Illinois Supreme and Appellate Court Case Summaries

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


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16 Appellate Cases Posted 9-30-13

1. Juvenuile/Criminal Law: Remanded with directions: A crucial issue in this appeal is the constitutionality of section 5-130 of the Juvenile Court Act (705 ILCS 405/5-130 (West 2010)), particularly following three recent United States Supreme Court cases recognizing the fundamental differences between juvenile offenders and adults.  In light of current precedent, defendant has not met the burden of demonstrating that the mandatory transfer of 15- and 16-year old juveniles to adult court under the Juvenile Court Act is unconstitutional. Based on the evidence of record, Arsenio was proven guilty beyond a reasonable doubt of first degree murder and aggravated battery with a firearm. The State's closing arguments were proper. Our examination of the complained of comments, within the context of both parties' arguments, shows no impropriety. The prosecutor's comments did not fall outside the bounds of reasonable argument based on the evidence or the reasonable inferences drawn therefrom, or as invited by defense counsel's argument. Arsenio's convictions for first degree murder and aggravated battery with a firearm, as well as his sentences of consecutive terms of 33 years for his first degree murder conviction, plus the 15-year statutory firearm enhancement, and 15 years for his aggravated battery with a firearm conviction (accountability) are affirmed.  Finally, the trial court erred by failing to conduct an appropriate preliminary inquiry under Krankel to evaluate the posttrial claims of ineffective assistance of trial counsel. On remand, the trial court will conduct a preliminary inquiry into the factual basis of the claims to determine if they show possible neglect of the case warranting appointment of counse.  Hyman, J.

No. 2013 IL App (1st) 110233    People v. Willis    Filed 9-30-13 (RJC)

Sixteen years old at the time the crime was committed, defendant Arsenio Willis was tried as an adult as required under the Illinois Juvenile Court Act of 1987 (705 ILCS 405/5-130 (West 2010)). Section 5-130 of that Act mandates automatic transfer to criminal court of 15- and 16-year-olds charged with certain Class X felonies. A jury found Arsenio guilty of first degree murder with a firearm and aggravated battery with a firearm (accountability). The trial court sentenced him to 63 years in the adult prison system.

2. Criminal Law: Remanded with directions: First, the trial court did not err when it admitted defendant’s bloodstained pants and boots into evidence because the State established a sufficient foundation through witness identification. Second, the assistant public defender did not provide ineffective assistance of counsel at trial for not introducing the hospital belongings list since the State was not required to prove a chain of custody. Third, the trial court did not err when it denied the defense’s request to show a still shot from the Area 2  interrogation video because doing so would not impeach forensic investigator Rivera. Fourth, the trial court did not err in denying the defense’s motion in limine to bar testimony that defendant threatened to cut Abel Smith’s and Harold Jackson’s throats the morning of the homicide because it established defendant’s continuing course of conduct of anger and jealousy that culminated in Cavin’s murder. And last, the assistant public defender was not ineffective for not objecting to the State’s latent fingerprint analysis since such methods have
been generally accepted in the scientific community for over 100 years. Gordon, J.

No. 2013 IL App (1st) 111251    People v. Morris    Filed 9-30-13 (RJC)

Following a jury trial, defendant Herbert Morris was convicted and sentenced to 55 years in the Illinois Department of Corrections for the first-degree murder of Clinton Cavin, who was found dead hours after engaging in an argument with defendant on the morning of November 15, 2006.

3. Illinois Income Tax Act: Reversed and remanded: At issue here is whether pass-through miles traveled on behalf of an interstate trucking company in Illinois without picking up or delivering goods should be included in the numerator of the apportionment factor of section 304(d)(1). The plaintiff's pass-through miles do establish a physical and economic presence in Illinois which must be taxed according to section 304(d)(1). Reyes, J.

No.2013 IL App (1st) 120850    Witte Brothers Exchange v. The Department of Revenue    Filed 9-30-13 (RJC)

Plaintiff-appellee Witte Brothers Exchange, Inc. (Witte Brothers or plaintiff), an interstate trucking company, initiated this action against defendants-appellants the Illinois Department of Revenue, Brian Hamer as its director, and Dan Rutherford as Treasurer of the State of Illinois (collectively the Department) to recover funds submitted under protest following an audit during which the Department concluded Witte Brothers failed to include in the numerator of its apportionment factor the miles driven through Illinois without picking up or delivering goods, otherwise known as pass-through miles.1 The trial court granted plaintiff's motion for summary 1"In apportioning the income of multistate, unitary businesses operating within this state, determination and concluded the Department could not tax pass-through miles under section 304(d)(1) of the Illinois Income Tax Act (Tax Act) (35 ILCS 5/304(d)(1) (West 2010)). The Department appeals, contending the trial court erred in granting summary determination because the language of section 304(d)(1) demonstrates pass-through miles are revenue miles "in this State," and thus the appropriate taxes were assessed in this matter. For the reasons which follow, we reverse the determination of the trial court.

4. Administrative Review Law: Affirmed: The purposes of the exhaustion doctrine seem best served by requiring that the plaintiff exhaust all administrative remedies, including filing for a rehearing, before seeking judicial review of the evidentiary issue he raises here.  Hoffman, J.

No.2013 IL App (1st) 122449    Burns v. The Department of Insurance    Filed 9-30-13 (RJC)

The plaintiff, John T. Burns, III, appeals the circuit court order which, pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2012)), dismissed his complaint for administrative review of the decision of the defendants, The Department of Insurance and Andrew Boron, Acting Director of The Department of Insurance (Department), to revoke his insurance producer license and impose a civil penalty of $10,000. For the reasons that follow, we affirm the judgment of the circuit court.

5. Civil/Good Faith Settlement: Affirmed: In this case, the trial court noted that there was no evidence of wrongful conduct, collusion, or fraud by the settling parties existed.  The trial court in this case also knew that Geans had no other assets aside from her policy limit of $20,000. Additionally, Geans was unemployed and had a chronic, sometimes disabling, medical condition. While it was likely that damages would far surpass Geans' insurance policy limit and she had no potential defenses, the court understood that, like the plaintiffs in Lard, the plaintiff here would likely be unable to recover any amount above the insurance policy limit. Thus, Geans' $20,000 settlement was the best amount available under poor circumstances.  The record demonstrates that the trial court considered the relative fault of the parties, along with the other relevant factors when it considered the good faith of the settlement. The trial court did not abuse its discretion when it determined that, under the totality of the circumstances, the settlement was made in good faith.  Hoffman, J. with Delort, J. dissenting.

No. 2013 IL App (1st) 122674   The Walsh Group, LTD. v. Geans     Filed 9-30-13 (RJC)

The defendants and third-party plaintiffs, The Walsh Group, LTD, Walsh Construction Company, d/b/a Walsh Construction of Illinois (Walsh), appealed the circuit court order which found that the settlement between the plaintiff, Francisco Miranda, as Father and Next Friend of Marco
Antonio Miranda, and the third-party defendant, Kesha A. Geans, for injuries that Marco Miranda sustained following a vehicular accident with Geans, was made in good faith. The settlement awarded the plaintiff $20,000, which was the policy limit of Geans' auto insurance policy issued by
Universal Casualty Company (Universal). Walsh contends that the circuit court abused its discretion in approving the settlement because it failed to consider the amount of the settlement in relation to the probability of recovery and Geans' potential legal liability. For the reasons that follow, we

6. Civil/Motion to Dismiss: Reversed and remanded: The issue raised by plaintiff on appeal concerns the propriety of the circuit court’s dismissal of plaintiff’s state action due to his pending federal lawsuit. Plaintiff's complaint is sufficient to withstand a motion to dismiss for prejudice. Since the trial court granted the 2-619(a)(3) motion in the state action, plaintiff may suffer prejudice because the two-year statute of limitations may bar him from pursuing medical malpractice and negligence claims against Dr. Williamson and Oliver in the federal action. If defendants prevail on a motion to dismiss in the federal case, then plaintiff may be unable to obtain complete relief because his claims against these individual defendants will be barred, which would not satisfy plaintiff’s ability to obtain complete relief in a foreign jurisdiction. The dismissal of plaintiff’s claims in federal court against the individual defendants tips the scales against dismissing the state suit and the trial court is reversed with directions to stay the proceedings until the federal court decides the question of the statute of limitations. Gordon, J.

No.2013 IL App (1st) 123460    Rodgers v. Cook County, Illinois    Filed 9-30-13 (RJC)

Plaintiff David Rodgers is the special administrator of the estate of his deceased father, Edward J. Rodgers, and he appeals the circuit court’s dismissal under section 2-619 of the Code of Civil Procedure of his action against defendants Cook County, Illinois; Dr. Sunita Williamson, a physician; and Clifford Oliver, a mental health specialist. 735 ILCS 5/2-619(a)(3) (West 2008).  The complaint alleges that the decedent died as a result of the denial of his prescription medicine while an inmate at Cook County jail. In dismissing the complaint, the circuit court found that the state lawsuit was duplicative of a 42 U.S.C. §1983 action already pending in federal court.  Following the dismissal of the state action, the federal court granted plaintiff leave to amend the federal complaint to add Dr. Williamson and Oliver as defendants. The federal action was then stayed pending the outcome of this appeal. Plaintiff argues that he would be unable to obtain complete relief if the state action were dismissed because the two-year statute of limitations could bar him from maintaining an action against Dr. Williamson and Oliver in federal court.

7. Appeals/mootness: Appeal dismissed: The only issue the trial court determined was the request for preliminary relief. That issue is now moot, and the public-interest exception to the mootness doctrine does not warrant our exercise of review. In the absence of a continuing legal controversy and finding no reason for the exception to the mootness doctrine to apply, the appeal is dismissed. Hyman,  J.

No. 2013 IL App (1st) 123634   Davis v. The City of Country Club Hills     Filed 9-30-13 (RJC)

This interlocutory appeal challenges the trial court's denial of a petition to preliminarily enjoin the results of a referendum reducing to five the number of aldermen in the City of Country Club Hills. A majority of eligible voters approved the referendum at the November 6, 2012, general election, and in April 2013, the voters elected five aldermen, who then took office.  The only issue the trial court determined was the request for preliminary relief. That issue is now moot, and the public-interest exception to the mootness doctrine does not warrant our exercise of review.

8. Municipal Amusement Tax: Affirmed: City tax on personal seat licenses for Chicago Bears' games is neither a tax on personal property or an occupation tax, but is a proper amusement tax, and City could tax PSL upon subsequent transfer by original owner to others. Howse, J.

No. 2013 IL App (1st) 120265  Stasko v. The City of Chicago  Filed 9-30-13 (TJJ)

Plaintiffs sought a declaration that the City of Chicago (the City) may not collect or assess its amusement tax from or against permanent seat license (PSL) owners based on the sale or transfer of a PSL; an order to the City to disgorge all amusement taxes it  collected before judgment in this case on the purchase, sale, or transfer of any PSL, with interest; and an injunction against the City enjoining the imposition, assessment, levy, or collection of the amusement tax on PSLs in the future. On the question of the  City’s right to collect its amusement tax on the sale of PSLs by either the originator of the PSL (the Chicago Park District) or by an owner of a PSL, the trial court granted summary judgment in favor of defendant. For the following reasons, we affirm the  trial court’s judgment, and remand.

9. Criminal Law: Reversed and modified: In aggravated fleeing and eluding prosecution, in which it was alleged that defendant committed that felony by fleeing and eluding police by driving in excess of 21 mph over speed limit, where only testimony establishing speed was officer's testimony that he drove at some point at 55 mph in 20 mph zone, that evidence was insufficient to prove beyond a reasonable doubt that defendant drove at that rate of speed, and Appellate Court reduced conviction to misdemeanor fleeing and eluding. Pierce, J.

No. 2013 IL App (1st) 120530  People v. Lipscomb  Filed 9-30-13 (TJJ)

Following a bench trial, defendant Jerold Lipscomb was convicted of aggravated fleeing or attempting to elude a police officer and sentenced to 18 months in prison. On appeal, the defendant asserts the State did not sufficiently prove beyond a reasonable  doubt the aggravating factor of traveling at least 21 miles per hour over the legal speed limit. We vacate defendant's conviction, and enter judgment of conviction on the lesser charge of misdemeanor fleeing or attempting to elude a police officer.

10. School Code: Affirmed: Plaintiff taxpayers could not sue school board and its members for "recovery" of money spent from various school funds transferred without apparent board approval, where there was no allegation that funds were spent other than for proper school purposes. Epstein, J. (Dissent to be filed by J. Pucinski hereafter).

No. 2013 IL App (1st) 121112  Lutkauskas v. Ricker  Filed 9-30-13 (TJJ)

In this consolidated appeal, five taxpayer plaintiffs, acting on behalf of the Lemont Bromberek Combined School District 113A, seek reversal of the circuit court’s dismissal of their claims brought against two school district employees, seven school board  members, the district’s accounting firm, and the district’s surety. Plaintiffs alleged that the district employees and board members violated section 20-5 of the School Code (105 ILCS 5/20-5 (West 2010)) when they engaged in or permitted a pattern of  spending money from the district’s working cash fund without a school board resolution approving the transfer of funds from the working cash fund. For the reasons that follow, we affirm.

11. Estate Administration: Affirmed: In case of first impression, appointed administrator (and her attorneys) sought to transfer assets from brother's brokerage account (worth $500,000) after passage of over seven years led court to presume (and rule) that brother was deceased. Upon being discovered alive, his assets were transferred back to him, but trial court ruled that administrator's attorneys were entitled to be paid attorneys' fees from estate, and ruling upheld on appeal. Delort, J. (Cunningham, J., dissenting).

No. 2013 IL App 122879  In re Estate of Zagaria  Filed 9-30-13 (TJJ)

After Samuel N. Zagaria, Jr. disappeared from all contact with his family and friends for over seven years, a probate court declared that he was “presumed dead” and appointed his sister as administrator of his estate. The main asset transferred into the estate was a stock account worth about $500,000 that Zagaria had apparently abandoned years before. During the course of the estate administration, attorneys for the administrator serendipitously found him, alive, through a contact at a homeless shelter. The trial court revested him with title to his own assets, but the attorneys who handled the estate administration during his absence later sought compensation for their efforts. The court awarded the fees and ordered Zagaria to pay them from the assets that had been  returned to him from the estate. In this case of first impression, we affirm the court below by finding that it did not err in ordering Zagaria to return a portion of the assets to the estate for the purpose of paying the attorney fees.

12. Attorney Malpractice: Reversed and remanded: Dismissal of plaintiff's complaint alleging legal malpractice in connection with defendants' representation of plaintiff in stock purchase agreement lawsuit reversed, where allegations of third amended complaint alleged malpractice, and not merely an error in attorneys' judgment. Epstein, J.

No. 2013 IL App (1st) 123122  Nelson v. Quarles and Brady, LLP  Filed 9-30-13 (TJJ)

This case involves an action for legal malpractice filed by plaintiff Kenneth A. Nelson against defendant Quarles & Brady, LLP, the law firm that represented him in a federal action involving a dispute concerning the terms of a stock purchase agreement  between plaintiff and his former business partner, Richard Curia. Plaintiff filed this appeal after the circuit court dismissed his third amended complaint with prejudice pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 2-615 (West 2010))  for failing to state a cause of action. For the reasons that follow, we reverse and remand.

13. Criminal Law: Affirmed: Where defendant was present when his attorney advised the court that defendant was requesting a "six-person" jury, rather than twelve, was sufficient to establish that defendant was requesting such, rather than merely acquiescing in the procedure, and six-person jury trial was proper; identification testimony sufficient to prove defendant guilty of disorderly conduct beyond a reasonable doubt. Jorgensen, J.

No. 2013 IL App (2d) 120323  People v. Dereadt  Filed 9-30-13 (TJJ)

Defendant, Robert P. Dereadt, was convicted by a six-person jury of disorderly conduct (720 ILCS 5/26-1(a)(1) (West 2010)). He appeals, contending that (1) the trial court committed plain error by proceeding with a 6-person jury without securing  defendant’s personal waiver of a 12- person jury; and (2) he was not proved guilty beyond a reasonable doubt where the eyewitnesses’ identification of defendant and his truck was vague and uncertain. We affirm.

14. Criminal Law: Reversed: Conviction for unlawful contact with a steet gang member reversed where State failed to prove that person defendant had contact with was a street gang member at time of contact. Jorgensen, J.

No. 2013 IL App (2d) 120396  People v. Rubalcava  Filed 9-30-13 (TJJ)

In November 2011, after a bench trial, defendant, Artemio Rubalcava, was convicted of unlawful contact with streetgang members (720 ILCS 5/25-5(a)(3) (West 2010)) and sentenced to 12 months of conditional discharge. Defendant appeals, arguing that:  (1) the evidence was insufficient to sustain his conviction; and (2) the court erred in relying on inadmissible hearsay evidence. Because we agree with defendant’s first argument, we reverse defendant’s conviction.

15. Whistleblower/Retaliatory Discharge: Affirmed in part, reversed in part and remanded: Plaintiff's claim  under Whistleblower Act that he was fired in connection with his complaints regarding operation of defendant park district's allegedly unsafe ski lift properly dismissed by trial court where plaintiff did not allege that he actually "refused to participate" in operation of the lift, but his complaint for retaliatory discharge stated a claim and the trail court erred in dismissing that claim. Burke, J.

No. 2013 IL App (2d) 130006  Collins v. Bartlett Park District  Filed 9-30-13 (TJJ)

Defendant, Bartlett Park District, terminated the employment of plaintiff, John Collins, after plaintiff challenged his supervisor’s decision to continue operating an allegedly defective ski lift at full capacity. Plaintiff filed a two-count amended complaint,  alleging (1) retaliation in violation of section 20 of the Whistleblower Act and (2) the common-law tort of retaliatory discharge. The trial court dismissed both claims under section 2-615 of the Code of Civil Procedure, and plaintiff appeals. We affirm the  dismissal of the whistleblower claim, reverse the dismissal of the retaliatory discharge claim, and remand the cause for further proceedings.

16. Criminal Law: Affirmed: Conviction for felony resisting a peace officer reversed for trial court failure to instruct jury that defendant's conduct in resisting the officer was a proximate cause of the officer's injuries, despite defense counsel's failure to object at trial. Holdridge, J.

No. 2013 IL App (3d) 120178  People v. Fonder  Filed 9-30-13 (TJJ)

After a jury trial, the defendant, Darnell M. Fonder, was convicted of resisting a peace officer and criminal trespass to real property. The trial court sentenced the defendant to three years of imprisonment. On appeal, the defendant argues that the trial court  erred when it did not instruct the jury that it must find that the defendant's conduct was the proximate cause of an injury to a peace officer to sustain a felony charge of resisting arrest. We reverse and remand the cause.

12 Appellate Cases Posted 9-27-13

1. Criminal Law: Reversed and vacated: Defendant was neither free nor "in the streets" for the entire period. Instead, defendant was in the custody of the Honolulu police department for the last 3 days of the surrender period and, therefore, unable to willfully surrender during that 30-day period. Since defendant was arrested within the 30-day statutory period and incarcerated when the 30-day period expired, the State cannot and did not prove beyond a reasonable doubt that his failure to surrender within the 30 days was willful.  The State agrees that the enumerated fees and fines should not have been imposed. The record bears this out. Accordingly, we vacate the $5 court system fee, the $25 court supervision fee, the $20 serious traffic violation fee, the $200 domestic violence fine and the $20 violation of an order of protection fine. Palmer, J.

No. 2013 IL App (1st) 090833    People v. Costa    Filed 9-27-13 (RJC)

Following a jury trial, defendant Joseph Costa was found guilty and sentenced on two counts of violation of bail bond (720 ILCS 5/32-10(a) (West 2006)). Defendant appeals, arguing that (1) the State failed to prove him guilty beyond a reasonable doubt, (2) the trial court incorrectly instructed the jury and (3) several of the fines and fees assessed by the court were not authorized by statute and should be vacated. We reverse defendant's convictions for violation of bail bond and vacate the court's assessment of the challenged fees and fines.

2. Criminal Law: Affirmed w/mittimus corrected: The trial court did not abuse its discretion by permitting evidence that defendant was smoking marijuana immediately prior to the shooting. No error in the trial court’s comment during voir dire. When testimony regarding gang membership and gang-related activity is to be an integral part of the defendant’s trial, the defendant must be afforded an opportunity to question the prospective jurors, either directly or through questions submitted to the trial court, concerning gang bias.  The 25-to-life firearm enhancement is not unconstitutionally vague. Gordon, J.

No. 2013 IL App (1st)113105   People v. Thompson    Filed 9-27-13 (RJC)

After a jury trial, defendant Rudolph Thompson was convicted of first degree murder and was sentenced to 50 years in the Illinois Department of Corrections. Defendant was also sentenced to an additional 40 years for personally discharging the firearm that proximately caused the victim’s death, pursuant to a mandatory firearm enhancement that required him to receive an additional 25 years to natural life, bringing his total sentence to 90 years in the Illinois Department of Corrections. On appeal, defendant argues that he is entitled to a new trial because (1) the prosecutor made a number of errors that, individually or cumulatively, so infected the trial that defendant did not receive a fair trial; and (2) during voir dire, the trial court instructed the jury on gang evidence despite having earlier granted defense counsel’s motion in limine to bar the introduction of such evidence in the State’s case-in-chief. Additionally, defendant asks us to reduce his sentence or remand for resentencing because (1) the 25-years-to-natural-life mandatory firearm enhancement is unconstitutionally vague and (2) the trial court improperly bifurcated defendant’s sentence instead of considering the enhanced range, resulting in an excessive sentence. For the reasons that follow, we affirm but order the mittimus to be corrected.

3. Municipal Code/Atty. Fees: Reversed and remanded: Bockweg properly filed an action under section 11-13-15 seeking solely monetary compensation for the damage to her home resulting from Quality's violation of the excavation ordinance and should have been awarded attorney fees under section 11-1-3-15 for her successful enforcement of the ordinance. Palmer, J.

No. 2013 IL App (1st)121122   Bockweg v. Konopiots    Filed 9-27-13 (RJC)

Plaintiff Helen Bockweg appeals from an order of the circuit court denying her petition for attorney fees and costs she incurred in pursuing her successful enforcement of the excavation ordinance of the Chicago Municipal Code (Chicago Municipal Code §13-124-380 et seq.) against defendant Quality Excavation, Inc. (Quality). Bockweg argues that the court erred as a matter of law in denying her petition because she was entitled to her costs, including attorney fees, pursuant to section 11-13-15 of the Illinois Municipal Code (65 ILCS 5/11-13-15 (West 2008)). We reverse and remand.

4. Insurance/Duty to Defend: Affirmed: On appeal, the only issue was whether the trial court's finding that "the contract of automobile insurance between [the insured] and [the insurer] did not provide coverage for [the insured's son] was against the manifest weight of the evidence." There was no misrepresentation that "substantially increas[ed] the chances of the events insured against."  The application stated that only one driver of the Elia vehicle resided at Elia's residence, and although the application listed this person as Elia, the fact that the true driver was in fact Mario did not increase the risk DAI insured against.  Any misrepresentation by Elia was not material because she did not misstate the number of regular drivers of the Elia vehicle. Gordon, J.

No. 2013 IL App (1st)121128    Direct Auto Insurance Company v. Beltran   Filed 9-27-13 (RJC)

Plaintiff Direct Auto Insurance Co. (DAI) filed an action seeking a declaratory judgment, arguing that: (1) an insurance policy it issued to defendant Elia Beltran was rescinded and null and void, ab initio; (2) that DAI owed no duties under the policy to any of the defendants; and (3) that defendants were not entitled to any recovery under the policy. DAI and defendant Acuity Insurance Company (Acuity), as subrogee of Alice Obermann, George Obermann, and Mark Obermann, filed cross-motions for summary judgment. The trial court granted Acuity's motion and denied DAI's motion, finding coverage. DAI filed a motion to reconsider, which the trial court denied. DAI appeals, and we affirm.

5. Collections/Judgments: Affirmed: The ultimate issue in this case is whether the circuit court's March 20, 2009, order should be enforced against the individual defendants, thereby requiring the individual defendants to pay the 2.5% profit/loss distributions of RCG to plaintiff despite the fact that this court overturned the circuit court's prior order, finding that plaintiff was not an owner and not entitled to the requested distributions. There was no obligation of RCG as an L.L.C. to plaintiff, it would be inequitable and prejudicial
to impose any obligation on the individual defendants in their capacity as members of the L.L.C. In sum, based on the circumstances,  the circuit court's March 20, 2009, order is not enforceable against the individual defendants. Also, the doctrine of res judicata does not apply to the instant case. The key fact preventing the application of the doctrine of res judicata to the instant matter is the lack of a subsequent cause of action. The circuit court did not err in quashing plaintiff's citation proceedings aimed at fulfilling the court's March 20, 2009, order against defendants based on the doctrine of res judicata. Lampkin, J.

No. 2013 IL App (1st)121406    Downs v. Rosenthal  Filed 9-27-13 (RJC)

Plaintiff, Michael A. Downs, appeals the circuit court's order barring him from recovering damages from the individual, nonappealing defendants, Leslie Rosenthal (Rosenthal), J. Robert Collins (Collins), Dreadnought Partners, L.L.C. (Dreadnought), and Knot, L.L.C. (Knot) of the underlying order. Plaintiff contends that this court's opinion reversing the circuit court's original order in favor of plaintiff was limited to the appealing defendant, Rosenthal Collins Group, L.L.C. (RCG), and does not extend to the individual, nonappealing defendants. Instead, plaintiff contends that, because the individual, nonappealing defendants chose not to file an appeal of the circuit court's original final judgment, the order is res judicata and no court had jurisdiction to overturn the order as to them. Based on the following, we affirm.

6. RICO: Affirmed: A complaint must do more than merely characterize a combination of acts as a conspiracy to survive a motion to dismiss. Plaintiff did not allege specific facts from which it could necessarily be inferred that Robert and his attorneys knew of and agreed to participate in a fraud perpetrated by plaintiff's attorneys and her ex-fiancé. Without that knowledge and voluntary participation, there was no intent, and without intent there was no claim .Plaintiff's fourth amended complaint failed to sufficiently plead causes of action for civil RICO violations, fraud, civil conspiracy and legal malpractice. Plaintiff's breach of duty allegations merely state a series of legal conclusions. Plaintiff also failed to sufficiently plead proximate cause.  Lampkin, J.

No. 2013 IL App (1st)121897    Merrilees v. Merrilees    Filed 9-27-13 (RJC)

After reaching a negotiated settlement with her ex-husband in their dissolution of marriage case, plaintiff Pamela Merrilees sued her former attorneys, her ex-husband, her ex-husband's attorneys, and her ex-fiancé for alleged damages arising out of the settlement of that case. After the trial court gave plaintiff five chances to state a cause of action against any of the defendants, the trial court, pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2010)), dismissed with prejudice plaintiff's fourth amended complaint. Plaintiff appeals the dismissal of her complaint, contending she has pled factually and legally sufficient claims of civil violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. § 1962 (2006)), fraud, civil conspiracy, and legal malpractice against the defendants. For the reasons that follow, we affirm the judgment of the trial court.

7. Tort Immunity Act:Affirmed: Plaintiff was not an intended user of the alley in which he sustained injuries, defendant is immunized from liability pursuant to section 3-102(a) of the Tort Immunity Act. Lampkin, J. with Gordon, J. dissenting in part and concurring in part.

No. 2013 IL App (1st)123763   Berz v. City of Evanston    Filed 9-27-13 (RJC)

Plaintiff, Thomas Berz, appeals the circuit court's order dismissing his third amended complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2010)) where the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 2010)) immunized defendant, the City of Evanston, against plaintiff's negligence claim. Plaintiff contends the circuit court erred in dismissing his third amended complaint because relevant Evanston ordinances and defendant's bicycle map established that he was an intended user of the alley where he was injured. Based on the following, we affirm.

8. Criminal Law: Affirmed: There was substantial evidence that defendant had knowledge of a common criminal design to retaliate against a rival gang member. There also was evidence that defendant intended to facilitate the scheme. Viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The former interview did not shed light on the latter interview or place it in context—it merely contradicted it. Consequently, the recording of the Milwaukee interview was not admissible under Illinois Rule of Evidence 106. Zenoff, J. 

No. 2013 IL App (2d)111300    People v. Craigen   Filed 9-27-13 (RJC)

Following a jury trial, defendant, Chappel Craigen, was convicted of first-degree murder (720 ILCS 5/9-1(a)(2) (West 2006)) for the shooting death of Jimmie Lewis, Jr., in Waukegan, Illinois, on October 18, 2007. Defendant was sentenced to 36 years’ imprisonment. On appeal, he argues
that (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt of first-degree murder under a theory of accountability, and (2) the trial court abused its discretion in not allowing him to introduce an audio recording of his October 27, 2007, interview with police in Milwaukee, Wisconsin, during which he denied being in Waukegan on the night of the shooting. According to defendant, pursuant to Illinois Rule of Evidence 106 (eff. Jan. 1, 2011), the audio recording should have been introduced contemporaneously with the video recording of his January 16, 2008, interview with police in Clarksdale, Mississippi, during which he confessed to driving the vehicle from which Lewis was shot. For the following reasons, we affirm.

9. Criminal Law: Affirmed: To hold that one who possesses child pornography commits but a single offense no matter how many different images he or she possesses, and no matter how many children are depicted, could severely undermine the legislative objectives of eliminating the market for child pornography. Offering pedophiles a “volume discount” for pornographic images of a particular child increases the demand for such images and might result in the continued exploitation of that child. Schostok, J. with Hudson, J. specially concurring. 

No. 2013 IL App (2d)120068    People v. Murphy   Filed 9-27-13 (RJC)

Following a bench trial in the circuit court of Du Page County, defendant, Paul F. Murphy, was convicted of 15 counts of aggravated child pornography (720 ILCS 5/11-20.3(a)(6) (West 2010)) and was sentenced to a 36-month term of probation. The convictions were based on defendant’s
possession of a computer thumb drive containing pornographic images of girls ranging in age from approximately three to nine years of age. Each count pertained to a separate image. The defendant argues that the simultaneous possession of multiple pornographic images constitutes but a single offense and will not support multiple convictions.  We affirm.10

10. Public Utilities Act/IL Adm. Code: Affirmed:  The Commission had jurisdiction to order the refund; allowing ComEd to introduce new evidence on actual costs during the refund period would have been improper retroactive ratemaking in that it would have required reopening the proceedings to all parties for evidence on actual costs and savings on the entire 2007 Rate Order, and therefore, the Commission properly determined that the refund should be the difference between the actual rates collected pursuant to the 2007 Rate Order and the rates that would have been charged if they had been set in accordance with our views expressed in ComEd; and, the Commission sufficiently followed our mandate on remand, and substantial evidence supports the Commission’s exclusion of the thirdquarter 2008 plant additions from the rate base.  Burke, J.  

No. 2013 IL App (2d)120334   Commonwealth Edison Company v. Illinois Commerce Commission   Filed 9-27-13 (RJC)

The Commission entered the Refund Order, which is a final order, on February 23, 2012. On March 2, 2012, ComEd filed a timely application for rehearing concerning the issues raised in this appeal. On March 22, 2012, the Commission denied ComEd’s application for rehearing. Four days later, ComEd filed a petition for review in this court.

11. Contracts/Employment : Affirmed:  No facial ambiguity exists regarding whether Championship employed defendants; thus, parol evidence need not be considered. Thus, there is no genuine issue of material fact regarding whether Championship was defendants’ employer.  The App. Crt. declined defendants’ invitation to employ the provisional admission approach and refused to consider parol evidence to determine the meaning of facially unambiguous contracts. The record indicates that there was no employer-employee relationship between Championship and defendants. Thus, plaintiff was not obligated to provide coverage for defendants under the terms of the policy that required coverage under the Wisconsin Act.  Defendants’ claims were not compensable under Wisconsin’s workers’ compensation law.  Therefore, the trial court properly granted plaintiff’s motion for summary judgment and denied defendants’ motion for summary judgment. McLaren, J.  

No. 2013 IL App (2d)120814   West Bend Mutual Insurance Company v. Talton   Filed 9-27-13 (RJC)

Defendants, Maurice Talton, Robert J. Lash, and Jaa Valentine, appeal the trial court’s order denying their motion for summary judgment and granting summary judgment in favor of plaintiff, West Bend Mutual Insurance Company. On appeal, defendants argue that the trial court erred: (1)
because there is a genuine issue of material fact regarding whether defendants were employees of plaintiff’s insured, Championship Investments, LLC (Championship); and (2) by ruling that defendants’ claims were not compensable under Wisconsin’s workers’ compensation law. We

12. Criminal Law: Affirmed in part, reversed in part and remanded :  Although the evidence was circumstantial, the finding that Phillips’ injury was caused by a gunshot was clearly a reasonable inference to be drawn from the evidence.  The jury could reasonably have concluded beyond a reasonable doubt that, via Henderson, defendant intended that Phillips be killed and took a substantial step toward doing.  There is no reasonable probability that, if defense counsel had successfully moved to exclude evidence of gang membership, defendant would have been acquitted. Accordingly, defendant’s ineffective-assistance argument as to the failure to object to gang evidence fails.  The procedure used by the trial court during the Krankel hearing improperly converted the inquiry into an adversarial evidentiary hearing wherein he was not represented by counsel.   The hearing changed from one consistent with Krankel and its progeny to an adversarial hearing where defendant, without waiving his right to be represented, was forced, unrepresented, to argue the merits of his claims. Jorgensen, J.  

No. 2013 IL App (2d)120945    People v. Fields   Filed 9-27-13 (RJC)

In 2008, a jury found defendant, Tuan C. Fields, accountable for the acts of his codefendant, Darvin Henderson, and convicted him of first-degree murder (720 ILCS 5/9-1(a)(1) (West 2006)) and attempted first-degree murder (720 ILCS 5/8-4(a), 9-1(a) (West 2006)). The court sentenced
defendant to consecutive terms of 25 years’ and 8 years’ imprisonment, respectively. Defendant appeals, arguing, as to his attempted first-degree murder conviction only, that the evidence was insufficient to sustain his conviction. In addition, defendant argues that trial counsel provided
ineffective assistance where he did not object to the State’s introduction of gang-affiliation evidence. Finally, defendant argues that we should remand for a new hearing on his pro se posttrial motion alleging ineffective assistance of counsel, because the State’s participation in the preliminary inquiry into his claims rendered the hearing adversarial. We reject defendant’s sufficiency-of-the-evidence and ineffective-assistance arguments, but we agree that he should receive a new hearing on his pro se motion alleging ineffective assistance. Accordingly, we affirm in part, reverse in part, and remand with directions.

1 Appellate Case Posted 9-26-13

1. Criminal Law/Postconviction Petition: Affirmed:  The record shows that the parties and the trial court knew well before trial of  the defenan's attorney's intent to join the State’s Attorney’s office and that defendant waived any potential conflict. In any event, there was not a per se conflict of interest. To show an actual conflict of interest, a defendant must point to some specific defect in counsel’s strategy or decisionmaking attributable to such a conflict. Moreover, to survive dismissal at the second stage, a postconviction petition must allege specificfacts that make a substantial showing of a constitutional violation.  A third-stage postconviction hearing is intended to resolve factual issues arising from the petition and the State’s response. It is no tintended as a discovery tool to allow a defendant to marshal facts that should have been included in an original or amended petition. As the amended petition did not contain specific allegations showing that either Combs or Light was ineffective, the trial court did not err by dismissing it. Hudson, J.

No. 2013 IL App (2d)120359   People v. Patterson   Filed 9-26-13 (RJC)

Defendant, Cowarna L. Patterson, appeals the second-stage dismissal of her postconviction petition. She contends that a third-stage evidentiary hearing is necessary to resolve issues surrounding her trial attorney’s conflict of interest. We affirm.

6 Appellate Cases Posted 9-25-13

1. Criminal Law/postconviction: Reversed and remanded: Although the circuit court correctly determined that the majority of the issues raised in the petition were previously raised and decided, res judicata does not bar Wilson's postconviction claim because Wilson's petition presents an arguable claim that his counsel was ineffective in failing to present Taylor's testimony regarding Wilson's actions prior to the shooting. Mason, J.

No. 2013 IL App (1st) 112302   People v. Wilson    Filed 9-25-13 (RJC)

Defendant Reco Wilson appeals the summary dismissal of his pro se postconviction petition. On appeal, Wilson contends that his petition, supported by a signed and notarized affidavit of an alleged alibi witness, presents an arguable claim that trial counsel provided ineffective assistance where counsel failed to call that witness. Accordingly, Wilson contends that his petition should advance to the second-stage proceedings with appointment of counsel. For the reasons that follow, we reverse and remand for further postconviction proceedings.

2. Appeals/Jurisdiction: Appeal dismissed: BNSF was attempting to create uncertainty as to the finality of the April 18 ruling when it stated in its emergency motion that "[a]t the conclusion of oral argument, the Court reserved written ruling on all post-trial motions."
This statement is not supported by the record. In the event that any uncertainty remained after the April 18 ruling, despite the trial court's unequivocal statement that BNSF's motion was denied with the exception of the setoff issue, it was incumbent on BNSF to seek clarification within 30 days of the court's ruling. Because BNSF did not file a notice of appeal within 30 days of the trial court's denial of all posttrial motions seeking relief within the scope of section 2-1202, this court lacks jurisdiction to hear this appeal. Mason, J.

No. 2013 IL App (1st) 121901  Williams v. BNSF Railway Company   Filed 9-25-13 (RJC)

On appeal, BNSF contends that the circuit court erred in denying its motion for a directed verdict on the contractual indemnity claim where the evidence established that BNSF gave reasonable notice to QTS. BNSF further contends that the circuit court erred in refusing to allow evidence related to Williams' termination of employment with BNSF. Finally, BNSF contends that the circuit court erred in allowing evidence of the loss of household services, including unsupported opinion testimony regarding the value of those services.  Williams, joined by QTS, asserts that this court lacks jurisdiction because BNSF's notice of appeal was not timely filed. Williams and QTS also contend that BNSF has waived many of the issues it raises and that, in any event, the jury's verdict is supported by the evidence. For the reasons that follow, we dismiss this appeal for lack of jurisdiction.

3. Criminal Law: Reversed and remanded: Here, because there was a question for the fact finder as to who actually “possessed” the cocaine, IPI Criminal 17.05A should have been given in its entirety. Had the jury been properly instructed, there is a reasonable probability that it would have returned a not guilty verdict. Under the Strickland test, defendant was prejudiced. Defense counsel should have proffered the instruction regarding delivery in its entirety, and the trial court should have instructed the jury accordingly. McLaren, J.

No. 2013 IL App (2d) 120088    People v. Kidd   Filed 9-25-13 (RJC)

Defendant, Jason E. Kidd, was indicted on one count of drug-induced homicide (720 ILCS 5/9-3.3(a) (West 2010)) “by knowingly delivering cocaine, a controlled substance to Merrideth [sic] M. Castro and [she] thereafter inhaled or ingested a portion of the cocaine into her body and said
inhalation or ingestion of cocaine caused [her] death.” Following a jury trial, defendant was convicted and sentenced to a term of 10 years’ imprisonment and 3 years’ mandatory supervised release. He timely appealed. Defendant contends that the trial court erred in refusing his tendered jury instructions and that he received ineffective assistance of counsel. We determine that defendant’s first issue lacks merit; however, his second issue is meritorious and, therefore, we reverse defendant’s conviction and remand for a new trial.

4. Public Safety Employee Benefits Act/Summary Judgment: Affirmed: Carpentersville and Sugar Grove do not dispute in these appeals that Springborn and Cecala suffered “catastrophic injuries.” They dispute only that Springborn and Cecala met the requirements of section 10(b).  Applying section 10(b) as construed in Gaffney, we note that the affidavits, depositions, and hearing testimony submitted by the parties do not disclose any issue of material fact in either case before us. The parties draw conflicting inferences from those facts, but on the material points the only reasonable inferences are drawn by Springborn and Cecala. That is, the undisputed facts in each case show that (1) the officer believed that he was responding to an emergency; and (2) his belief was reasonable.  Birkett, J.

No. 2013 IL App (2d) 120861    Springborn v. The Village of Sugar Grove   Filed 9-25-13 (RJC)

In these consolidated appeals, the Village of Sugar Grove and the Village of Carpentersville challenge awards of benefits under section 10 of the Public Safety Employee Benefits Act (Act) (820 ILCS 320/10 (West 2012)). For the following reasons, we affirm.

5.  Sexually Violent Persons Commitment Act: Affirmed: Given the substance of  the parole oofficer's testimony and the language of section 35(b), the testimony was admissible and that no error occurred. A rational trier of fact could find, based on the doctors’ testimony, that respondent presented a danger to the community in that it was substantially probable that he would commit sexually violent acts in the future. The Act does not provide that a respondent may make a statement in allocution at the dispositional hearing.  Zenoff, J.

No. 2013 IL App (2d) 120977    In re Commitment of Hardin   Filed 9-25-13 (RJC)

Following a bench trial, respondent, Tommy O. Hardin, was found to be a sexually violent person pursuant to the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2010)), and he was committed to the custody of the Department of Human Services. Respondent appeals, arguing that (1) it was improper to admit testimony from his parole officer; (2) the State failed to prove beyond a reasonable doubt that he is a sexually violent person; and (3) the trial court’s denial of his request to make a statement in allocution before the court committed him was an abuse of discretion. For the reasons that follow, we affirm.

6.  DUI: Affirmed: In this case, evidence established that the officer who stopped defendant noticed that the taillight cover on her vehicle had a chip that resulted in the taillight emitting a red and white light. The trial court determined that the white light was enough to permit a stop of defendant's vehicle.  Here, defendant's taillight was emitting a red and white light, which is not authorized by the Code. As a result, the officer had reasonable suspicion to stop defendant's vehicle to investigate a violation of the Code. Therefore, the stop was
objectively reasonable, and the trial court did not err when it denied defendant's motion to suppress. O'Brien, J.

No. 2013 IL App (3d) 110936    People v. Girot   Filed 9-25-13 (RJC)

Defendant, Chelsea Girot, was charged with two counts of driving under the influence of a controlled substance (DUI) (625 ILCS 5/11-501(a)(4), (6) (West 2010)). Prior to trial, defendant filed a motion to suppress, alleging that the stop of her vehicle was not proper. The trial court denied the motion. The cause proceeded to a bench trial where defendant was convicted of one count of DUI. Defendant appeals, arguing that the trial court erred in denying her motion to suppress. We affirm.

7 Appellate Cases Posted 9-24-13

1. Criminal Law: Affirmed in part and reversed in part and remanded: Belt was not an inherently dangerous weapon and thus could not be classified as a Category III weapon so as to support an armed violence conviction in connection with beating of a child; armed violence charge reversed and cause remanded for re-sentencing on aggravated battery to a child conviction. Hutchinson, J.

No. 2013 IL App (2d) 120082  People v. Westmoreland  Filed 9-24-13 (TJJ)

Defendant, Frank J. Westmoreland, Jr., appeals his conviction of armed violence (720 ILCS5/33A-2(a) (West 2010)) in connection with the January 17, 2011, beating of a child with a belt. Hecontends that the evidence was insufficient to support his armed  violence conviction because the belt was not a category III dangerous weapon under section 33A-1(c)(3) of the Criminal Code of 1961(the Code) (720 ILCS 5/33A-1(c)(3) (West 2010)). He also contends that a misdemeanor that was enhanced to a felony for sentencing purposes was improperly used as the predicate felony for the armed violence conviction and that his counsel was ineffective for failing to impeach the victim’s mother with a time card showing that she was not at work on the day of the offense.  We agree that, under the circumstances of this case, the belt was not a category III dangerous weapon. Accordingly,we reverse the armed violence conviction without addressing whether a misdemeanor that was enhanced to a felony can serve as the  predicate felony for that offense. However, we hold that counsel was not ineffective. Thus, we remand for sentencing on a merged conviction of aggravated battery of a child (720 ILCS 5/12-4.3(a-5) (West 2010)) and otherwise affirm.

2. Criminal Law: Affirmed: Trial court failure to limit instruction on other crimes evidence to particular purpose evidence was offered was error, but not plain error in light of overwhelming nature of evidence against defendant; similarly, prosecutor improper argument regarding risks police officers would face if they were lying was also deemed harmless error. Zenoff, J.

No. 2013 IL App (2d) 120167  People v. Young  Filed 9-24-13 (TJJ)

Defendant, Nicole L. Young, appeals her conviction of unlawful possession of less than 15grams of cocaine (720 ILCS 570/402(c) (West 2010)). She contends that it was plain error when (1)the court allowed the jury to hear evidence of other crimes  involving possession of drugs and thengave a limiting instruction that the evidence could be considered as to her knowledge and “possession,” and (2) the State improperly bolstered the credibility of the testifying police officers during closing arguments.  We determine that both were error, but not plain error. Accordingly, we affirm.

3. Public Employee/Collective Bargaining: Reversed: Trial court and arbitrator erred in ruling that collective bargaining agreement applied to scenario where city refused to hire union member to operate a snowplow, as collective bargaining agreement only authorized arbitration for alleged failure to comply with "express provision" of the collective bargaining agreement, which did not cover this scenario and was thus inapplicable to resolve the dispute. Schostok, J.

No. 2013 IL App (2d) 121071  City of Naperville v. Illinois Fraternal Order of Police  Filed 9-24-13 (TJJ)

The instant controversy arises from a dispute between the City of Naperville (the City) and the Illinois Fraternal Order of Police, Labor Council, F.O.P. Lodge No. 42 (the Lodge), as to whether the parties’ collective bargaining agreement (CBA) governed a  situation where the City refused to hire a member of the Lodge to operate a snowplow while he was off duty. An arbitrator found that the CBA governed the parties’ dispute, and the circuit court of Du Page County affirmed that decision. The City appeals  from that order. We reverse.

4. Medical Negligence: Reversed and remanded: Trial court erred by permitting plaintiff's attorney to cross-examine defendant's proximate cause expert outside the scope of direct examination and outside the scope of listed subject material in Rule 213 disclosures, and hospital entitled to judgment n.o.v. in light of evidence that treating doctor was an independent contractor. McDade, J.

No. 2013 IL App (3d) 110374  Steele v. Provena Hospitals  Filed 9-24-13 (TJJ)

Rita Steele, plaintiff and special administrator for the estate of Michelle Koenig, filed suit against emergency room doctor Timothy Moran and his employer, Echo Management and Consulting, for the wrongful death of her daughter, Michelle, due to alleged medical negligence. She also sued Provena Hospitals, d/b/a St. Mary's Hospital, alleging that Moran acted as its agent and it was, therefore, vicariously liable for her daughter's death. The jury rendered a verdict awarding Steele, Todd Koenig, Michelle's father, and Jessica Watts, Michelle's half-sister, $1.5 million. Provena and Moran have both appealed. We reverse and remand on Moran’s appeal and enter judgment notwithstanding the verdict in favor of Provena.

5. Criminal Law: Reversed and remanded: Non-IPI jury instruction endeavoring to utilize judicial notice which could be taken regarding extrapolation of blood serum evidence was improper as drafted. Wright, J.

No. 2013 IL App (3d) 120113  People v. Love  Filed 9-24-13 (TJJ)

The State charged defendant Veronica A. Love, with driving while under the influence of alcohol (DUI) in violation of section 11-501(a)(2) of the Illinois Vehicle Code (625 ILCS 5/11-501(a)(2) (2010)). During the State’s case-in-chief, the court took judicial notice of the applicable conversion factor for blood serum alcohol content to whole blood alcohol content. Defendant requested the court to first inform the jury of the conversion factor as part of the formal jury instructions. However, ultimately, defendant objected to the language incorporated into the non-Illinois Pattern Jury Instruction (IPI) submitted to the jury. Following a guilty verdict, the trial court sentenced defendant to serve a term of court supervision. Defendant appeals, arguing that language in the non-IPI instruction was improper and the State’s evidence did not establish her guilt for DUI beyond a reasonable doubt. We reverse and remand for a new trial.

6. Criminal Law: Affirmed: Trial court dismissal of post-conviction petition for failure to file it timely upheld in face of claim that defendant relied on "jailhouse lawyers" who gave him bad advice. Quinn, J. (Neville, J., dissenting).

No. 2013 IL App (1st) 091944  People v. Cruz  Filed 9-24-13 (TJJ)

Defendant Jose Cruz appeals from the second-stage dismissal of his petition for relief under the Post-Conviction Hearing Act. He contends that the circuit court erred in dismissing his petition where he lacked  culpable negligence for its late filing and made a substantial showing that his right to due process was violated by the use of an erroneous version of an Illinois Pattern Jury Instruction. For the following reasons, we affirm.

7. Criminal Law: Affirmed: Defendant's claim that one conviction for insurance fraud upon a plea of guilty should have been vacated for a violation of the one act, one crime rule denied in face of defendant's failure to file a motion to vacate guilty plea, and consecutive sentences for insurance fraud upheld. Jorgensen, J.

No. 2013 IL App (2d) 130083  People v. Buckner  Filed 9-24-13 (TJJ)

Defendant, Bridgette L. Buckner, pleaded guilty to two counts of insurance fraud and one count of wire fraud. The circuit court of Du Page County sentenced her to eight years’ imprisonment. On appeal, she contends that two of her convictions should have been merged under the one-act, one-crime doctrine and that the trial court abused its discretion in giving her consecutive sentences under section 5-8- 4(b) of the Unified Code of Corrections. Because defendant forfeited any challenge to her convictions  under the one-act, one-crime rule when she failed to file a motion to withdraw her guilty plea, and because the trial court did not abuse its discretion in
imposing consecutive sentences pursuant to section 5-8-4(b), we affirm.

2 Appellate Cases Posted 9-23-13

1. Mortgage Foreclosure: Affirmed: Sanctions imposed by the trial court against defendant-mortgagors, including attorneys' fees in excess of $20,000,  upheld in face of an "organized program" of filing frivolous pleadings and baseless arguments, and frivolous appeal deemed to warrant fine of $10,000 under SCR 375. Delort, J.

No. 2013 IL App (1st) 130380  Parkway Bank and Trust Company v. Korzen  Filed 9-23-13 (TJJ)

This appeal of a mortgage foreclosure case involving an empty lot is so groundless that we would normally dispose of it with a brief summary order. However, it provides us an opportunity to review a number of tactics a small number of debtors use both to delay the ultimate resolution of cases against them and to use the legal system for improper purposes. Some people might classify those who engage in these tactics as “sovereign citizens,” but regardless of the nomenclature, their methods are not only  counterproductive, but detrimental to the efficient and fair administration of justice. A recent New York Times article noted the FBI has labeled the strategy as “ ‘paper terrorism.’ ” Erica Goode, In Paper War, Floor of Liens Is the Weapon, N.Y. Times,  Aug. 23, 2013.

2. Medical Negligence/Discovery Sanction: Affirmed: Defense failure to disclose prior cases defendant's testifying expert had testified in was sufficient to permit the trial court in the exercise of its discretion to award plaintiff a new trial after verdict for the defense. Holdridge, J.

No. 2013 IL App (3d) 110157  Kubicheck v. Traina  Filed 9-23-13 (TJJ)

Gina Kubicheck sued Dr. Jeffrey Traina, an orthopedic surgeon, for professional negligence in connection with a surgical procedure that Dr. Traina performed on Kubicheck's ankle. The jury returned a verdict for Dr. Traina. Kubicheck filed a posttrial  motion for a new trial. The trial court found that Dr. Traina's expert witness, Dr. George Holmes, failed to fully disclose information relating to prior testimony that he had given in other cases, thereby impairing Kubicheck's counsel's ability to impeach Dr.  Holmes during cross-examination. Accordingly, the trial court granted Kubicheck a new trial. In response to a motion to clarify later filed by Dr. Traina, the trial court issued an order stating that Dr. Holmes would not be barred from testifying during the  retrial. Affirmed.

2 Appellate Court Cases Posted 09-20-2013

1.  Traffic COurt/DUI: Reversed: A review of a trial court’s ruling on a motion to quash arrest and suppress evidence presents mixed questions of fact and law.  When reviewing a trial court’s ruling in a motion to quash arrest and suppress evidence, we accord great deference to the trial court’s factual findings.  However, we review de novo the trial court’s ultimate legal ruling as to whether suppression was warranted.  When a defendant files a motion to quash his arrest and suppress evidence, claiming that there was an illegal search or seizure, the defendant has the burden of demonstrating the illegal search or seizure.  The timing of the seizure is a critical issue in this case.  Illinois courts will consider the totality of the circumstances in determining whether or not a seizure occurred. The circumstances Illinois courts will consider when deciding if a seizure occurred include the Mendenhall factors, which were set  Gordon, J. 

No. 2013 IL App (1st) 121138  People v. Colquitt Filed 09-20-13  (LJD)

Defendant Garry Colquitt was charged with driving under the influence (DUI) and blocking a roadway. Following a suppression hearing, the trial court granted defendant's pretrial motion to quash his arrest and suppress evidence of his statements and field sobriety and breathalyzer test results. The trial court suppressed the arrest and the evidence on the grounds: (1) that defendant was seized, for fourth amendment purposes, at the moment when a police vehicle pulled behind defendant's vehicle, which was parked on the road, in a lane of traffic and without hazard lights; (2) and that the officer lacked either reasonable suspicion or probable cause to justify this alleged seizure. For the following reasons, we conclude that no seizure occurred when the police vehicle pulled behind defendant's parked vehicle. Since we decide the appeal on this ground, we do not reach the State's remaining arguments.

2.  Sexually Violent Persons Act: Affirmed: The Act defines a sexually violent person as an individual who "has been convicted of a sexually violent offense *** and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence."  Elements of State's burden proof listed.  The purpose of voir dire is to assure the selection of an impartial panel of jurors who are free from bias or prejudice.   Our supreme court observed in Terrell that "the primary responsibility of conducting the voir dire examination lies with the trial court and the manner and scope of such examination rests within that court's discretion.”  To be constitutionally compelled, it is not enough that a voir dire question be helpful; rather, the trial court's failure to ask the question must render the defendant proceedings fundamentally unfair. When we review a challenge to remarks made by the prosecution  during closing arguments, the comments must be considered in context of the entire closing arguments made by both parties.    Palmer, J.

No. 2013 IL App (1st) 123606  In re Commitment of Butler   Filed 09-20-13  (LJD)

On June 9, 2008, the State filed a petition pursuant to the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 to 99 (West 2010)) seeking to have respondent, Johnny Butler, adjudicated a sexually violent person (SVP) and committed to the care and custody of the Department of Human Services (DHS). The petition alleged that respondent had previously been convicted of three separate sexually violent offenses.  After the jury was instructed as to the law, respondent again moved for a mistrial arguing that the State violated the trial court's rulings in limine by referring to the details of respondent's crimes as substantive evidence. The motion for mistrial was denied. The jury found respondent to be an SVP.   For the reasons that follow, we affirm.

3 Appellate Cases Posted 9-19-13

1. Forcible Entry and Detainer: Reversed and remanded: Trial court ruling in detainer action that plaintiffs' action for damages for unpaid assessments was brought for "improper motives" was incorrect, as that issue is not germane absent some indication that the action was in retaliation for some reason contrary to public policy, none of which reasons were extant here. Howse, J.

No. 2013 IL App (1st) 120461  100 Roberts Road Business Condominium Association v. Khalaf  Filed 9-19-13 (TJJ)

On November 24, 2010, plaintiff 100 Roberts Road Business Condominium Association filed a forcible entry and detainer lawsuit against defendants Victoria Khalaf, Stanley Horn, Judd Azulay, Glenn Seiden and all unknown occupants, claiming that defendants had failed to pay the common assessments due for a business condominium since 2004. On July 28, 2011, following a bench trial, the trial court entered a judgment for the plaintiff for past-due assessments against defendants Judd Azulay and Glenn Seiden. However, the trial court reduced plaintiff's damage award based on its finding that plaintiff had failed to mitigate its damages. Plaintiff filed a motion to reconsider, claiming that it was inappropriate to reduce plaintiff's award based on its  alleged failure to mitigate damages. On plaintiff's motion for rehearing the trial court granted plaintiff's motion to reconsider, finding that defendants had waived their right to argue mitigation based on the declaration of condominium owners. However, the  court then made a finding that plaintiff had brought the forcible entry and detainer lawsuit for an improper purpose and dismissed the case against defendants. Plaintiff appealed. For the reasons that follow, we reverse the judgment of the circuit court and  remand with directions for further proceedings.

2. Criminal Law: Reversed and remanded: In theft trial, admission of evidence of content of craigslist ad regarding bicycle offered for sale (and purportedly stolen from victim) was error, as the content of the ad, as testified to by a civilian witness and a police detective, was offered for the truth of the mattered asserted. Noteworthy discussion by the court of the proper use of "course of investigation" exception to the rule against hearsay. Epstein, J. (Pucinski, J., dissenting).

No. 2013 IL App (1st) 103835  In re Jovan A.  Filed 9-19-13 (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 advertisement, to find that he  committed theft. For the reasons that follow, we reverse respondent's conviction and remand this cause for further proceedings.

3. Implied Warranty of Habitability: Certified question answered: The date for determining a general contractor's insolvency (and thus the applicability of Minton v. Richard Group of Chicago) is the date a complaint is filed alleging insolvency, and here the plaintiff condominium association could thus maintain an action for breach of implied warranty of habitability against a sub-contractor under the facts found by the trial court. Fitzgerald Smith, J.

No. 2013 IL App (1st) 130744  1324 W. Pratt Condominium Association v. Platt Construction Group, Inc.  Filed 9-19-13 (TJJ)

This is a construction defect lawsuit arising from the faulty construction of a residential condominium building built in 2005 at 1324 W. Pratt Boulevard, in Chicago, Illinois. The plaintiff-appellee, 1342 W. Pratt Condominium Association seeks to recover  damages from the general contractor, Platt-Construction Group, Inc., and the masonry subcontractor, the defendant-appellant, EZ Masonry Inc. This cause has already been before this appellate court twice. In this interlocutory appeal, we are asked to decide two questions of law certified by the circuit court pursuant to Illinois Supreme Court Rule 308: (1) "whether the relevant date for determining the insolvency of a general contractor [Platt] for purposes of the exception set forth in Minton v. Richard Group  of Chicago[,116 Ill. App. 3d 852 (1983),] is the date that a [c]omplaint (or latest amended complaint) is filed against the general contractor, or when the construction is completed; and (2) whether [the condominium association] may pursue [its] claims  against EZ Masonry in this cause when Platt *** is insolvent, but is in good standing with limited assets." For the reasons that follow, we hold that the relevant date for determining the insolvency of a general contractor is not the date construction is  completed but, rather, the date that an amended complaint is filed alleging the general contractor's insolvency, and that in this particular situation, the condominium association may proceed against EZ Masonry since Platt is insolvent.

3 Appellate Cases Posted 9-18-13

1. Insurance Coverage: Reversed and remanded: Under terms of applicable policy, general contractor only had responsibility to secure additional insurance to cover activities of one identified subcontractor; where separate negligence action against general contractor for bodily injuries stemming from accident allegedly caused by general contractor's failure to supervise properly work of other persons (but not sub-contractor named), insurance company had no duty to defend claim, and trial court ruling that insurance company did have such duty reversed. Wright, J. (O'Brien, J., dissenting).

No. 2013 IL App (3d) 120803  Pekin Insurance Company v. United Contractor Midwest, Inc.  Filed 9-18-13 (TJJ)

Pekin Insurance Company (Pekin) filed this declaratory relief action in response to a separate negligence complaint filed by Charles Hill, Jr. (Hill), in Peoria County, against United Contractors Midwest, Inc., d/b/a R. A. Cullinan & Son, Inc., a Delaware  corporation (Cullinan), and Central Illinois Light Company (CILCO) in case No. 11-L-165. The underlying complaint alleged both defendants were independently negligent in supervising, maintaining and/or providing warnings regarding live overhead   power lines near a work site where Hill’s employer, Durdel & Sons Tree Service & Landscaping, Inc. (Durdel), was clearing trees. The negligence complaint alleged Hill, as Durdel’s employee, operated machinery at the work site and struck overhead  power lines, while moving logs, causing Hill to be injured by electricity. In Pekin’s action for declaratory relief, Pekin and Cullinan both filed motions for summary judgment. The court granted summary judgment in favor of Cullinan and against Pekin,  finding Pekin had a duty to defend Cullinan, as an additional insured under Durdel’s policy, in the negligence action filed by Hill against Cullinan. Pekin appeals the circuit court’s decision to grant summary judgment in favor of Cullinan. We reverse and  remand.

2. Asbestos Litigation: Affirmed: Trial court properly granted defendants' motions for judgment notwithstanding the verdict in case alleging that several asbestos manufacturers conspired to conceal dangers of asbestos, where no evidence existed to show any conspiracy, and evidence showed, at best, that defendants simultaneously acted only in their individual best interests, and not pursuant to a conspiracy. Appleton, J.

No. 2013 IL App (4th) 120929  Gillenwater v. Honeywell International, Inc.  Filed 9-18-13 (TJJ)

One of the plaintiffs in this case, Charles Gillenwater, suffers from mesothelioma, which he contracted by inhaling airborne fibers from an asbestos-containing product. He brought this personal-injury action against defendants, Honeywell International, Inc. (Honeywell); Owens- Illinois, Inc. (Owens-Illinois); and Pneumo Abex, LLC (Abex), all manufacturers of asbestoscontaining products. He sought compensation from them on the theory that they had been in a civil conspiracy with one another to conceal  the respiratory dangers of asbestos. The case then went to trial on the remaining claims, and the jury returned a verdict in Charles Gillenwater's favor and against the three defendants. The jury awarded him compensatory damages in the amount of $9.6  million and also awarded him punitive damages in the amounts of $20 million against Honeywell, $40 million against Owens-Illinois, and $20 million against Abex. Honeywell, Owens-Illinois, Abex, and Crane filed motions for judgment notwithstanding  the verdict, and the trial court granted the motions by Honeywell, Owens-Illinois, and Abex but denied the motion by Crane. The court entered judgment in Charles Gillenwater's favor and against Crane in the amount of $8,425,000. Charles Gillenwater  appeals from the trial court's decision to grant the motions by Honeywell, Owens-Illinois, and Abex for judgment notwithstanding the verdict. Donita Gillenwater appeals from the summary judgment in favor of Honeywell, Owens-Illinois, and Abex on her  claims of loss of consortium. Looking at all the evidence in the light most favorable to Charles Gillenwater and drawing all reasonable inferences in his favor, we conclude that the evidence so overwhelmingly favors defendants that no verdict against them  could ever stand.

3. Schools/Tort Immunity Act: Affirmed: Trial court properly dismissed parent's suit against public school officials for alleged injuries stemming from defendants' alleged failure to prevent bullying of plaintiff's child, as Tort Immunity Act bars claim. Harris, J.

No. 2013 IL App (4th) 121131  Hascall v. Williams  Filed 9-18-13 (TJJ)

In July 2012, plaintiffs, Vilma Hascall (Hascall), individually, and C.H., a minor, through her mother and next friend, Vilma Hascall, filed an 11-count second amended complaint against defendants, Preston L. Williams, Jr. (Williams), Sandy Cooper  (Cooper), and the Urbana School District No. 116 Board of Education (Board). Plaintiffs alleged C.H. was bullied by classmates and defendants failed to appropriately respond. Defendants filed a motion to dismiss and the circuit court dismissed the  complaint with prejudice. We affirm.

1 Appellate Case Posted 9-17-13

1. Criminal Law: Reversed and remanded: Police action in placing a GPS tracking device on vehicle used, but not owned, by defendant, constituted a prohibited warrantless search, but case remanded to trial court for hearing to ascertain whether defendant had standing to contest legality of search as a permitted user of vehicle, or not; further, admonitions under SCR 401(a) regarding defendant's pro se representation were insufficient in light of trial court failure to tell defendant the proper maximum sentence he faced as a Class X offender for a Class 1 offense, in light of his criminal history. Hutchinson, J. (Birkett, J., concurring in part and dissenting in part).

No. 2013 IL App (2d) 100659  People v. LeFlore  Filed 9-17-13 (TJJ)

Following a jury trial, defendant, Keith W. LeFlore, was found guilty of aggravated robbery, robbery, and burglary. The trial court entered judgment on the aggravated robbery charge and sentenced defendant to 20 years in prison. Defendant now appeals  from his conviction, arguing that (1) the trial court failed to properly admonish him under Illinois Supreme Court Rule 401(a); and (2) the trial court erred in denying his motion to quash his arrest and suppress evidence. We reverse and remand for a new  trial.

5 Appellate Cases Posted 9-16-13

1. Guaranties: Affirmed: Language used in mortgage contracts and guaranty contracts, used in connection with lease of industrial equipment, under Wyoming law (applicable due to application of conflict of laws rules) mortgagee's "credit bid" relating to mortgaged Wyoming real estate fully discharged mortgages and guaranties, and trial court grant of summary judgment in favor of guarantors/mortgagors was affirmed. Cunningham, J.

No. 2013 IL App (1st) 120885  Republic Bank of Chicago v. 1st. Advantage Bank  Filed 9-16-13 (TJJ)

This appeal arises from a March 6, 2012 order entered by the circuit court of Cook County which granted summary judgment in favor of plaintiff-appellee Republic Bank of Chicago (Republic Bank). On appeal, defendants-appellants Icon Ear, LLC, and  Icon Ear II, LLC (collectively, Icon), argue that: (1) the trial court erred in granting summary judgment in favor of Republic Bank because the law of guaranties governs in this case; and (2) the trial court erred in granting summary judgment in favor of  Republic Bank because the "full credit bid rule" does not apply in this case. For the following reasons, we affirm the judgment of the circuit court of Cook County.

2. Defamation/SLAPP: Reversed and remanded: Defamation suit by university professor against university's vice president of student affairs for comments allegedly made by defendant in connection with plaintiff's purported involvement with a campus disruption, was not a SLAPP suit in light of defendant's failure to establish that suit was meritless or for purpose of preventing defendant from exercising his constitutional rights. Hoffman, J.

No. 2013 IL App (1st) 122517  Capeheart v. Terrell  Filed 9-16-13 (TJJ)

The plaintiff, Loretta Capeheart, appeals the circuit court order which granted the motion to dismiss her defamation claims against the defendant, Melvin C. Terrell, and awarded him attorney fees and costs under the Illinois Citizen Participation Act. Terrell cross-appeals the circuit court's judgment as to the amount of the fees and costs it awarded. We need not address Terrell's cross-appeal because, for the reasons that follow, we reverse the circuit court's dismissal  of counts I and II of the plaintiff's complaint and remand the cause for further proceedings.

3. Negligence: Affirmed: Trial court grant of summary judgment in favor of defendants in negligence action alleging personal injuries stemming from alleged defect of real property relating to a one and a half inch change in elevation of asphalt near loading bay, was proper, in light of de minimis nature of alleged defect. Birkett, J.

No. 2013 IL App (2d) 120760  Morris v. Ingersoll Cutting Tool Company  Filed 9-16-13 (TJJ)

Plaintiffs, Dennis Morris (Morris) and Dorothy Morris, appeal from the trial court’s grant of summary judgment to defendants, Ingersoll Cutting Tool Co. (Ingersoll) and D.I. Properties, Inc. (D.I.). Plaintiffs brought a negligence suit against defendants after  Morris tripped and fell on defendants’ property. Plaintiffs alleged that defendants failed to maintain the premises in a reasonably safe condition. In granting defendants’ motion for summary judgment, the trial court held that the defect on which  plaintiff tripped, measuring 1½ inches high, was de minimis and thus not actionable. Plaintiffs appeal, arguing that the de minimis rule should not be applied given the overall size of the defect and the applicability of other aggravating factors. We disagree  and affirm the judgment of the trial court.

4. Criminal Law: Affirmed: Trial court properly refused to grant defendant's motion to vacate guilty plea where trial court properly admonished defendant regarding sentencing range for Class X felonies, and admonished defendant regarding possibility of permissive consecutive sentences, but neglected to admonish defendant that application of consecutive sentences could result in a maximum of 60 years' incarceration. Pope, J.

No. 2013 IL App (4th) 120259  People v. Chavez  Filed 9-16-13 (TJJ)

In June 2010, a McLean County grand jury indicted defendant, Albert Isreal Chavez, on two counts of unlawful delivery of more than 1 gram but less than 15 grams of a controlled substance, and three counts of unlawful delivery of more than 15 grams but  less than 100 grams of a controlled substance. In May 2011, defendant pleaded guilty to counts III and V. In August 2011, the trial court sentenced defendant to consecutive sentences of 20 years' imprisonment on count III and 30 years' imprisonment on  count V. In September 2011, defendant filed a motion to withdraw guilty plea and reconsider sentence. The court denied those motions. Defendant appeals, arguing the trial court erred in denying his motion to withdraw guilty plea as his plea was not  voluntarily and knowingly made. He contends the court failed to properly admonish him of the possible maximum sentence as required by Illinois Supreme Court Rule 402(a). We disagree and affirm.

5. Medical Bills/Workers' Compensation: Affirmed as modified: Under the Workers' Compensation Act, plaintiff medical services provider did not treat patient as a "private" patient not covered by the Act, and therefore plaintiff entitled only to an award for services not covered by the Act. Trial court award to plaintiff of $2,155 reduced to $200. and affirmed as modified. Turner, J.

No. 2013 IL App (4th) 121113  Tiburzi Chiropractic v. Kline  Filed 9-16-13 (TJJ)

In May 2011, plaintiff, Tiburzi Chiropractic, filed a small-claims complaint against defendant, David Kline, to collect the balance of fees charged following the performance of chiropractic services. In November 2012, the trial court found in favor of  plaintiff and ordered defendant to pay $2,155. On appeal, defendant argues the trial court erred in entering a money judgment in favor of plaintiff. We affirm as modified.

8 Appellate Court Cases Posted 9-13-13

1. SLAPP/Libel/Wage Act/Attorney Litigation Privilege: Reversed and remanded: Trial court erred in dismissing plaintiff's libel claim and claim for wages against former law firm employer of plaintiff, where plaintiff's claim of libel for statements related by defendant law firm and lawyer in connection with plaintiff's attempt to be certified in an action as class counsel, did not constitute a SLAPP suit, statements by defendants were not covered by attorney litigation privilege existent in connection with pending litigation, and Wage Act claim was viable on its face. Lampkin, J. (Modified on denial of rehearing).

No. 2013 IL App (1st) 113806  Stein v. Krislov  Filed 9-13-13 (TJJ)

Plaintiff Robert Stein sued defendants Clinton Krislov and Krislov & Associates, Ltd., for libel, violation of the Illinois Wage Payment and Collection Act, and breach of contract. Upon defendants' motion, the trial court dismissed plaintiff's third amended  complaint, finding that defendants were entitled to immunity from all of plaintiff's claims pursuant to the Citizen Participation Act (Act) (735 ILCS 110/1 et seq. (West 2008)), commonly referred to as the anti-SLAPP (Strategic Lawsuits Against Public    Participation) statute. Based on the following, we reverse the trial court orders dismissing plaintiff's third amended complaint and awarding defendants attorney fees under the Act, and we remand this cause.

2. Criminal Law: Reversed and remanded: Trial court ruling that police detained defendant without probable cause or even a reasonable articulable suspicion of criminality so as to support a Terry stop reversed where evidence showed that police did not detain defendant in what was a non-custodial interaction between defendant and the police. Gordon, J. (Hall, J., dissenting).

No. 2013 IL App (1st) 111819  People v. Lopez  Filed 9-13-13 (TJJ)

Defendant James Lopez was arrested on October 13, 2010, and charged with aggravated driving under the influence of alcohol. He then filed a pretrial motion to quash arrest and suppress evidence, which was granted by the trial court. The State filed a  motion to reconsider, which the trial court also denied. The State then filed this interlocutory appeal in order to appeal that ruling. The issue before us is whether a person is seized for purposes of the fourth amendment (1) when the person is sitting in a   stationary vehicle on a public street or alley, and two officers approach the vehicle on foot, with one officer walking toward the driver's side and one toward the passenger's side, and ask to view the person's driver's license and (2) when there was no  evidence that the officers drew their guns, used a commanding tone of voice, or used their vehicle or bodies to block the vehicle from exiting. For the following reasons, we reverse and remand for further proceedings consistent with this opinion.

3. Criminal Law: Affirmed: Trial court did not err in restricting cross-examination of co-defendant's testimony regarding leniency and proposed sentence below minimum for first degree murder, where co-defendant did not agree to testify pursuant to deal with State, instead pleading guilty to first degree murder and being called by State without any agreement. Palmer, J.

No. 2013 IL App (1st) 112110  People v. James  Filed 9-13-13 (TJJ)

Following a jury trial, defendant Gregory James was found guilty of first degree murder. The trial court sentenced him to 33 years' imprisonment. Defendant appeals, arguing that the trial court abused its discretion in limiting defense counsel's cross- examination of the codefendant, Lee Stapleton. We affirm.

4. Workers' Compensation: Affirmed: Plaintiff's claim against the State Treasurer for the full amount of a workers' compensation award stemming from an award against her employer who had no workers' compensation insurance, for the full amount of those funds awarded for medical expenses, but paid directly to the medical providers, was barred by sovereign immunity, and trial court order dismissing claim affirmed. Reyes, J.

No. 2013 IL App (1st) 122699  Dratewska-Zator v. Rutherford  Filed 9-13-13 (TJJ)

Plaintiff Grazyna Dratewska-Zator (Dratewska-Zator) appeals an order of the circuit court of Cook County dismissing her amended complaint against defendants Illinois State Treasurer Dan Rutherford (Treasurer) in his capacity as ex officio custodian of  the Illinois Injured Workers' Benefit Fund (Fund), and other officials. On appeal, Dratewska-Zator argues: (1) her claim against the Treasurer for a judgment on the full amount of an award received from the Commission states a cause of action for which  effective relief may be granted and is not barred by sovereign immunity; (2) her claims against the Chairman and the Commissioners for mandamus also state a cause of action; and (3) her claims are not barred by the doctrine of exhaustion of administrative  remedies. For the following reasons, we affirm the judgment of the circuit court.

5. Medical Services: Reversed and remanded: Agreement between non-physician and medical doctors regarding "Laser Care Institute" did not violate provisions of Medical Practice Act prohibiting fee-splitting between physicians and non-physicians, and trial court grant of summary judgment to defendants doctors on ground that agreement regarding establishment and conduct of business violated the Act was error. Taylor, J.

No. 2013 IL App (1st) 113511  Ritacca v. Girardi  Filed 9-13-13 (TJJ)

In this breach of contract action, plaintiff Daniel Ritacca appeals from the trial court’s grant of summary judgment for defendants John Girardi and Jared Marcucci on grounds that the contract between the parties was illegal and therefore unenforceable. The trial court found that the physician's service agreement violated the Illinois Medical Practice Act of 1987 (225 ILCS 60/1 et seq. (West 2010)), which prohibits fee-splitting between physicians and nonphysicians. It held that this illegality rendered both the PSA and the resulting  settlement agreement void and unenforceable, and it granted summary judgment for defendants. For the reasons that follow, we reverse the judgment of the trial court.

6. Insurance Coverage: Affirmed: Trial court properly determined that insurance company of general contractor had a duty to defend contractor in personal injury action stemming from injuries allegedly suffered by sub-contractor's employee. Taylor, J.

No. 2013 IL App 120735  Illinois Emcasco Insurance Company v. Waukegan Steel Sales, Inc.  Filed 9-13-13 (TJJ)

Plaintiff Illinois Emcasco Insurance Company (Emcasco) filed a declaratory judgment action in November 2009 asking the trial court to declare that it had no duty to defend defendant Waukegan Steel Sales, Inc. (Waukegan), in the underlying personal  injury suit filed by an employee of Waukegan’s subcontractor. Emcasco argued that the complaint alleged only direct negligence on the part of Waukegan, which was outside the scope of Waukegan’s coverage as an additional insured on its subcontractor’s  policy with Emcasco. Waukegan filed a counterclaim seeking declaratory judgment that Emcasco had a duty to defend. The trial court granted summary judgment in October 2011 for Waukegan, finding that Emcasco had a duty to defend Waukegan in the  underlying personal injury lawsuit. Emcasco subsequently filed this appeal challenging the trial court’s finding. For the reasons that follow, we affirm the judgment of the trial court.

7. Implied Warranty of Habitability: Reversed and remanded: Trial court in estate proceedings improperly granted administrator's motion to dismiss claimant's claim for damages stemming from house sale by decedent to claimant under theory of breach of implied warranty of habitability, where claim did not on its face show that the requisite limitations period had passed, and administrator did not plead or show facts by which that conclusion could be made. Schostok, J.

No. 2013 IL App (2d) 121424  In re Estate of Krpan  Filed 9-12-13

Theodore S. Fins, who filed a claim against the estate of decedent, Milan Krpan, appeals from an order dismissing as time-barred his claim for breach of the implied warranty of habitability of a house sold to him by decedent. He asserts that the estate’s  administrator, Maria Krpan, did not adequately support her limitations defense. We agree. Moreover, we find unpersuasive the administrator’s alternative bases for affirming. We therefore reverse the dismissal and remand the cause.

8. Criminal Law: Reversed and remanded: Prosecutor's use of racial themes in opening statement and closing argument were plain error and required reversal of defendant's conviction for first degree murder. Goldenhersh, J.

No. 2013 IL App (5th) 110430  People v. Marshall  Filed 9-13-13 (TJJ)

Defendant, Marcus Marshall, argues on appeal that he was denied a fair trial by the State's racially based evidence and arguments. The State has filed a confession of error. We find the defendant's contentions and the State's confession to be well-taken. For  the reasons that follow, we reverse and remand the cause for a new trial.

2 Supreme Court Cases Posted 9-12-13

1. FOID Act: Trial Court Reversed:  The FOID Card Act states that “the aggrieved party may petition the circuit court in writing in the county of his or her residence for a hearing upon such denial.” At that hearing, the court is charged with determining whether “substantial justice has not been done,” and if it has not, the court is authorized by statute to direct the Department to issue the FOID card.  The court’s determination with respect to substantial justice is governed by the criteria of subsection (c) of section 10.   Karmeier, J, special concurrence by Burke, J. and Freeman, J., dissent by Theis, concurred in by Garman, J.

No. 2013 IL 113867  Coram v. The State of Illinois  Filed 9-12-13 (LJD)

This appeal comes to us pursuant to Illinois Supreme Court Rule 302(a) (Ill. S. Ct. R. 302(a) (eff. Oct. 4, 2011)), the circuit court of Adams County having held section 922(g)(9) of the federal Gun Control Act of 1968, as amended (18 U.S.C. § 922(g)(9) (2006)), unconstitutional as applied to  Jerry W. Coram.  Before this court, the Illinois Department of State Police (the Department), appellant herein, contends that the firearm ban of section 922(g)(9) is “constitutional under the Second Amendment,” both facially and as applied to Coram. The United States, as amicus curiae, argues that “the circuit court erred in holding that the denial of petitioner’s application for a firearm owner’s identification card infringes on any constitutionally protected interests.” As we see it, there is no viable argument as to whether the federal firearms ban was properly imposed upon Coram and others like him. At oral argument Coram’s attorney more or less conceded as much. Moreover, as will appear hereafter, we see no need to address the contention that section 922(g)(9) is unconstitutional as applied to Coram; nor, we conclude, was there a reason for the circuit court to do so.  We believe the applicable state and federal statutory schemes can be interpreted in a manner consistent with congressional intent and in such a way as to afford Coram his firearm rights under the Illinois Constitution (Ill. Const. 1970, art. I, § 22) and the second amendment to the United States Constitution (U.S. Const., amend. II). We thus conclude the circuit court erred in holding the statute unconstitutional.

2.  Criminal Law:  Appellate and Trial Court Reversed: One has standing to challenge the validity of a statute if he has sustained or if he is in immediate danger of sustaining some direct injury as a result of enforcement of the statute.”  The US Supreme Court ultimately concluded that the second amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation” (id. at 592); that “central to” this right is “the inherent right of self-defense”; that “the home” is “where the need for defense of self, family, and property is most acute”; and that, “above all other interests,” the second amendment elevates “the right of law abiding, responsible citizens to use arms in defense of hearth and home”.  We  hold that, on its face, section 24-1.6(a)(1), (a)(3)(A) violates the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution. As to section 24-3.1(a)(1), we need only express our agreement with the obvious and undeniable conclusion that the possession of handguns by minors is conduct that falls outside the scope of the second amendment’s protection and does not violate the second amendment..Thomas, J.

No. 2013 IL 112116  People v. Aguilar  Filed 9-12-13 (LJD)

The principal issue in this case is whether section 24-1.6(a)(1), (a)(3)(A) of the Illinois aggravated unlawful use of weapons (AUUW) statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)) violates the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution (U.S. Const., amend. II). We hold that it does.

4 Appellate Court Cases Posted 09-12-13

1.  Tort Liability/Workers Compensation: Affirmed:  An employee is barred from bringing a common law suit against his co-employee for a work-related injury unless the employee shows that a legally recognized exception to the exclusive remedy provision of the Act exists.  In order to circumvent this bar on common law actions imposed by the Act, a plaintiff must allege and prove the injury either: (1) was not accidental; (2) did not arise out of employment; (3) was not incurred during the course of employment; or (4) was noncompensable under the Act.  An injury is accidental within the meaning of the Act when it is traceable to a definite time, place, and cause, and occurs in the course of the employment unexpectedly and without affirmative act or design of the employee.  Under the dual capacity doctrine, " 'an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer.' "  Fitzgerald Smith, J.

No. 2013 IL App (1st) 132121  Garland v. Morgan Stanley and Company, Inc.  Filed 09-12-13  (LJD)

These consolidated appeals stem from a fatal airplane crash which resulted in the deaths of all four individuals onboard the aircraft. Following the crash, plaintiff Jennifer Garland (plaintiff), the widow and administrator of the estate of decedent Scott Garland (Garland), brought suit against various individuals and entities, alleging wrongful death and survival claims. Relevant to this appeal, plaintiff sought recovery from decedent Garland's employer, Morgan Stanley & Company, Inc. (Morgan Stanley), as well as Garland's co-employee and the estate of 1-11-2121 & 1-11-2199, cons. the deceased pilot of the aircraft at the time of the accident, Mark Turek (Turek). For the following reasons, we affirm.

2.  Child Custody: Affirmed:  Section 601(b)(2) of the Act provides that a custody proceeding may be commenced by a nonparent “only if [the child] is not in the physical custody of one of his parents.”9 750 ILCS 5/601(b)(2) (West 2010).  Our supreme court has interpreted section 601(b)(2) as a “standing requirement that ensures that the superior right of natural parents to the care and custody of their children is safeguarded.”  The nonparent must show that the parents no longer have physical custody of the child because the parents “voluntarily and indefinitely relinquished custody of the child.”  Zenoff, J.

No. 2013 IL App (2nd) 130336  Dumiak v. Kinzer-Somerville   Filed 09-12-13  (LJD)

Petitioners, Roman Dumiak and Ellen Deasy, previously appealed from the trial court’s sua sponte dismissal of their petition seeking custody of their grandson for lack of standing. We reversed and remanded. Petitioners now appeal from the trial court’s denial of their custody petition following an evidentiary hearing on the issue of standing. For the following reasons, we affirm.

3.  Criminal Law: Affirmed in Part and Reversed in Part: Under Illinois law, proof of an offense requires proof of two distinct propositions or facts beyond a reasonable doubt: (1) that a crime occurred, i.e., the corpus delicti; and (2) that the crime was committed by the person charged.  While defendant's confession may be integral to proving the corpus delicti, it is well established that proof of the corpus delicti may not rest exclusively on defendant's extrajudicial confession, admission, or other statement. Id. Still, the corpus delicti is not required to be proved beyond a reasonable doubt exclusively by evidence independent of the confession. If there is evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with the circumstances related in the confession, both the circumstances and the  confession may be considered in determining whether the corpus delicti is sufficiently proved in a given case. McDade, J.

No. 2013 IL App (3rd) 100150-B   People v. Hurry   Filed 09-12-13  (LJD)

Following the filing of our opinion in this cause, the supreme court issued a supervisory order directing this court to vacate its judgment and reconsider the case in light of its decision in People v. Lara, 2012 IL 112370. See People v. Hurry, No. 114348 (Mar. 27, 2013 (Order). The following is a new opinion issued in compliance with the court's instructions.  We affirm defendant's convictions on counts I, II, and III; reduce his convictions on counts IV and V from predatory criminal sexual assault to aggravated criminal sexual abuse (720 ILCS 5/12-16 (West 2006)); reverse his convictions on counts VI through X; and remand the case for resentencing on counts IV and V.

4.  Nursing Home Act: Reversed:  Sections 3-411 and 3-412 of the Nursing Home Care Act (210 ILCS 45/3-411, 3-412 (West 2012)) empower the Department to approve or disapprove an involuntary transfer or discharge (if, within 10 days after receiving the notice of  involuntary transfer or discharge, the resident requests the Department to hold a hearing (210 ILCS 45/3-410 (West 2012)). Also, section 3-320 of the Nursing Home Care Act (210 ILCS 45/3-320 (West 2012)) provides that "[a]ll final administrative decisions of the  Department under this Act are subject to judicial review under the Administrative Review Law [(735 ILCS 5/3-101 to 3-113 (West 2012))]." Because section 3-320 of the Nursing Home Care Act expressly adopts the Administrative Review Law, a circuit court must receive its subject-matter jurisdiction from the Administrative Review Law to review the Department's decision to approve or disapprove an involuntary transfer or discharge.  Discussion regarding the difference between venue and jurisdiction under the Review Act. Appleton, J. 

No. 2013 IL App (4th) 121103  Slepicka v. The State of Illinois   Filed 09-12-13  (LJD)

The defendant in this appeal is Holy Family Villa, a nursing home in Palos Park. The plaintiff is Mary Slepicka, a resident of the nursing home. ¶ 2 Defendant served upon plaintiff a notice of involuntary transfer or discharge on the ground of nonpayment. See 210 ILCS 45/3-401(d) (West 2012). Plaintiff administratively appealed to the Illinois Department of Public Health (Department), which, after an administrative hearing, approved the involuntary transfer or discharge. ¶ 3 Plaintiff then filed a complaint for administrative review in the Sangamon County circuit court. Defendant moved to dismiss the complaint, or, alternatively, to transfer the case to the Cook County circuit court, on the ground that the Sangamon County circuit court was an impermissible venue. The Sangamon County circuit court denied the motion but ultimately upheld the Department's decision. Plaintiff appeals. (The Attorney General filed an appearance on behalf of the Department, Garate, and Hasbrouck as named defendants, but has not filed a brief.)

8 Appellate Court Cases Posted 09-11-2013

1.   Legal Negligence: Affirmed: Illinois Supreme Court Rule 341(h)(7) provides, in part, that "[p]oints not argued [in an opening brief] are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing."  A criminal defendant must establish his or her actual innocence before being able to recover for the criminal defense attorney's alleged malpractice.  Hyman, J.

No. 2013 IL App (1st) 122177  Fink v. Banks Filed 09-11-13  (LJD)

This is a legal malpractice action against the criminal defense attorney who had represented plaintiff at trial for attempted first degree intentional homicide in the shooting of his girlfriend. The incident and the trial occurred in Wisconsin. A jury convicted plaintiff, Michael Fink, and the trial court sentenced him to 10 years in prison and 6years' extended supervision. Defendant, Sheldon Banks, an Illinois attorney, represented Fink with the assistance of local Wisconsin counsel. Fink's conviction was later vacated on the basis of ineffective assistance of trial counsel, and a new trial was ordered. Wisconsin authorities then charged Fink with first degree recklessly endangering safety, a lesser included offense of attempted first degree intentional homicide. After a bench trial, Fink was convicted of second degree recklessly  endangering safety and given a stayed sentence of five years of initial confinement plus three years of extended supervision. 

2.  Criminal Law: Affirmed: Generally, a defendant may not challenge the validity of an indictment that a legally constituted grand jury returns, but a defendant may challenge an indictment procured through prosecutorial misconduct.  To obtain the dismissal of the indictment, a defendant must show that the prosecutorial misconduct affected the grand jury’s deliberations and rose to the level of a deprivation of due process or a miscarriage of justice.  The due process rights of a defendant may be violated if the prosecutor deliberately or intentionally misleads the grand jury, uses known perjured or false testimony, or presents other deceptive or inaccurate evidence.”  The prosecutor’s deception need not be intentional.  The defendant must show that the denial of due process is “unequivocally clear” and resulted in prejudice that is “actual and substantial.”  The trier of fact has the responsibility to assess witnesses’ credibility, weigh their testimony, resolve inconsistencies and conflicts in the evidence, and draw reasonable inferences from the evidence.  We will not set aside a criminal conviction unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt.  Spence, J.

No. 2013 IL App (2nd) 111038  People v. Legore Filed 09-11-13  (LJD)

Following a jury trial, defendant, Nathaniel R. Legore, was convicted of the first-degree murder (720 ILCS 5/9-1(a) (West 2008)) of his father, Guillermo Legore. Guillermo was found shot to death in his home in North Chicago. On appeal, defendant argues that: (1) the indictment should have been dismissed with prejudice because it was secured by false testimony; (2) he was not proven guilty beyond a reasonable doubt; and (3) he is entitled to a new trial because the State improperly shifted the burden of proof in rebuttal closing argument. We affirm.

3.  Criminal LAw: Affirmed: When a defendant challenges the sufficiency of the evidence, we view the evidence in the light most favorable to the State and determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.  To convict a defendant of aggravated battery, the State must prove beyond a reasonable doubt that in committing a battery, defendant intentionally or knowingly caused great bodily harm or permanent disability or disfigurement.  Whether the victim's injuries rise to the level of great bodily harm is a question for the trier of fact.  Our supreme court defined bodily harm, as it relates to a battery, as some sort of physical pain or damage to the body, like lacerations, bruises, or abrasions, whether temporary or permanent.  Schmidt, J., special concurrence by McDade, J.

No. 2013 IL App (3rd) 11038People v. Cisneros  Filed 09-11-13  (LJD)

A Rock Island County jury convicted defendant, Rafael Q. Cisneros, of aggravated battery causing great bodily harm (720 ILCS 5/12-4(a) (West 2010)). The trial court sentenced him to 18 months' probation. Defendant appeals. The sole question posed in this appeal is: Did the State prove beyond a reasonable doubt that the victim suffered great bodily harm? It did. We affirm.

4.  Mortgage Foreclosure: Affirmed: Section 2-1203 provides, "[i]n all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief." Because the defendants' motion was filed within the 60-day postjudgment window given by the circuit court, section 2-1203 applies. When reviewing a motion brought pursuant to section 2-1203, "the appellate court must examine not merely whether the court's order *** represented an abuse of discretion but, rather, whether regarding that order, substantial justice is being done between the parties."  We also note that we can affirm the circuit court's judgment based on any ground supported by the record.   Carter, J.

No. 2013 IL App (3rd) 120601  Bank of America, N.A. v. Luca  Filed 09-11-13  (LJD)

The plaintiff, Bank of America, N.A., filed a foreclosure action against the defendants, Sergiu and Elena Luca. The plaintiff filed motions for entry of an order confirming judicial sale and for entry of an order of possession. The circuit court entered the order of possession for the plaintiff, but granted the defendants an extension of possession from 30 days to 60 days. The defendants filed a petition pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2012)) challenging the order of possession and all prior orders, which the circuit court denied. After the court denied the defendants' motion to reconsider, the defendants appealed. On appeal, the defendants argue that the circuit court erred when it denied their section 2-1401 petition. We affirm.

5.  Criminal Law: Affirmed: defendant has a "right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." The touchstone of this analysis is "whether the defendant's presence at the proceeding would have contributed to his opportunity to defend himself against the charges."  The court's watching and listening to the DVDs was not a "critical stage" of defendant's trial. The critical stage here was the portion of the section 115-10 hearing that provided defendant the opportunity to defend his position that the statements from those DVDs were inadmissible.  Steigmann, J.

No. 2013 IL App (4th) 120228 People v. Young  Filed 09-11-13  (LJD)

Following a November 2011 bench trial, the trial court convicted defendant, Michael S. Young, on three counts of aggravated criminal sexual abuse (720 ILCS 5/12- 16(c)(1)(i) (West 2010)). The court found that during three separate incidents, defendant caused two minor girls to rub their hands on his penis for the purpose of defendant's sexual gratification. For that conduct, the court sentenced defendant to eight years in prison.

6.  Criminal Law: Reversed: Our supreme court has stated "[t]he three elements of the crime of unlawful possession of narcotics with intent to deliver are: the defendant had knowledge of the presence of the narcotics, the narcotics were in the immediate possession or control of the defendant, and that the defendant intended to deliver the narcotics."This is not an absolute liabilityoffense. A defendant cannot be convicted simply because he sold a product containing a controlled substance.The defendant must know it is a controlled substance.  Pope, J.

No. 2013 IL App (4th) 121111 People v. Patel Filed 09-11-13  (LJD)

In August 2012, the trial court found defendant, Dinesh Patel, guiltyof unlawful deliveryof a controlled substance(substance containingAM-2201 (synthetic cannabis) (1-(5-fluoropentyl)-3-(1-naphthoyl)indole) (720 ILCS 570/401(e)(West 2010)). Defendant appeals, arguing (1) the State failed to prove his guilt beyond a reasonabledoubt and (2) his conduct was the result of a mistake of fact, a defense to this crime. We reverse defendant's conviction.

7.  Substitution of Judges: Reversed and Remanded: Any orders entered by a court following an improper denial of a motion for substitution of judge are void.  The trial court must grant a party's motion for substitution of judge as of right if the motion "is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case."  A substantial issue is one relating directly to themerits of the case.  Under a liberal construction of the current statute, parties are free to move for a substitution of judge as of right for whatever reason they wish, provided their purpose is not to delay or avoid trial. Accordingly, when the statutory conditions are met and there is no showing that substitution is sought to delay or avoid trial, judges have no authority to inquire into the movant's reason for seeking substitution and to deny the motion if that reason does not meet their approval.  The "test the waters" doctrine was rendered obsolete 20 years ago by introduction of the right to a substitution of judge without cause under the new version of section 2- 1001(a)(2). Steigmann, J.

No. 2013 IL App (4th) 121142 Schnepf v. Schnepf Filed 09-11-13  (LJD)

These consolidated appeals arise from an action in partition involving a family farm owned in common by four siblings. In January 2007, plaintiffs Raymond Schnepf, John Schnepf, and their late mother, Maleta Maxine Schnepf (who died during the course of these proceedings), filed a complaint for partition of real estate, naming Lyndle Schnepf and Brenda Schnepf Johnson as defendants. In February 2008, before the trial court ruled on any substantial issue in the case, John filed a motion for substitution of judge as of right (735 ILCS 5/2-1001(a)(2) (West 2008)).  Because we conclude that the court's orders entered following its improper denial of John's motion for substitution of judge are void, we remand for further proceedings.

8.  Criminal Law: Reversed and Remanded: The burden of proof initially rests with the defendant.  However, once the defendant makes a prima facie showing of an illegal search and seizure, the burden shifts to the State to produce evidence justifying the intrusion.  The general rule is that searches and seizures are unreasonable unless conducted pursuant to a judicial warrant issued by a neutral magistrate after a finding of probable cause.  However, if there is no unreasonable government intrusion, "there is no search and seizure subject to the warrant clause of the [fourth] amendment." Where police obtain corroboration of the information from an anonymous informant, it establishes the informant's veracity and supports the inference that the informant obtained his information reliably. "An officer may lawfully approach the front door of a residence to conduct an investigation—referred to by many courts as a 'knock and talk'—so long as the officer enters an area impliedly open to the public."  Moreover, "[a]n officer may go beyond the front door to investigate by approaching the back door of a residence—either when no one answers a knock on the front door or where a legitimate reason is shown for approaching the back door." Turner, J.

No. 2013 IL App (4th) 130142  People v. Woodrome  Filed 09-11-13  (LJD)

In September 2011, the State charged defendant, Timothy Ray Woodrome, with single counts of theft and criminal damage to property. In March 2012, defendant filed a motion to suppress evidence, which the trial court granted. On appeal, the State argues the trial court erred in granting defendant's motion to suppress evidence. We reverse and remand for further proceedings.

5 Appellate Cases Posted 9-10-13

1. Criminal Law: Affirmed: In financial exploitation of elderly prosecution, State proved defendant guilty beyond a reasonable doubt where evidence showed deception by defendant in holding out elderly person as competent to others in connection with transfers of beneficial interest in property of elderly person suffering from dementia; deception further shown where defendant hid transactions from inquiring relative of elderly person; element of permanent deprivation shown even though defendant had not yet received money where transfers of beneficial interest in property to defendant upon elderly person's death limited elderly person's ability to do with his property as he would determine; and fine of $36,000 not excessive. Simon, J.

No. 2013 IL App (1st) 111975  People v. Owsley  Filed 9-10-13 (TJJ)

Following a bench trial, defendant Donald Owsley was found guilty of five counts of financial exploitation of an elderly person and one count of forgery and sentenced to three years' probation and a $36,000 fine. On appeal, defendant contends that the  State failed to prove him guilty beyond a reasonable doubt of financial exploitation of an elderly person or forgery and that the fine is excessive. For the reasons that follow, we affirm.

2. Criminal Law: Affirmed: In case remanded to trail court for a new sentencing hearing, defendant was not entitled to make a claim of actual innocence at sentencing hearing, but would be required to file motion for leave to file a successive post-conviction petition and plead "cause and prejudice" in light of the procedural posture of the case; attempt armed robbery properly deemed a "triggering" offense so as to require consecutive sentences despite a lack of bodily harm in connection with that offense but extant in murder offense which was not, at that time, a triggering offense;  and 90-year sentence for first degree murder was not excessive and any Apprendi error relating to victim's age was harmless error. Quinn, J.

No. 2013 IL App (1st) 120498  People v. Harris  Filed 9-10-13 (TJJ)

In 1995, defendant David Harris was found guilty of first degree murder and attempted armed robbery. He was sentenced to death for the murder conviction, and his conviction and sentence were affirmed on direct appeal. People v. Harris, 182 Ill. 2d 114  (1998). Following a new sentencing hearing, defendant was sentenced to consecutive terms of 90 years' imprisonment for first degree murder and 15 years' imprisonment for attempted armed robbery. He now appeals, contending: (1) that the trial court  erred in excluding discovery and evidence indicating that he was factually innocent of the charges against him; (2) that the trial court erred in imposing consecutive sentences where no bodily injury occurred during the commission of the triggering offense;  (3) that his 90-year sentence for first degree murder is excessive in light of certain mitigating factors; and (4) that the trial court sentenced him to an extended term in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). For the following reasons, we affirm.

3. Domestic Relations/Appellate Jurisdiction: Appeal dismissed: In case for dissolution of marriage and claims regarding maintenance, child support, and attorneys' fees, where trial court resolved some claims, but left pending a second amended petition for rule to show cause as to why husband should not be held in contempt for violating dissolution order, claims on appeal were not final absent a trial court ruling under SCR 304(a) that they were final and appealable, and appellate court therefore did not have jurisdiction to hear appeal. Harris, J.

No. 2013 IL App (1st) 121223  In re Marriage of Dianovsky  Filed 9-10-13 (TJJ)

Petitioner Mario Dianovsky appeals the order of the circuit court granting his motion to reconsider and reducing the amounts he owes for child support and other expenses. Petitioner also appeals the court's order granting attorney fees to Respondent,  Izabela Dianovsky, pursuant to section 508(b) of the Illinois Marriage and Dissolution of Marriage Act. On appeal, petitioner contends the trial court (1) abused its discretion in denying his initial petition to modify child support; (2) erred when it entered an order limiting his ability to conduct discovery; (3) erred in finding petitioner in contempt of court for failing to pay all ordered child support and for failing to pay the mortgage on the marital residence; and (4) erred in granting respondent's petition for  attorney fees. For the following reasons, we dismiss the appeal for lack of jurisdiction.

4. Illinois Wage Act: Affirmed: trial court properly determined that defendants were subject to jurisdiction in this State despite claim that they had no contacts with State of Illinois, in face of evidence that employment contract with plaintiff was negotiated in Illinois; Illinois Wage Act properly applicable despite individual defendant's claim that it was not as he was an Ohio resident; and individual defendant properly found liable for terminated plaintiff's wage claim under Act in light of evidence the individual defendant "knowingly permitted" corporate defendant's violation of the Act. Birkett, J.

No. 2013 IL App (2d) 120209  Elsener v. Brown  Filed 9-10-13 (TJJ)

Defendant, Roy Brown, appeals from the trial court’s judgment finding him personally liable on an employment contract signed by plaintiff, James Elsener, and defendant in his capacity as president of Brown Business Ledger, LLC (BBL). For the  following reasons, we affirm.

5. Criminal Law: Affirmed: Trial court ruling suppressing search of airplane traveling from Arizona to DuPage County upheld in absence of evidence showing either probable cause or reasonable articulable suspicion to detain defendant and search plane. Schostok, J.

No. 2013 IL App (2d) 120585  People v. Marcella  Filed 9-10-13 (TJJ)

On January 25, 2009, the defendant, William B. Marcella, was charged by felony complaint with unlawful cannabis trafficking. Law enforcement officers had discovered over 300 pounds of cannabis in 8 cardboard boxes on a small airplane owned and operated by the defendant. On January 22, 2010, the defendant filed a motion to suppress the evidence, arguing that the officers had neither reasonable suspicion nor probable cause to detain him. The trial court granted the defendant’s motion to suppress.  The State appeals. We affirm.

3 Appellate Cases Posted 9-9-13

1. Domestic Relations: Reversed and remanded: Trial court had authority to order custodial parent to pay child support to non-custodial parent, order was not an abuse of discretion, but record showed no basis for trial court's determination of amount of support ordered. Matter remanded for trial court to conduct hearing regarding noncustodial parent's financial needs in supporting child while with non-custodial parent. Gordon, J.

No. 2013 IL App (1st) 122486  In re Marriage of Turk  Filed 9-6-13 (TJJ)

Following a hearing on March 6, 2012, the trial court entered an order finding that, pursuant to an agreement between respondent, Steven Turk, and petitioner, Iris Turk, Steven had sole custody of their two children. The trial court further found that Iris and  Steven shared possession of their younger son, but that Iris’ parenting time with their older son was temporarily unequal. Finally, the trial court found that Steven earns approximately $150,000 per year, while Iris earns less than $10,000 per year. Based on those findings, and after reviewing the parties’ financial disclosure statements, the trial court ordered Steven to pay Iris $600 per month for child support and ordered that Steven was solely responsible for all of the children’s uninsured medical expenses. For the following reasons, we reverse the trial court’s decision and remand the cause to the trial court.

2. Negligence Law: Affirmed: Trial court properly dismissed numerous lawsuits stemming from allegations that Tollway Authority negligently maintained median of tollway allegedly leading to numerous accidents, where Tollway Authority had no duty to maintain highway to prevent crossover accidents. Birkett, J.

No. 2013 IL App (2d) 120273  Rommel v. The Illinois State Toll Highway Authority  Filed 9-9-13 (TJJ)

Five separate cases were consolidated due to the similarity of the issues. In each case, a twocar head-on collision leading to injury or death provided the factual backdrop of the complaint. Defendant, the Illinois State Toll Highway Authority, moved to  dismiss each complaint on the basis that defendant owed no duty regarding the median separating traffic. The trial court certified two questions for permissive interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010). This court  answered the questions and held that defendant owed no duty regarding the median. Rommel v. Illinois State Toll Highway Authority, 405 Ill. App. 3d 1124 (2010) (Rommel I). We remanded the cause to the trial court for further proceedings. Upon remand, the trial court dismissed each action, holding that Rommel I compelled the dismissals. Plaintiffs appealed, arguing, effectively, that we should revisit our determinations on the certified questions in Rommel I and that, in any event, plaintiffs had stated a  claim for negligent maintenance and voluntary undertaking regarding the median. We affirm the trial court’s judgment.

3. Public Employee Disability Pension: Vacated and remanded: Failure of pension board to make its own written decision as required by Open Meeting Act, precluded court review of Board's decision. Delort, J.

No. 2013 IL App (1st) 122446  Howe v. The Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago  Filed 9-9-13 (TJJ)

From the perspective of the parties, this administrative review case is about whether a Chicago fire department (CFD) employee should receive a disability pension. From our viewpoint, however, the disability issue must wait for another day, because the  pension board made several procedural errors which rendered its decision invalid. ¶ 2 Defendant, The Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago (Board), voted on a motion to grant the application of plaintiff, Patrick J. Howe, for a duty disability benefit under section 6-151 of the Illinois Pension Code. The motion failed, as five Board members voted “no” and only two members voted “yes.” Thereafter, the Board never adopted, by majority affirmative vote, any motion whatsoever disposing of the application and approving a written decision as required by the Open Meetings Act (5 ILCS 120/1 et seq. (West 2010)). Nonetheless, the Board thereafter issued a written decision denying Howe his application for a duty  disability benefit. The circuit court addressed the merits of the underlying claim and affirmed the Board’s decision to deny benefits to Howe. Because we find the Board never validly took final action on the application, we vacate its decision and remand  this cause with instructions for the Board to take valid final action by conducting a proper affirmative vote on a specific written decision.

2 Appellate Cases Posted 9-6-13

1. Adult Guardian Petition: Affirmed as modified: Trial court properly granted defendants' 2-619 motions to dismiss plaintiff's petition for guardianship of his estranged father, where submitted materials, including doctors' affidavits and GAL's report, showed that father's medical and mental condition did not warrant appointment of a guardian, and one defendant's motion for Rule 137 sanctions affirmed as to allegations by plaintiff at trial level, but denied as to purported frivolity of appeal. McDade, J.

No. 2013 IL App (3d) 110264  In re Estate of Hanley  Filed 9-6-13 (TJJ)

The petitioner, James Hanley, filed a two-count petition for the appointment of guardians for his father, John P. Hanley (count I), and for an order of protection against the respondent, Margaret Hanley, who is James's sister and John's daughter (count II).  John and Margaret separately moved to dismiss the count of James's petition which pertained to each. The trial court granted both motions to dismiss. James appeals the dismissals, contending that the trial court erred because: (1) evidence presented by  John was insufficient to support dismissal under section 2-619 of the Code of Civil Procedure; (2) the petition alleged sufficient facts under section 2-615 of the Code to state claims for guardianship and an order of protection, and to preclude dismissal  under the terms of the Probate Act of 1975; and (3) the court failed to adjudicate John's need for a guardian, precluding dismissal of James's request for an order of protection under section 103(2) of the Illinois Domestic Violence Act of 1986. We affirm the trial court on these dismissals. Margaret has cross-appealed on sanctions contending that the trial court made an inadvertent error when it computed the attorney fees it awarded her and that this court should correct the error. We affirm the award of sanctions and correct the amount of the award.  Margaret has also moved in this court for Illinois Supreme Court Rule 375(b) sanctions against James for bringing the instant appeal. We deny that request.

2. Personal Injury: Affirmed: In wrongful death claim stemming from a motor vehicle accident wherein defendant's employee caused decedent's death while traveling to a jobsite, trial court properly granted summary judgment to defendant employer on claim that it was liable under "traveling employee" doctrine, as such was only applicable in workers' compensation cases and would not be applied in negligence; trial court error in making sua sponte comment regarding need for harmony between general verdict and special interrogatory was harmless in light of overwhelming evidence that employer not liable. Holder White, J.

No. 2013 IL App (4th) 120781  Pister v. Matrix Service Industrial Contractors  Filed 9-6-13 (TJJ)

In April 2009, a vehicle driven by Brian Stultz (Brian) struck the vehicle of Jeffrey Pister, resulting in the death of both men. At the time of the accident, Brian was nearing his destination in Champaign, Illinois, where he was scheduled to work later that  morning for defendant Matrix Service Industrial Contractors, Inc., a foreign corporation (Matrix). In May 2011, Jeffrey's widow, plaintiff Tisha Pister, as independent administrator for the estate of Jeffrey Pister (hereinafter Pister), filed a third amended  complaint against Matrix and the estate of Brian Stultz (Estate). The Estate is not a party on appeal. As part of the complaint, Pister claimed Matrix was liable for Pister's death under the doctrine of respondeat superior. Pister set forth two theories of  liability, asserting (1) Brian was a "traveling employee" of Matrix, on which the court, pretrial, granted summary judgment for Matrix and (2) Brian was on a "special errand" for Matrix at the time of the accident. The jury returned a verdict in favor of  Matrix on Pister's "special errand" theory. Pister appeals, arguing the trial court committed reversible error by (1) granting partial summary judgment in favor of Matrix, (2) admitting or excluding certain evidence, and (3) giving erroneous instructions to the jury. We affirm.

3 Appellate Cases Posted 9-5-13

1. Criminal Law: Affirmed: In prosecution for aggravated battery to a police officer, trial court properly conducted in camera review of Office of Professional Standards/Independent Police Review Authority records relating to police officer complaining witness and properly quashed defendant's subpoena seeking them, where review of the records (also done in camera by the Appellate Court) showed no temporal proximity to the incident at issue, nor any similarity to the claim of misconduct on the officer's part by the defendant. Howse, J.

No. 2013 IL App (1st) 111074  People v. Porter-Boens  Filed 9-5-13 (TJJ)

Following a bench trial, the circuit court of Cook County convicted defendant Zoneike Porter-Boens of aggravated battery and resisting a police officer and sentenced her to a two-year term of felony probation. On appeal, we are asked to determine whether the trial court’s ruling quashing defendant’s subpoena for the records of civilian complaints against Lieutenant Glenn Evans, the arresting officer, was correct. Defendant requests this court examine the records, which were reviewed by the trial court in  camera, to determine if its judgment was correct. The State agrees that an in camera examination of the documents by this court is necessary to properly review the trial court’s ruling. For the following reasons, we affirm the trial court’s evidentiary ruling.

2. Involuntary Commitment: Reversed: Trial court order finding respondent in need of in-patient mental health services and involuntarily committing her reversed for trial court's failure to order independent mental health evaluation, and resolve the issue of who would pay for it before proceeding to hearing. Appleton, J.

No. 2013 IL App (4th) 120786  In re: Angela A.  Filed 9-5-13 (TJJ)

Following an August 2012 hearing, the trial court found respondent, Angela A., subject to involuntary hospitalization (405 ILCS 5/3-700 (West 2010)) and involuntary administration of psychotropic medication (405 ILCS 5/2-107.1 (West 2010)).  Respondent appeals, arguing (1) the trial court failed to comply with section 3-804 of the Mental Health and Developmental Disabilities Code when it denied respondent's request for an independent mental-health examination; (2) the trial court failed to  comply with section 3-816 of the Mental Health Code when it failed to make adequate oral or written findings of fact and conclusions of law in its orders; and (3) the State failed to prove by clear and convincing evidence that respondent lacked the requisite capacity to make a reasoned decision about her treatment The State concedes error on respondent's first two grounds. We accept the State's concession and reverse the trial court's orders.

3. Medical Negligence/Section 2-622 Affidavit of Merit: Certified Questions Answered: Absent "undue prejudice" to a defendant, plaintiff should be granted an opportunity to amend a Section 2-622 affidavit before dismissing a medical malpractice claim, and the trial court has the discretion to find "no prejudice" to defendant at the time it permits the amended affidavit to be filed. Stewart, J.

No. 2013 IL App (5th) 110327  Fox v. Gauto  Filed 9-5-13 (TJJ)

This interlocutory appeal, brought pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010), arises from a medical malpractice case filed by the plaintiffs, Rickie Fox and Ruth Fox. The questions certified by the circuit court are related to the  statutory requirement that a medical malpractice complaint include an affidavit of merit and a doctor's report. Specifically, section 2-622(a)(1) of the Code of Civil Procedure (the Code) requires that in any action alleging medical malpractice, the plaintiffs  must file an affidavit attached to the complaint that states that they have or their attorney has consulted with a health professional in whose opinion there is a "reasonable and meritorious cause" for the filing of the action. 735 ILCS 5/2-622(a)(1) (West  2010). In addition, section 2-622(a)(1) requires the plaintiffs to file the written report of the health professional along with the complaint and affidavit of merit. Three certified questions answered by Appellate Court.

3 Appellate Cases Posted 9-3-13

1. Administrative Review/Teacher Dismissal: Affirmed: Chicago Board of Education decision to terminate tenured teacher with 25 years' experience for fraudulently representing her children as residing in Chicago and benefiting from enrollment in selective enrollment grade schools and high schools not manifestly erroneous and was upheld on direct appeal to Appellate Court. Quinn, J. (Modified on denial of rehearing).
No. 2013 IL App (1st) 122437  Jones v. Board of Education of the City of Chicago  Filed 7-30-13 (TJJ)

Petitioner, Charlotte Jones, a tenured teacher was terminated from her position by the Board of Education of the City of Chicago (Board) for repeatedly providing a false Chicago address for her two children rather than their suburban resident address so she could enroll them at the selective enrollment Chicago elementary school where she taught. She continued her daughter’s Chicago education at Morgan Park high school, a selective-enrollment Chicago high school, in the same fraudulent manner. This is a  direct appeal to the appellate court for judicial review of the final administrative agency decision of the Board entered on July 25, 2012, which disposed of all claims surrounding the petitioner’s termination in favor of the Board. Affirmed

2. Appellate Jurisdiction/Minor Guardianship : Appeal dismissed: Trial court order appointing brother of minor's deceased mother while setting matter for hearing for "continuation of guardianship" essentially constituted a temporary or emergency motion, and was thus not final and appealable. Lytton, J.

No. 2013 IL App (3d) 130268  In re Estate of C.B.  Filed 9-3-13 (TJJ)

Respondent, Eran Ajradinoski, appeals from a temporary order of the circuit court granting guardianship to petitioner, Richard B., pending a full hearing on the matter. We find that the trial court's order preserving the status of the minor pending a full  hearing on the matter was not a final determination of respondent's rights appealable under Illinois Supreme Court Rule 304(b)(1). We therefore dismiss the appeal.

3. Mechanics' Liens: Reversed and remanded: In action to foreclose mechanic's lien brought by plaintiff for construction/grading work performed on land owned by defendant in which plaintiff had a 50% interest in hoped-for profits from development of the land, trial court ruling granting summary judgment to defendant on ground that plaintiff could not enforce a lien on property in which it had an interest was error, as plaintiff was not a "co-owner" of the property, despite its relationship with defendant regarding development of the property. Cates, J.

No. 2013 IL App (5th) 120490  Peabody-Waterside Development, LLC v. Islands of Waterside, LLC  Filed 9-3-13 (TJJ)

Plaintiff Peabody-Waterside Development, LLC (Peabody-Waterside), brought an action for breach of contract and enforcement of a mechanic's lien to collect amounts owed by defendant Islands of Waterside, LLC (Islands), for grading and site  development work that Peabody-Waterside had performed at Islands' property in Marissa, Illinois. The circuit court of St. Clair County entered judgment in favor of Peabody-Waterside on the breach of contract claim but entered summary judgment in favor of defendants for the mechanic's lien. The court determined that Peabody-Waterside could not claim a lien against the property because Peabody-Waterside is a member of Islands and was, therefore, jointly interested in developing the property at issue.  Peabody-Waterside appeals from the grant of summary judgment in favor of defendants. We reverse and remand.

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