Illinois Supreme and Appellate Court Case Summaries

14 Appellate Court Cases Posted 9-28-12

1. Criminal Law: Reversed and remanded: Defendant's conviction for first degree murder reversed in light of trial court error admitting "other crimes" evidence, where no showing was made that defendant was involved in the "other crime," notwithstanding that his co-defendant was (who was tried before a separate jury. Fitzgerald Smith, J.

2. Taxation: Affirmed: Department of Revenue did not improperly calculate the amount of a capital loss sustained in 2002, and sought to be carried back to offset a capital gain in 1998, was properly apportioned to corporate activity in this State, and the Department's decision to deny in part a tax refund upheld. Howse, J.

3. Criminal Law: Affirmed: Evidence, including victim's identification of defendant by photo and in a lineup and DNA matching defendant found on clothing discarded near location of armed robbery, sufficient to prove defendant guilty beyond a reasonable doubt of armed robbery, notwithstanding tentative photo ID of another person and no gun recovered; 15-year firearm enhancement to sentence did not violate proportionate penalties clause. Rochford, J.

4. Public Officer Prohibited Activities Act: Affirmed: Trial court decision granting judgment to school board voiding settlement agreement with defendant school board member affirmed, as defendant was prohibited from state Public Officer Prohibited Activities Act from voting on issue of whether to approve board's agreement with him. Hall, J.

5. Insurance Coverage: Reversed and remanded: In a case of first impression in Illinois, trial court erred in granting summary judgment for insurance company in coverage dispute stemming from a fire at plaintiffs' building that took place after premises were vacated but before property demolished per plaintiffs' agreement with demolition company. Hoffman, J.

6. Long-Arm Jurisdiction: Reversed and remanded: Trial court erred in ruling that film distribution company had sufficient minimal contacts with State of Illinois so as to afford Illinois jurisdiction over parties' dispute, and trial court ruling denying defendants' motion to dismiss was error. Rochford, J.

7. Attorney Sanctions: Affirmed: Sanctions imposed under Supreme Court Rule 219(c) for failure of attorney, who was not a party but was the president of incorporated law firm defendant, to cooperate in discovery proper despite claim of lack of "personal jurisdiction." Palmer, J.

8. Collections/Medical Services: Affirmed: In action by collection agency to collect unpaid bills for medical services rendered to uninsured defendant, trial court rulings prohibiting defense counsel from asking questions as to whether medical providers accepted less than full amounts billed to other patients for same services from other collateral sources. Wright, J.

9. Domestic Relations: Affirmed: Trial court properly ruled that home equity funds expended for wife's bakery business were an investment, not a loan; wife properly awarded rehabilitative maintenance despite claim that she could have returned to prior work as a lawyer; value of bakery properly calculated; husband's claim that wife dissipated marital assets resolved by trial court's use of correct legal standard. Steele, J.

10. Criminal Law: Reversed: Defendant's pre-trial motion to suppress evidence improperly denied where evidence showed that officer saw only plastic bag sticking out of defendant's pocket after routine traffic stop; subsequent removal of bag from defendant's pocket not justified by probable cause requirement. Hall, J.

11. Criminal Law: Affirmed: Evidence was sufficient to prove defendant guilty beyond a reasonable doubt of attempt murder of two police officers; prosecution's closing arguments regarding DNA evidence that excluded 91% of the population but not defendant not improper; and trial and appellate court provided effective assistance of counsel to defendant. Lampkin, J. (Gordon, J., dissenting).

12. Criminal Law: Affirmed in part and vacated in part: In case where defendant village employee was charged with taking cash from persons whose cars were "booted" in order to get the boot off, and not forwarding money to the village, admission of documents alleged to be error would be deemed harmless error in light of overwhelming evidence against defendant, and one-act, one-crime rule required that conviction for official misconduct be vacated, as conviction for theft was a higher class felony. Connors, J.

13. Adoption Law: Affirmed and remanded: Trial court decision that natural mother was fit to continue as child's mother was not against the manifest weight of the evidence. Cook, J.

14.  Parentage: Affirmed:   An order establishing fatherhood in a paternity action is "final for purposes of review where matters left for future determination are merely incidental to the ultimate rights which have been adjudicated by the judgment or decree.  The issue of attorney fees is incidental to the ultimate rights adjudicated in a paternity action. Where the presumption of paternity arises out of a voluntary acknowledgment, section 7(b-5) of the Paternity Act does not apply. The supreme court emphasized that it would be "unreasonable to allow a man *** to undo his voluntary acknowledgment years later on the basis of DNA test results, when his paternity was based not on a mere marital presumption that he was the child’s father but on his conscious decision to accept the legal responsibility of being the child’s father."  Cook, J.

6 Appellate Court Cases Posted 9-26-12

1.  Condominium Law: Reversed and Remanded: Section 22 of the Act has been described as a "truth in selling" provision, directed toward providing financial information for prospective buyers and protecting them from hidden long-term condominium management agreements entered into between project development and management groups which had the same principal parties. Steele, J.

No. 2012 IL App (1st) 120438 Seth v. Aqua at Lakeshore East  Filed 9-26-12 (LJD)

Defendant, Aqua at Lakeshore East, LLC (Aqua), appeals from an order of the circuit court of Cook County granting partial summary judgment to plaintiffs.  The trial judge ruled plaintiffs were entitled to rescind purchase agreements related to a prospective condominium development because the developer failed to provide them with a recorded declaration. For the following reasons, we disagree, reverse the judgment, and remand the case to the circuit court for further proceedings.

2.  Administrative Review: Reversed and Remanded: The findings and conclusions on questions of fact made by the administrative agency are held to be prima facie true and correct.  In contrast, an agency’s determinations on questions of law are not binding on a reviewing court and are reviewed de novo.  However, courts give substantial weight and deference to an agency's interpretation of an ambiguous statute.  Where the agency's interpretation involves resolution of jurisdictional questions, " 'judicial deference to administrative  interpretation applies in full strength.' "  According to the plain language of the statute, the Department has 60 days after completion of the survey to make a determination of a violation, and 10 days after making that determination to serve a notice of violation upon the   licensee.  3 statutory requirements to make a determination set out in the opinion. Sterba, J.

No. 2012 IL App (1st) 112775 Aurora Manor v. The Department of Public Health  Filed 9-26-12 (LJD)

Defendant-appellant and cross-appellee the Illinois Department of Public Health (Department) issued a notice of violation and fine assessment to plaintiff-appellee and cross appellant Aurora Manor, Inc., after completion of a survey following an incident in which a resident eloped from  Aurora  Manor’s facility. Following administrative review, the determination of violation and the assessment of a $5,000 fine were affirmed. Aurora Manor sought review in the circuit court, and the court voided the order imposing the violation and fine. On appeal, the Department contends it made a determination of violation after 59 days, within the 60-day limit imposed by section 3-212 of the Nursing Home Care Act (Act) (210 ILCS 45/3- 212(c) (West 2008)). For the reasons that follow, we reverse the judgment of the circuit court voiding the Department's final order, thus reinstating the Department's order.

3.  Domestic Relations: Affirmed: " 'A contract implied in fact is one in which a contractual duty is imposed by a promissory expression which may be inferred from the facts and circumstances and the expressions on the part of the promisor which show an intention to be bound.' " An implied-in-fact contract may be based on "the acts of the parties even in the absence of any express statement of specific agreement regarding the details of the contractual relationship."  The trial court is in a better position to weigh the testimony adduced at trial, and the trial court finding will stand unless it is against the manifest weight of the evidence.  In Illinois, a support obligation can take several forms, which are listed.  Steele, J.

No. 2012 IL App (1st) 111672 In re Marriage of D'Attomo  Filed 9-26-12 (LJD)

Respondent, John J. D'Attomo, appeals from the judgment of the circuit court of Cook County dissolving his marriage to petitioner, Betsy J. D'Attomo. For the following reasons, we affirm.

4.  Billboard Lease: Affirmed: A legal nonconforming use is a use that is not permitted under the current zoning ordinance but is allowed to continue because it predates the ordinance.  According to the express terms of the statute, the permit became void upon the failure to renew the permit within 60 days after the change of sign ownership. Burke, J.

No. 2012 IL App (2nd) 1111292 Bond Kildeer Marketplace v. CBS Outdoor Filed 9-25-12 (LJD)

Defendant, CBS Outdoor, Inc., owns outdoor advertising billboards, including a billboard constructed on the property of plaintiff, Bond Kildeer Marketplace, LLC, located in the Village of Kildeer, Illinois (Village). Plaintiff owns both the property on which the billboard is constructed, which defendant leases, and certain surrounding property, both of which are located at the intersection of Rand Road and North Plum Grove Road in the Village. Plaintiff purchased the property in 2007 and became the successor lessor under the lease agreement.  The trial court granted plaintiff’s  Summary judgment motion as to the claim regarding section 10 of the lease, finding that the parking lot proposed for the subject property was an “accessory building,” triggering plaintiff’s right to terminate the lease pursuant to section 10.

5.  Mortgage Foreclosure: Reversed in part and Affirmed in part: “The doctrine of standing is designed to preclude persons who have no interest in a controversy from bringing suit.”  A party’s standing to sue must be determined as of the time the suit is filed.  An action to foreclose upon a mortgage may be filed by a mortgagee, i.e., the holder of an indebtedness secured by a mortgage, or by an agent or successor of a mortgagee.  Lack of standing to bring an action is an affirmative defense, and the burden of proving the defense is on the party asserting it. Schostok, J.

No. 2012 IL App (2nd) 120164 Deutsche Bank National Trust v. Gilbert  Filed 9-25-12 (LJD)

The plaintiff, Deutsche Bank National Trust Company, filed a foreclosure suit against the defendant, James L. Gilbert. Gilbert raised the affirmative defense that Deutsche Bank lacked standing at the time it filed the suit. Gilbert also filed a counterclaim alleging violations of the federal Truth in Lending Act (TILA) (15 U.S.C. § 1601 (2006)) and seeking damages.  The trial court reversed itself and granted summary judgment in favor of Deutsche Bank on all claims. Gilbert appeals, arguing that the trial court’s initial decision was correct, and that he is also entitled to summary  judgment in his favor on the counterclaim. For the following reasons, we reverse the judgment of foreclosure and dismiss the cause, and affirm the dismissal of the counterclaim.

6.  Paternity: Reversed and Remanded:  Paternity Act provides for an “action to determine the existence of [a] father and child relationship” (750 ILCS 45/7(a) (West 2008)) as well as an “action to declare the non-existence of [a] parent and child relationship”.  An action to declare the existence of a father and child relationship, with exceptions not relevant here, “shall be barred if brought later than 2 years after the child reaches the age of majority.” 750 ILCS 45/8(a)(1) (West 2008). However, an action to declare the nonexistence of a parent and child relationship “shall be barred if brought later than 2 years after the petitioner obtains knowledge of relevant facts.”  Nothing in either the plain language of the statute or the case law supports the argument that it is first necessary to disestablish the putative father's parentage before pursuing a parentage action against the true biological father. Hudson, J.

Petitioner, A.M., appeals the dismissal of her petition to establish the paternity of her son, G.M. She contends that the trial court erred in concluding that the petition was barred by a two-year statute of limitations. We reverse and remand.

2 Appellate Court Cases Posted 9-25-12

1. Criminal Law: Affirmed: Defendant's convictions for first degree murder and attempt first degree murder affirmed, where evidence regarding defendant's membership in a gang was relevant and could properly be established by lay testimony, limiting instruction regarding gang evidence properly denied, trial court had no sua sponte duty to voir dire prospective jurors regarding gang bias, and trial court properly refused to instruct on second degree murder. Murphy, J.

No. 2012 IL App (1st) 101249  People v. Campbell  Filed 9-25-12 (TJJ)

Following a jury trial, defendant Walter Campbell was found guilty of one count of first degree murder and two counts of attempted first degree murder and was sentenced to 50 years' imprisonment for first degree murder and two concurrent 28-year terms  or attempted first degree murder to be served consecutively to the murder sentence. On appeal, defendant contends that he was denied a fair trial where the trial court admitted evidence showing that he was a gang member, failed to inquire during voir dire  whether any prospective jurors would have been unable to be fair and impartial due to evidence of his gang membership, and failed to advise the jury of the limited purpose for which such evidence could be considered. Defendant also contends that trial   counsel was ineffective for failing to request a limiting instruction regarding the gang membership evidence and that he was denied a fair trial where the prosecutor made improper comments during rebuttal argument. In addition, defendant contends that the court erred by failing to provide the jury with a modified version of Illinois Pattern Jury Instructions Criminal No. 3.11 (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 3.11) prepared by defense counsel or an instruction for second degree murder.  Defendant further contends that the court erred in making a number of rulings during defense counsel's opening statement, crossexamination of two State witnesses, and closing argument. For the reasons that follow, we affirm.

2. Public Labor Relations: Affirmed: Under terms of collective bargaining agreement, so-called "side agreement" between union and transit authority regarding staffing at CTA stations was not separate from entire collective bargaining agreement, and arbitration clause applied, thus requiring parties to arbitrate contractual dispute; agreement not void for lack of mutual consideration, and trial court ruling dismissing union's action for declaratory judgment affirmed. Quinn, J.

No. 2012 IL App (1st) 112517  Amalgamated Transit Union, Local 308 v. Chicago Transit Authority  Filed 9-25-12 (TJJ)

Plaintiff, Amalgamated Transit Union, Local 308 (Union), filed a complaint in the circuit court of Cook County against defendant, Chicago Transit Authority (CTA), seeking a declaratory judgment that side agreement Number 30 attached as a part of  Exhibit A to the parties’ collective bargaining agreement (CBA) was invalid due to a lack of sufficient consideration. The circuit court granted the CTA’s motion to dismiss the complaint under section 2-619 of the Code of Civil Procedure, finding the  collective bargaining agreement, which contained a grievance and arbitration process, governed the dispute over side agreement Number 30 between the parties. We affirm.

3 Appellate Court Cases Posted 9-24-12

1. Mechanic's Liens: Affirmed: Where developer completed its work in June of 2006, but did not file a complaint to foreclose its mechanic's lien until August of 2008 as a counterclaim to plaintiff bank's foreclosure action, developer's claim was time-barred under the two-year limitation in the Mechanics Liens Act. Howse, J.

No. 2012 IL App (1st) 112116  Bank of New York v. Jurado  Filed 9-24-12 (TJJ)

Defendant RBM Development, Inc., appeals from a circuit court order holding that RBM's counterclaim to enforce a mechanic's lien was time barred. For the reasons set forth below, we affirm the decision of the circuit court.

2. Criminal Law: Reversed and remanded: At second stage of postconviction proceeding, defendant's counsel afforded "unreasonable assistance" to defendant where counsel failed to amend postconviction petition to include written claim of ineffective assistance of counsel on defendant's direct appeal, in face of postconviction counsel's oral claim that such occurred. Cunningham, J.

No. 2012 IL App (1st) 101606  People v. Kirk  Filed 9-24-12 (TJJ)

Defendant Wayne Kirk appeals from the second-stage dismissal of his pro se petition for relief under the Post-Conviction Hearing Act. He contends that postconviction counsel failed to provide him with reasonable assistance under Illinois Supreme Court  Rule 651(c) because counsel did not amend his pro se postconviction petition or procure affidavits from witnesses.

3. Appellate Jurisdiction/Criminal Appeal: Appeal dismissed: Appellant, apparently an inmate of the Illinois Department of Corrections, sought to appeal a decision made at the circuit court level, but failed to provide a record prepared by the trial court clerk, and instead submitted "selected" copies of documents; in absence of record prepared and certified by the circuit court clerk, the appeal was dismissed. Jorgensen, J.

No. 2012 IL App (2d) 110686  Knox v. Taylor  Filed 9-20-12 (TJJ)

On July 22, 2011, Christopher Knox filed a notice of appeal in Lee County case No. 09-MR- 37. He listed himself as the plaintiff and listed the Department of Corrections (Department) and Gladyse Taylor, then acting director of the Department, as the  defendants. Knox never caused the clerk to file an appellate record, but instead has himself filed what he represents to be copies of a selection of documents in the case. Because the absence of a record prevents us from even deciding whether we have  jurisdiction, we must dismiss the appeal.

5 Appellate Court Cases Posted 9-21-12

1.  Surface Drainage Law: Reversed and Remanded: To be entitled to a permanent injunction, the party seeking the injunction must demonstrate (1) a clear and ascertainable right in need of protection, (2) that he or she will suffer irreparable harm if the injunction is not granted, and (3) that no adequate remedy at law exists.  Illinois follows a modified version of the "civil law rule" of surface-water drainage, under which a landowner's right to alter the flow of surface water on his property depends on whether the landowner possesses the higher (dominant) or lower (servient) estate.  A dominant landowner may alter or increase the natural flow of water from his property if the advantages to the dominant land sufficiently outweigh the damages to the servient land. By contrast, however, a servient owner may not obstruct the natural flow of surface water from a dominant owner's property.   Steigmann, J.

2.  Insurance Law: Affirmed:  A named-driver exclusion in an automobile liability insurance policy does not contravene Illinois public policy.  The plain language of this insurance statute appears to recognize that insurance policies may exclude named drivers from coverage.  Failure to put the name of the excluded driver on the insurance card does not invalidate the exclusion.  The term 'dictum' is generally used as an abbreviation of obiter dictum, which means a remark or opinion uttered by the way. Such an expression or opinion as a general rule is not binding as authority or precedent within the stare decisis rule. On the other hand, an expression of opinion upon a point in a case argued by counsel and deliberately passed upon by the court, though not essential to the disposition of the cause, if dictum, is a judicial dictum.  And further, a judicial dictum is entitled to much weight, and should be followed unless found to be erroneous.  An agreement will not be invalidated on public policy grounds unless it is clearly contrary to what the constitution, the statutes or the decisions of the courts have declared to be the public policy or unless it is manifestly injurious to the public welfare.  Epstein, J.

3.  Right to Conscience Act: Affirmed as modified and reversed in part: The General Assembly, in enacting the Conscience Act, did "not substantially burden a person's exercise of religion," but instead bolstered it, by offering protections to those who seek not to act in the health-care setting due to religious convictions.  The Religious Freedom Act would apply to any governmental action that "substantially burden[s] a person's exercise of religion  Knecht, J.

4.  Mental Health Code: Whether there was substantial compliance with a statutory provision presents a question of law, which we review de novo. A reviewing court will not reverse a trial court's determination as to the sufficiency of the evidence unless it is against the manifest weight of the evidence.  Elements of cause to administer medications set out.  "Clear and convincing evidence" is "that quantum of proof that leaves no reasonable doubt in the mind of the fact finder about the truth of the proposition in question," which is is considered to be more than a preponderance but less than is required to convict an individual of a criminal offense.  Before a respondent can make a reasoned decision about medication, he first must be
advised as to the risks and benefits of the proposed course of medication. The requirements of section 2-102(a-5) are to "ensure that a respondent is fully informed but also 'to ensure that a respondent's due process rights are met and protected.' "  Strict compliance is necessary for the protection of the respondent's fundamental liberty interest in refusing invasive medication.  Hall, J.

5.  Post Conviction Petition: Affirmed:  The Act provides postconviction relief when a conviction arises from a substantial violation of a constitutional right.  A postconviction proceeding is a collateral attack on the conviction, not an appeal of the underlying judgment.  A defendant bears the burden of showing that he qualifies for relief under the Act by demonstrating a violation of a constitutional right.   A postconviction petition may be summarily dismissed within 90 days of its filing if "the court determines the petition is frivolous or is patently without merit." A frivolous or patently without merit petition is one that "has no arguable basis either in law or in fact."  We review summary dismissal of a postconviction petition de novo.  Garcia, J. dissent by Gordon, J.

6 Supreme Court Cases Posted 9-20-12

1. Criminal Law: Appellate court reversed: Defense counsel's prior representation, as guardian ad litem, of complaining witness in sexual abuse prosecution did not constitute a per se conflict of interest prohibiting counsel from representing defendant, where prior representation ended four years prior to representation of defendant. Thomas, J.

No. 2012 IL 112438  People v. Fields  Filed 9-20-12 (TJJ)

Following a jury trial, defendant, Albert L. Fields, was convicted of two counts of predatory criminal sexual assault of a child, three counts of criminal sexual assault, and two counts of aggravated criminal sexual abuse. Defendant was sentenced to 36  years’ imprisonment. Defendant appealed, contending that he had been denied the effective assistance of counsel because his trial attorney labored under a per se conflict of interest. A divided appellate court agreed, reversing defendant’s convictions and  sentence, and remanding for a new trial. 409 Ill. App. 3d 398. This court allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315. We now reverse the judgment of the appellate court.

2. Trusts and Estates: Appellate court reversed, circuit court affirmed, and remanded: Uniform Fraudulent Transfer Act does not abrogate common law rule that a self-settled spendthrift trust is void as to existing and future creditors; thus, plaintiff beneficiary of decedent's irrevocable pledge of $1.5 million at the latest upon his death was enforceable and could be satisfied by trust proceeds. Thomas, J.

No. 2012 IL 112906  Rush University Medical Center v. Sessions  Filed 9-20-12 (TJ)

Plaintiff, Rush University Medical Center, filed a three-count complaint against defendants, the trustees of two trusts that were created by Robert W. Sessions. Plaintiff sought payment of $1.5 million from the trusts based on a philanthropic pledge that  Sessions had made to plaintiff before he died. The third count of the complaint was based on the common law rule that a self-settled spendthrift trust is void as to existing and future creditors. The Attorney General of Illinois intervened in the dispute, taking the side of plaintiff. The circuit court of Cook County granted summary judgment in favor of plaintiff on count III, finding that the trust created by Sessions on February 1, 1994, was liable to pay plaintiff $1.5 million. The trustees appealed, and the  appellate court reversed the order of summary judgment in favor of plaintiff on count III, ruling that the common law cause of action alleged therein was abrogated by the enactment of the Uniform Fraudulent Transfer Act.

3. Negligence Law: Appellate and circuit courts reversed: Landowner has no duty to remedy a dangerous condition that presents obvious risks that children of plaintiff's age would be expected to appreciate and avoid; thus, railroad had no duty to remedy or prevent 12-year-old plaintiff's act of seeking to jump onto moving freight car by grabbing attached ladder, which led to amputation of plaintiff's lower leg. $3.785 million verdict in plaintiff's favor reversed. Freeman, J.

No. 2012 IL 112948  Choate v. Indiana Harbor Belt Railroad Company  Filed 9-20-12 (TJJ)

Plaintiff, Dominic Choate, brought a personal injury action in the circuit court of Cook County against defendants, Indiana Harbor Belt Railroad Company (IHB), the Baltimore and Ohio Chicago Terminal Railroad Company (B&OCT), and CSX  Transportation, Inc. (CSX). A jury returned a verdict in favor of plaintiff. The appellate court affirmed. 2011 IL App (1st) 100209. We allowed defendants’ petition for leave to appeal. Ill. S. Ct. R. 315. We now reverse the judgments of the appellate and  circuit courts.

4. Municipal Contracts: Appellate reversed, circuit court affirmed: The doctrine of equitable estoppel is not available to a party contracting with a municipality based upon apparent authority, but only upon proof that the municipal employee or employees possessed express actual authority to bind the municipality contractually; the circuit court's dismissal of plaintiff's breach of contract action based upon apparent authority was therefore proper. Theis, J.

No. 2012 IL 113148  Patrick Engineering v. The City of Naperville  Filed 9-20-12 (TJJ)

This case involves an agreement between Patrick Engineering, Inc., and the City of Naperville for a stormwater management system. When the City refused to pay Patrick Engineering, Patrick Engineering terminated the agreement and sued the City. The  trial court dismissed Patrick Engineering’s third and fourth amended complaints, and the appellate court reversed and remanded for further proceedings. 2011 IL App (2d) 100695. The primary issue before us, according to the City, is whether the doctrine of equitable estoppel may apply against a municipality based upon the alleged apparent authority of its employees. We hold that equitable estoppel does not apply against a municipality when a plaintiff has alleged that a municipal official possessed apparent authority, but only when a plaintiff has alleged specific facts to show that a municipal official possessed express authority and that the plaintiff reasonably relied upon statements or conduct by the official. For the reasons that follow, we reverse and remand for further proceedings.

5. Wrongful Death/Negligence Law/Arbitration Clauses: Appellate court affirmed in part and reversed in part and remanded: Clause in nursing home contract that all disputes in excess of a claim of $200,000 be subject to binding arbitration was not unenforceable (and thus enforceable), as mutuality of obligation existed as to this particular contract, but claim for wrongful death of nursing home patient was not subject to arbitration, as plaintiff in a wrongful death action is not a party to the contract, notwithstanding contract language that seeks to bind the patient's heirs, etc., since under Illinois law a wrongful death action is not part of the decedent's estate. Theis, J.

No.2012 IL 113204  Carter v. SSC Odin Operating Company  Filed 9-20-12 (TJJ)

This appeal involves an arbitration agreement between plaintiff’s decedent and defendant nursing home. At issue is whether the arbitration agreement is enforceable and, if so, whether plaintiff can be compelled to arbitrate a wrongful-death claim against  defendant. The appellate court ruled in favor of plaintiff, holding that the arbitration agreement is unenforceable based on a lack of mutuality of obligation, and that the wrongful-death claim is not subject to arbitration in any event. 2011 IL App (5th)  070392-B. The appellate court thus affirmed the trial court’s denial of defendant’s motion to compel arbitration. For the reasons that follow, we affirm in part and reverse in part the judgment of the appellate court, and remand to the trial court for further  proceedings.

6. Domestic Relations: Appellate court reversed: Under joint parenting agreement (JPA), where mother gave proper notice set forth in the JPA regarding removal of the minor children out of state, and father did not request mediation or reach an agreement with mother (the procedures called for in the JPA), mother was free to remove children pursuant to the terms set forth in the JPA, and father's request for an injunction to prevent removal until a hearing to determine the "best interests" of the children was properly denied. Garman, J.

No. 2012 IL 113474  In re Marriage of Coulter  Filed 9-20-12 (TJJ)

The parties are the divorced parents of three minor children. After the mother, Amy Trinidad, informed the father, Robert Lee Coulter (Lee), of her intention to move to California with the children as permitted by their joint parenting agreement, he sought a  preliminary injunction barring her from removing the children from Illinois. Amy thereafter filed a petition for temporary removal. After a hearing, the circuit court of Will County denied the injunction. The appellate court reversed and remanded. 2011  IL App (3d) 110424-U. This court allowed Amy’s petition for leave to appeal pursuant to Supreme Court Rule 315. For the reasons that follow, we reverse the judgment of the appellate court.

3 Appellate Court Cases Posted 9-19-12

1.  Election Law: Reversed and Remanded: On Questions of fact, the electoral board's findings are considered to be prima facie true and correct and will not be reversed on appeal unless they are against the manifest weight of the evidence.  However, mixed questions of fact and law are reviewed under the clearly erroneous standard, and pure questions of law, such as statutory interpretation, are subject to de novo review on appeal. Where the historical facts are admitted or established, but there is a dispute as to whether the governing legal provisions were interpreted correctly by the administrative body, the case presents a purely legal question for which our review is de novo. Principles of statutory construction listed.  The policy of this state is to provide candidates for public office with access to the ballots and, thus, to allow the citizens a vote.  Form of notice required discussed and since the statute did not specify a certain type of notice, the board erred in holding  the notice was insufficient.  Carter, J.

No. 2012 IL App (3rd) 120699  Carlasare v. Will County Officers Electoral Board  Filed 09-19-12 (LJD)

2.  Civil Procedure: Affirmed: SC Rule 103(b) discussed.   A dismissal under Rule 103(b) is within the sound discretion of the circuit court.  A primary reason for the passage of Rule 103(b) was to prevent the intentional delay of service of summons upon a defendant for an indefinite amount of time in order to circumvent the applicable statute of limitations.  It requires a plaintiff to exercise reasonable diligence in timely effectuating service upon the defendant.  It requires a plaintiff to exercise reasonable diligence in timely effectuating service upon the defendant.  When that has been done, lack of diligence, the burden then shifts to the plaintiff to provide a satisfactory explanation for the delay in service. Id. at 949. In the absence of a satisfactory explanation, the trial court is justified in granting a Rule 103(b) dismissal.  Sterba, J.

Plaintiff candidates filed a petition for judicial review of a decision of the Will County Officers Electoral Board (the electoral board), which ordered the Will County clerk to reject the nomination papers of the candidates for the November 2012 election for the Will County board. After a hearing, the trial court confirmed the electoral board's ruling. The candidates appeal. We reverse the decisions of the electoral board and the trial court, order that the candidates be placed on the ballot immediately, and remand this case for further proceedings.

No. 2012 IL App (1st) 111687  Emrikson v. Morfin  Filed 09-19-12 (LJD)

Plaintiff-appellant Patricia Emrikson filed a complaint against defendant-appellee Fernando Morfin alleging negligence in connection with a traffic accident. Defendant moved to dismiss the complaint pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007), arguing that plaintiff failed to use due diligence in effectuating service upon him. The trial court agreed and granted defendant’s motion. On appeal, plaintiff contends that the court erred in granting defendant’s motion to dismiss and in denying her motion to reconsider. For the reasons that follow, we affirm.

3.  Administrative Review: Affirmed: The circuit court has broad discretion to stay an administrative decision pending review.  Accordingly, our standard of review is highly deferential and the circuit court's decision to grant or deny a stay will be reversed only upon a finding of abuse of discretion. An abuse of discretion occurs only where " 'the trial court's ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court.' "  Section 3-111(a)(1) of the Administrative Review Law requires the
applicant for a stay to prove the three elements discussed herein.  It is the final decision of the agency that is reviewed in an administrative review proceeding, and it is the agency's findings of fact that are entitled to deference, not the findings of a hearing officer or an ALJ.  This is true even when the agency's findings differ from those of the ALJ and the agency has not had the opportunity to observe the witnesses. Steele, J.

No. 2012 IL App (1st) 121226   Parikh v. The Division of Professional Regulation of the Department of Financial and Professional Regulation  Filed 09-19-12 (LJD)

Plaintiff, Mahesh Parikh, M.D., a neurologist, appeals an order of the circuit court denying a stay of an order issued by defendant Jay Stewart, Director of the Division of Professional Regulation (Director) of defendant Illinois Department of Financial and Professional Regulation (Department), indefinitely suspending his medical license for a minimum of one year. For the following reasons, we conclude that the circuit court did not abuse its discretion in denying the stay and affirm the circuit court's judgment.

6 Appellate Court Cases Posted 9-18-12

1.  Juvenile Court: Affirmed: The juvenile court may, at the time it conducts a court review of a case in which a minor has already been adjudicated abused and/or neglected, been made a ward of the court and placed under the protective shield of a court order of supervision, alter custodial placement if the circumstances and best interests of the child warrant."  A juvenile "court has authority to retake custody of a minor upon a determination that the section 2-24 order of protective supervision had been violated and that circumstances and the best interests of the child warrant such action."    Garcia, J., dissent by Gordon, J.

Mother-respondent-appellant, Bernadine L., appeals the circuit court's ruling of September 27, 2011, vacating a protective supervision order that returned custody of her minor son, Rico, to the Guardianship Administrator of the Department of Children and Family Services (DCFS). On March 17, 2010, DCFS was awarded temporary custody of Rico when Bernadine refused to pick up Rico after he was medically cleared for discharge following his fourth hospitalization for psychiatric problems. After hearing testimony from a DCFS caseworker and Bernadine and providing the parties the opportunity to present any additional evidence, the juvenile court vacated the section 2-24 protective supervision order, which returned guardianship of Rico to DCFS, and entered a modified disposition order pursuant to section 2-27 of the Act.

2.  Criminal Law: Affirmed in Part and Reversed in part and Remanded to vacate DNA fee.: In order to convict a defendant of unlawful possession of a controlled substance, the State must prove that the material recovered from the defendant is in fact a controlled substance.     The State establishes a prima facie showing of a sufficient chain of custody for narcotics by establishing that reasonable protective measures were taken to ensure that the evidence has not been tampered with, substituted or altered between the time of seizure and forensic testing.   Plain error doctrine discussed.  To carry its initial burden of proof of showing that the location  privilege should apply in a given case, the State must present evidence that the location was either: (1) on private property with the permission of the owner, or (2) in a location that is useful and whose utility would be compromised by disclosure.  In the pretrial context, once the State carries its burden of proof, the defense bears the burden of persuasion and can defeat the privilege by making a “ 'strong showing that disclosure of  the location is material or necessary to his defense and that his need for the information outweighs the public’s interest in keeping the location secret.' ” Howse, J., specially concurred by Epstein, J.

No. 2012 IL App (1st) 102332 People v. Britton   Filed 09-14-12 (LJD)

A jury found defendant guilty of possession of 1.2 grams of heroin with intent to deliver and he was sentenced to 7½ years in prison. On appeal, defendant contends that his conviction should be reversed because of a breakdown in the chain of custody of narcotics evidence used to sustain the conviction. Defendant also contends that the trial court erred when it denied his motion to compel disclosure of the surveillance location utilized to observe him engage in two narcotics transactions. Defendant finally contends that he was improperly assessed a $200 DNA Indexing fee.

3.  Criminal Law: Reversed and Remanded: Evidentiary rulings are ordinarily reviewed for an abuse of discretion. A trial court has abused its discretion only when its ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would adopt the view of the trial court.  Evidence of other crimes is admissible if it is "part of the continuing narrative of the event giving rise to the offense [citation], is intertwined with the event charged [citation], or explains an aspect of the crime charged that would otherwise be implausible.  Evidence of other crimes may be admissible where it "set[s] the stage" for the charged offense and explains circumstances about the charged offense that might appear improbable.  Quinn, J., Cunningham, J. dissents

No. 2012 IL App (1st) 103537  People v. Hale  Filed 09-18-12 (LJD)

On November 20, 2007, defendant James Hale, along with codefendant Randy Rice, was charged with first-degree murder, aggravated discharge of a firearm, and mob action under indictment number 07 CR 24440. These charges were based on the shooting death of Shantiel Clark. In a  separate matter, Hale and Rice were also charged with attempted first-degree murder, aggravated battery with a firearm, and aggravated discharge of a firearm under indictment number 07 CR 24439.  These charges were based on the shooting of Erzka Scott. This appeal arises from a June 21, 2010 order entered by the circuit court of Cook County that denied the State's motion in limine to introduce proof of other crimes during the course of Hale's trial for the shooting death of Shantiel, and an October 22, 2010 order denying the State's motion to reconsider.  State argues that: (1) the trial court applied the incorrect legal tests in making its rulings on the State's motion in limine and motion for reconsideration; and (2) the trial court erred in denying its motion in limine and motion for reconsideration because the evidence in question was admissible under the continuing-narrative exception and as other-crimes evidence. For the following reasons, we reverse the judgment of the circuit court of Cook County.

4.  Administrative Review: Affirmed:  "[O]n administrative review, it is not a court's function to reweigh the evidence or make an independent determination of the facts. Rather, the court's function is to ascertain whether the findings and decision of the agency are against the manifest weight of the evidence." "An administrative agency decision is against the manifest weight of the evidence only if the opposite conclusion is clearly evident."  The mere fact that an opposite conclusion is reasonable or that the reviewing court might have ruled differently will not justify reversal of the administrative findings, and the reviewing court may not substitute its judgment for that of the administrative agency.  Connors, J., Cunningham, J., specially concurs

No. 2012 IL App (1st) 112345  Payne v. The Retirement Board of the Firemen's Annunity and Benefit Fund of Chicago  Filed 09-18-12 (LJD)

Plaintiff Daniel Payne appeals from a decision rendered by defendant, the Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago (Board), in which the Board denied his application for a duty disability pension. Plaintiff contends that the Board's decision to deny his application for a duty disability pension was against the manifest weight of the evidence. For the following reasons, we affirm.

5.  Criminal Law: Remanded: Defense counsel must strictly comply with Rule 604(d)’s certificate requirement, and, when counsel fails to do so, the case must be remanded to the trial court for proceedings in compliance with the rule.”  A motion filed prior to sentencing does not comply with Rule 604(d) and will not give rise to a right to appeal from the judgment.  The defendant must renew the premature motion in order to preserve the right to appeal.  Burke, J.

No. 2012 IL App (2nd) 110475 People v. Marquez  Filed 09-14-12 (LJD)

Defendant, Roy Marquez, appeals from an order of the circuit court of Lake County denying his motion to withdraw his plea under North Carolina v. Alford, 400 U.S. 25 (1970), to a single count each of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2000)) and aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2000)). Because defendant’s attorney did not properly certify compliance with Illinois Supreme Court Rule 604(d) (eff. July 1, 2006), we remand for proceedings in compliance with that rule.

6.  School Funding: Reversed:  To obtain a change of venue, a defendant must establish that the original venue selected by the plaintiff was improper.  In meeting this burden, the defendant must point to specific facts showing a clear right to a transfer of venue and cannot rely on conclusory statements.  A trial court’s ruling on a motion to transfer venue is reviewed under a two-part standard. A trial court’s factual findings will not be reversed unless they are against the manifest weight of the evidence. However, its legal conclusions are reviewed de novo. When the issue is whether venue in a particular county is proper because the “transaction or some part thereof” from which the cause of action arose occurred there, a court considers two factors: “(1) the nature of the cause of action and (2) the place where the cause of action springs into existence.”  The second factor in determining venue—where the cause of action sprang into existence—considers among other things where “ ‘any significant negotiations were carried on between the parties, where an agreement was signed, the place where it was, or was supposed to be performed, or where matters occurred that the plaintiff has the burden of proving.’ ”  Courts should also consider where any direct dealings between the parties took place, or where events occurred that altered the legal relationship of the parties.  Schostok, J.

No. 2012 IL App (2nd) 120132  The Board of Education of Nippersink School District 2 v. Koch Filed 09-14-12 (LJD)

This case involves a dispute between the plaintiffs, the Board of Education of Nippersink School District 2 and the Board of Education of Richmond-Burton Community High School District 157, and the Illinois State Board of Education (State Board) regarding the proper amount of general state aid that should be paid to the plaintiffs under article 18 of the School Code (105 ILCS 5/18-1 et seq. (West 2010)). The only issue before us at this point, however, is the proper venue for that dispute.

1 Appellate Court Cases Posted 9-17-12

1.  Sales Tax/Protest Monies Act.: Affirmed: The Protest Monies Act provides a mechanism for a party to challenge the propriety of its required payment of money to the State of Illinois and the mechanism is described.  For a seller to incur the relevant ROT in a given county, municipality or metropolitan region, the sale must be made in the course of such seller’s engaging in the retail business within the county, municipality or metropolitan region. Each of the above three sections expressly provides that “the seller’s acceptance of the purchase order or other contracting action in the making of the sales contract is the most important single factor in the occupation of selling.” McDade, J., dissent by Carter, J.

No. 2012 IL App (3rd) 110144 Hartney Fuel Company v. Hamer Filed 09-17-12 (LJD)

The underlying dispute arises as the result of an audit determination made by the Illinois Department of Revenue ( IDOR) that sales of Hartney Fuel Oil Co. (Hartney) were subject to state and local sales taxes in Forest View in Cook County, Illinois, rather than being subject only to state sales tax (as there are no applicable local sales taxes) in Mark, Putnam County, Illinois, during the subject audit period. Hartney, the Village of Mark and the County of Putnam (hereinafter referred to collectively as plaintiffs) sought declaratory and injunctive relief to (1) determine that the situs of Hartney’s sales had been in Mark, (2) redirect the local share of collected state sales taxes to the Village of Mark and the County of Putnam, and (3), as to Hartney, provide relief from tax, penalties and interest assessed against Hartney, and return of sales taxes paid under protest and held in the State of Illinois’s protest fund. After a bench trial granting the requested relief. Defendants, Brian A Hamer and Dan Rutherford, in their official capacities, and the Village of Forest View, the County of Cook, and the Regional Transportation Authority (hereinafter referred to collectively as defendants), appeal from the trial court’s judgment. We affirm.

4 Appellate Court Cases Posted 9-14-12

1.  Criminal Law: Reversed and Remanded: In reviewing a trial courts ruling on a motion to suppress,  we use a two part standard and a trial court’s findings of historical fact are reviewed only for clear error, and a reviewing court must give due weight to any inferences drawn from those facts by the fact finder.  In other words, we give great deference to the trial court’s factual findings, and we will reverse those findings only if they are against the manifest weight of the evidence.  A reviewing court, however, remains free to undertake its own assessment of the facts in relation to the issues and may draw its own conclusions when deciding what relief should be granted.” Id. “Accordingly, we review de novo the trial court’s ultimate legal ruling as to whether suppression is warranted.  Probable cause exists when the totality of the facts and circumstances known to the officers is such that a reasonably prudent person would believe that the suspect has committed or is committing a crime.  Burke, J.

 No. 2012 IL App (2nd) 110471  People v. Hopson  Filed 09-12-12 (LJD)

Defendant, Kendrick Hopson, was charged with armed violence (720 ILCS5/33A-2(a) (West 2008)), unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2008)), aggravated unlawful possession of a weapon (720 ILCS 5/24-1.6 (West 2008)), possession of a firearm  without a firearm owner’s identification card (430 ILCS 65/2(a)(1) (West 2008)), possession of a controlled substance (720 ILCS 570/401(c)(2) (West 2008)), and possession of a controlled substance with the intent to deliver (720 ILCS 570/407(b)(1) (West 2008)). Defendant moved to  suppress the cocaine and marijuana that the police seized from him. The trial court granted the motion, and the State appeals.

2. Spoilation Claim: Reversed and Remanded: Spoliation of evidence is not an independent tort; rather, it is a subspecies of negligence.  Thus, a plaintiff must plead and prove the traditional elements of a negligence action—duty, breach, causation, and damages. Generally, no duty exists to preserve evidence.  However, a duty can arise by virtue of a contract, an agreement, a statute, or some other special circumstance.  A duty can arise by virtue of a contract, an agreement, a statute, or some other special circumstance.  Additionally, through affirmative conduct,  a party may voluntarily assume a duty to preserve evidence. Any of these considerations can establish the requisite relationship between the parties to impose a duty, and they have come to be known as the relationship prong of the inquiry.   If the
request to preserve evidence makes it foreseeable that the evidence is “material to a potential civil action”, it must, a fortiori, provide notice of the possibility of a civil action.  Our supreme court has held that “a potential litigant owes a duty to take reasonable measures to preserve the integrity of relevant and material evidence.”    Hudson, J., special concurrence Hudson, J.

 No. 2012 IL App (2nd) 110517 Combs v. Schmidt  Filed 09-12-12 (LJD)

Plaintiff, Patricia Combs, in her capacity as the personal representative of the estates of Harvey Combs, Trenell Combs, and Niesha Combs (who are deceased), appeals an order of the circuit court of Winnebago County granting summary judgment in favor of defendants, Gary Schmidt,  Cynthia Schmidt, and Pekin Insurance Company, regarding three counts of a complaint filed by Patricia. These counts allege spoliation of evidence. For the reasons that follow, we reverse and remand.

3.  Criminal Law: Affirmed in Part, Reversed in Part and Remanded:  When reviewing whether the State has presented sufficient evidence to sustain a conviction, we must determine whether a rational trier of fact could have found the elements of the crime beyond a reasonable doubt, viewing the evidence in the light most favorable to the State.   The credibility determinations of the trier of fact will be given great deference.  A guilty verdict maybe supported not only by the evidence itself, but also by any reasonable inferences that may be drawn from that evidence.  Whether defendant knew he was in possession of drugs is a question for the trier of fact.  Knowledge is usually proven by circumstantial evidence and can rarely be shown by direct proof.  Section 113-3.1(a) allows the trial court to order an indigent defendant pay a reasonable sum to reimburse the state or county for public defender.  It requires that the trial court conduct a hearing, within 90 days,  into a defendant’s financial circumstances and find that the defendant has an ability to pay the fee before ordering reimbursement.  Hudson, J.

 No. 2012 IL App (2nd) 110640 People v. Brown   Filed 09-12-12 (LJD)

Following a jury trial in the circuit court of Lake County, defendant, Jeffery E. Brown, was convicted of unlawful possession of less than 15 grams of cocaine in violation of section 402(c) of the Illinois Controlled Substances Act (Act) (720 ILCS 570/402(c) (West 2010)). Defendant now appeals, arguing that his conviction of possession of cocaine should be overturned, that the $750 public defender reimbursement fee he was ordered to pay should be vacated, and that he should receive an additional $15 credit against his $500 statutory drug assessment. For the reasons that follow, we affirm defendant’s conviction; vacate the $750 public defender reimbursement fee and remand for a hearing to determine whether the imposition of this fee is appropriate; and order an additional $15 to be credited against defendant’s $500 statutory drug assessment.

4.  Post Conviction Petition: Affirmed: To prevail on a claim of ineffective assistance, the defendant must show both that counsel’s performance was deficient and that the deficiency prejudiced the defendant.  More specifically, the defendant must demonstrate that counsel’s  performance was objectively unreasonable under prevailing professional norms and that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  Birkett, J. 

 No. 2012 IL App (2nd) 110726  People v. Haissig Filed 09-12-12 (LJD)

Defendants, Sandra Haissig and Edward Golden, were convicted of two counts of theft of over $100,000 from their employer, Abbott Laboratories (Abbott) (720 ILCS 5/16-1(a)(1)(A),  The circuitous history of this case has generated two prior dispositions from this court (in 2003 and 2007), and one disposition (2008) and one supervisory order (2011) from the supreme court. Most of those proceedings are recounted in People v. Golden, 229 Ill. 2d 277 (2008), yet there have been years of proceedings since that decision.  In its present form, the case comes before us on the denial of defendants’ petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)).1 In their petition, defendants alleged that defense counsel in their direct appeal were ineffective for failing to include critical transcripts in the appellate record, which failure caused  he appellate court to reject as forfeited their argument that the State failed to prove their guilt beyond a reasonable doubt. Golden, 229 Ill. 2d at 279. We hold that the petition was properly denied because defendants failed to establish that appellate counsel’s omission prejudiced them.

3 Appellate Court Cases Posted 9-13-12

1. Strict Liability/Products: Affirmed:  To maintain an action in strict liability for design-defect, it is not a requirement for plaintiffs to prove a feasible alternative design; rather, a feasible alternative design is merely one of the factors to consider in determining whether a product is unreasonably dangerous. There is no exception that public safety devices require proof of a feasible alternative design to be deemed unreasonably dangerous under a strict liability theory. The trial court did not abuse its discretion in allowing Dr. Geddes' testimony, as he was qualified and his opinion was not speculative. There is no requirement that an expert must have actually built an alternative design to establish a showing regarding a reasonable alternative design. Finally, the trial court did not abuse its discretion in barring the testimony and evidence of hearing protection in other fire departments, as Federal Signal had a nondelegable duty to manufacture a product that is not unreasonably dangerous. Therefore,  the trial court's order denying Federal Signal's motion for judgment notwithstanding the verdict or, in the alternative, a new trial is affirmed.  Pucinski, J. with Sterba, J. specially concurring and Lavin, J. dissenting.

No. 2012 IL App (1st) 093312     Baley v. Federal Signal Corp.     Filed 9-13-12 (RJC)

2 Supreme Court Cases Posted 8-30-12 & 9-7-12

1. Election Law: Appellate court reversed: Aldermanic candidate's obligation to pay back property taxes after incorrect claim of certain "homestead" exemptions was not  a "tax or other indebtedness due a municipality" so as to require that candidate be removed from ballot, and issue was not moot despite fact that election had already concluded. Karmeier, J. (Freeman, J., concurring in part and dissenting in part).

No. 2012 IL 111928  Jackson v. The Board of Election Commissioners of the City of Chicago  Filed 9-7-12 (TJJ)

We hold that property tax payable to the Cook County treasurer does not constitute “a tax or other indebtedness due a municipality” within the meaning of section 3.1-10-5(b) and that the additional property tax Earls and her husband paid after the homestead exemptions were challenged did  not render Earls ineligible to hold municipal office in Chicago. The Election Board was therefore correct when it rejected Jackson’s objection to Earls’ nomination papers. The Election Board’s decision was properly upheld by the circuit court, and the  appellate court should not have overturned the Board’s decision on review. The judgment of the appellate court is therefore reversed.

2. Criminal Law/Juvenile Court/Conflict of Interest: Counsel for two minors charged with criminal sexual abuse against foster siblings stated on record that he was endeavoring to act in the "best interests" of the minors, and "beneficial to everybody," and stated further that he viewed his role as being part of "the truth finding process," counsel was acting under an per se conflict of interest, and finding of delinquency was revered and the cause remanded. Burke, J. (Freemen and Karmeier, JJ., concurring in part and dissenting in part with opinions; Thomas, J., dissenting).

No. 2012 IL 111194  In re Austin M.  Filed 8-30-12 (TJJ)

Austin M. was adjudicated a delinquent minor after he was found guilty of the offense of criminal sexual abuse. Austin appealed his adjudication and the appellate court affirmed, with one justice dissenting. 403 Ill. App. 3d 667. We granted Austin’s  petition for leave to appeal. Before this court, Austin raises four issues: (1) whether the legal representation he received at his delinquency trial amounted to a denial of his right to counsel as guaranteed by the Juvenile Court Act and by the due process  clauses of the United States and Illinois constitutions; (2) whether he received ineffective assistance of counsel because his attorney labored under a per se and/or actual conflict of interest; (3) whether he received ineffective assistance of counsel because of certain acts and omissions by his attorney; and (4) whether he was proved guilty beyond a reasonable doubt. For reasons that follow, we reverse the judgments of the courts below.

4 Appellate Court Cases Posted 9-12-12

1. Domestic Relations: Reversed and remanded: Trial court ruling that terminated husband's maintenance payments to wife, which were noted to be "rehabilitative maintenance" in the marital settlement agreement, was erroneous, where circumstances and intent of the parties indicated that payments were intended to be permanent maintenance. Schmidt, J.

No. 2012 IL App (3d) 110791  In re Marriage of Bolte  Filed 9-12-12 (TJJ)

In April of 1998, the circuit court of Rock Island County entered a judgment of dissolution of marriage awarding the respondent, Sue Bolte, maintenance. On August 28, 2009, the petitioner, Terry Bolte, filed a petition to terminate maintenance. Sue filed a  response and various motions, including a counterclaim to Terry's motion to terminate and a petition for attorney fees. Following a review hearing on September 2, 2011, the trial court terminated Terry's maintenance obligation and ordered him to contribute to half of Sue's attorney fees. Sue appeals, claiming the trial court abused its discretion in failing to consider the statutory factors of sections 504(a) and 510(a-5) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/501 et seq.  (West 2010)) in terminating the maintenance award, and abused its discretion in failing to award all or substantially all of her attorney fees. We reverse and remand.

2. Juvenile Delinquency: Reversed and remanded: Time spent by minor respondent in in county juvenile detention center "treatment Program" constituted "custody" for which minor respondent was entitled to credit upon his sentence for violating juvenile probation. Pope, J.

No. 2012 IL App (4th) 100902  In re Christopher P.  Filed 9-12-12 (TJJ)

In April 2009, the Adams County circuit court adjudicated respondent, Christopher P. (born April 7, 1994), a delinquent minor pursuant to the Juvenile Court Act of 1987 on the grounds he committed the offense of theft of property not exceeding $300 in  value, a Class A misdemeanor. In May 2009, the court sentenced respondent to a year's probation with conditions including successful completion of the Adams County Juvenile Detention Center treatment program (Treatment Program). After his release  from the Treatment Program, the court revoked respondent's probation twice. In September 2009, the trial court revoked respondent's probation a third time and resentenced him to the Department of Juvenile Justice (Department). The court denied  respondent's request for presentencing credit for time spent in the Treatment Program from May 18, 2009, to September 11, 2009, a total of 117 days. We agree respondent is entitled to sentencing credit for time spent in the Treatment Program as it is  "custody" within the meaning of section 5-8-7(b) of the Unified Code of Corrections; and we reverse and remand with directions to accord him sentence credit for time served in the Treatment Program. We conclude we are without jurisdiction to reach  respondent's contention that time served in the Treatment Program is unauthorized "detention." We affirm in part, reverse in part, and remand with directions.

3. Injunctive Relief: Trial court order denying pro se county jail inmate's petition for injunctive relief roughly two weeks after it was filed, and without service upon any named defendants, was improper, as trial court should have accorded plaintiff an opportunity to serve the defendants, and matter was thus not ripe for adjudication, applying the analysis applicable to 2-1401 petitions set forth in People v. Laugharn, 233 ILL.2d 318, 909 N.E.2d 802 (2009), and disagreeing with People v. Nitz, 2012 IL App (2d) 091165. Turner, J.

No. 2012 IL App (4th) 110168  Powell v. Lewellyn  Filed 9-12-12 (TJJ)

In February 2011, plaintiff, Douglas C. Powell, filed a pro se petition for injunctive relief against defendants, Raymond Lewellyn, Sergeant Huey, and Sergeant Osenberg. The trial court denied the petition. We vacate the trial court's judgment and remand  for further proceedings.

4. Juvenile Delinquency: Affirmed in part and reversed in part and remanded: Consistent with "companion" case In re Christopher P., 2012 IL App (4th) 100902 (described above at no. 2), minor is entitled to time credit for time spent in county juvenile detention center "Treatment Program." Pope, J.

No. 2012 IL App (4th) 120035  In re Darius L.  Filed 9-12-12 (TJJ)

In November 2010, the Adams County circuit court adjudicated respondent, Darius L. (born July 6, 1995), a delinquent minor pursuant to the Juvenile Court Act of 1987 when he pleaded guilty to retail theft, a Class A misdemeanor, and the court sentenced him to a year's probation, including as a condition his successful completion of the Adams County Detention Center treatment program (Treatment Program). After his release from the Treatment Program, the court revoked respondent's probation twice. In  September 2011, the trial court revoked respondent's probation a third time and resentenced him to the Department of Juvenile Justice (Department) for an indeterminate period. The court denied respondent's request for sentencing credit for time spent in  the Treatment Program from November 16, 2010, to March 18, 2011, a total of 123 days. Additionally, the court did not award credit for time spent in the Adams County Detention Center (Detention Center) from July 12 to July 15, 2011. We agree  respondent is entitled to sentencing credit for time spent in the Treatment Program as it is "custody" within the meaning of section 5-4.5-100(b) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-4.5-100(b) (West 2010)) and reverse and  remand with directions to accord him sentence credit for time served in the Treatment Program. We conclude we are without jurisdiction to reach respondent's contention that time served in the Treatment Program is unauthorized "detention." We affirm in  part as modified, reverse in part, and remand with directions.

4 Appellate Court Cases Posted 9-10-12

1. Parental Rights: Affirmed: Fact that evidence was arguably unclear as to which parent inflicted injuries to children was irrelevant in light of Juvenile Court Act provisions authorizing termination of parental rights where a parent "allows" the abuse, and evidence of abuse to one child could be considered by the trail court as to whether other child was abused. Lavin, J.

No. 2012 IL App (1st) 120193  In re R.G.  Filed 9-6-12 (TJJ)

A.M. was born on June 7, 2005, and his sister R.G. was born September 18, 2008. They had the same mother, but different fathers. When A.M. was just three months of age, he suffered a brain injury as a result of being severely shaken by his father, who   was arrested, charged, convicted and sentenced to 10 years in prison for his conduct. The Department of Children and Family Services (DCFS), which was involved in sorting out the parenting issues in the wake of the child's permanent neurological   injuries, ultimately decided to allow A.M. to remain in his mother's home, with an offer of "intact family services." The evidence supporting the neglect and abuse finding for A.M. supports the abuse and neglect finding for R.G., who lived in the same home and for whom Mr. G. and Ms. M. were responsible. Therefore, as stated above, the trial court's findings pursuant to sections 2-3(1)(b) and 2-3(2)(ii) were not against the manifest weight of the evidence. We therefore affirm the rulings of the trial court in all  respects.

2. Criminal Law: Affirmed: Trial court did not err in failing to appoint new counsel for defendant's motion to withdraw his guilty plea in first degree murder case where defendant alleged ineffective assistance of counsel; trial court conducted the postplea hearing consistent with the requirements of People v. Krankel and People v. Moore and under the circumstances appointment of new counsel was not necessary. Jorgensen, J.

No. 2012 IL App (2d) 110505  People v. Dean  Filed 9-7-12 (TJJ)

Defendant, John Dean, Jr., appeals from the denial of his motion to withdraw his guilty plea. Defendant argues that the trial court erred in failing to appoint new counsel to represent him on his motion where the motion alleged counsel’s ineffectiveness. He  asks that we reverse the trial court’s denial of his motion and remand for the appointment of new counsel and further postplea proceedings. For the reasons that follow, we affirm.

3. Criminal Law: Affirmed in part and modified in part: Although defendant's motion to reduce sentence was filed late, trial court was revested with jurisdiction by virtue of manner in which hearing on motion was conducted, and drug court fee and child advocacy fee improperly imposed by the circuit court clerk. McCullough, J. (Cook, J., sp. concurring).

No. 2012 IL App (4th) 110041  People v. Blalock  Filed 9-10-12 (TJJ)   

In October 2007, the State charged defendant, Ronald Richard Blalock, with two counts of unlawful use of a weapon by a convicted felon committed on October 17, 2007. In May 2008, pursuant to a fully negotiated plea agreement, defendant pleaded  guilty to one count in exchange for the State's dismissal of the second count and a recommendation of a four-year sentence cap. In November 2008, the trial court sentenced defendant to 30 months' probation, the first 12 months of which were intensive  supervision that included 6 months in jail to be served on a periodic basis. The State filed petitions to revoke defendant's probation in October 2009, April 2010, and June 2010. In May 2010, the trial court conducted a hearing on the State's first petition to  revoke and found defendant in violation of probation. On July 8, 2010, the court resentenced defendant to 4 years' imprisonment, with credit for 183 days as time served. The court's supplemental sentencing judgment reincorporated fines and costs already  ordered. On the State's motion, the court dismissed the second and third petitions for revocation of probation. On August 10, 2010, defendant pro se filed a motion for reduction of sentence. On September 30, 2010, defense counsel filed a supplemental  motion to reduce sentence. Following a December 2010 hearing, the trial court denied the motion to reconsider. Defendant appeals, asserting (1) the McLean County circuit clerk lacked authority to impose the $10 drug-court and $15 children's-advocacy  assessments; (2) the children's advocacy- center fine is void because it was not authorized by statute when defendant committed his offense; and (3) he is entitled to a $5 per diem credit toward his fines for each day spent in pretrial custody.

4. Slander/SLAPP: Affirmed in part, reversed in part, and remanded: Trial court erred in granting defendants' motion for summary judgment, as the Citizens' Participation Act did not immunize defendant, where defendant failed to show that plaintiff's complaint for slander and invasion of privacy was solely based on the defendant's constitutional rights. Hudson, J.

No. 2012 IL App (2d) 111252  August v. Hanlon  Filed 9-6-12 (TJJ)

Plaintiff, Charles August, filed in the circuit court of McHenry County a complaint against defendant, Robert Hanlon. As amended, the complaint contained one count of slander per quod and one count of false light invasion of privacy. The trial court  granted defendant’s motion for summary judgment on the basis that the Citizen Participation Act  provided defendant immunity from the claims alleged by plaintiff. In conjunction with the judgment, the trial court denied defendant’s request for attorney  fees. Thereafter, each party filed a motion to reconsider and defendant filed a motion for sanctions pursuant to Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994). The trial court denied the relief requested by the parties, and they both appealed. In appeal  No. 2-11-1252, plaintiff argues that the trial court erred in finding that the Act applies to this case. In appeal No. 2-11-1280, defendant challenges the trial court’s denial of attorney fees and sanctions. On our own motion, we consolidated the parties’  appeals. For the reasons that follow, we find that the Act does not apply to the facts of this case and that, therefore, defendant’s requests for attorney fees and sanctions are moot. Accordingly, the judgment of the trial court is affirmed in part and reversed in  part and the cause is remanded for further proceedings.

4 Appellate Court Cases Posted 9-7-12

1.  Prevailing Wage Act: Reversed: Trial court order finding defendant in contempt for failing to provide Department of Labor with wage records for department's investigation pursuant to subpoena erroneous, where record established that defendant was exempt from the Act as it operated as a "public utility" in connection with its work on the sewer and water system of a municipality. Turner, J.

No. 2012 IL App (4th) 110943  People v. E.R.H. Enterprises  Filed 9-7-12 (TJJ)

In December 2008, plaintiff, the Department of Labor, filed a complaint for adjudication of civil contempt against defendant, E.R.H. Enterprises, Inc., for its failure to comply with the Labor Department's May 2008 subpoena duces tecum brought under  section 10 of the Prevailing Wage Act. The subpoena related to the repair of water main leaks that defendant had done on the water infrastructure owned by the Village of Bement. Defendant objected claiming (1) it was exempt from the Wage Act because it was a public utility, (2) the subpoena was not properly served, and (3) the subpoena was too broad as it was not limited to a specific project or temporal scope. In August 2010, the Piatt County circuit court found the subpoena was properly served and  defendant was not a public utility. The court ordered defendant to provide the Labor Department with the documents sought by the subpoena for the period of May 23, 2003, to May 23, 2008, within 30 days of the order. In September 2010, defendant filed a  motion to reconsider and later a request to clarify the basis in law for the grant of the Labor Department's complaint. In January 2011, the court entered an order declaring it would file an amended order that would supercede its August 2010 order. The  next day, the court filed an amended order, which "affirmed" its prior order and provided additional detail for its ruling. Defendant filed a motion to reconsider the amended order. In September 2011, the court entered an "amended memorandum order,"  denying defendant's motion to reconsider. Defendant appeals, asserting (1) it is exempt from the Wage Act because (a) it is a public utility, (b) it did not perform public works, and (c) it is not paid from public funds; (2) the amended order and  memorandum order were not properly entered; and (3) the Labor Department's subpoena was improperly served and procedurally deficient. We reverse.

2. Criminal Law: Affirmed in part, as modified, and reversed in part, and remanded: Trial court had authority under Section 110-7 of Code of Criminal Procedure to use proceeds of defendant's bond money in this case to satisfy unpaid child support obligations in another case, but $25 Drug Traffic Prevention Fund assessment vacated as it was not in effect at time of crime, and matter remanded to trial court for hearing and imposition of required street value fine. McCullough, J.

No. 2012 IL App (4th) 101028  People v. Devine  Filed 9-6-12 (TJJ)

On August 25, 2010, the trial court found defendant, Donald Lee Devine, guilty of unlawful possession of a controlled substance, following a stipulated bench trial. On November 24, 2010, the court sentenced defendant to 54 months in prison and "the  mandatory financial consequences." On appeal, defendant argues (1) the trial court erred in imposing a $100 Trauma Center Fund fine, (2) the trial court erred in imposing a $25 Drug Traffic Prevention Fund assessment, and (3) the circuit clerk did not  have authority to use remaining bond monies to satisfy an unpaid child support obligation. We affirm in part as modified, vacate in part, and remand with directions.

3. Administrative Review/Insured's Right to Particular Drug: Affirmed: Action by estate of deceased State employee for administrative relief and declaratory judgment in connection with health plan decision to refuse to cover employee's request for coverage to receive Avastin in connection with treatment for melanoma affirmed, where record showed that particular drug was not approved for use in treating that particular cancer, and decedent not entitled to "judicial type" of hearing in connection with State agency decision to refuse coverage, where record showed that decedent and estate had notice of the State action and an opportunity to be heard. McCullough, J. (Appleton, J., sp. concurring).

No. 2012 IL App (4th) 110819  Callahan v. Sledge  Filed 9-7-12 (TJJ)

The decedent, Daniel J. Callahan (Daniel), was insured under a State of Illinois employee group health plan that was administered by Healthlink HMO, Inc. Healthlink denied Daniel, who had been diagnosed with melanoma, coverage for Avastin, a drug recommended by Daniel's treating oncologist. Daniel appealed Healthlink's decision to the Department of Central Management Services, which upheld the denial of coverage. He then filed a complaint in the circuit court against James P. Sledge, CMS's  Director ; CMS; Healthlink, Inc.; and Healthlink, seeking administrative review of CMS's decision and declaratory relief against all defendants. Following Daniel's death in November 2010, his wife, plaintiff Stacy J. Callahan, was appointed as the special representative of his estate. In August 2011, the circuit court dismissed Wellpoint; Healthlink, Inc.; and Healthlink from the action with prejudice and found in favor of Sledge and CMS. Plaintiff appeals, arguing (1) Avastin was "medically necessary"  treatment covered by Daniel's health-care plan, (2) Daniel was denied due process throughout contested administrative proceedings, (3) section 6.4 of the State Employees Group Insurance Act of 1971 (Group Insurance Act) (5 ILCS 375/6.4 (West 2008))  required coverage of Avastin under Daniel's health plan, and (4) plaintiff was entitled to a declaratory judgment against all defendants. We affirm.

4. Criminal Law: Affirmed: Defense counsel deemed not ineffective for failing to move to suppress video recording of drug transaction engaged in by defendant, as suppression would not have been granted. McCullough, J.

No. 2012 IL App (4th) 100945  People v. Brock  Filed 9-7-12 (TJJ)

On October 14, 2010, a jury convicted defendant, Johnathan D. Brock, of unlawful delivery of a controlled substance. On November 23, 2010, the trial court sentenced defendant as a Class X offender pursuant to section 5-5-3(c)(8) of the Unified Code of  Corrections to 25 years in prison. On appeal, defendant argues his trial counsel was ineffective. We affirm.

7 Appellate Court Cases Posted 9-05-12

1.  Post Conviction Petition: Reversed and Remanded: Where a petitioner has previously taken an appeal from a judgment of conviction, the ensuing judgment of the reviewing court will bar, under the doctrine of res judicata, postconviction review of all issues actually decided by the reviewing court, and any other claims that could have been presented to the reviewing court will be deemed waived.  If the circuit court finds that the petition is not frivolous or patently without merit, or if the court does not take action on the petition within 90 days of its filing, the proceedings move to the second stage, where counsel may be appointed to an indigent defendant, and the State either answers or moves to dismiss the petition.  At this stage, the circuit court must determine whether the petition and any accompanying documentation make a substantial showing of a constitutional violation. If no such showing is made, the petition is dismissed.  The dismissal of a petition at the second stage, without an evidentiary hearing, is reviewed de novo.  There is no constitutional right to counsel in postconviction proceedings. Because the right to counsel in such proceedings is wholly statutory (see 725 ILCS 5/122-4 (West 2010)), petitioners are entitled only to the level of assistance provided by the Act, which has been determined to be a " 'reasonable level of assistance.  Salone, J., Murphy, J., specially concurred

 No. 2012 IL App (1st) 101521  People v. Kelly  Filed 09-05-12 (LJD)

Petitioner Earl Kelly appeals from the dismissal of his petition for postconviction relief without an evidentiary hearing. For the reasons set forth below, we reverse the judgment of the circuit court and remand for further second-stage proceedings pursuant to the Post- Conviction Hearing Act. 725 ILCS 5/122-1 et seq. (West 2010).

2.  Statutory Summary Suspension: Reversed and Remanded:  A de novo standard of review applies to the ultimate determination of whether the petition to rescind the statutory summary suspension or motion to suppress should have been granted, but we will defer to the trial court's findings of fact, unless they are against the manifest weight of the evidence.  To determine whether the interaction between a law enforcement officer and a motorist qualifies as a seizure for fourth amendment purposes, we must objectively consider whether, in light of the circumstances surrounding the incident, a reasonable, innocent person would have felt free to decline the officer's requests or would have felt free to terminate the encounter.  After the officer requests a motorist to stop, certain factors that may be considered to determine whether a seizure occurred include: (1) the threatening presence of several police officers; (2) an officer's display of a weapon; (3) physical touching of an individual by an officer; and (4) use of language or tone indicating compliance with some directive was  compelled. The first objective, but threshold, requirement is whether an officer made a request for a motorist to stop, or whether the driver presented sufficient evidence conclusively establishing he involuntarily stopped based on his perception of the officer's actions.  Wright, J.,  McDade, J., dissented

3.  Criminal Law: Affirmed: A criminal intent formed after a lawful entry will satisfy the offense of burglary by unlawfully remaining. Batson provides a three-step process for the evaluation of racial discrimination claims in jury selection. The objecting defendant must first make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. If the defendant satisfies that initial burden, the burden then shifts to the prosecutor to articulate a race-neutral explanation for excluding the venire member in question. Third, and finally, the trial court must determine whether the defendant has met his burden of proving purposeful discrimination. A race-neutral explanation is one based upon something other than the race of the juror. In assessing an explanation, the focus of the court's inquiry is on the facial validity of the prosecutor's explanation.   Goldenhersh, J.

4.  Negotiable Instruments/Legal Negligence: Affirmed: Courts in Illinois have held that a limitations period generally begins to run 'when facts exist which authorize one party to maintain an action against another.'The discovery rule is a judicially created rule that tolls the beginning of a statute of limitations until the injured plaintiff knows or reasonably should know that she has been injured and that her injury was wrongfully caused.  Almost every jurisdiction that has addressed this issue has held that the discovery rule does not apply to the UCC's three-year statute of limitations on claims for the conversion of negotiable instruments. Stewart, J.

5.  Criminal Law: Reversed and Remanded: In determining whether a trial court has properly ruled on a motion to suppress, findings of fact and credibility determinations made by the trial court are accorded great deference and will be reversed only if they are against the manifest weight of the evidence.  We review de novo, however, the legal challenge to the trial court's ruling on a suppression motion. Further, it is proper for us to consider the testimony adduced at trial, as well as at the suppression hearing.  Section 103-2.1 provides that any statement "made as a result of a custodial interrogation at a police station or other place of detention shall be presumed to be inadmissible as evidence against the accused" in a murder case unless it is electronically recorded.  The only fair reading of the statute is that the legislature's clear intent was to ensure that statements related to murder investigations were not a result of the coercive pressures of custodial interrogation in a police facility but, rather, were both voluntary and reliable.  Lavin, J.

6.  Uniform Fraudulent Transfer Act: Affirmed:  "A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation."  Hoffman, J.

7.  Criminal Law: Affirmed: In Illinois, claims of ineffective assistance of counsel are analyzed under the two-part test. Under the two-pronged test, a defendant must show that his counsel's performance was deficient and that the deficient performance substantially prejudiced his defense. The court does not need to determine whether counsel's performance was deficient prior to examining whether the defense was substantially prejudiced. Illinois Supreme Court Rule 415(c) provides as follows: "Any materials furnished to an attorney pursuant to these rules shall remain in his exclusive custody and be used only for the purposes of conducting his side of the case, and shall be subject to such other terms and conditions as the court may provide."  Stewart, J.