declaratory relief in a separate action, known as the “coverage action,” in which their claims of noncoverage were eventually consolidated. In 2000, after the settlement, various insurers entered into a “Fund and Fight Agreement” in which they agreed to contribute their respective policy limits to fund the settlement and reserved the right to litigate policy and coverage defenses among themselves. Kiferbaum was a party to that agreement, stating the terms on which it would reimburse the contributors. On Kiferbaum’s behalf, the agreement was signed by defendant George E. Riseborough of the firm of Jacobsen & Riseborough. Plaintiff Evanston, as excess insurer, contributed $1 million to the personal injury settlement, but would later claim that primary coverage from Statewide Insurance Company should have been exhausted first, and it sought reimbursement from Kiferbaum. In 2003, the president of Kiferbaum executed an affidavit stating that he had no knowledge of the agreement and that attorney George Riseborough had signed the agreement without authority. Based on this, plaintiff Evanston filed suit against the defendant attorneys in 2005, alleging breach of implied warranty of authority, fraudulent misrepresentation, and negligent misrepresentation. Legal malpractice was not alleged. In 2009, Evanston filed its second amended complaint, which is the pleading at issue here. The same claims were reasserted.

3. Mental Health/Invol.Admission.: Reversed: In this decision, the supreme court held the 15-day requirement to be directory, rather than mandatory, and, thus, the fact that the jury trial was not held within that time frame did not, in itself, render the judgment subsequently entered by the circuit court fatally infirm. The appellate court was reversed, with the supreme court noting that the appellate court had erred when it concluded that James was prejudiced by the three-month delay in scheduling his jury trial. The supreme court said that there was no indication that the result would have been any different if the trial had been held three months earlier. The appellate court erred when it reversed the circuit court’s judgment continuing James W.’s involuntary admission to the Chester Mental Health Center on the grounds that the delay in conducting the hearing was excessive. In addition, the circuit court’s judgment is not subject to challenge on the grounds that the State’s petition failed to meet the requirements of section 3-601 of the Mental Health Code. Justice Karmeier delivered the judgment of the court, with opinion. Justices Thomas and Kilbride concurred in the judgment and opinion.  Justice Theis specially concurred, with opinion. Justice Burke concurred in part and dissented in part, with opinion, joined by Chief Justice Garman and Justice Freeman.

No.2014 IL 114483    In re James W.    Filed 2-21-14 (RJC) 

     

In this Randolph County case, a 2010 circuit court order for the continuation of the involuntary admission of a patient at the Chester Mental Health Center was upheld, despite the fact that the appellate court had overturned it. Because of the short length of such involuntary commitment orders (180 days), the order in question here has long since expired, raising the problem of mootness. However, the Illinois Supreme Court addressed the matter under the public interest exception to the mootness doctrine. The respondent in this case, James W., is a 60-year-old male with a lengthy criminal record and a history of psychiatric hospitalizations. Just before the evidentiary hearing on the State’s petition to continue his involuntary admission was to commence, James W. made a request for a jury. This was his right, and no statute provided that, despite having been made at this stage, his request was untimely. The judge told the respondent that no special mental health juries (consisting of six persons) would be available for three months, and respondent accepted the setting of a new jury date which would be 96 days away. That jury trial subsequently took place and resulted in the granting of the State’s petition. James W. sought relief in the appellate court. The Mental Health Code provides that continuances in such proceedings “shall not extend beyond 15 days” unless requested by the respondent. The appellate court viewed this language as mandatory, rather than directory. It said that that prejudice to a respondent from a three-month delay “is self-evident.” The appellate court said that the respondent had been forced to make a choice which he should not have been required to make and that it could not “agree that the respondent knowingly and voluntarily agreed to” such a lengthy delay. The circuit court was reversed, and the State appealed to the Illinois Supreme Court. Rather than arguing that the jury demand was tantamount to a request for a continuance, the State chose to argue that noncompliance with the 15-day limit does not automatically invalidate a court’s subsequent judgment continuing involuntary admission to a mental health facility, and that redress would be appropriate only where the delay affected the ultimate outcome in a way prejudicial to respondent.  The appellate court’s judgment is therefore reversed. The judgment of the circuit court is affirmed. Appellate court judgment reversed.

4. Employee Classification Act: Affirmed in part and vacated in part: In this decision, the Illinois Supreme Court rejected the plaintiffs’ claims that these provisions are facially unconstitutional as impermissibly vague. The court did this because the Act provides a person of ordinary intelligence with a reasonable opportunity to understand what it prohibits and also does not encourage arbitrary or discriminatory enforcement. Although the plaintiffs asserted that their subcontractors satisfied the statutory elements for qualifying for the exemptions provided in the Act, the supreme court said that this was an implicit concession that they understood what is required for an exemption to be applicable. The court said that, to prevail on a facial challenge, vagueness must be shown in all applications of the challenged statute, and this the plaintiffs failed to do. The rejection of the vagueness challenge by the courts below was upheld.  Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No.2014 IL 115152   Bartlow v. Costigan    Filed 2-21-14 (RJC)

      The Employee Classification Act, which became effective in 2008, addresses the practice of misclassifying employees as independent contractors in the construction industry. In this case from Franklin County, the Illinois Supreme Court upheld the circuit court’s rejection of a business’s facial challenge, on vagueness grounds, to the constitutionality of the Act. A procedural due process challenge was found to have been mooted by recent legislation.  Plaintiffs Rhonda and Jack Bartlow are general partners in a construction-related business called Jack’s Roofing, which installs siding, windows, seamless gutters and roofs. There are other individual plaintiffs who are involved in doing these installations. In the complaint filed in circuit court, the plaintiffs sought injunctive relief against enforcement of the Act and a declaration of the facial unconstitutionality of certain of its provisions. This the circuit court refused to do. The Director of the Department of Labor, who had been made defendant, was awarded a summary judgment, and the appellate court affirmed.   The Act broadly provides that any individual “performing services” for a construction contractor is “ deemed to be an employee of the employer.” The statutory term “performing services” is extensively defined. There are exemptions for independent contractors, sole proprietors, and partnerships if they can satisfy specific criteria, set out in the statute, showing that they effectively operate independently from the construction contractor.     

      While this case was pending on appeal, the statute in question was amended effective January 1, 2014, concerning formal administrative hearings and also concerning application of the Administrative Review Law. The plaintiffs had raised procedural due process challenges to the pre-amendment version of the Act, and this issue was the subject of supplemental briefing in the supreme court. It was held here that, because the Act’s enforcement procedures have been substantially replaced, the plaintiffs’ procedural due process claim is now moot. Plaintiffs had also challenged the Act as denying equal protection and amounting to impermissible special legislation, but these issues were found forfeited by not having been fully briefed and argued.

5. Criminal Law/Guilty Plea: Affirmed: In this decision, the supreme court said that the word “or,” in this context, is properly construed in the conjunctive so as to effectuate the intent of the rule. The goal of the rule is to allow the trial court to address, before an appeal is taken, any alleged improprieties which may have produced a guilty plea before an appeal is taken. If there is certification only as to sentencing issues, the possibility remains that the defendant might have had contentions of error about the guilty plea but failed to mention them. Possibly, a defendant might have concerns about the guilty plea which were not discussed with counsel and were, therefore, omitted from the postplea motion. The purpose of the certification requirement is to enable the trial court to immediately correct, before an appeal is taken, any improprieties which might have produced the guilty plea. Justice Freeman delivered the judgment of the court, with opinion. Chief Justice Garman and Justice Burke concurred in the judgment and opinion. Justice Thomas specially concurred, with opinion. Justice Karmeier dissented, with opinion, joined by Justices Kilbride and Theis.

No. 2014 IL 115329    People v. Tousignant    Filed 2-21-14 (RJC)

  

In Livingston County, this defendant was sentenced in April 2012 to 12 years in prison after entering an open plea of guilty to drug offenses. The trial court had entered a conviction for unlawful possession of a controlled substance with intent to deliver. On May 3, 2012, a motion to reconsider the sentence as excessive was filed. At the hearing which was held, it was brought out that the defendant sought a reduction of sentence to seven years so that he would be immediately eligible for a drug treatment program. He was not successful, his motion was denied, and he appealed. An appeal from a judgment entered on a plea of guilty is governed by Supreme Court Rules. In connection with such an appeal, counsel must certify that he or she consulted with the defendant to ascertain the contentions of error in the sentence or the entry of the plea of guilty and make any necessary amendments so as to adequately present any defects in the proceedings. The appellate court found counsel’s certificate in this instance to be inadequate for addressing the sentencing issue only and not referring to any consultations concerning error outside of the motion to reconsider sentence. The appellate court reversed and remanded for strict compliance with the procedural rules. The State appealed. The rule language requiring counsel to ascertain “defendant’s contentions of error in the sentence or the entry of the plea of guilty” was construed by the State to be disjunctive, based on the use of the word “or.” According to this reasoning, where a defendant filed only a motion to reconsider sentence, only consultation about contentions of error in the sentence would be required and subject to certification that counsel had consulted with the accused. With this proposition, the Illinois Supreme Court did not agree, holding that the word “or” is not disjunctive in all circumstances and is not here. The appellate court’s remand was affirmed.

6. Criminal Law/Privilege: Reversed and remanded: In this decision, the supreme court held that the privilege did not apply to the communication made while the defendant was physically abusing his wife because it was not confidential. The appellate court was incorrect on this point and its judgment was reversed.  Because the appellate court had reversed on this single issue and had not reached other claims raised by the defense, the cause was remanded to that court for its consideration of those other claims. Justice Burke delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, and Kilbride concurred in the judgment and opinion. Justice Theis specially concurred, with opinion, joined by Justice Karmeier.

No. 2014 IL 114491    People v. Trzeciak - Dissent upon denial of rehearing     Filed 2-21-14 (RJC) 

  

A Cook County jury convicted this defendant of the murder of a man who was found shot to death in his trailer in the Hegwisch area of Chicago in 2004. The defendant, then a resident of Hammond, Indiana, was arrested at his home there, where he lived with his wife. Her testimony is the subject of this appeal because the appellate court reversed on the theory that use of certain items of her testimony violated the marital privilege and were prejudicial. The trial evidence indicated that these three individuals all knew each other, that they were all drug users at the time, and that the defendant was a drug supplier whose home was set up in a fortified manner. There was also evidence of the defendant's physical abuse of his wife and his jealousy as to her concerning both the victim and others. The evidence which the appellate court ruled should not have been admitted, and which was the basis for its reversal, was the wife's statement in which she said that the defendant had threatened to kill both her and the victim. This threat had been made at the same time that he was beating her. In Illinois, the marital privilege is codified in section 115-16 of the Code of Criminal Procedure of 1963. No court in Illinois has yet defined what "confidential" encompasses. However, other jurisdictions have.   


1 Appellate Case Posted 2-24-14

1. Invasion of Privacy: Affirmed: Plaintiff's action, against law firm and defendant she had previously sued in federal court, here for invasion of privacy and negligence stemming from claim that her personal information, including social security number and other identifiers, had been posted to federal district court clerk's website in connection with e-filings in prior case, properly dismissed by circuit court under doctrines of absolute litigation privilege and res judicata where federal court had sealed personal information following plaintiff's discovery of it and prior to present action. Connors, J.

No. 2014 IL App (1st) 122677  Johnson v. Johnson and Bell, LTD.  Filed 2-14-14 (TJJ)


Plaintiff Merdelin Johnson (plaintiff) filed suit against defendants Johnson & Bell, Ltd., Target Corporation, Robert Burke, and Jennifer Rose alleging invasion of privacy, negligence, negligent infliction of emotional distress, and breach of contract. Defendants filed a motion pursuant to section 2-619 of the Code of Civil Procedure to dismiss, contending that plaintiff's claims were barred by the absolute litigation privilege, res judicata, and collateral estoppel. The trial court granted defendants' motion to dismiss, and plaintiff now appeals. We affirm.


3 Appellate Cases Posted 2-21-14

1. Franchise Law: Affirmed: Decision of Motor Vehicle Review Board in dispute between automobile dealers and manufacturer, in which Board held that manufacturer violated franchise agreement by imposing a "Warranty Supplemental Cost Recovery" charge designed to offset manufacturer's costs arising in connection with vehicle warranties, upheld as violative of Motor Vehicle Franchise Act and parties' franchise agreements. Fitzgerald Smith, J.

No. 2014 IL App (1st) 123795  Nissan North America, Inc. v. The Motor Vehicle Review Board  Filed 2-21-14 (TJJ)


Defendants-appellees M.E. Fields, Inc., d/b/a Fields Infiniti, and Yampa Valley Enterprises, Inc., d/b/a Fields Infiniti of Lake County, filed protests with defendant-appellee the Motor Vehicle Review Board against plaintiff-appellant Nissan North America, Inc., along with its Infiniti Division, with respect to a "Warranty Supplemental Cost Recovery" charge Nissan was imposing on all of its new Infiniti vehicles purchased by Infiniti dealers in Illinois. Fields and Yampa asserted that this charge violated section 6 of the Motor Vehicle Franchise Act. Following a hearing, the Board agreed with Fields and Yampa. Nissan sought administrative review of the decision, and the trial court upheld the Board's order. Nissan appeals, contending that the Board's order is inconsistent with the plain language of the Act, that the trial court's interpretation of section 6 was erroneous, that a portion of section 6 has been impermissibly applied retroactively, and that the Board's interpretation of section 6 is unconstitutional.  Nissan asks that we reverse the Board's order with instructions that judgment be entered in its favor. For the following reasons, we affirm.

2. Criminal Law: Affirmed: As State had notice of pendency of murder defendant's 2-1401 petition by virtue of their presence in open court when trial court noted that it had been filed, trial court's sua sponte dismissal of the petition was neither premature nor made without formal service on the State, and was proper, particularly where petition had no merit in any event. McBride, J.

No. 2014 IL App (1st) 120912  People v. Ocon  Filed 2-21-14 (TJJ)


Defendant Juan Ocon appeals the trial court's sua sponte dismissal of his pro se petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure. Defendant argues that the case must be remanded because the trial court's dismissal was premature since the State was not properly served with defendant's petition. Following a February 2002 jury trial, defendant was found guilty of one count of first degree murder and one count of attempt first degree murder. We will discuss the facts as necessary for the issues raised on appeal. For a more detailed discussion of these facts, see People v. Ocon, No. 1-02-1567 (Dec. 15, 2003) (unpublished order under to Supreme Court Rule 23). We affirm.

3. Criminal Law: Affirmed: Evidence showed that charge of aggravated criminal sexual abuse was not a lesser included offense of predatory criminal sexual assault charges, and separate consecutive sentence proper, and trial court did not err in admitting prior statements by child victim to teachers and medical personnel under Sections 115-10 and 115-13 of Code of Criminal Procedure. Steigmann, J.

No. 2014 IL App (4th) 120704  People v. Stull  Filed 2-21-14 (TJJ)


In April 2012, a jury convicted defendant, Aaron P. Stull, of (1) three counts of predatory criminal sexual assault of a child and (2) one count of aggravated criminal sexual abuse. The trial court later imposed separate 15-year sentences on counts I, II, and III and a 4-year sentence on count IV, all to be served consecutively. Defendant appeals, arguing that (1) his conviction for aggravated criminal sexual abuse violated the one-act, one-crime rule and (2) the trial court abused its discretion by admitting certain hearsay evidence. We disagree and affirm.

4 Appellate Cases Posted 2-19-14

1. Criminal Law/Post-Conviction Hearing Act: Affirmed: Defendant’s allegation is general and fails to specify that, had he been given the choice, he would have decided to submit the instruction; such an assertion is conclusory and may be disregarded. Id. at 990. Defendant raised only the violation of his right to choose whether to submit the instruction; in not stating that he would have chosen differently from his attorney and relating to the trial court, and to this court, why he would have done so, defendant has failed to establish prejudice. Thus, we find no error in the trial court’s dismissal of defendant’s postconviction petition. McLaren, J.

No. 2014 IL App (2d) 120884    People v. Rivera   Filed 2-19-14 (RJC)


Defendant, Jose J. Rivera, appeals from the dismissal of his petition filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). We affirm.

2. Admin. Law/Civil Service: Affirmed: In a civil service position as important as that of firefighter-paramedic, where life and limb are often at stake, we will not second-guess the Commission’s adherence to a high standard of professionalism within the fire department or bemoan plaintiff’s lost opportunity for a promotion. The Promotion Act, allowing the Commission to pass over plaintiff for misconduct, recognizes another important interest: the interest of the public in having dependable and professional officers in its civil service positions. The Commission found the incidents to amount to substantial work-performance shortcomings and misconduct affecting plaintiff’s ability to perform the duties of a lieutenant, and it documented its reasons for this determination. As that finding was not against the manifest weight of the evidence, its decision to pass over plaintiff for a promotion was not clearly erroneous. Spence, J.

No. 2014 IL App (2d) 121251    Chamberlain v. The Civil Service Commission of the Village of Gurnee, Illinois   Filed 2-19-14 (RJC)


Plaintiff, Henry Chamberlain, is a firefighter-paramedic with the Village of Gurnee fire department who was passed over for promotion to lieutenant. This was despite the fact that plaintiff was the highest-ranking person on the promotion eligibility list for that rank. Pursuant to section 20(d) of the Fire Department Promotion Act (Promotion Act) (50 ILCS 742/20(d) and article 18 of the collective bargaining agreement (CBA) between defendants Gurnee and the Gurnee Firefighters Union I.A.F.F. Local 3598, defendant the Civil Service Commission of the Village of Gurnee (Commission) passed over plaintiff after the fire department presented evidence regarding alleged work-performance shortcomings and incidents of misconduct. Plaintiff appealed the decision to the Lake County circuit court, which affirmed the decision. For the reasons stated herein, we affirm.

3.  Condemnation: Affirmed in part, reversed in part and remanded: In this case, Vaught’s valuation method was improper.  There was no basis for Vaught’s appraisal valuing every part of the property the same. The purpose of a condemnation proceeding is to place the landowner, or condemnee, in the same economic position as if no condemnation occurred, not to improve the condemnee’s financial status. Therefore, the trial court did not abuse its discretion by barring Vaught’s testimony.  Similarly, in this case, Metz-Gohla failed to consider the contributory value of the improvements within the remainder when valuing the part taken.  Metz-Gohla’s valuation method was improper and the trial court abused its discretion by denying the owner’s motion in limine to bar her testimony. McLaren, J.

No. 2014 IL App (2d) 130029   The Illinois Department of Transportation v. Raphael   Filed 2-19-14 (RJC)


In this condemnation case, defendant, Concetta L. Raphael (the owner), appeals the trial court’s order granting the motion in limine of plaintiff, the Illinois Department of Transportation (IDOT), to bar the testimony of the owner’s appraiser and denying the owner’s motion in limine to bar the testimony of IDOT’s appraiser. The owner also appeals the trial court’s order entering judgment of total just compensation in the amount of $18,000 for the property at issue. We affirm in part, reverse in part, vacate the judgment of total just compensation, and remand for further proceedings.

4.  Criminal Law: Affirmed:  The house did not appear to be abandoned, vacant, or unoccupied. To the contrary, the house was well maintained and well ordered and contained personal belongings indicative of occupancy including clothing, a bed, a kitchen table, and a television. There was no sign that the house was dilapidated, had suffered a fire, or was under major reconstruction or renovation. After viewing all the evidence in the light most favorable to the prosecution, we conclude that a rational jury could have found that the Cahokia house was a dwelling within the meaning of the residential burglary statute.. Welch, J.

No. 2014 IL App (5th  120486    People v. Burnley   Filed 2-19-14 (RJC)


At the conclusion of a jury trial held in the circuit court of St. Clair County, the defendant, Terrell Burnley, was convicted of residential burglary. On May 15, 2012, the defendant was sentenced to prison for a term of eight years. The defendant appeals, arguing that he was not proved guilty beyond a reasonable doubt because the evidence is insufficient to show that the home which he was found guilty of burglarizing was a "dwelling place" as defined in the Criminal Code of 1961 (the Code) (720 ILCS 5/19-3(a), 2-6(b) (West 2010)). He asks that we reduce his conviction to one for simple burglary and remand the cause for resentencing. Affirmed.

2 Appellate Cases Posted 2-18-14

1. Real Estate/Taxes: Affirmed: The trial court relied strongly on the certificate of error and the refund checks to find that the taxes had been paid. Like the court below, we believe the amended complaint should be dismissed, but employ a different analysis to reach that result. Even though there may be an issue of fact regarding whether the property was taxable, there is no dispute regarding: (1) the language of real estate sale contract; and (2) the fact that the county refunded taxes to TRS which it had paid in the first instance. We find that unjust enrichment is not available as a remedy here because there was a written contract governing the payment of the taxes. Also, because the contract absolves TRS of responsibility for these expenses, the declaratory judgment count falls along with the unjust enrichment count. Delort, J.

No. 2014 IL App (1st) 131452    Chicago Title Insurance Company v. The Teachers' Retirement System of the State of Illinois   Filed 2-18-14 (RJC)


Real estate taxes in Illinois are paid annually–not for the current year, but for the preceding year. See generally Jeffrey S. Blumenthal & David R. Gray, Jr., Tax Bills and Payments, in Real Estate Taxation, § 10.3 (Ill. Inst. for Cont. Legal Educ. 2012). Unpaid real estate taxes remain a lien on the property until paid. 35 ILCS 200/21-75 (West 2010). Properties with delinquent taxes are subject to possible sale at auction. Id. Accordingly, careful buyers of real estate will verify that the taxes are paid up, and contractual provisions will address how taxes for the immediately preceding and current years will be estimated and split between the parties at closing. In the ideal world, buyers and sellers walk away from closings never having to deal with each other again regarding the taxes. This case presents a textbook example of how Murphy’s Law came into play after what seemed to be a routine real estate closing. The court below rejected the buyer’s attempts to recover money it paid to rescue the property from loss at a tax sale. We affirm.

2. Insurance/Bad faith: Affirmed: The circuit court properly dismissed plaintiff’s second amended complaint pursuant to section 2-615 of the Code of Civil Procedure. Plaintiff’s second amended complaint failed to allege sufficient facts establishing a duty to settle the underlying claim. In particular, the complaint does not plead sufficient facts to establish a reasonable probability, as opposed to possibility, of liability in the underlying case. Delort, J.

No. 2014 IL App (1st) 123643    Powell v. American Service Insurance Company    Filed 2-18-14 (RJC)


Plaintiff Randy Powell appeals from the dismissal with prejudice of his second amended complaint against defendant, American Service Insurance Company (ASI). The circuit court found that plaintiff failed to state a claim for bad-faith failure to settle within policy limits and dismissed the complaint pursuant to section 2-615 (735 ILCS 5/2-615 (West 2010)) of the Illinois Code of Civil Procedure. We affirm.

5 Appellate Cases Posted 2-14-14

1. Criminal Law: Affirmed: In IDOC prisoner's action for mandamus, IDOC properly calculated prisoner's "outdate" using 12-year term on aggravated arson (at 85%), despite claim that second degree murder conviction and 17-year sentence was the statutory "maximum" term under former Section 5-8-7 of the Unified Code of Corrections governing time credits. Steigmann, J.

No. 2014 IL App (4th) 130056  Hughes v. Godinez  Filed 2-14-14 (TJJ)


In May 2012, plaintiff, Maurice Hughes, an inmate at Jacksonville Correctional Center, pro se filed a petition for writ of mandamus under article 14 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/14-101 to 14-109 (West 2012)), alleging that defendants, S.A. Godinez (Director, Illinois Department of Corrections (DOC)), Glen Austin (former warden, Jacksonville Correctional Center), and Rita Rossi (records officer), acted unlawfully by incorrectly calculating his projected release date from prison. In July 2012, defendants filed a motion for summary judgment pursuant to section 2-1005 of the Civil Code, arguing that no genuine issue of material fact existed because DOC had properly calculated plaintiff's projected release date based on the appropriate concurrent sentence imposed by the trial court. Following a September 2012 hearing, the trial court granted defendants' summary-judgment motion. Plaintiff pro se appeals, arguing that the court erred by granting summary judgment in defendants' favor. We disagree and affirm.

2. Juvenile Delinquency: Affirmed in part, vacated in part, and remanded: Minor properly found delinquent beyond a reasonable doubt despite claim that doubt existed due to one witness's inability to identify respondent as having entered the house in question, trial court properly considered less restrictive alternatives to Juvenile Department of Juvenile Justice and DOJJ sentence was proper, but adjudication for criminal trespass to residence vacated to comply with "one act, one crime rule." Pope, J.

No. 2014 IL App (4th) 130189  In re Javaun I.  Filed 2-14-14 (TJJ)


On January 28, 2013, respondent, Javaun I., was found guilty of home invasion, attempt (aggravated robbery), and criminal trespass to a residence. On March 4, 2013, the trial court sentenced respondent to an indeterminate sentence in the Illinois Department of Juvenile Justice (DOJJ). Respondent appeals, arguing the following: (1) the State presented insufficient evidence to prove his guilt beyond a reasonable doubt; (2) the court erred as a matter of law in sentencing him to DOJJ without first following the statutory requirements found in section 5-750(1) of the Juvenile Court Act of 1987; and (3) respondent's adjudication for both home invasion and criminal trespass to a residence violate the one-act, one-crime rule because both charges were based on the same physical act. We affirm in part, vacate in part, and remand with directions.

3. Mandamus/Public Universities: Affirmed: Trial court properly dismissed plaintiff's action against University of Illinois and its vice-chancellor for mandamus and prohibition, in connection with claim that defendants were improperly conducting a research misconduct investigation against plaintiff doctoral student, where jurisdiction lied only in Court of Claims, notwithstanding that plaintiff was not seeking monetary damages. Pope, J.

No. 2014 IL App (4th) 130465  Leetaru v. Board of Trustees of the University of Illinois  Filed 2-14-14 (TJJ)


On May 6, 2013, the trial court dismissed plaintiff Kalev Leetaru's complaint for a preliminary and permanent injunction against defendants, the Board of Trustees (Board) of the University of Illinois (University) and Howard R. Guenther in his official capacity as the associate vice chancellor for research at the University. Plaintiff appeals, arguing the court erred in dismissing his complaint. We affirm.

4. Firefighter's Pension/Administrative Review: Trial court properly denied petitioner firefighter/paramedic's claim that fire pension board improperly denied her claim for a duty-related disability, ruling instead that petitioner was only entitled to a nonduty disability, as evidence before pension board permitted board to rule that petitioner's injury was not shown to result from any duty-related incident, but was a function of pre-existing condition. Taylor, J.

No. 2014 IL App (1st) 130656  Carrillo v. Park Ridge Firefighters' Pension Fund  Filed 2-14-14


Plaintiff, former firefighter/paramedic Karen Carrillo, age 40, sought disability benefits from the Board of Trustees of the Park Ridge Firefighters’ Pension Fund (Board), based on degenerative arthritis of the left knee that rendered her unable to work. After holding a hearing on Carrillo’s disability application, the Board concluded that Carrillo’s injuries were due to a preexisting knee condition rather than any acts of duty. Accordingly, instead of awarding her duty-related disability, which would entitle her to a pension of 65% of her salary, the Board awarded her nonduty disability, which entitled her to a pension of only 50%. On administrative review, the circuit court upheld the Board’s decision. Carrillo now appeals, contending that she is entitled to line-of-duty disability benefits. For the reasons that follow, we affirm.

5. Criminal Law: Reversed: Defendant's conviction for violating the Sex Offender Registration Act was reversed where evidence established that defendant sought to register in a timely manner with police department, giving as his fixed address a VA hospital to which he was assigned by IDOC officials upon his release from a penitentiary, despite claims by police and prosecutors that hospital could not be deemed "a fixed residence." Mason, J.

No. 2014 IL App (1st) 112467  People v. Wlecke  Filed 2-5-14 (TJJ)


Following a jury trial, defendant Daniel Wlecke (Wlecke) was convicted of failing to register as a sex offender under the Sex Offender Registration Act and sentenced to two and a half years in prison. The Act requires a person convicted of a criminal sexual offense to register with the police or other law enforcement authority in whatever jurisdiction the offender resides. Section 3 of the Act provides that a sex offender “shall register* * * with the chief of police in the municipality in which he or she resides or is temporarily domiciled for a period of time of 3 or more days***.” The obvious purpose of the Act is to assist law enforcement agencies in tracking the whereabouts of sex offenders and to provide the public information about where they are residing. Wlecke was convicted of aggravated criminal sexual assault in 1992 and was thus required to register under the Act. In 2010, when Wlecke was released from prison on an unrelated offense, he was required to re-register with the Chicago Police Department. For the reasons that follow, we find that the State failed to prove Wlecke guilty beyond a reasonable doubt. We therefore reverse Wlecke's conviction.


3 Appellate Cases Posted 2-13-14

1. Criminal Law: Reversed and remanded: In juvenile prosecution for theft of a bicycle, trial court admission of hearsay statements by both the complainant and the investigating detective was improper, as the "course of investigation" exception to the rule against hearsay does not apply to a civilian's "private" investigation, and the trial court improperly permitted the detective to testify regarding the contents of the hearsay. Epstein, J. (Pucinski, J., dissenting).

No. 2014 IL App (1st) 103835  In re Jovan A.  Filed 2-13-14 (TJJ)


Following a bench trial, Jovan A. was adjudicated delinquent and sentenced to 18 months' probation. Respondent contends on appeal that the trial court improperly relied on hearsay, specifically, the content of a craigslist.org advertisement, to find that he  committed theft. For the reasons that follow, we reverse respondent's conviction and remand this cause for further proceedings.

2. Election Law: Affirmed: Objections to nominating petitions of candidate to office of State Representative properly sustained by election board where candidate filed necessary Secretary of State economic interest form used for local offices, not the form used for State offices, and late filing of "amended" form by candidate could not cure the initial failure to comply with the Election Code. Mason, J.

No. 2014 IL App (1st) 140255  Ferrand v. City of Chicago Board of Election Commissioners  Filed 2-13-14 (TJJ)


Appellant, Melanie "Mel" Ferrand (Ferrand), is a candidate for the office of Representative in the Illinois General Assembly for the 40th Representative District. Ferrand seeks review of a decision of defendant-appellee, the City of Chicago Board of  Election Commissioners (Board), which sustained objections to her nominating papers based on her failure to file with the Secretary of State a statement of economic interests required of candidates for state office. The Board's decision was affirmed by the  circuit court. For the reasons that follow, we affirm.

3. Criminal Law: Reversed in part and remanded: Conviction for first degree murder revered in face of failure of State to present sufficient evidence to show that defendant acted in concert with shooter, or pursuant to any common design, but matter remanded for sentencing on aggravated discharge of a firearm conviction where evidence showed that defendant fired a gun into the air. Lavin, J. (Modified on rehearing).

No. 2013 IL App (1st) 112693  People v. Williams  Filed 12-26-13 (TJJ)


Following a bench trial, defendant Clarence Williams was found guilty of one count of first-degree murder based on an accountability theory. Defendant received a sentence of 23 years in prison and an additional 20-year firearm enhancement. On appeal, defendant asserts that (1) the evidence was insufficient to sustain his conviction; (2) the trial court erred by admitting gang evidence through an unqualified witness and a witness's prior consistent  statement; (3) the murder was not sexually motivated and defendant should not be required to register as a sex offender; and (4) defendant's mittimus should be corrected to reflect that he was convicted of first-degree murder with a mandatory firearm enhancement, not two first-degree murder convictions. We  reverse defendant's conviction for first-degree murder and remand for sentencing on the lesser offense of aggravated discharge of a firearm.

2 Appellate Court Cases Posted 2-11-14

1. Fair Credit Reporting Act: Affirmed: A a complaint filed by an unregistered collection agency is *** a nullity, and any judgment entered on such a complaint is void.  The subsequent registration of the collection agency does not absolve the agency of the crime of debt collection by an unregistered collection agency, and it does not validate a judgment entered on the void complaint.   The Illinois Act defines a "collection agency" or a "debt collector" as "any person who, in the ordinary course of business, regularly, on behalf of himself or herself or others, engages in debt collection." It exempts attorneys at law.  Harris, J.

No. 2014  IL App (1st) 123681  Gibbs v. Blitt and Gaines, P.C. Filed 02-11-14   (LJD)


Plaintiff Elizabeth (Libby) Gibbs appeals from the order of the circuit court dismissing her amended complaint for violations of the Fair Debt Collection Practices Act (FDCPA) (15 U.S.C. §1692 et seq. (2006)) against defendant Blitt & Gaines, P.C. (Blitt & Gaines). On appeal, Gibbs contends that the trial court erred in dismissing her claim because law firms may be held liable for violations under the FDCPA even if the Illinois Collection Agency Act (Illinois Act) (225 ILCS 425/1 et seq., (West 2012)) expressly excludes attorneys from its requirements. For the following reasons, we affirm.

2.  Civil Discovery Sanctions: Rule 219 affords a trial judge broad discretion in fashioning a sanction appropriate under the specific circumstances. Generally, a sanction will not be reversed absent an abuse of discretion. In determining whether the trial court abused its discretion, a reviewing court looks to the same factors that the trial court considers in deciding on a constructive sanction: (1) surprise to the adverse party; (2) the prejudicial effect of the proffered evidence; (3) the nature of evidence being sought; (4) diligence of the adverse party in seeking discovery; (5) timeliness of the adverse party's objection to the testimony or evidence; and (6) the good faith of the party offering the evidence.  The trial court may enter an array of sanctions as are just against "any party who unreasonably refuses to comply with any provisions of [the] court's discovery rules or any order entered pursuant to these rules."  A sanction should be tailored to promote discovery, not punish a dilatory party.   Hyman, J.

No. 2014  IL App (1st) 113576  Locasto v. The City of Chicago Filed 02-11-14   (LJD)


For years lawyers have complained about how rarely trial judges mete out sanctions for dilatory discovery practices. This reluctance, they say, has contributed to an environment in which some lawyers (and parties, too) flout court rules and court orders because the chances of unpleasant consequences tends to be so low. But that is not what happened here. Plaintiff Joseph Locasto asks us to award him an additional $1 million in damages for emotional suffering on top of the nearly $2 million judgment by default entered as a discovery sanction against the City of Chicago and four city employees. The sanction was sought after defendants failed to meet several discovery deadlines. Defendants cross-appeal, arguing the trial court abused its discretion by entering the default without considering the possibility of a less severe sanction.  We vacate the judgment of default and remand for further proceedings in the trial court.

1 Appellate Court Cases Posted 2-10-14

1.  Contact Law/Fraud: Affirmed:  A finding is against the manifest weight when "the opposite conclusion is clearly evident or the finding is arbitrary,  unreasonable, or not based in the evidence."    To prevail on an action for fraud, a plaintiff must establish by clear and convincing  evidence (1) a false statement of material fact; (2) knowledge by defendant that the statement is false; (3) intent to induce the other party to act; (4) reliance by plaintiff on that misrepresentation; and (5) injury caused by that reliance.   Fraud may be perpetrated by a misrepresentation or by concealment.  For fraud in the inducement, the defendant must have made a false representation of a material fact knowing or believing it to be false and doing it for the purpose of inducing the plaintiff to act. Id. A representation may be made by words, actions or other conduct amounting to a statement of fact. Id. A fiduciary relationship is not necessary to establish fraud.  A court may award punitive damages if the defendant's tortious acts are malicious or display reckless disregard for another's rights.  The purpose of punitive damages is to punish the defendant and deter others from the same conduct. To determine whether punitive damages are appropriate, the trier of fact can properly consider the character of the defendant's acts, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant."  Evidence of the defendant's financial status is necessary for an appellate court to properly review a challenge to an award of punitive damages.  A trial court must evaluate available evidence of a defendant's financial worth in calculating punitive damages, but an award will not be overturned just because the defendant did not present evidence of financial worth at trial.  In reviewing a trial court's decision to award punitive damages, the appellate court must take a three-step approach, "considering (1) whether punitive damages are available for the particular cause of action, using a de novo standard, (2) whether, under a manifest weight of the evidence standard, the defendants acted fraudulently, maliciously or in a manner that warrants such damages, and (3) whether the trial court abused its discretion in imposing punitive damages.  Vendor's liens and their equitable considerations also discussed and analyzed.  McDade, J.

No. 2014  IL App (3rd) 11074 Stump v. Swanson Development Company Filed 02-10-14   (LJD)


This case involves cross-appeals from the decision of the circuit court of Will County resolving multiple claims and cross-claims of breach of contract and fraud, and seeking accounting and rescission of legal agreements in conjunction with three real estate development projects in Peotone, Frankfort, and Mokena–all of which are in Will County, Illinois. We affirm and remand for further proceedings, if necessary, consistent with this opinion.

7 Appellate Court Cases Posted 2-07-14

1.  Criminal Law: Affirmed:  The " 'essential aim' " of the sixth amendment, however, " 'is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.' " The advocate-witness rule precludes an attorney from acting as advocate and witness in the same case." There is an inherent  conflict of interest in an advocate-witness; "the function of an advocate is to advance or Thus, the trial court is afforded " 'substantial latitude' to refuse to allow a defendant to waive his chosen counsel's actual or potential conflict of interest."argue the cause of another, while that of the witness is to state the facts objectively."  The attorney-witness may not be a fully objective witness, causing harm to the client's cause, or the trier of fact may grant undue weight to the attorney's testimony, unfairly disadvantaging the opposing party."  Reyes, J.

No. 2014  IL App (1st) 113082  People v. Koen Filed 02-07-14   (LJD)


Following a jury trial, defendant Charles Koen (Koen) appeals his convictions of theft (720 ILCS 5/16-1(a)(1) (West 2004)) and forgery (720 ILCS 5/17-3(a)(1) (West 2004)). On appeal, Koen argues (1) his actions were lawful under the General Not For Profit Corporation Act of 1986 (805 ILCS 105/101.01 et seq. (West 2004)); (2) the trial court abused its discretion in disqualifying Charles Koen Jr., as his counsel; (3) the testimony of Barry Goldberg violated his right to a fair trial; (4) the trial court's jury instructions violated his right to a fair trial; (5) statements made during the State's closing argument violated his right to a fair trial; and (6) the mittimus must be corrected to reflect the proper offense and time spent in custody. For the following reasons, we affirm Koen's convictions and correct the mittimus.

2.  Real Estate Taxes: Affirmed: Where a public official has failed or refused to comply with requirements imposed by statute, the court may compel the official to comply with the statutory  requirement by means of a writ of mandamus, provided the requirements for the writ have been satisfied. A mandamus cannot be used to compel a public official to perform an act which requires the exercise of his discretion. Prior to seeking relief in the circuit court for an incorrect assessment, a taxpayer must first exhaust his administrative remedies provided by the statute, beginning with the board of review.  Hall, J.

No. 2014  IL App (1st) 121966 Dumas v. Pappas Filed 02-07-14   (LJD)


The pro se plaintiffs, Betty J. Dumas and Jerome J. Casimir, appeal from an order of the circuit court of Cook County dismissing their petition for a writ of mandamus and for a declaratory judgment against the defendants, Maria Pappas, Cook County treasurer, David Orr, Cook County clerk, and Joseph Berrios, Cook County assessor. On appeal, the plaintiffs contend that the circuit court erred in dismissing the petition and that they should have been allowed to amend the petition. For the reasons set forth below, we affirm the judgment of the circuit court.

3.  Constitutional Law: Affirmed:  Under the State Finance Act, all monies belonging to or for use of the State of Illinois are held either in the General Revenue Fund or a special fund.  The  Administration Fund is a special fund.  The General Assembly has amended the State Finance Act to authorize transfers from special funds into the General Revenue Fund.  The License Act's purpose "is to evaluate the competency of persons engaged in the real estate business and to regulate this business for the protection of the public."  The standing doctrine ensures issues are raised by parties with a real interest in the controversy's outcome.  "In order to have standing to challenge the constitutionality of a statute, a party must have sustained, or be in immediate danger of sustaining, a direct injury as a result of the enforcement of the challenged statute  Knecht, J.

No. 2014  IL App (4th) 130079  Illinois Association of Realtors v. Stermer  Filed 02-07-14   (LJD)


In June 2006, plaintiff, Illinois Association of Realtors, filed a complaint asserting the FY2007 Budget Implementation (Finance) Act (2007 Budget Act) (Pub. Act 94-839 (eff.  June 6, 2006)) was unconstitutional because it transferred monies from the Real Estate License Administration Fund (Administration Fund) into the state's General Revenue Fund. In June 2012, defendants filed a motion to dismiss pursuant to section 2-619.1 of the Code of  Civil Procedure.  The trial court dismissed plaintiff's second amended complaint.   We conclude plaintiff lacks standing and affirm.

4.  Contract Law: Answer: No, Order reversed and Remanded:  The Supreme Court decisions has long held that a private contract, or provision therein, will not be declared as void as contrary to public policy unless it is ' "clearly contrary to what the constitution, the statutes or decisions of the courts have declared to be the public policy" ' or it is clearly shown that the contract is ' "manifestly injurious to the public welfare.'"  Contracts of indefinite duration are generally terminable at the will of the parties.  Agreements that are terminable only by the mutual agreement of the parties are contracts of indefinite duration and, thus, terminable at will. T.    Gordon, J.

No. 2014  IL App (1st) 131522  Rico Industries, Inc. v. TLC Group, Inc.  Filed 02-07-14   (LJD)


Plaintiff Rico Industries, Inc. (Rico), entered into an agreement with defendant TLC Group, Inc. (TLC), making TLC the exclusive sales representative of its products to Wal-Mart Stores, Inc. (Wal-Mart), and its affiliates and subsidiaries. The agreement contained a termination provision which stated that the contract may only be terminated by the written agreement of both parties. Rico filed a declaratory judgment action, seeking a judgment that the agreement is terminable at will because the termination provision created a perpetual contract and is thus contrary to Illinois public policy. In its answer, TLC pled counterclaims for breach of contract, quantum meruit, an accounting, and causes of action under the Arkansas sales representative statutes and the Illinois Sales Representative Act.  Certified Question answered "No."

5.  Pension/HealthCare Benefits: Affimed in part and Reversed in Part and remanded: Complex declaratory judgement case about Health Care Benefits for reitrees.  It discusses standing of the various gclasses of parties, vesting and the presumption of vesting, preemption by Federal Law and conflicting Illinois cases.  It is a 61 page case which is almost impossible to summarize.  Gordon, J.

No. 2014  IL App (1st) 123348  Matthews v. Chicago Transit Authority  Filed 02-07-14   (LJD)


The instant appeal arises from the dismissal of plaintiffs’ class action suit pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-615, 2-619 (West 2010)). Plaintiffs’ complaint alleges that defendants substantially diminished and impaired the vested retirement health care benefits of plaintiffs, current and retired employees of defendant Chicago Transit Authority (the  CTA). The trial court dismissed the case, finding: (1) that the plaintiffs who were current CTA employees lacked standing; (2) that none of the plaintiffs could state a claim against the CTA because it had no responsibility for retiree health care benefits; and (3) that none of the plaintiffs could state a claim against any of the defendants because plaintiffs did not have a vested right to retiree health care benefits. Plaintiffs appeal, and we affirm in part and reverse in part.

6.  Landlord/Tenant: Affirmed in part and Reversed in Part: Claims under seveal sections of the Chicago Residential Landlord Tenant Act discussed and sanalyzed.  The accrual of a cause of action occurs when facts exist that authorize the bringing of the action." Employing the waiver rule against an appellee is particularly apt 'if the opposing party could have introduced evidence to contest or refute the assertions made on appeal, had he an opportunity to do so in the trial court.'  Conclusions of fact are insufficient to state a cause of action regardless of whether they
generally inform the defendant of the nature of the claim against him.  Rather, under Illinois fact pleading, the pleader is required to set out ultimate facts that support his or her cause of action. In the absence of supporting facts, the general allegations in [a complaint] are mere conclusions. [Citation.] Conclusory allegations of fact or law are not admitted in a section 2-615 motion. Palmer, J.

No. 2014  IL App (1st) 121893  Faison v. RTFX, Inc. Filed 02-07-14   (LJD)


Plaintiff Toccara Faison appeals the circuit court's decision to grant defendant RTFX, Inc.'s motion to dismiss pursuant to sections 2-615 and 2-619 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2008)) plaintiff's class action complaint in which she alleged violations of several provisions of the Chicago Residential Landlord Tenant Ordinance (RLTO) (Chicago Municipal Code § 5-12-010 et seq.), and breach of the implied warranty of habitability.

7.  Juvenile Court: Affirmed: Although there is no constitutional right to counsel in proceedings pursuant to the Act, a statutory right is granted under the Act. "Illinois courts apply the standard utilized in criminal cases to gauge the effectiveness of counsel in juvenile proceedings."  "Generally, in order to establish ineffective assistance of counsel, one must show both that counsel's representation fell below an objective standard of reasonableness and that a reasonable probability exists that, but for the error, the result would have been different."  Respondent must satisfy both prongs of the Strickland test in order to prevail on a claim of ineffective assistance of counsel.  However, "[i]f the ineffectiveness claim can be disposed of because defendant did not suffer sufficient prejudice, a court need not consider whether counsel's performance was deficient."  The Illinois Rules of Evidence define hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."  However, "testimony about an out-of-court statement which is used for a purpose other than to prove the truth of the matter asserted in the statement is not 'hearsay.' "  When a trial court sits without a jury, "we presume that the trial court relied only upon competent evidence in making its determination."  A defense counsel's decision not to object to the admission of purported hearsay testimony involves a matter of trial strategy and, typically, will not support a claim of ineffective assistance of counsel.   Palmer, J.

No. 2014  IL App (1st) 131281 In re Charles W. Filed 02-07-14   (LJD)    


Respondent, Charles W., Sr., is the adoptive father of minors Charles W. (Charles) and Darious W. Respondent appeals the trial court's March 19, 2013, adjudication orders finding Charles and Darious dependent pursuant to section 2-4(1)(b) of the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/1-1 et seq. (West 2010)). Respondent also appeals the trial court's March 19, 2013, and May 23, 2013, dispositional orders making Charles and Darious, respectively, wards of the court.

1 Supreme Court Case Posted 2-06-14

1. Revestment Doctrine: Appellate and Trial Court Affirmed: For the doctrine to apply, “the parties must actively participate without objection in proceedings which are inconsistent with the merits of the prior judgment.”  Under the principle of stare decisis, we will not overturn longstanding precedent in the absence of a demonstration of “good cause” or the identification of “compelling reasons.” The inherent conflict between a rule and its exception does not meet that high standard. We hold that, for the revestment doctrine to apply, both parties must: (1) actively participate in the proceedings; (2) fail to object to the untimeliness of the late filing; and (3) assert positions that make the proceedings inconsistent with the merits of the prior judgment and support the setting aside of at least part of that judgment. If any one of those requirements remains unmet, the doctrine does not revest the court with jurisdiction.    Kilbride, J.

No. 2014  IL 115459  People v. Bailey  Filed 02-06-14   (LJD)


In this appeal, we are presented with an opportunity to clarify the parameters of the revestment doctrine that permits a court to be revested with jurisdiction despite the absence of a timely postjudgment filing. At the core of this dispute is whether a party may satisfy the doctrine’s requirement that the subsequent proceeding be inconsistent with the prior judgment simply by failing to object on the basis of its untimeliness or the finality of the prior judgment. We conclude that the revestment doctrine requires more and that expressing opposition to alteration of the prior judgment bars application of the doctrine. Here, the State opposed the alteration of the prior judgment, precluding the circuit court from reacquiring jurisdiction over defendant’s case under the doctrine of revestment. The circuit court should therefore have dismissed defendant's postjudgment motion to vacate his plea and sentence for lack of jurisdiction.

1 Appellate Court Case Posted 2-06-14

1.  Mental Health: Remanded: When an individual has been acquitted of a crime by reason of insanity, his subsequent treatment is governed by section 5-2-4 of the Code, which authorizes the acquittee's involuntary commitment in order to treat the individual's mental illness and also to protect him and society from his potential dangerousness.  Section 5-2-4(b) relates to inpatient mental health services after a person is acquitted by reason of insanity and says, in relevant part, that the facility director shall file a treatment plan report, which may include a request for off-grounds pass privileges.  When a petition for treatment plan review is filed by the defendant or, in this case, a person on the defendant's behalf, including a request for off-grounds pass privileges, a hearing must follow. If evidence is presented, the burden of proof remains with the defendant and the "findings of the Court shall be established by clear and convincing evidence."  The trial court must make adequate findings of fact and conclusions of law for a reviewing court to effectively address the trial court's judgment.    Lavin, J.

No. 2014  IL App (1st) 122502  People v. Bethke Filed 02-06-14   (LJD)


In this rather unusual appeal, we confront the trial court's denial of a petition filed on behalf of defendant Michael Bethke recommending that he be allowed escorted leave of the mental health center's premises, or "supervised off-grounds pass privileges" pursuant to sections 5-2-4(b) and (e) of the Unified Code of Corrections (Code) (730 ILCS 5/5-2-4(b), (e) (West 2010)). Following an evidentiary hearing on the matter, the trial court denied the petition. On appeal, defendant asserts that the trial court's decision was against the manifest weight of the evidence, that the trial court based its decision on an impermissible standard, and that the trial court failed to make findings of fact as required by section 3-816(a) of the Mental Health and Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/3-816(a) (West 2010)). We remand.

5 Appellate Court Cases Posted 2-05-14

1. Attorney's Referral  Fees/ Workers Compensation: Affirmed: Section 2-619(a)(1) of the Code permits the dismissal of a complaint when “the court does not have jurisdiction of the subject matter of the action.”  Whether a court has subject matter jurisdiction over a claim is determined by examining the nature of the case and the relief sought. Illinois circuit courts are courts of general jurisdiction.  Thus, they have original jurisdiction over all justiciable controversies except (1) cases over which the federal courts have exclusive jurisdiction, (2) matters committed to administrative tribunals, and (3) those matters that the Illinois Constitution indicates are within the exclusive original jurisdiction of the Illinois Supreme Court. The Comp Act does not grant the Commission authorityto decide issues concerning a breach of a referral agreement delineating the percentage of the awarded fee that should be allotted to the attorney who represented the claimant before the Commission and the attorney who referred the claimant to that attorney.Birkett, J.

No. 2014  IL App (2nd) 130129  Ferris, Thompson, and Zweig, LTD. v. Esposito Filed 02-05-14   (LJD)


Plaintiff, Ferris, Thompson, & Zweig, Ltd., referred to defendant, Anthony Esposito, two workers’ compensation cases. According to the parties’ agreement, plaintiff was to receive 45% of all attorney fees recovered in the cases, with defendant receiving the remaining 55%. When the cases were resolved, defendant never paid plaintiff. Accordingly, plaintiff sued defendant in the circuit court for breach of contract. Defendant moved to dismiss, arguing that the claim should have been filed with the Workers’ Compensation Commission (Commission) and not in the circuit court. See 735 ILCS 5/2-619(a)(1) (West 2012). The circuit court denied that motion and, following a trial, ordered defendant to pay plaintiff the fees it was owed plus interest.  On appeal, defendant argues that the circuit court lacked subject matter jurisdiction over the case. We disagree, and, thus, we affirm.

2.  Mental Health: Reversed:  An appeal is considered moot where it presents no actual controversy or where the issues involved in the trial court no longer exist because intervening events have rendered it impossible for the reviewing court to grant effectual relief to the complaining party.”  Mootness doctrine exceptions discussed.  The Code requires specific evidence of the benefits and risks of each medication so that the trial court can determine whether the State has demonstrated by clear and convincing evidence that the benefits of the proposed treatment outweigh the potential harm. Hudson, J.

No. 2014  IL App (2nd) 130044 In re Donald L. Filed 02-05-14   (LJD)


Respondent, Donald L., appeals the trial court’s order authorizing the involuntary administration of psychotropic medication and testing for up to 90 days under section 2-107.1(a-5)(4) of the Mental Health and Developmental Disabilities Code (Code) (405 ILCS 5/2-107.1(a-5)(4) (West 2012)). Respondent contends that the trial court failed to comply with the Code when it allowed his doctors to administer unspecified tests. He also contends that the court erred in finding that he lacked capacity to make a reasoned decision about medication. We agree with respondent’s first contention and reverse on that point.

3.  Forclosue/Fraud: Reversed and Remanded:  To qualify for an order for prejudgment attachment, a plaintiff must establish (1) by a preponderance of the evidence at least one of the nine varieties of "cause" listed in section 4-101 (735 ILCS 5/4-101 (West 2012)); and (2) a "probability" of success on the merits (735 ILCS 5/4-137 (West 2012). The Attachment Act "shall be construed in all courts in the most liberal manner for the detection of fraud."  Actual fraud is necessary to establish cause under subsection 4-101(9). A claim of actual fraud requires five elements: (1) a false statement of material fact; (2) by one who knows or believes it to be false; (3) made with the intent to induce action by another in reliance on the statement; (4) action by the other in reliance on the truthfulness of the statement; and (5) injury to the other resulting from that reliance. O'Brien, J.

No. 2014  IL App (3rd) 130129 U.S. Bank National Association v. Rose Filed 02-05-14   (LJD)


This appeal arises out of a foreclosure and fraud action filed by plaintiff, U.S. Bank National Association (US Bank), against defendants, Michael H. Rose (Rose) and MHR Estate Plan LLC (MHR Estate Plan). After filing its complaint in the foreclosure case, plaintiff filed a motion for prejudgment attachment against defendants' assets. The trial court denied the motion. Plaintiff appeals. We reverse and remand for further proceedings.

4.  Tort: Reversed and remanded:  Relevant evidence is any evidence that has a tendency to make the existence of a fact of consequence in the case more probable or less probable than it would be without the evidence.  In addition, a court may exercise its discretion and exclude evidence, even if it is relevant, if the danger of unfair prejudice substantially outweighs its probative value. Ill. R. Evid. 403 (eff. Jan. 1, 2011). Distinguishing between an experiment (substantive evidence) and the use of demonstrative evidence (explanatory evidence) is sometimes difficult and confusing.  The foundational requirements for the admission of experiments or tests is “whether the ‘essential conditions’ or ‘essential elements’ of the experiment are substantially similar” to the conditions at the time of the accident. If an experiment is presented as a reenactment, the proponent must establish the test was performed under conditions closely duplicating the accident. When an experiment is designed to test only one aspect or principle related to the cause or result of the accident at issue, the exact conditions of the accident do not need to be replicated but that particular aspect or principle must be substantially similar.  It is proper to exclude experiments to determine the extent of visibility prior to the accident in question if the conditions are not substantially similar (where type of vehicle, light condition, and conditions of highway in line-of-sight test were not the same, nor substantially the same, as during the accident, the trial court’s refusal to admit experiment to determine extent of driver’s visibility was not an abuse of discretion); O'Brien. J., dissent by Schmidt, J.

No. 2014  IL App (3rd) 130137  Lorenz v. Dayton Filed 02-05-14   (LJD)


Plaintiffs Brian Dayton, individually and as special administrator of the estate of Jill Dayton, deceased, Amanda Dayton Nehring, and others not involved in this appeal, filed personal injury and wrongful death actions against defendants Thomas Pledge and the McDonough County sheriff’s department, for damages they sustained following a car accident between the Daytons’ minivan and a sheriff’s squad car. Following a trial, the jury entered a verdict in favor of Pledge. The Daytons appealed. We reverse and remand for a new trial.

5.  Legal Negligence: Affimed: Generally, the standard of review in a bench trial is whether the judgment is against the manifest weight of the evidence. A judgment is against the manifest weight of the evidence only when the opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not based on the evidence.  Moreover, the issue of proximate causation in a legal malpractice setting in particular is considered a factual issue to be decided by the trier of fact.  Such a determination is to be made by the trier of fact after consideration of all the evidence and attending circumstances. The proximate cause element of a legal malpractice claim requires that the plaintiff show that but for the attorney's malpractice, the client would have been successful in the undertaking the attorney was retained to perform.  Spomer, J., special concurrence by Cates, J.

No. 2014  IL App (5th) 130029  Green v. Papa Filed 02-05-14   (LJD


The plaintiff, Darlene Green, formerly known as Darlene Riskovsky, appeals from the December 20, 2012, order of the circuit court of St. Clair County, which entered a judgment in favor of the defendants, John T. Papa and Callis, Papa, Hale, Szewczyk, & Danzinger, P.C. (Papa), on Darlene's complaint for legal malpractice. On appeal, Darlene argues that the circuit court erred in finding that Papa did not breach his duty to Darlene, and assuming there had been a breach of duty, it was not the proximate cause of Darlene's damages. For the reasons that follow, we affirm.

3 Appellate Court Cases Posted 2-04-14

1.  Criminal Law: Affirmed in part and Vacated in part:  The one-act, one-crime doctrine prohibits multiple convictions when: (1) the convictions are carved from precisely the same physical act; or (2) one of the offenses is a lesser-included offense of the other.  The first step is to determine whether the defendant's conduct consisted of a single physical act or separate acts.  "Multiple  convictions are improper if they are based on precisely the same physical act." Our supreme court has defined an "act" as " 'any overt or outward manifestation which will support a different offense.' "  A void conviction for the Class 4 form of AUUW found to be unconstitutional in Aguilar, cannot now, nor can it ever, serve as a predicate offense for any charge.  Pierce, J.

No. 2014  IL App (1st) 102939  People v. McFadden Filed 02-04-14   (LJD)

Following a bench trial in the circuit court of Cook County, the trial judge found defendant Onaffia McFadden guilty of three armed robberies while armed with a firearm and two counts of unlawful possession or use of a weapon (UUW) by a felon. The trial judge sentenced defendant to 29 years in prison on each of the armed robbery convictions, including a 15-year enhancement for carrying a firearm pursuant to section 18-2(b) The trial judge also sentenced defendant to 10 years in prison on each of the convictions for UUW by a felon. All of the sentences were ordered to be served concurrently.   We affirm defendant's convictions and sentences for armed robbery, vacate defendant's convictions for UUW by a felon, and correct the mittimus.

2.  Juvenile Justice: Order vacated and remanded:  In determining the plain meaning of statutory terms, a court should consider the statute in its entirety and keep in mind the subject the statute addresses and the apparent intent of the legislature in enacting the statute.  In addition, if the statute is a criminal or penal one, it must be strictly construed in favor of the defendant.  The supreme court has held that because of the differences involved in a juvenile proceeding and an adult proceeding and because of the safeguards necessary before an adult may be convicted of a felony, a prior juvenile delinquency adjudication for a felony offense did not constitute a prior felony conviction for purposes of the escape statute.   Carter, J.

No. 2014  IL App (3rd) 110467-B In re Antoine B.Filed  02-04-14   (LJD)


Respondent, Antoine B., was adjudicated delinquent for two counts of felony theft (720 ILCS 5/16-1(a)(1)(A), (b)(2) (West 2010)) and committed to the Department of Juvenile Justice (DOJJ) for an indeterminate term not to exceed three years. Respondent appealed, arguing that the commitment to the DOJJ was excessive. We affirmed the trial court's judgment. In re Antoine B., 2013 IL App (3d) 110467-U, ¶¶ 14, 17. Pursuant to a supervisory order from the supreme court, we subsequently withdrew our decision and directed the parties to file supplemental briefing on the issue of whether respondent's felony adjudications were void under the supreme court's decision in People v. Taylor, 221 Ill. 2d 157, 182 (2006), which held that a prior felony juvenile adjudication was not a prior felony conviction for purposes of the escape statute.   We vacate the trial court's commitment order and remand this case with directions for further proceedings.

3.  Post Conviction Petition: Affirmed: The Pugh court expressly stated that it was concerned that imposing consecutive sentences would increase the defendant's time in prison on the armed robbery and forcible detention charges.  However, we are not bound by the decisions of other districts of the Illinois Appellate Court.  We do not find this holding persuasive, particularly when it is at odds with the overwhelming weight of authority in Illinois, which holds that ordering sentences to run consecutively on remand does not itself constitute an increase in any individual sentence.  When a defendant is sentenced to concurrent sentences, he is entitled to credit against both sentences for any time spent in custody that is attributable to both charges. By contrast, when consecutive sentences are imposed, all time spent in custody is credited only once against the aggregate term of the consecutive sentences.  Chapman, J.

No. 2014  IL App (5th) 120097   People v. Inman Filed  02-04-14   (LJD)


The defendant, Thomas G. Inman, appeals an order dismissing his petition for postconviction relief at the second stage. The defendant was convicted of first-degree murder and attempted first-degree murder and sentenced to concurrent prison terms of natural life for murder and 30 years for attempted first-degree murder. After his natural-life sentence was vacated years later, the defendant was resentenced to 35 years on the murder charge, to be served consecutive to the 30-year attempted murder sentence. The defendant filed a postconviction petition, alleging that the resentencing court violated principles of double jeopardy by ordering his sentences to run consecutively. On appeal from the second-stage dismissal of that petition, the defendant argues that (1) the consecutive sentences violate his right to due process and (2) consecutive sentences constitute double jeopardy. We affirm.

1 Appellate Court Case Posted 2-03-14

1.  Probate: Affirmed in part and reversed in part:  Section 8-1(a) of the Probate Act provides that an action to contest the validity of a will must be filed within six months after the admission of the will to probate.   An action to set aside or contest the validity of a revocable inter vivos trust agreement must be filed within the same time period.  The six-month limitation period is a jurisdictional limitation barring any claim to contest the validity of a will or trust filed beyond that period.  The law-of-the-case doctrine prohibits reconsideration of issues which have been decided in a prior appeal.  The rule is that no question which was raised or could have been raised in a prior appeal on the merits can be urged on subsequent appeal and those not raised are considered waived."  The purpose behind the law-of-the-case doctrine is to "protect [] settled expectations of the parties, ensure [] uniformity of decisions, maintain [] consistency during the course of a single case, effectuate [] proper administration of justice, and bring [] litigation to an end."  When no fiduciary relationship exists as a matter of law, the party seeking relief must show by clear and convincing evidence the existence of such relationship.    Cunningham, J.

No. 2014  IL App (1ST) 112219   In re Estate of Feinberg Filed  02-03-14   (LJD)


Following a bench trial in the circuit court of Cook County, the trial court entered a May 16, 2011 judgment, pursuant to a citation to recover assets filed by petitioner Fifth Third Bank as trustee of the Erla Feinberg Trust, against respondent Michael Feinberg in the amount of $788,957 and against respondents Leila and Marshall Taylor in the amount of $1,911,107.  For the following reasons, we affirm in part and reverse inpart the judgment of the circuit court of Cook County.


Click on month for For Supreme Court & Appellate Opinions (with Summaries) posted during   December, 2013