New Cases 02-08-05

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

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4 Appellate Court Cases Posted 10-31-12

1. Domestic Violence: Affirmed: The function of jury instructions is to convey to the jury the correct principles of law applicable to the evidence so the jury can apply the proper legal principles to the facts and arrive at a proper conclusion based on the law and the evidence. Whenever Illinois Pattern Jury Instructions, Criminal (4th ed. 2000) (IPI Criminal 4th), contains an instruction applicable in a criminal case, giving due consideration to the facts and the governing law, and the court determines that the jury should be instructed on the subject, the IPI Criminal 4th instruction shall be used, unless the court determines that it does not accurately state the law.” McLaren, J.

In violation of the explicit terms of an order of protection, defendant, Christopher T. Hoffman, sent text messages to his estranged wife concerning matters such as a family vacation, tickets to a concert, and the broadcast of a movie on television. Based on these acts, defendant was charged with violating the order of protection (720 ILCS 5/12-30(a) (West 2008)). A jury was impaneled, and, following the close of all of the evidence, the jury was given the Illinois Pattern Jury Instructions (IPI) that apply in cases where a defendant is charged with violating an order of protection. The jury was not given the non-IPI instruction that defendant proposed, which specifically indicated that he could be found guilty of violating the order of protection only if the jury found that he acted with knowledge and intent. The jury found defendant guilty, and he moved for a judgment notwithstanding the verdict (725 ILCS 5/116-1 (West 2008)), arguing, among other things, that the jury should have been given his proposed non-IPI instruction. The trial court denied the motion and sentenced defendant to, among other things, 24 months of probation. Defendant timely appeals, claiming that the jury should have been given his proposed non-IPI instruction. We disagree, and, thus, we affirm.

2. Insurance Law/Stacking of policies: Affirmed: The Illinois Insurance Code authorizes anti-stacking provisions: 215 ILCS 5/143a-2(5) (West 2008). The presence of a ‘proration clause’ at the end of the [anti-stacking] provision does not introduce ambiguity into the clear language of the ‘anti-stacking’ provision. The proration clause is set off from the ‘anti-stacking antistacking’ language. The proration clause is designed to prevent other insurers, if any, from paying less than their fair share of a jointly covered loss. Jorgensen, J.

Defendant Dianna McFadden was injured in an auto crash. She and her husband, defendant Todd McFadden, sought to collect underinsured motorist coverage from plaintiff, State Farm Mutual Automobile Insurance Company. The McFaddens claimed that, because they had five separate policies with State Farm, each with a $100,000 limit of liability for underinsured motorist coverage, their total limit was $500,000, and it was this amount that should be offset against the tortfeasor’s liability limit to determine whether the tortfeasor was underinsured. We affirm the denial of coverage.

3. Criminal Law/Waiver of Right to Counsel: Reversed and Remanded: Although the right to counsel is a constitutional requirement, it may be relinquished in three ways: (1) waiver, (2) forfeiture, and (3) waiver by conduct. waiver arises from an affirmative act, is consensual, and consists of an intentional relinquishment of a known right. The court further explained that forfeiture, strictly defined, is different from waiver because instead of being an intentional relinquishment of a known right, forfeiture is the failure to make the timely assertion of the right. When a defendant in a criminal case wishes to waive his right to counsel—that is, to proceed pro se—a trial court may permit him to do so only after the court has first admonished him in accordance with Rule 401(a), entitled, "Waiver of Counsel,." This court suggested certain additional cautionary admonitions that a trial court may use. A court's doing so has the double benefit of (1) occasionally discouraging a defendant from proceeding pro se (once he learns how difficult defending himself will be) and (2) making a comprehensive record of the defendant's knowing choice if he persists in waiving counsel, only to later claim (as frequently happens) after he has been tried and convicted that he should not have been permitted to waive counsel because he did not really understand the consequences of his having done so. Another method of relinquishing the right to counsel is forfeiture, which occurs only after severe misconduct. Waiver by conduct is: After a defendant has been warned that he will lose his attorney if he engages in dilatory tactics, any misconduct thereafter may be treated as an implied request to proceed pro se and, thus, as a waiver of the right to counsel. Steigmann, J.

¶ 1 In September 2009, the State charged defendant, Jerry L. Ames, Jr., with driving under the influence of alcohol with a blood or breath alcohol concentration of 0.08% or more (625 ILCS 5/11-501(a)(1) (West 2008)) (count I) and driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2008)) (count II). In March 2010, defendant pleaded guilty to count II, and the trial court sentenced him to one year of supervision. In May 2011, the court revoked defendant's supervision and resentenced him to 18 months' probation and ordered him to serve 60 days in the county jail. We conclude that the court erred by forcing defendant to proceed pro se, we reverse and remand for a new revocation hearing.

4. Animal Control act: Affirmed: Under Section 219 of the Civil Practice Act, an affirmative matter' means some kind of defense 'other than a negation of the essential allegations of the plaintiff's cause of action. A defendant moving for dismissal under section 2-619(a)(2) otherwise admits the legal sufficiency of the plaintiff's cause of action. To prevail on a claim under the Act, a plaintiff must prove the following: (1) an injury caused by an animal owned by the defendant; (2) lack of provocation; (3) the peaceable conduct of the injured person; and (4) the presence of the injured person in a place where he has a legal right to be. The supreme court interpreted the phrase "[h]arbor[s] or keep[s]" as involving "some measure of care, custody, [and] control." Knowingly permitting a dog to be on the rented property was insufficient to establish ownership under the Act because ownership required evidence that the offending dog was under the defendant's care, custody, and control. Steigmann, J.

In September 2009, plaintiff, Lynda S. Howle, sued defendants, Aqua Illinois, Inc. (Aqua), and Robert Chitwood. Howle alleged, in part, that Aqua was liable under (1) section 16 of the Animal Control Act (Act) (510 ILCS 5/16 (West 2010)) (count II) and (2) the common law tort of negligence (count IV) for injuries she sustained when Chitwood's dog "viciously attacked" her while on Aqua's property. (Howle's suit against Chitwood is not the subject of this appeal.) In November 2011, Aqua filed a motion for summary judgment as to count IV pursuant to section 2-1005 of the Code (735 ILCS 5/2-1005 (West 2010)). Following a December 2011 hearing, the trial court granted summary judgment in Aqua's favor. Howle appeals, arguing that the trial court erred by granting Aqua's (1) motion to dismiss count II and (2) motion for summary judgment as to count IV. We disagree and affirm.

1 Appellate Court Case Posted 10-30-12

Civil Procedure: Affirmed: A judgment is void and may be collaterally attacked only where there is a total lack of either subject matter or personal jurisdiction in the court. Where there is simply an erroneous judgment and the trial court is not divested of jurisdiction, an order is not void, but voidable. A voidable order is not subject to collateral attack, but only to direct appeal. Rules 13 and 101 require that an appearance be filed within 30 days of receipt of service and a party must file such an appearance before addressing the court – unless presenting a motion for leave to appear by intervention or otherwise. Leave of court must be sought prior to filing an appearance after 30 days. Murphy, J.

On October 19, 2009, the underlying complaint to foreclose mortgage was filed in the circuit court of Cook County by the original plaintiff, Credit Based Asset Servicing and Securitization, LLC. Defendant, Joseph Straus, filed his appearance and answer, pro se, on November 20, 2009. Counsel for defendants filed an additional appearance with the clerk of the circuit court on behalf of Joseph Straus on March 16, 2010, and on behalf of Alice Straus on October 25, 2010.

4 Appellate Court Cases Posted 10-29-12

1. Criminal Law/Motion in Limine: Reversed and Remanded: Evidence that is offered to show a person’s knowledge or awareness of a circumstance and not to establish the truth of the circumstance is not hearsay. The Frye standard as enunciated in Rule 702 refers only to expert testimony. However, the standard has been extended so that it may also be applied to technologies used by nonexperts. The Frye standard has two parts: the general acceptance rule, and the “new or novel” rule, which must be applied first to decide whether the general acceptance test is necessary. We review de novo a trial court’s determination of whether a Frye hearing is necessary and whether a particular scientific method, technique, or test is generally accepted in the relevant scientific community. Schostok, J.

In this case, the State charged the defendant, Clarence Prather, with committing an aggravated battery on a victim whom the defendant knew to be pregnant (720 ILCS 5/12-4(b)(11) (West 2010)). Prior to trial, the State filed a motion in limine seeking permission for the alleged victim (B.R.) to testify that she had used a home pregnancy test kit and had shown the positive result to the defendant. The State sought to introduce this testimony as evidence that the defendant was aware that B.R. was pregnant, not as evidence that B.R. was in fact pregnant. The trial court held that, absent introduction of the test kit itself, the testimony would be unfairly prejudicial. It stated as a further basis for the bar that it did not deem a home pregnancy test to be acceptable as scientific evidence under the standard of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The State filed a certificate of impairment and now appeals. We reverse and remand.

2. Administrative Review: Affirmed: Discussion of the procedure under the Pollution Control Act for approval of a land fill site. The appropriate standard of review is an administrative agency’s determination of facts will not be disturbed unless it is contrary to the manifest weight of the evidence. When an agency decision presents a mixed question of law and fact, the agency decision will be reversed only if it is clearly erroneous. The “clearly erroneous” standard lies between the deferential manifest-weight-of-the-evidence standard and the de novo standard. We apply the “clearly erroneous” standard to decisions on mixed questions to provide some deference to an agency’s experience and expertise in dealing with its particular subject matter. A siting authority’s role in the siting-approval process is both quasi-legislative and quasi-adjudicative. Recognizing this dual role, courts have interpreted the applicant’s right to fundamental fairness as incorporating minimal standards of procedural due process, including the opportunity to be heard, the right to cross-examine adverse witnesses, and impartial rulings on the evidence. The members of a siting authority are presumed to have made their decisions in a fair and objective manner. This presumption is not overcome merely because a decision-maker has previously taken a public position or expressed strong views on a related issue. To show bias or prejudice in a siting proceeding, the petitioner must show that a disinterested observer might conclude that the siting authority, or its members, had prejudged the facts or law of the case. Burke, J.

Pursuant to the Illinois Environmental Protection Act (Act) (415 ILCS 5/1 et seq. (West 2010)), Waste Management of Illinois, Inc., filed an application with the Illinois Environmental Protection Agency (IEPA) for permits to expand a landfill in De Kalb County. To obtain the permits, Waste Management applied for siting approval from the county board of De Kalb County (County Board), which granted approval by a 16-to-8 vote. See 415 ILCS 5/39.2 (West 2010). As part of the approval process, Waste Management and the County Board entered into a host agreement under which Waste Management would pay $120 million in host fees over 30 years. Stop the Mega-Dump (STMD), a group of citizens opposing the landfill expansion, filed an objection with the Illinois Pollution Control Board (PCB), arguing that the County Board’s proceedings were fundamentally unfair under the Act. STMD’s theory is that the County Board “rubber-stamped” Waste Management’s application because the County Board was “desperate” for a revenue stream to pay for a $30 million jail expansion. The PCB concluded that the County Board’s proceedings were not fundamentally unfair and affirmed the County Board’s decision. We have reviewed respondents’ responses to STMD’s arguments and conclude that STMD has not sustained its burden on review. Therefore, we affirm the PCB’s decision.

3. Insurance Law: Affirmed: The principle of horizontal exhaustion requires an insured who has multiple primary and excess policies covering a common risk to exhaust all primary policy limits before invoking excess coverage. Our courts have consistently held that an insured cannot target tender a defense to his excess insurer while primary coverage remains unexhausted. Our supreme court held that pursuant to custom in the insurance industry, primary liability is generally placed on the insurer of the owner of an automobile. The court further held that to construe a policy covering the vehicle involved in the accident as other than the primary insurance for that vehicle would violate the public policy of this state as defined by the legislature in section 7-317 of the Illinois Vehicle Code. Welch, J.

This is a declaratory judgment action to determine primacy of coverage between two insurers, Standard Mutual Insurance Company (hereinafter Standard Mutual), which insured Heather D. Vedder (the defendant in the underlying suit), and Continental Western Insurance Company (hereinafter Continental), which insured Nokomis/Witt Area Ambulance Service (hereinafter NWAA), for whom Vedder was working as a volunteer. The circuit court granted the motion of Continental for summary judgment and denied that of Standard Mutual.

4. Forum non Conveniens: Affirmed in Part and Reversed in Part and Remanded: Illinois law does not require that contribution actions invariably be tried together with the underlying action. The court recognized that such a holding would allow defendants to change venue whenever they chose merely by filing a complaint for contribution against a governmental entity. In order to determine whether transfer of the entire case was warranted, the court employed a forum non conveniens analysis. Whether to transfer a case pursuant to the doctrine of forum non conveniens is primarily in the discretion of the circuit court, and we will reverse the circuit court's decision only if there is an abuse of discretion. In analyzing a forum non conveniens motion, the court must balance various private- and public-interest factors, and transfer is required only where the relevant factors, viewed in their totality, strongly favor the forum suggested by the defendants. In assessing the convenience of the parties, the court must be mindful that the plaintiff's right to select the forum is substantial, and hen she chooses her home forum, it is reasonable to presume that this choice is convenient to the plaintiff and should be given deference. The public-interest factors to be analyzed in ruling on a motion to transfer for forum non conveniens are: (1) the interest in having local controversies decided locally, (2) the unfairness of imposing expenses of trial and the burden of jury duty on a county with little or no connection to the litigation, and (3) relative court congestion. Spomer, J.

In these appeals, which this court, on its own motion, consolidated for purposes of argument and decision, the defendants appeal the February 4, 2011, order of the circuit court of Madison County that denied their motion to transfer the causes of action of the plaintiff, Cindy M. Shaw, to Jersey County for improper venue pursuant to section 2-104 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-104 (West 2010)) or, in the alternative, for forum non conveniens. The third-party defendant, Jersey Community Hospital District, appeals the March 4, 2011, order that denied its motion to sever the third-party claims against it and transfer them to Jersey County. For the following reasons, we affirm the February 4, 2011, order, reverse the March 4, 2011, order, and remand with directions that the circuit court sever the third-party claims against Jersey Community Hospital and transfer them to Jersey County.

6 Appellate Court Cases Posted 10-26-12

1. Premises Liability: Affirmed: The open and obvious doctrine addresses the essential element of duty in a negligence cause of action. ("The open and obvious doctrine speaks to the duty element[,] which *** is a central element of any negligence claim."). Absent a legal duty of care owed to the plaintiff, the defendant cannot be found negligent. With respect to conditions on land, generally there is no duty of care owed by the landowner regarding open and obvious conditions because the landowner "could not reasonably be expected to anticipate that people will fail to protect themselves from any danger posed by the condition." "The term 'obvious' denotes that both the condition and the risk are apparent to and would be recognized by a reasonable [person], in the position of the visitor, exercising ordinary perception, intelligence, and judgment." Garcia, J.

Plaintiff Eleanor Ballog appeals from the circuit court's grant of summary judgment to defendant City of Chicago (the City) in her suit charging the City with negligence. The plaintiff fractured her foot when she tripped as she stepped from the portion of the street that had been excavated, refilled with concrete, but not resurfaced. We append two photographs of the location, identified as "Plaintiff's Exhibit #1" and "Plaintiff's Exhibit #5." The plaintiff marked plaintiff's Exhibit No. 5 to show where she landed on the connecting sidewalk when she fell. We hold the condition of the street was open and obvious as a matter of law where the parties do not dispute the physical nature of the condition and the exception did not apply where no deliberate encounter occurred. We affirm.

2. Criminal Law: Affirmed: The Terry standard allows the police to conduct a brief investigative stop "when the officer has a reasonable, articulable suspicion that criminal activity is afoot." The investigative stop must be justified at its inception. However, the officer does not need probable cause to justify a Terry stop. A Terry stop permits the police to investigate situations or circumstances that provoke suspicions, to either confirm or dispel those suspicions. Gordon, J., dissent by Garcia, J.

Following a bench trial, defendant Tommy Jackson was convicted of two counts of unlawful use of a weapon by a felon. After hearing factors in aggravation and mitigation, he was sentenced as a Class X offender to 74 months in the Illinois Department of Corrections due to his criminal background. On appeal, defendant argues that the loaded handgun found in his backpack should have been suppressed because police officers lacked both (1) a reasonable suspicion to justify the Terry stop and (2) a reasonable belief that he was armed and dangerous which was needed to justify the frisk. For the following reasons, we affirm.

3. Insurance Law/Tolling Statute of Limitations: Reversed: A motion to dismiss under section 2-619 of the Code "admits the legal sufficiency of the plaintiff's claim but asserts [an] 'affirmative matter' outside of the pleading that defeats the claim." of law and easily proved issues of fact early in the litigation." When reviewing a section 2-619 motion to dismiss, this court must determine " 'whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law.' " "Whenever any policy or contract for insurance *** contains a provision limiting the period within which the insured may bring suit, the running of such period is tolled from the date proof of loss is filed, in whatever form is required by the policy, until the date the claim is denied in whole or in part.” Palmer, J.

Plaintiff Ollia Burress-Taylor appeals the dismissal of her complaint against defendant American Security Insurance Company. After a fire damaged plaintiff's home, plaintiff brought this action for breach of contract, deceptive conduct in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2008)) and a declaratory judgment against defendant, seeking to recover insurance proceeds under her claim. The trial court granted defendant’s motion to dismiss plaintiff’s complaint pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2008)). We reverse.

4. Post Conviction Petition: Affirmed in Part and Remanded for Sentencing: Three stages of a post conviction petition discussed and analyzed. The issue at this first stage is whether the petition presents an “arguable basis either in law or in fact.” A petition lacking an arguable basis in law or fact is one “based on an indisputably meritless legal theory or a fanciful factual allegation.” A claim completely contradicted by the record is an example of an indisputably meritless legal theory. “Fanciful factual allegations include those that are fantastic or delusional.” Gordon, J.

After a bench trial, defendant, 19-year-old Nathaniel Stephens, was convicted of the first degree murder and aggravated battery of four-month-old Destiny Nelson (the victim). Each offense occurred on a different date. Defendant admitted in a videotaped confession to the first degree murder by hitting the victim’s head into a door frame three times and punching the victim in the ribs three times to stop the victim from crying. Defendant was originally sentenced to two concurrent sentences of 25 years’ imprisonment in the Illinois Department of Corrections. On December 24, 2009, we affirmed defendant’s convictions, vacated the order of concurrent prison terms, and remanded for resentencing to consecutive prison terms. People v. Stephens, Nos. 1-05-3365, 1-05-3366 cons. (2009) (unpublished order under Supreme Court Rule 23). On remand, the trial court, in the absence of defendant and his counsel, resentenced defendant to two consecutive 25-year sentences in the Illinois Department of Corrections. On this postconviction appeal, defendant argues: (1) that the trial court erred in summarily dismissing defendant’s pro se postconviction petition because defendant made a meritorious constitutional claim that his trial counsel was ineffective for failing to request a fitness evaluation for defendant; (2) that defendant’s appellate counsel was ineffective when appellate counsel failed to claim that defendant did not intelligently waive his
Miranda rights in defendant’s petition for leave to appeal to the Illinois Supreme Court; and (3) that defendant’s two consecutive 25-year prison sentences are void because the trial court, upon remand, changed the sentencing from concurrent terms to consecutive terms without a sentencing hearing and in the absence of defendant and his attorney. For the reasons that follow, we affirm and remand for resentencing.

5. PreTrial Discovery: Affirmed in Part and Vacated ion part and Remanded: Any admission that was included in an original verified pleading and which is not the product of inadvertence or mistake constitutes a binding judicial admission. In addition, such an admission withdraws a fact from issue in the case, making it unnecessary for the opposing party to present evidence in support thereof. Furthermore, a sworn factual statement in a verified pleading remains binding on the party following an amendment to the pleading and the party cannot subsequently contradict its allegation. The attorney-client privilege is limited to only those communications that the claimant expressly made confidential or communications that, under the circumstances, the claimant reasonably could have believed were understood to be confidential by the attorney. It is the party claiming a privilege that carries the burden of presenting facts that give rise to the privilege. A proper purpose under the Act is one that attempts to protect the interests of the corporation or the shareholder attempting to obtain the information. Lavin, J.

This case arises from a dispute between members of Bureaus Investment Group, LLC (BIG), a member-managed limited liability company (LLC). James Janousek, the minority (40%) member, essentially contends that the majority members, Michael Slotky and his father Burton Slotky, excluded Janousek from the management of BIG and formed a competing company, Bureaus Investment Group III, LLC (BIG III). Janousek's assertions in the trial court rested on allegations pled in the alternative that he either was, or was not, currently a member of BIG. In contrast, defendants unequivocally maintained in their verified pleadings that Janousek remained a member of BIG. Nonetheless, they objected to certain discovery requests on the basis that the records and communications requested by Janousek were privileged because Janousek had not shown that he was still a member of BIG, and thus, was not entitled to such items. This interlocutory appeal arises from the trial court's order holding certain defendants in civil contempt for refusing to comply with the court's order to disclose those items. On appeal, defendants assert that the trial court erred in requiring them to disclose such documents because they were protected by the attorney-client privilege. We affirm the discovery order and vacate the order holding defendants in contempt.

6. Civil Practice: Affirmed: Our Courts have held that a definition of “signature” on a Summons is broad enough to encompass the signature here. Specifically, it allows a name written at the named person’s direction. Our courts have held that a signature need not be written in cursive form; signing a document is the act of putting down a person’s name to attest to the validity of an instrument and that signature may be stamped, printed or made legible by using any other device. Black’s Law Dictionary defines a ‘signature’ as ‘A person’s name or mark written by that person or at the person’s direction.’ Hudson, J.

Defendant Jan Gryc appeals from the orders approving the report of sale and distribution in a foreclosure action and the predicate default foreclosure order. The orders were in favor of plaintiff, Deutsche Bank National Trust Company, as trustee for Morgan Stanley, MSAC 2007-HE5. Gryc asserts that the clerk of the court did not properly sign his summons and that the summons was therefore invalid. We hold that the signature was proper under the rule stated in National City Bank v.Majerczyk, 2011 IL App (1st) 110640, as we further develop it here. We therefore affirm the orders.

1 Appellate Court Case Posted 10-25-12

Criminal Law: Affirmed: In order to convict defendant of criminal sexual assault and aggravated criminal sexual assault, the State had to prove that defendant held a position of trust, authority, or supervision over the victim. Supervise has been defined to mean "superintend" or "oversee." O'Brien, J., Lytton, J, dissents

Defendant, Nathan B. Feller, was convicted of aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2010)), criminal sexual assault (720 ILCS 5/12-13(a)(4) (West 2010)), and aggravated criminal sexual assault (720 ILCS 5/12-14(a)(6) (West 2010)). The trial court sentenced defendant to 20 years' imprisonment for the aggravated criminal sexual assault charge. The court did not sentence defendant on the other charges. Defendant appeals, arguing that his convictions for criminal sexual assault and aggravated criminal sexual assault should be reversed because the evidence did not support a finding that defendant was in a position of trust, authority, or supervision in relation to the victim. We affirm.

1 Appellate Court Case Posted 10-24-12

Statute of Frauds/ UCC: Reversed and Remanded: With a summary judgment motion, the trial court does not decide a question of fact, but rather determines whether a question of fact exists. Therefore, a court cannot make credibility determinations or weigh evidence in deciding a summary judgment motion. Exceptions to the Statute of Frauds, Reasonable Time Definition and Course of Dealing under the UCC and "Hedge to arrive" contacts discussed. Goldenhersh, J.

1 Appellate Court Case Posted 10-23-12

1. Defamation/SLAPP Act: Affirmed: A lawsuit may only be dismissed due to immunity under the SLAPP Act if: (1) the defendants' acts were in furtherance of their right to petition, speak, associate, or otherwise participate in government to obtain favorable government action; (2) the plaintiffs' claims are solely based on, related to, or in response to the defendants' ‘acts in furtherance’; and (3) the plaintiffs fail to produce clear and convincing evidence that the defendants' acts were not genuinely aimed at solely procuring favorable government action. A is not “solely based on” protected acts and therefore is not subject to dismissal under the Act if “a plaintiff files suit genuinely seeking relief for damages for the alleged defamation or intentionally tortious acts of defendants.” The movant must demonstrate that the claim is meritless and was filed in retaliation against the movant’s protected activities in order to deter the movant from further engaging in those activities. On the question of whether a claim is retaliatory within the meaning of the Act, two helpful factors can be considered: (1) the proximity in time between the protected activity and the filing of the complaint, and (2) whether the damages requested are reasonably related to the facts alleged in the complaint and are a “good-faith estimate of the extent of the injury sustained. The movant (which is defendants in this situation), bears the burden of demonstrating that the nonmovant’s claims are a meritless, retaliatory SLAPP. In order to satisfy their burden, defendants must show that there are undisputed facts that demonstrate plaintiff’s claim is meritless. Connors, J.

In 2010, WFLD Fox News Chicago aired an investigative report on the working hours of judges in the circuit court of Cook County. The report presented information suggesting that at least four judges, one of whom was identified as plaintiff James Ryan, had been neglecting their official duties by leaving courthouses well before the end of the business day, contrary to the stated policy of the chief judge of the circuit court. The report prompted an inquiry from the supreme court and caused the chief judge of the circuit court to discipline the judges involved by transferring them to other duties. Plaintiff filed this lawsuit against defendants, which in its current form alleges defamation, false-light invasion of privacy, intentional infliction of emotional distress, and invasion of privacy by intrusion upon seclusion. Defendants moved to dismiss the complaint on the ground that it is a "Strategic Lawsuit Against Public Participation" (SLAPP), which is barred under the Citizen Participation Act (735 ILCS 110/1 et seq. (West 2010)). The circuit court denied the motion. We affirm.

7 Appellate Court Cases Posted 10-22-12

1. Insurance Law: Affirmed: Indemnification is a separate question from the much broader duty to defend. The question of whether the insurer has a duty to indemnify the insured for a particular liability is only ripe for consideration if the insured has already incurred liability in the underlying claim against it. When an insurer concludes the claims in a lawsuit against its insured do not fall within the coverage provided by the policy, the insurer must either: (1) defend the lawsuit under a reservation of rights, or (2) seek a declaratory judgment that no coverage exists. "If the insurer fails to take either of these steps and is later found to have wrongfully denied coverage, the insurer is estopped from raising policy defenses to coverage." The estoppel doctrine applies only where an insurer has breached its duty to defend. Therefore, a court inquires whether the insurer had a duty to defend and whether it breached that duty. Discussion of "Targeted Tender Rule". Karnezis, J.

This appeal concerning the extent of the respective parties' insurance coverage stems from the underlying lawsuit filed after the deceased, Marian Gal, died due to an elevator malfunction at a building located at 200 North Dearborn Parkway in Chicago. Gal v. 200 North Dearborn Partnership, No. 01 L 010485 (Cir. Ct. Cook Co.).

2. Administrative Review/Forum Non Conveniens: Affirmed: In matters relating to a company’s breach of fiduciary duties, Illinois courts apply the substantive law of the state of incorporation of that company. Here, Prudential is incorporated in New Jersey, so we apply New Jersey law. New Jersey law gives the Commissioner the power to approve or disapprove of a mutual insurance company’s plan of demutualization. Cunningham, J.

On this direct appeal, plaintiffs claim that the trial court erred when it dismissed plaintiffs' complaint with prejudice on the following grounds: (1) as being filed in an improper forum; (2) for failing to join an indispensable party, the New Jersey Insurance Commissioner (Commissioner); and (3) for failure to state a cause of action for breach of fiduciary duty because proximate cause was not properly alleged. For the following reasons, we affirm the ruling of the circuit court of Cook County.

3. Post Judgment Petition/Credit Card Assignments: Reversed and Remanded: The court held that a typical section 2-1401 analysis is two-tiered: (1) the issue of a meritorious defense is a question of law and subject to de novo review; and (2) if a meritorious defense exists, then the issue of due diligence is subject to abuse of discretion review. No litigation shall commence in the name of the licensee as plaintiff unless: (i) there is an assignment of the account that satisfies the requirements of this Section and (ii) the licensee is represented by a licensed attorney at law." 225 ILCS 425/8b(a), (e)(West 2008). Implicit in the statute is a third requirement that the contract of assignment specifically state the relevant identifying information for the account that is being assigned. Cunningham, J.

4. Consumer Fraud: Affirmed: It is by now well-established that "[t]he intent required by the Consumer Fraud Act 'is merely the defendant's intent that the plaintiff in the action rely on the *** information the defendant gave to plaintiff as opposed to any intent to deceive as required under the common law.' " Hoffman, J.

5. Criminal Law: Affirmed: Defendant, a "family or household member" as defined by the Act, was prosecuted for the first degree murder of Dawn, a protected person under the Act, which we conclude is a "domestic violence prosecution," as contemplated by section 115-10.2a of the Code. Good discussion and analysis of the requirements of the requisite indicia of reliability, materiality, and necessity for admission of statements under 5/115-10(a). Steigman, J. Special concurrence by Pope, J.

6. Traffic Court: Affirmed as Modified: "To interpret the emergency response statute as the State wants us to would result in a finding that any person who is pulled over by a police officer for the violation of any traffic law and is ultimately charged with driving under the influence could be required to make restitution to the police department that initiated the traffic stop. This result was clearly not intended by the legislature." Cook, J.

7. Forfeiture Act: Affirmed: When the legislature has not indicated what the reach of a statute should be, then the court must determine whether applying the statute would have a retroactive impact, i.e., 'whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.' If there would be no retroactive impact, as that term is defined by the court, then the amended law may be applied. If, however, applying the amended version of the law would have a retroactive impact, then the court must presume that the legislature did not intend that it be so applied. Application of the Landgraf approach in Illinois is quite simple in light of section 4 of the Statute on Statutes. Accordingly, pursuant to section 4, statutory amendments "that are procedural may be applied retroactively, while those that are substantive may not." Section 4 of the Statute on Statutes, which "forbids retroactive application of substantive changes to statutes." Wexstten, J.

1 Appellate Court Case Posted 10-19-12

1. Administrative Review: Reversed and Remanded: Pursuant to administrative review law, we review the administrative agency's decision, not the circuit court's determination. Where, as here, the issue involves a question of law, whether plaintiff's right to due process was violated, we apply a de novo standard of review. In a proceeding where a person's right or interest in life, liberty or property is affected, due process requires that that person be served with notice and an opportunity to defend that interest in a fair and impartial hearing. An administrative hearing must be conducted in accordance with the due process requirements under the fourteenth amendment to the United States Constitution and article I, section 2, of the Illinois Constitution. Palmer, J.

Plaintiff Craig B. Lamm appeals from an order of the circuit court denying his amended complaint for administrative review and affirming the decision entered on remand by the Director of the Division of Insurance (Director) of the Department of Financial and Professional Regulation (Department) to revoke plaintiff's Illinois insurance producer's license. Plaintiff contends that the court erred in affirming the Director's decision because plaintiff's right to due process was violated when the Director revoked his license without a hearing on remand. We reverse and remand.

8 Supreme Court Cases Posted 10-18-12

1. Contracts/Corporations/Novations/Successors in interest: The appellate court’s judgment is therefore affirmed in part and reversed in part, and the cause is remanded to the circuit court for further proceedings consistent with this opinion. When parties file cross-motions for summary judgment, they agree that only a question of law is involved and invite the court to decide the issues based on the record. However, the mere filing of cross-motions for summary judgment does not establish that there is no issue of material fact, nor does it obligate a court to render summary judgment. the rationale underlying [the] statute (805 ILCS 5/12.80) supports our decision that there is no basis for allowing a cause of action which accrues after dissolution to be brought against a dissolved corporation.” Karmeier, J., Burke, J. Concurred in part and Dissent in part, joined by Freeman, J.

Pielet Brothers Scrap Iron and Metal, Inc., was founded in Lake County by Arthur Pielet and his brothers shortly after World War II. Arthur sold his interest to his sons in 1986 through an agreement providing for a lifetime payment to him of a “consulting” fee, and, on his death, for a lifetime fee payment to his wife, Dorothy. The agreement also provided that it was binding on the parties’ “successors and assigns,” of which there were subsequently several because of company restructuring and changes of name. In 1994, the then-current successor company, P.B.S. One., Inc., dissolved, but payments to Arthur continued until 1998, when its successor, known as Midwest Metallics, began to experience financial difficulties. It filed for bankruptcy in 1999. Litigation was then commenced by Dorothy and continued for years until Arthur died, and beyond. In 2005, Dorothy filed the fifth amended complaint that is at issue here, seeking fee payment. In 2009, the circuit court of Lake County concluded the matter with a summary judgment award to the widow of almost $2 million. Three successor companies, P.B.S. One, National Material, and N.M. Holding, appealed.

In the appellate court, the award was challenged by P.B.S. One under the traditional rule that a cause of action that accrued (in this case in 1998) after corporate dissolution (in this case in 1994) cannot be brought against a dissolved corporation. This position also has statutory support under the Business Corporation Act, but the appellate court rejected this line of authority, holding that Dorothy’s claim could survive. However, the appellate court was also of the opinion that there were triable issues of material fact, inappropriate for summary judgment, as to whether P.B.S. One could be relieved of liability for the fee under a theory of “novation.” Based on this, it reversed Dorothy’s summary judgment and remanded for further proceedings, seeing the defendants as also not being entitled to summary judgment because of the remaining novation question.

In this decision, the supreme court disagreed with the appellate court, following the traditional analysis and holding that Dorothy’s claim against P.B.S. One alleging breach of contract could not survive the corporate dissolution and failed as a matter of law. The circuit court should not have entered summary judgment for her and against P.B.S. One. The issue of novation thus became irrelevant as to P.B.S. One, and summary judgment on this count should have been entered by the circuit court in P.B.S. One’s favor.

2. Civil Practice: Appellate Court Affirmed, which reversed and Remanded the Trial Court's Dismissal of the Cause: A mechanical application of the statute of limitations, however, may result in the limitations period expiring before a plaintiff even knows of his or her cause of action. To ameliorate the potentially harsh results of such an application, this court has adopted the “discovery rule,” the effect of which is to postpone the start of the period of limitations until the injured party knows or reasonably should know of the injury and knows or reasonably should know that the injury was wrongfully caused. Garman, J., Theis, concurred in part and dissented in part, joined by Kilbride, CJ.

3. Criminal Law/Corpus Delicti Rule: Appellate Court Reversed and Cause Remanded: When a defendant’s confession is part of the corpus delicti proof, the State must also provide independent corroborating evidence. To avoid running afoul of the corpus delicti rule, the independent evidence need only tend to show the commission of a crime. It need not be so strong that it alone proves the commission of the charged offense beyond a reasonable doubt. If the corroborating evidence is sufficient, it may be considered, together with the defendant’s confession, to determine if the State has sufficiently established the corpus delicti to support a conviction. The corpus delicti rule arose from courts’ historical mistrust of out-of-court confessions. That mistrust is generally attributed to: (1) some individuals’ tendency to confess, for various psychological reasons, to offenses that they did not commit or that did not occur, and (2) the unreliability of coerced confessions. Kilbride, CJ, , Thomas, J., specially concurs.

4. Tort/Intrusion on Seclusion/Punitive Damages: Appellate Court Affirmed in part and Reversed in part: Trial Court Affirmed in part, Reversed in part and order modified: Since our decision in Lovgren, all five appellate districts in Illinois have explicitly recognized the validity of a cause of action for invasion of privacy by intrusion upon seclusion. Courts in the majority of other states have also recognized this cause of action and we join those states in recognizing the cause of action. As to punitive damages, where the defendant’s conduct is on the low end of the scale for punitive damages and shows no intent to harm the plaintiff, that conduct is far below those cases involving a defendant’s deliberate attempt to harm another person and punitive damages are limited to the amount of the award for compensatory damages.. Theis, J., concurred in part and dissented in part by Kilbride, CJ.

Plaintiff, Kathleen Lawlor, brought this action in the circuit court of Cook County alleging, inter alia, the tort of invasion of privacy by intrusion upon seclusion against her former employer, defendant North American Corporation of Illinois (North American). In a counterclaim, North American alleged, inter alia, that Lawlor breached her fiduciary duty of loyalty while an employee. Both parties prevailed in the trial court on their respective claims. Lawlor was awarded $65,000 in compensatory damages and $1.75 million in punitive damages after a jury trial. North American was awarded $78,781 in compensatory damages and $551,467 in punitive damages after a contemporaneous bench trial. The trial court remitted the jury’s punitive damages award to $650,000. The appellate court affirmed the jury’s verdict on Lawlor’s intrusion claim, reinstated the$1.75 million punitive damages award, and reversed the trial court’s judgment on North American’s breach of fiduciary duty claim. 409 Ill. App. 3d 149. In this appeal, we are asked to consider whether there was sufficient evidence to support the jury’s verdict that North American was vicariously liable for the tortious conduct of investigators on the intrusion claim; whether the jury’s award of $1.75 million in punitive damages was excessive and in violation of Illinois common law and federal due process principles; and whether there was sufficient evidence to support the trial court’s determination that Lawlor breached her fiduciary duty to North American. For the following reasons, we affirm in part and reverse in part the judgment of the appellate court.

5. Tort Immunity Act: Appellate Court Reversed, Certified Question Answered in Affirmative, Cause Remanded: By shielding recreational-based public entities from liability under section 3-106, the Illinois legislature sought to encourage and promote the development and maintenance of parks, playgrounds, and other recreational areas. It bars claims for falls on unnatural accumulations of ice and snow. Karmeier, J, dissent by Kilbride, CJ, joined by Freeman, J.

The circuit court of Cook County certified the following question for interlocutory appeal pursuant to Supreme Court Rule 308 (Ill. S. Ct. R. 308 (eff. Feb. 26, 2010): “Does an unnatural accumulation of snow and ice constitute the ‘existence of a condition of any public property’ as this expression is used in Section 3-106 of the Tort Immunity Act?” The appellate court answered this question in the negative. 2011 IL App (1st) 103325. We granted leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010). For the reasons that follow, we find that the appellate court answered the certified question incorrectly. Accordingly, we reverse the judgment of the appellate court and remand this cause to the circuit court for further proceedings consistent with this opinion.

6. Contempt of Court: Trail and Appellate Courts Reversed: We has long been recognized that a court, in order to maintain control over its courtroom, has the inherent power to punish for contempt. (all courts have the inherent power to punish contempt; this power is essential to the maintenance of authority and the administration of judicial powers); 720 ILCS 5/1-3 (West 2008). Moreover, because the power to punish for contempt is inherent and does not depend on a constitutional or legislative grant, the legislature may not restrict its use. When imposing a sentence for contempt, courts should keep in mind that “[t]he contempt power is an extraordinary one that should be used sparingly and with the utmost sensitivity.” Burke, J., Freeman, J., specially concurring and Kilbride, CJ., dissents.

After a bench trial, defendant, Terrell Geiger (Geiger), was found guilty of direct criminal contempt for refusing to testify as a State’s witness at the murder trial of Javar Hollins. The court imposed a sentence of 20 years’ imprisonment. Defendant appealed his sentence to the appellate court, which affirmed with one justice dissenting. 2011 IL App (3d) 090688. We granted defendant’s petition for leave to appeal in this court (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)) and now reverse the sentence imposed. We find that the 20-year sentence imposed is grossly disproportionate to the nature of the offense and must be reduced.

7. Spoliation of Evidence: Appellate Court Reversed, Trial Court Affirmed: The general rule in Illinois is that there is no duty to preserve evidence. We set forth a two-prong test which a plaintiff must meet in order to establish an exception to the general no-duty rule. Under the first, or “relationship,” prong of the test, a plaintiff must show that an agreement, contract, statute, special circumstance, or voluntary undertaking has given rise to a duty to preserve evidence on the part of the defendant. A voluntary undertaking requires a showing of affirmative conduct by the defendant evincing defendant’s intent to voluntarily assume a duty to preserve evidence. Extensive discussion of "special circumstances" to establish duty to preserve evidence. Burke, J., Kilbride, CJ dissents.

This appeal involves the duty owed by a defendant in a claim for negligent spoliation of evidence. At issue is whether defendant, Keeley & Sons, Inc. (Keeley), a general contractor, had a duty to preserve a concrete I-beam which was involved in an accident resulting in injuries to several employees. The circuit court of St. Clair County entered an order granting summary judgment for Keeley, finding that Keeley had no duty to preserve the I-beam. The appellate court reversed. 2011 IL App (5th) 100117. We now reverse the appellate court and affirm the circuit court.

8. Insurance Law: Appellate Court Reversed, Trial Court Affirmed: Whether a provision in a contract, insurance policy, or other agreement is invalid because it violates public policy is a question of law, which we review de novo. It is in the interest of the public that persons should not be unnecessarily restricted in their freedom to make their own contracts. Consequently, the power to declare a private contract invalid on public policy grounds is exercised sparingly. The controversy in this case concerns the enforceability of a contractual limitation on arbitration between these parties to a contract for insurance coverage. An agreement to submit to arbitration is a matter of contract. The parties to a contract may agree to a shortened contractual limitation period to replace a statute of limitations, so long as it is reasonable. Karmeier, J., Kilbride, CJ., dissents.

The issue presented in this appeal is whether a two-year contractual limitation on claim arbitration in an auto insurance policy violates Illinois public policy where an Illinois insured was involved in an accident in Wisconsin with an uninsured motorist and that state has a three-year statute of limitations on the commencement of suit for injuries resulting from the accident. In the course of a declaratory judgment action filed by plaintiff, Country Preferred Insurance Company (hereafter Country Preferred), against its insured, defendant, Terri J. Whitehead, the circuit court of Will County denied Whitehead’s motion to compel arbitration, and she took an interlocutory appeal from that order. A divided appellate court reversed and remanded, holding, under the circumstances, that the two-year limitation period in the parties’ insurance contract violated Illinois public policy. 2011 IL App (3d) 110096. We granted Country Preferred’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)), and now reverse the judgment of the appellate court.

2 Appellate Court Cases Posted 10-18-12

1. Election Law: Affirmed: There are no statutory mandates regarding notice to a political committee about a meeting, and although there is case precedent that some notice is to be provided, there is no instruction either as to content or method of the notice that would serve as the minimum requirements of what would constitute “adequate” notice. We are dealing with a political body, not a public, governmental body. The right of political parties to make nominations for an office is not enumerated in the Constitution, but a political privilege. The legislature may choose to regulate the political privilege, but “in the absence of such regulation, [the privilege] is exercised in accordance with the will of the members of the political party concerned, as that will is expressed through the rules, customs, conventions, or caucuses of such political organizations.” Quinn, J.

By this court's order dated October 11, 2012, both the Cook County Officers Electoral Board's decision and the circuit court's order dated August 30, 2012, proclaiming Democrat, David R. Page's right to appear on the ballot in his bid for the 27th District1 seat was affirmed. This ruling follows. This opinion represents the court's reasoning for its October 11, 2012 order, affirming Page's right to appear on the ballot.

2. Mortgage Foreclosure/Civil Procedure: Affirmed: A judgment entered by a court that lacks jurisdiction of the parties is void and may be attacked at any time in any court. Accordingly, a judgment which is obtained without proper service of process is void. Pucinski, J.

In this mortgage foreclosure action, defendant-appellant Nasif Akbulut appeals from an order of the circuit court of Cook County denying his motion to quash the personal service obtained on him by plaintiff-appellee, Deutsche Bank National Trust Company, as indenture trustee for American Home mortgage investment trust 2007-2 (Deutsche Bank). Akbulut contends that service was not properly obtained on him because the return of service does not state that the special process server, Terry Ryan, was appointed to serve process or that he was an employee of one of three private detective agencies which had been appointed to serve process for Deutsche Bank. For these reasons, Akbulut contends that service on him should have been quashed.

3 Appellate Court Cases Posted 10-16-12

1. Pension Law: Reversed and Remanded: "Certify" in Black's Law Dictionary means "To authenticate or verify in writing." Use of the noun "certification" in this last sentence conveys that it is not the precise amount of employer contribution that is being "certified," but rather the process by which the Fund determined the BOE's employer contribution. It necessarily follows that to give meaning to section 17-129(b)(v) under which "a credit" of the State's contribution will apply "against any contribution required to be made by the Board of Education," the State's actual contribution must first be determined. Garcia, J., dissent by Lampkin, J.

The plaintiff, the Board of Trustees of the Public School Teachers' Pension and Retirement Fund of Chicago (the Fund), appeals from the circuit court's grant of summary judgment to the defendants, the Board of Education of the City of Chicago (BOE) and Mary B. Richardson-Lowry, in her capacity as the BOE's president when suit was filed. The Fund claims the BOE was required to make its employer contribution for fiscal year 2010 to the pension and retirement fund based on actual contributions by the State of Illinois rather than on estimates. Once the State's actual contributions became known for fiscal year 2010, the Fund acted within its fiduciary duty under the Pension Code to seek the employer contribution from the BOE on the basis of the contributions the Fund actually received from the State. We reverse with directions that summary judgment be entered in favor of the Fund.

2. Citation to Discover Assets/Fiduciay Duty: Affirmed: When a person is designated as an agent under a power of attorney, he has a fiduciary duty to the person who made the designation. The mere existence of a fiduciary relationship prohibits the agent from seeking or obtaining any selfish benefit for himself, and if the agent does so, the transaction is presumed to be fraudulent. Thus, any conveyance of the principal's property that either materially benefits the agent or is for the agent's own use is presumed to be fraudulent. This rule applies to conveyances of the principal's property by the agent to a third party on behalf of the principal and also to conveyances made by the principal directly to the agent. The presumption of fraud described above is not conclusive and may be rebutted by clear and convincing evidence to the contrary. The burden is on the agent to rebut the presumption by showing that he acted in good faith and that he did not betray the confidence placed in him. A trial court's determination as to whether a presumption of fraud has been overcome, made after an evidentiary hearing, is entitled to deference and will not be reversed on appeal unless it is against the manifest weight of the evidence. Carter, J.

Plaintiff, Spring Valley Nursing Center, L.P. (Spring Valley), obtained a judgment against defendant, Mary Allen, for money it was owed for nursing home care. After obtaining the judgment, Spring Valley filed a citation to discover assets (735 ILCS 5/2-1402 (West 2010)) directed at citation respondent, Daniel McFadden, who was Allen's agent under a power of attorney. Following an evidentiary hearing, the trial court ordered McFadden to turn over approximately $7,100 of Allen's funds in partial satisfaction of the judgment. Allen and McFadden appeal. We affirm the trial court.

3. Public Safety Employee Benefits Act: Affirmed in part, Reversed in part & Remanded: We are required to follow the decisions of the Illinois Supreme Court. Appellate court has no authority to overrule the supreme court or to modify its decisions. Section 10(a) of the PSEBA provides that "[h]ealth insurance benefits payable from any other source shall reduce benefits payable under this [s]ection. Medicare benefits are guaranteed to working individuals in the United States who reach a designated retirement age and have paid Medicare taxes (42 U.S.C. § 1395c (2000)), and amount to "[h]ealth insurance benefits payable from any other source". Wexstten, J.

3 Appellate Court Cases Posted 10-12-12

1. Insurance Law/ Guaranty Fund: Reversed: To determine the scope of insurance coverage, we are to apply the traditional rules of contract construction to the policy language in order to ascertain and give effect to the intention of the parties at the time of contracting. Basic insurance and contract law indicate insurance companies provides coverage for particular risks in exchange for premiums and do not gratuitously pay noncovered claims. The Workers Compensation Act promotes the general welfare of Illinois by providing an efficient system of rights, remedies, and procedures for the protection of employees. The purpose of this type of legislation is plain: "Both the employer who loans and employer to whom the employee is loaned and in whose service he was injured are made liable to the employee in order to make it reasonably sure that the employee will get compensation and to relieve him of the risk of selecting the proper employer against whom to proceed. The Illinois legislature did not require both a lending employer and borrowing employer to procure identical coverage for the same employees. McBride, J.

2. Criminal Law: Affirmed in part, reversed in part and Remanded: Plain error analysis discussed. Due process requires that the State bear the burden of proving beyond a reasonable doubt all of the elements of the charged offense. That burden of proof remains on the State throughout the entire trial and never shifts to the defendant. The trial court's efforts to test, support, or sustain the defense's theories cannot be viewed as improperly diluting the State's burden of proof or improperly shifting that burden to the defendant. The trial court is free to
comment on the implausibility of the defense's theories, as long as it is clear from the record that the trial court applied the proper burden of proof in finding the defendant guilty. Determinations of witness credibility, the weight to be given testimony, and the reasonable inferences to be drawn from the evidence are responsibilities of the trier of fact, not the reviewing court. A crime victim is entitled to recover restitution for the actual out-of-pocket losses that were proximately caused by the criminal conduct of the defendant. Carter, J.

3. Criminal Law: Reversed: Ordinary burglary is a Class 2 felony punishable by three to seven years in prison. Standard retail theft of the type occurring in this case (theft not from the person, under $500) is a Class A misdemeanor punishable by up to 364 days in jail. The difference in potential penalties is severe. Whether or not it is good public policy to convert potentially all retail theft prosecutions into more serious ones for burglary is a matter of speculation. Whether good or bad though, that decision does not rest with the police, prosecutors, or even the courts of this state. The legislature defines what actions constitute a crime and how the crime should be punished. Goldenhersh, J.

4 Appellate Court Cases Posted 10-11-12

1. Probate/Domestic Relations: Reversed and Remanded: A petition for dissolution advances a single claim, a request for dissolution of the parties' marriage. Therefore, issues raised in a dissolution-of-marriage case are ancillary to the cause of action, not separate claims. A dissolution judgment is not final for purposes of appeal until all the ancillary issues have been resolved. Stated differently, generally only a judgment that does not reserve any issues for later determination is final and appealable. McCullough, J.

2. Criminal & Appellate Procedure: Affirmed: The State has forfeited the arguments it makes on appeal and that we should not consider them. As for the argument that the State made in the trial court, the State does not repeat that argument on appeal; hence, that argument is effectively abandoned. See Ill. S. Ct. R. 341(h)(7) ("[p]oints not argued are waived," i.e., forfeited); Ill. S. Ct. R. 612(i) (eff. Sept. 1, 2006) (Rule 341 governs criminal appeals with regard to the contents of briefs). Appleton, J.

3. Criminal Law: Affirmed as modified and Remanded: Our supreme court has held a defendant has the right to be sentenced under either the law in effect at the time the offense was committed or the law in effect at the time of sentencing, and absent a showing the defendant was advised of his right to elect and an express waiver of that right, he is denied due process of law. To establish an ex post facto violation, a '[defendant] must show the following: (1) a legislative change; (2) the change imposed a punishment; and (3) the punishment is greater than the punishment that existed at the time the crime was committed.' " A law disadvantages a defendant if it criminalizes an act that was innocent when done, increases the punishment for a previously committed offense, or alters the rules of evidence by making a conviction more easy to obtain." Knecht, J.

4. Criminal Law: Severed and Remanded: Evidence regarding polygraph exams is inadmissible. There are several reasons for this rule. One is that the results are not sufficiently reliable to use as proof of guilt or innocence. Another reason is that because polygraphs are quasi scientific in nature, jurors may give them undue weight despite their inherent unreliability. Simply put, even though polygraph exams are not reliable, jurors may likely assume they are. Because the scientific reliability of the exam does not depend on the test subject, the rule against
admissibility holds whether the polygraph exam in question was taken by a defendant or by a witness. The Supreme Court has held if a defendant makes a statement and later claims the statement was coerced or induced by promises made by authorities, evidence of his or her polygraph exam is admissible to rebut that claim. Salone, J.

4 Appellate Court Cases Posted 10-09-12

1. Forcible Detainer: Affirmed: In the absence of a complete record on appeal, any doubts which may arise will be resolved against the appellant, and "it will be presumed that the order entered by the [circuit] court was in conformity with law and had a sufficient factual basis." When a dispute exists between the parties as to the meaning of a contract provision, the threshold issue is whether the contract is ambiguous. Contractual language is ambiguous when it is " ' "susceptible to more than one meaning [citation] or is obscure in meaning through indefiniteness of expression. An agreement, when reduced to writing, must be presumed to speak the intention of the parties who signed it. It speaks for itself, and the intention with which it was executed must be determined from the language used. It is not to be changed by extrinsic evidence. Cunningham, J.

This appeal arises from the March 25, 2011 order entered by the circuit court of Cook County, which entered summary judgment in favor of defendants Crown Castle USA (Crown Castle), Global Signal Acquisitions II, LLC (GSA), and T-Mobile USA, Inc. (T-Mobile), and against plaintiff Urban Sites of Chicago, LLC (Urban Sites). This appeal also arises from the circuit court's June 3, 2011 order denying Urban Sites' motion to reconsider the court's March 25, 2011 ruling. On appeal, Urban Sites argues that the circuit court erroneously granted summary judgment against it. For the following reasons, we affirm the judgment of the circuit court of Cook County.

2. Trial Practice: Reversed and Remanded: Evidence of a jury's motives, methods, or its decision-making process is typically inadmissible to impeach a verdict. However, where extraneous or unauthorized information has reached the jury, evidence of such events can be used to impeach a verdict. Id. If extraneous or unauthorized information has reached the jury, it is presumed prejudicial. The party challenging the verdict needs to show only that the information relates directly to something at issue in the case which the losing party did not have the opportunity to refute and that may have influenced the verdict." If this is shown, the burden shifts to the nonmovant to show that no prejudice occurred. Harris, J.

We are called upon to determine whether defendants are entitled to a new trial where the circuit court failed to remove or even voir dire a juror who had performed Internet research on an issue in the case. We decide the answer is yes. Plaintiff, Donny McGee, brought claims of malicious prosecution and intentional infliction of emotional distress against defendants the City of Chicago; Erna Quinn, as special representative for the estate of Chicago police detective Edward Farley; Chicago police detective Robert Lenihan; and Chicago police officer Robert Bartik.2 After a trial, a jury found for plaintiff on his malicious prosecution claim and for defendants on the intentional infliction of emotional distress claim.

3. Post Conviction Petition: Reversed and Remanded: Successive postconviction petitions are disfavored under the Act[,] and a defendant attempting to institute a successive postconviction proceeding, through the filing of a second or subsequent postconviction petition, must first obtain leave of court." To obtain leave of court to file a successive petition, a petitioner must either demonstrate "actual innocence" or satisfy the cause-and-prejudice test codified in section 122-1(f) of the Act. We hold that where a defendant files an initial postconviction petition seeking only to reinstate the right to a direct appeal that was lost due to counsel's ineffectiveness, a subsequent petition is not a successive petition for purposes of section 122-1(f). Wexstten, J.

4. Parentage Act: Affirmed in part, Reversed in part and Remanded: We hold that, with respect to children born of artificial insemination, under the facts of this case, the Illinois legislature has not barred common law contract and promissory estoppel causes of action for custody and visitation brought by the nonbiological parent. Stewart, J.

2 Appellate Court Cases Posted 10-05-12

1. Mortgage Foreclosure: Affirmed: The law measures bona fide purchasers and mortgagees under the same standards. US Bank must qualify as a bona fide mortgagee to retain an interest in the property. In order to successfully foreclose on the property, US Bank must establish that it acquired an “interest in [the] property for valuable consideration without actual or constructive notice of another’s adverse interest in the property.” Constructive notice is knowledge that the law imputes to a purchaser, whether or not he had actual knowledge at the time of the conveyance. There are two kinds of constructive notice: record notice and inquiry notice. An unrecorded interest in land is not effective to a bona fide purchaser without notice. Plaintiff argued “where a party has constructive notice of a prior interest in real estate, the failure to record is not necessarily fatal to the rights of the prior interest holder. Whatever is notice enough to excite attention, put the party on his guard, and call for inquiry is notice of everything to which such inquiry might have led.” It is important to note that the law does not concern itself with whether an inquiry is actually carried out; rather, “notice is imputed to the subsequent purchaser on account of his negligence in not prosecuting his inquiries in the direction indicated.” Gordon, J.

Following a mortgage foreclosure, Plaintiff sued to quiet title and to vacate the mortgage foreclosure and sale. The trial court granted summary judgement to the plaintiff.

2. Freedom of Information Act: Reversed: Provisions of the FOIA are set forth in some detail. Section 1 of the FOIA states that restraints on access to information are not to be permitted except as very limited exceptions and that the FOIA should be construed in accordance with this principle. 5 ILCS 140/1 (West 2010). A substantial fee constitutes a restraint on access to information in contravention of the expressed legislative intent. Section 1 also makes clear that providing public records to citizens is a primary duty of public bodies and that the FOIA should be construed to this end, fiscal obligations notwithstanding. Welch, J.

These two actions were brought in the circuit court of Franklin County pursuant to section 11 of the Freedom of Information Act (FOIA) (5 ILCS 140/11 (West 2010)) to compel the release of certain requested information and for reasonable attorney fees and costs. They were consolidated for trial in the circuit court. The plaintiffs in both cases are Sage Information Services and its president, Roger W. Hurlbert (collectively plaintiff). In cause No. 11-MR-19, the plaintiff sent a request, dated February 14, 2011, under the FOIA to John Gulley, the county treasurer for Franklin County, for "a copy, on CD or similar electronic media, of the real property tax billing file for the 2009, payable 2010 tax year." The plaintiff indicated that transmission by e-mail would also be acceptable. These are essentially the same records the plaintiff had unsuccessfully sought from Humm. The court, holding the fees were allowable and reasonable, denied the plaintiff's request for an order compelling the release of the requested information under the FOIA, as well as the request for attorney fees and costs.

2 Supreme Court Cases Posted 10-04-12

1. Sex Offender Registration Act: Trial Court Affirmed, Appellate Court Reversed: Juvenile found not not guilty is not an acquittal therefor the offender must register. Burke, J., Garman, J. Dissents.

This Peoria County case began in 2005 when this 14-year-old juvenile respondent and a four-year-old girl were playing a game in which both of them got undressed. Respondent was later charged as a juvenile with aggravated criminal sexual abuse. At a fitness hearing, evidence was presented that he suffered from mild mental retardation and that he functioned as if he were seven or eight years old, rather than as a pedophile. The circuit judge found him unfit to stand trial and set the matter for a “discharge” or “innocence only” hearing, at which the only final adjudication which could be entered was a judgment of acquittal. This provision is found in the Code of Criminal Procedure but not in the Juvenile Court Act. Under it, one who is unfit may be ordered held for treatment. The evidence was found sufficient to support the charge, and, thus, respondent was not acquitted but, rather, was found “not not guilty.” Thereafter, a period of evaluation began for him on an outpatient basis, but, at its conclusion, the court found that he was still unfit, although neither mentally ill nor a threat to public safety. On January 27, 2009, the court, at the request of the State, ordered him to register as a sex offender. He complained that he had never been adjudicated delinquent and that this is required by the sex-offender registration statute. The appellate court agreed and reversed, and the State appealed.

The supreme court held that, although the Juvenile Court Act does not specifically provide for fitness hearings, juveniles should be protected, as a matter of constitutional law, by allowing the statute on “discharge” or “innocence only” hearings to be applied to them.

Respondent still complained that he had not been adjudicated delinquent, as statutorily required for sex-offense registration, but the supreme court said he can still be required to register because that statute requires this after being charged, as he was here, with one of the applicable offenses, and after being “the subject of a finding not resulting in an acquittal,” following a discharge hearing. Thus, the supreme court’s action here in incorporating “discharge” or “innocence only” hearings into the Juvenile Court Act permits a court to order the registration as a sex offender which occurred here.

However, the supreme court further construed the registration statute to allow such respondents to petition for registration termination, as it does not specifically do now, and further opined that this same approach should also apply to the Sex Offender Community Notification Act.

2. Probate/Domestic Relations: Appellate and Circuit Court Reversed: We therefore find no compelling reason to treat a guardian’s decision to seek court permission to institute a dissolution action on behalf of a ward any differently from the multitude of other innately personal decisions which may be made by guardians on behalf of their wards, including undergoing involuntary sterilization or ending life-support measures. Freeman, J.

2 Appellate Court Cases Posted 10-04-12

1. Products Liability/Statute Limitations: Reversed and Remanded: A judgment n.o.v. or directed verdict is properly entered in those limited cases where "all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." In ruling on a motion for judgment n.o.v. or directed verdict, "a court does not weigh the evidence, nor is it concerned with the credibility of the witnesses; rather it may only consider the evidence, and any inferences therefrom, in the light most favorable to the party resisting the motion." If there is any evidence, together with reasonable inferences to be drawn therefrom, demonstrating a substantial factual dispute, or where the assessment of credibility of the witnesses or the determination regarding conflicting evidence is decisive to the outcome, the court should not enter a judgment as a matter of law. In cases of exposure to harmful substances, however, plaintiffs generally do not "discover that they suffered any injury until long after the tortious conduct occurred," and courts apply the discovery rule "to prevent the unfairness of charging the plaintiff with knowledge of facts which were 'unknown and inherently unknowable.' " "[T]he limitations period commences when the plaintiff is injured, rather than when the plaintiff realizes the consequences of the injury or the full extent of her injuries." The prior cases of this court and our supreme court make clear that an official diagnosis is not required to trigger the statute of limitations. Epstein, J.

In this personal injury case, plaintiff Gerardo Solis claims that his lungs were injured while he worked with diacetyl, a synthetic chemical used in artificial butter flavoring. Solis brought negligence and strict liability claims for failure to warn and defective design against BASF Corporation (BASF), one of the distributors that supplied diacetyl to Solis's employer, Flavorchem. The jury returned a verdict for Solis, and BASF now appeals. BASF raises a host of legal and evidentiary errors, which it claims are the basis for a judgment as a matter of law or at least a new trial. Most central to our resolution of this appeal, BASF claims that the trial court erred by directing a verdict in favor of Solis on BASF's statute of limitations defense, where BASF presented evidence that Solis was aware of his lung injury and its wrongful cause more than two years before he filed suit. Because we find error in the trial court's decision to direct a verdict in favor of Solis on the statute of limitations question, we reverse and remand for a new trial.

2. Criminal Law: Affirmed: When a fingerprint expert provides testimony, he must lay an adequate foundation explaining how he reached his conclusion. Whether the foundational requirements have been met is a question of law that we review de novo. Precedent holds that a contention regarding the number of points of fingerprint similarity goes to the weight of the evidence, not its admissibility. The Illinois Supreme Court held that despite the fact that an expert witness did not perform the analysis herself, the expert provided a sufficient foundation for her testimony. Pucinski, J., Epstein, J., specially concurred.

In an appeal from a judgment entered on a conviction for residential burglary, the defendant argues the trial court erroneously allowed the testimony of a fingerprint examiner where he did not testify to a specific number of points of comparison and therefore lacked foundation for the admission of his opinion.There is no requirement for a set number of minimum points of similarity in order for fingerprint expert testimony to be admissible. We also hold the trial court did not err in allowing the expert from Cellmark to testify regarding a report analyzing defendant's DNA, even though the expert was not the individual who performed the analysis. The DNA expert was properly allowed to testify regarding the results contained in Cellmark's DNA analysis report and notes pursuant to the United States Supreme Court's holding in Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221 (2012). The report is not testimonial in nature and therefore does not violate the confrontation clause of the sixth amendment.

4 Appellate Court Cases Posted 10-03-12

1. Speedy Trial Act/Traffic Court: Affirmed: Our supreme court held that the defendant’s failure to include in his speedy-trial demand a reference to section 3-8-10 of the Code or the details of his incarceration, time served, and time remaining on his sentence rendered his demand ineffective. Birkett, J.

Following a stipulated bench trial, defendant, Lashawn Satisfield, was found guilty of driving under the influence of alcohol (625 ILCS 5/11-501(a) (West 2008)). On appeal, defendant contends that the trial court erred in striking his speedy-trial demand. For the reasons that follow, we affirm.

2. Freedom Of Information Act: Affirmed: When the legislature amends a statute by deleting certain language, it is presumed to have intended to change the law in that respect. Discussion on the effect of a state statute mirroring a Federal Statute and the effect of whether the fact that the State legislature specifically declined to adopt a certain section of the model Federal statute evidences an intent to achieve a result different from that announced by the decisions of the Federal courts.” By deleting the word “substantially,” which modified the verb “prevail,” the legislature evinced an intent to require nothing less than court-ordered relief in order for a party to be entitled to attorney fees under the FOIA. Bowman, J.

At the heart of this dispute is a letter written by a school principal in response to a reprimand by the superintendent. The Rock River Times and Joe McGehee (collectively, the newspaper) requested the letter from the Rockford Public School District (school), which initially refused to release it on the basis of various exemptions. The newspaper filed suit against the school under the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2010)) and filed a petition for attorney fees and the imposition of a civil penalty. The school released the letter before the court issued a ruling and then moved for summary judgment on the petition. The court denied the newspaper’s petition for attorney fees and thus granted the school’s motion for summary judgment to this effect. The court granted the newspaper’s request for a civil penalty to be imposed against the school. Both parties appeal the adverse rulings. We affirm.

3. Domestic Relations: Reversed and Remanded: Section 610 of the Act provides that if the modification is sought more than two years after the entry of the original custodial award, the Act requires the petitioner to prove by clear and convincing evidence that (I) a change has occurred in the circumstances of either the child or both parties having custody, and (ii) that the modification is necessary to serve the best interest of the child. Steele, J.

Respondent, Gatanya A. A., appeals from an order of the circuit court of Cook County granting partial summary judgment and awarding sole custody of their child to petitioner, Maurice B. H. On appeal, Gatanya contends the trial court erred by: (1) relying on subjective facts admitted by her failure to respond to Maurice's request to admit facts; (2) failing to consider the current circumstances of the child; and (3) failing to wait for the child representative to complete her investigation before ruling on the motion. For the following reasons, we reverse and remand the case for further proceedings.

4. Election Law: Affirmed: Absentee voters may deliver their ballots to the clerk's office personally or else authorize their spouse, parent, child, brother, or sister, or "a company licensed as a motor carrier of property ***, which is engaged in the business of making deliveries," to deliver them. 10 ILCS 5/19-6 (West 2010). Except in the case of a physically incapacitated voter, an absentee ballot cannot be delivered in any other manner. "Failure to comply with a mandatory provision [of the Election Code] renders the affected ballots void, whereas technical violations of directory provisions do not affect the validity of the affected ballots." The ballot-submission requirements of section 19-6 are mandatory because they help ensure the integrity of absentee voting in elections. Cook, J.

This appeal concerns absentee voting in the March 20, 2012, general primary election for Democratic nominees to the Macoupin County board. On August 3, 2012, the trial court invalidated 19 absentee ballots in that election and entered summary judgment for plaintiff, Oliver Gordon Schwallenstecker, declaring him—instead of defendant, Gary R. Rull—one of two Democratic nominees to the county board. Rull appeals, arguing the trial court erred in finding the ballots invalid. We disagree and affirm.

1 Appellate Court Case Posted 10-2-12

1. Domestic Relations/Attorney's Fees: Order Vacated and Remanded: The statutory language of section 501(c-1)(3), quoted earlier in this opinion, clearly and unambiguously states that prior to entering an order requiring an opposing party to pay the petitioning party's interim attorney fees, the court must find that the opposing party has the financial ability to pay reasonable amounts and that the petitioning party lacks sufficient access to assets or income to pay reasonable amounts. The statute also states that prior to entering an order requiring an attorney to disgorge funds from his retainer for the payment of interim attorney fees and costs to the other party's counsel, the trial court must find "both parties lack financial ability or access to assets or income for reasonable attorney's fees and costs." Rochford, J.

During the course of marital dissolution proceedings between petitioner, Elizabeth Nash, and respondent, Heriberto Lopez Alberola, the trial court ordered respondent to pay interim attorney fees of $5,000 each to petitioner's attorney, A. Christine Svenson, and to the child representative, Patricia Lynn Wypych, pursuant to section 501(c-1)(3) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/501(c-1)(3) (West 2010)). In the same order, the trial court stated that if respondent did not pay the interim attorney fees within 14 days, then respondent's ounsel, Enrico J. Mirabelli, must pay (i.e., disgorge) the fees out of the $15,000 retainer that respondent had already paid to Mr. Mirabelli's law firm, Nadler, Pritikin and Mirabelli, LLC (NPM, LLC). Respondent did not pay. Mr. Mirabelli then withdrew as respondent's counsel and filed a petition on behalf of NPM, LLC, to intervene in the case, and he attached thereto a motion to reconsider the disgorgement order. The trial court allowed the intervention and denied Mr. Mirabelli's motion to reconsider. Mr. Mirabelli refused to pay, contending the trial court erred in its construction of section 501(c-1)(3) and unconstitutionally applied the Act to him by ordering him to pay the interim attorney fees out of the retainer paid to and earned by NPM, LLC. Recognizing that Mr. Mirabelli's argument raised novel questions of law, the trial court found him in "friendly contempt" for failing to pay the interim attorney fees and fined him $10 for each day he does not pay. Mr. Mirabelli appeals. We vacate the orders requiring Mr. Mirabelli to pay the interim attorney fees and finding him in contempt and remand for further proceedings.