Illinois Supreme and Appellate Court Case Summaries

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


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 2 Appellate Cases Posted 10-31-13

1.   Civil Rights Act (§1983): Affirmed: Plaintiffs' second amended complaint fails to allege facts sufficient to establish liability under section 1983 because it fails to allege any recognizable violation of plaintiffs' constitutional rights.  The plaintiffs have failed to state a cause of action under section  1983 and the trial court correctly dismissed their complaint. “An attorneys' fees award pursuant to § 1988 rests within the sound discretion of the district court because that court is particularly well-qualified to make the partially subjective findings necessary for an award of fees and to perform the balancing of equities that is an integral part of the proceeding for an award of fees.”  The trial court did not abuse its discretion in denying defendant's request for attorney fees. Epstein, J.

No. 2013 IL App (1st) 122351   Peraica v. Riverside-Brookside High School District No. 208    Filed 10-31-13 (RJC)

Plaintiffs, Anthony Peraica and Taxpayers United of America, appeal the circuit court of Cook County's decision to dismiss, pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 2-615 (West 2010)), their second amended complaint against defendant Riverside-Brookfield High School District No. 208. Plaintiffs had alleged that defendant violated state laws, i.e., section 18-115 of the Property Tax Code (35 ILCS 200/18-115 (West 2010)) and section 9-25.1 of the Election Code (10 ILCS 5/9-25.1 (West 2010)), as well as “the 1st, 9th and 14th Amendment rights of the plaintiffs as guaranteed under the United States Constitution and under the parallel provisions of the Illinois Constitution of 1970 (Article 1, §§ 2, 4, 5 and 24),” article 3, section 3, of the Illinois Constitution (Ill. Const. 1970, art. III, § 3), and the guarantees of the Civil Rights Act of 1871 (42 U.S.C. § 1983 (2000)). Defendant cross-appeals the circuit court's order denying its request for attorney fees pursuant to section 1988 of the Civil Rights Act (42 U.S.C. § 1988 (2000)). For the reasons that follow, we affirm.

2.   Criminal Law/DUI: Affirmed: In this case, the trial court responded to the jury's question with the language the parties agreed to. To allow defendant to benefit on appeal based on a response he agreed to "would offend all notions of fair play." Under these circumstances, we cannot say the court abused its discretion in the answer given.  General violations of section 11-501, specifically nonaggravated DUIs, may be used to elevate an offense to a Class X felony for sentencing purposes.  The statute uses the term "violation" and not "conviction." Accordingly, dispositions resulting in supervision would also count toward the sentencing calculus. Here, the fact the instant offense was not defendant's sixth aggravated DUI did not prevent the court from imposing a Class X sentence.  Defendant does not argue on
appeal his prior violations of section 11-501 number less than six. Accordingly, defendant was properly subjected to Class X sentencing. Pope, J.

No. 2013 IL App (4th)   120388   People v. Halerewicz    Filed 10-31-13 (RJC)

In February 2012, a jury convicted defendant, John J. Halerewicz, of driving under the influence of alcohol (DUI), aggravated DUI with a revoked license, and driving while his driver's license was revoked. In April 2012, the trial court sentenced defendant to concurrent terms of 10 years' imprisonment for aggravated DUI and 3 years for driving while his license was revoked.  Defendant appeals, arguing (1) the trial court erred in refusing to define the term "ordinary care" for the jury, (2) Class X sentencing was improper where it only applies to six or more aggravated DUI convictions and defendant's instant aggravated DUI conviction was not his sixth such conviction, and (3) the court abused its discretion in sentencing defendant to a term of imprisonment. We affirm.

2 Appellate Cases Posted 10-30-13

1.  Criminal Law: Reversed:  Given the lack of any other evidence that Alicea resided at 3036 North Knox, the State failed to prove beyond a reasonable doubt that Alicea was in constructive possession of the weapons and ammunition found in the bedroom.  Given the reversal of Alicea's conviction, the order imposing related fines and fees is vacated. Mason, J.

No. 2013 IL App (1st)   112602    People v. Alicea    Filed 10-30-13 (RJC)

Following a bench trial, defendant Jesus Alicea was found guilty of two counts of unlawful possession of a weapon by a felon and sentenced to concurrent terms of five years' imprisonment. On appeal, Alicea challenges the sufficiency of the evidence to sustain his convictions and the propriety of two fees imposed by the circuit court.

2.  Negligence/premises: Affirmed: A party in possession has a duty to provide a reasonably safe means of ingress and egress. By operation of the lease, plaintiff, as the lessee, is the party in possession. Plaintiff was a tenant, not a visitor to a business establishment, and the alleged injury occurred on a driveway, not a public sidewalk. Defendant did not owe a duty of care to plaintiff.   By operation of the lease, defendant was no longer in control of the leased premises and no evidence indicates defendant retained control of the driveway. Knecht, J.

No. 2013 IL App (4th) 130136    Nida v. Spurgeon    Filed 10-30-13 (RJC)

On August 10, 2011, plaintiff, Marcia Nida, filed a two-count complaint against defendant, Marlene Spurgeon, individually and as adminstratrix of the estate of Lorene D. Hart, for injuries suffered at a rental property owned by defendant. In November 2012, defendant filed a motion for summary judgment. In February 2013, the trial court granted the motion for summary judgment, concluding defendant did not owe a duty of care to plaintiff.  Plaintiff appeals, arguing the trial court erred in granting defendant's summary judgment motion. Plaintiff contends defendant owes her a duty of care and factual issues exist as to whether a dangerous condition was open and obvious and de minimis. We affirm.

5  Appellate Cases Posted 10-28-13

1.  Contribution & Indemnity: Affirmed:  The doctrine of res judicata provides that "a final judgment on the merits rendered by a courtof competent jurisdiction bars any subsequent actions between the same parties or their privies onthe same cause of action."  Three requirements must be satisfied in order for res judicata to apply:"(1) a final judgment on the merits has been reached by a court of competent jurisdiction; (2) anidentity of cause of action exists; and (3) the parties or their privies are identical in both actions." Id. Res judicata bars not only what was actually decided in the first action, but also those mattersthat could have been decided in that lawsuit.  Generally, orders dismissing an action with prejudice constitutes a final judgment on themerits for the purposes of res judicata.   Under SC Rule 273, unless the order of dismissal or a statute of this [s]tate otherwise specifies, aninvoluntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue,or for failure to join an indispensable party, operates as an adjudication upon the merits."   Illinois applies the more liberal "transactional test" in determining whether identity of causeof action exists for the purposes of res judicata. Under thetransactional test, "separate claims will be considered the same cause of action for purposes of resjudicata if they arise from a single group of operative facts, regardless of whether they assertdifferent theories of relief." To determine whether there is an identity of cause of actionbetween the first and second lawsuits, a court " 'must look to the facts that give rise to plaintiffs' rightto relief, not simply to the facts which support the judgment.' "  An identity of cause of action is established "if two claims are based on the same, ornearly the same, factual allegations."  Cunningham, J.

No. 2013 IL App (1st) 121589 Camper v. Burnside Construction Co.   Filed 10-28-13 (LJD)

This appeal arises from the December 21, 2011, February 27, 2102 and May 11, 2012 ordersentered by the circuit court of Cook County, which collectively dismissed with prejudice a third-party action filed by third-party plaintiff Welch Brothers, Inc. (Welch), against third-party defendantNeptune Construction Company (Neptune).  We affirm the judgment of the circuit court of Cook County.

2.  Franchise Agreements: Affirmed:  Elements of Fraudulent inducement which is a form of common-law fraud are listed and discussed in the opinion.   Fraud claims must be pleaded with sufficient specificity, particularity, and certaintyto apprise the opposing party of what he is called upon to answer.  The basis of a fraud or negligent misrepresentation claim must be a statement of fact, not anexpression of opinion.   Generally, financial projections areconsidered to be statements of opinion, not fact. However, "although representations of future income are notactionable, representations as to past income of a business constitute statements of fact."   The "bespeaks caution"doctrine provides that cautionary language in a securities offering document can negate themateriality of any alleged misrepresentation or omission.  Under the doctrine,statements must be analyzed in context, and "cautionary language, if sufficiently substantive andtailored to the projections, estimates, and opinions contained in an offering document, can renderalleged misrepresentations and omissions immaterial as a matter of law."     Hoffman, J.

No. 2013 IL App (1st) 130750   Avon Hardware Co. v. Ace Hardware Corp.  Filed 10-28-13 (LJD)

The plaintiffs, Avon Hardware Company, doing business as Avon Ace Hardware, MichaelA. Clark, Beverly A. Clark, Yido, Inc. (Yido), doing business as Mr. Mike's Ace Hardware, DebbiePasciak, and Michael Pasciak, appeal from the circuit court order which dismissed their complaintalleging various claims of common law and statutory fraud based on statements made by thedefendant, Ace Hardware Corporation (Ace), in connection with the parties' franchise agreement.  We affirm.

3.  Post Conviction Petition: Affirmed:  At the first stage, the trial courtindependently determines, without input from the State, whether the petition is “frivolous or is patently without merit.”  A petition is frivolous or patently without merit only if it has no arguable basis in law or fact.   At the first stage, the petition’s allegations, liberallyconstrued and taken as true, need to present only “the gist of a constitutional claim.” The petition needs to set forth just a limited amount of detailand does not need to set forth the claim in its entirety.   The trial court is not allowed to engage in any fact finding or credibility determinations atthis stage, and all well-pleaded facts not positively rebutted by the record are taken as true.   As to clain that trial counsel was ineffective, the defendant must first establish that, despite the strong presumption that counsel acted competently and that the challenged action was the product of sound trial strategy,counsel’s representation fell below an objective standard of reasonableness under prevailing  professional norms such that he or she was not functioning as the counsel guaranteed by the sixthamendment.   Spence, J.

No. 2013 IL App (2nd) 120439   People v. Harmon   Filed 10-28-13 (LJD)

Following a jury trial, defendant, Ryan T. Harmon, was convicted of three counts ofaggravated kidnaping (720 ILCS 5/10-2(a) (West 2006)) and one count of arson (720 ILCS 5/20-1(a)(West 2006)). Defendant later filed a petition under the Post-Conviction Hearing Act (Act) (725ILCS 5/122-1 et seq. (West 2010)), which the trial court dismissed at the first stage of proceedings. On appeal, defendant challenges the trial court’s summary dismissal of his postconviction petition. Defendant argues that the petition presented arguable claims that his trial counsel was ineffectivefor failing to investigate and call Willie Gulley as a witness at trial and for failing to challenge expertfingerprint testimony, and that appellate counsel was ineffective for not raising these issues on direct appeal. Defendant further argues that the exclusive-jurisdiction provision of the Juvenile Court Actof 1987 (Juvenile Court Act) (705 ILCS 405/5-120 (West 2006)) is unconstitutional. We affirm.

4.   Domestic Relations:  Affirmed:  The purpose of a section 2-1401 petition is for a party to bring to the court’s attention factsthat, if known to it at the time it rendered its judgment, would have changed the court’sdetermination.   To present a claim forrelief under section 2-1401, the petitioner must set forth factual allegations supporting: (1) theexistence of a meritorious defense or claim; (2) due diligence in presenting the defense or claim in the original proceedings; and (3) due diligence in filing the section 2-1401 petition.  “The term ‘unconscionability’ includes ‘an absence of a meaningful choice on the part of oneof the parties together with contract terms which are unreasonably favorable to the other party.’ ” There are two types of unconscionability:procedural and substantive.   Procedural unconscionability involves “impropriety during the process of forming a contract that deprives a  party of [a] meaningful choice.”  Substantive unconscionability involves a situation in which aclause or term in the contract is totally one-sided or harsh.  A finding of unconscionability canbe based on either procedural or substantive unconscionability, or a combination of both.    Schostok, J. 

No. 2013 IL App (2nd) 120639   In re Marriage of Arjmand   Filed 10-28-13 (LJD)

On July 22, 2009, the circuit court of Du Page County entered a judgment dissolving themarriage of the petitioner, Masud M. Arjmand, and the respondent, Muneeza R. Arjmand. Thejudgment incorporated a marital settlement agreement that resolved issues as to custody, childsupport, and disposition of the parties’ assets. On April 4, 2011, Muneeza filed a petition undersection 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)) to vacatethe judgment. In granting the petition, the trial court upheld the judgment but vacated the maritalsettlement agreement. Masud appeals from the trial court’s order. We affirm.

5.  Workers Compensation: Affirmed:  Theclaimant in an occupational disease case has the burden of proving both that he suffers from anoccupational disease and that a causal connection exists between the disease and his employment. Whether an employee suffersfrom an occupational disease and whether there is a causal connection between the disease and theemployment are questions of fact.  It is the function of the Commission to decide questionsof fact, judge the credibility of witnesses, and resolve conflicting medical evidence.  The  Commission’sdetermination on a question of fact will not be disturbed on review unless it is against the manifestweight of the evidence.  A claimant can establishdisablement by showing “an impairment or partial impairment, temporary or permanent, in the function of the body or any of the members of the body.” 820 ILCS 310/1(e) (West 2006). Alternatively, section 1(e) defines disablement as “the event of becoming disabled from earning fullwages at the work in which the employee was engaged when last exposed to the hazards of theoccupational disease by the employer from whom he or she claims compensation, or equal wagesin other suitable employment.”  Hudson, J., with special concurrence by Hoffman, J. joind by Holderidge, PJ and Stewart, J.

No. 2013 IL App (2nd) 120564WC   Freeman United Coal Mining Co. v. Illinois Workers' Compensation Comm'n Filed 10-28-13 (LJD)

On December 19, 2007, claimant, David Sims, filed an application for adjustment of claimpursuant to the Workers’ Occupational Diseases Act (Act) (820 ILCS 310/1 to 27 (West 2006))seeking benefits from respondent, Freeman United Coal Mining Company. The Illinois Workers’ Compensation Commission (Commission) reversed the arbitrator's findings that claimant failed to prove his case, finding that claimant met his burden of proving he has coalworkers’ pneumoconiosis (CWP) and that the disease is causally connected to his employment asa coal miner. The Commission further determined that claimant established disablement within twoyears after the date of his last exposure to the hazards of the occupational disease (see 820 ILCS310/1(f) (West 2006)) and that claimant provided timely notice of the disablement to respondent (see820 ILCS 310/6(c) (West 2006)). The Commission awarded claimant 50 weeks of permanent partialdisability (PPD) benefits, representing 10% of the person as a whole (see 820 ILCS 305/8(d)(2)(West 2006); 820 ILCS 310/7 (West 2006)). The circuit court of Christian County confirmed the decision of the Commission.  We affirm.

4 Appellate Cases Posted 10-25-13

1. Breach of Contract Damages: Affirmed: In contract claim for breach of contract stemming from defendant's breach of contract for failing to deliver two taxicab medallions per the terms of the parties' contract, trial court did not err in refusing to permit plaintiff from testifying regarding lost profits in view of plaintiff's failure to comply with pre-trial request for documents purportedly supporting that claim, and proper measure of damages was based on the medallions' market price at time of the breach, not at time of trial. Lampkin, J.

No. 2013 IL App (1st) 122070  Santorini Cab Corporation v. Banco Popular North America  Filed 10-25-13 (TJJ)

Plaintiff Santorini Cab Corp. (Santorini) sued defendant Banco Popular North American (Banco) for breach of contract concerning the sale of two taxicab medallions. Following a bench trial, the trial court found that Banco had breached the contracts and  awarded Santorini $37,550 in damages. Santorini appeals, contending the trial court made erroneous partial summary judgment rulings in Banco's favor prior to the bench trial. Specifically, Santorini argues the trial court erred by precluding lost profit  damages and by failing to calculate Santorini's damages by using the market price of the medallions at the time the case went to trial. For the reasons that follow, we affirm the judgment of the circuit court.

2. School Code/Tenure: Affirmed: State Board of Education decision upholding administrative law judge determination that tenured school psychologist should be reinstated to her position for failure of school district to comply with procedures mandated by School Code upheld, where evidence failed to show that "consulting teacher" appointed by District to seek to remedy psychologist's deficiencies was qualified to do so; 30-day period for ALJ's decision was directory, not mandatory; and decision of hearing officer and Board was not against manifest weight of the evidence. Wright, J.

No. 2013 IL App (3d) 120373  The Board of Education of Valley View Community Unit School District No. 365-U v. Illinois State Board of Education  Filed 10-25-13 (TJJ)

In 2010, defendant-appellee Lynn Reid (Reid), a tenured school psychologist and employee of plaintiff-appellant, Board of Education of Valley View Community Unit School District 365-U (the District) received an unsatisfactory performance evaluation  from her principal, Donna Nylander. The District established a remediation plan for Reid but, eventually, the District terminated Reid's employment claiming Reid unsuccessfully completed the plan. After a lengthy process, based on a voluminous record, the administrative hearing officer determined the District terminated Reid based on a less than fair remediation process initiated and managed by Nylander. The hearing officer reversed the District’s decision and ordered the District to reinstate Reid with  full back pay. The District now challenges ISBE’s administrative decision before this court. We confirm.

3. Sexually Violent Persons Commitment Act: Appeal dismissed: Respondent's Section 2-1401 petition seeking to vacate initial detention order resulting from State's petition to have him adjudicated a sexually violent person was in reality a motion to dismiss the proceedings, and the Appellate Court lacked jurisdiction to hear an appeal, as the matter was still proceeding in the trial court and had not yet resulted in any final order. Schmidt, J. (Carter, J., sp. concurring).

No. 2013 IL App (3d) 120563  In re Commitment of DeSilvestro  Filed 10-25-13 (TJJ)

The State of Illinois filed a petition seeking to commit respondent, Joseph DeSilvestro, pursuant to the Sexually Violent Persons Commitment Act. Respondent eventually filed a "motion to dismiss pursuant to 2-1401(f)" seeking dismissal of the entire  commitment proceeding. Following a hearing and argument, the circuit court of La Salle County denied respondent's motion. Respondent appeals, claiming he was not in lawful custody at the time the State filed its petition and, therefore, the trial court  erred in denying his motion to dismiss. Appeal dismissed.

4. Negligence/Snow and Ice Removal: Affirmed in part and reversed in part and remanded: Trial court erred in dismissing count of complaint alleging that plaintiff's injuries stemming from accumulation of ice and snow were the result of allegedly defective construction of premises or improper or insufficient maintenance of the premises, as Snow and Ice Removal Act does not provide immunity from such alleged conduct, but other counts alleging that defendants' conduct was "wilful and wanton" properly dismissed as insufficiently pled. Harris, J.

No. 2013 IL App (4th) 130036  Greene v. Wood River Trust  Filed 10-25-13 (TJJ)  

On February 12, 2010, plaintiff, Mitzi O. Greene, slipped and fell on an icy walkway near the entrance of a residence she leased from defendants, Wood River Trust; Taylor Realty, Inc., d/b/a/ Wood River Trust; Richard W. Taylor, d/b/a Wood River Trust;  and Russell H. Taylor, d/b/a Wood River Trust. After plaintiff filed a complaint alleging negligence, defendants moved to dismiss plaintiff's complaint pursuant to section 2-619 of the Code of Civil Procedure, arguing plaintiff's negligence claims were barred by the Snow and Ice Removal Act. The trial court dismissed plaintiff's complaint but allowed plaintiff to amend to allege willful and wanton misconduct, an exception to the immunities otherwise provided by the Act. Defendants moved to dismiss  plaintiff's first amended complaint pursuant to section 2-615 of the Code, which the court granted. In addition, the court allowed plaintiff to further amend her complaint to allege willful and wanton misconduct. Defendants moved to dismiss plaintiff's  second amended complaint pursuant to section 2-615 of the Code, which the court granted. Plaintiff appeals, arguing the trial court erred in (1) determining that the Act barred her negligence claims against defendants, (2) dismissing her second amended  complaint because she properly pled a willful and wanton exception to the immunity otherwise provided by the Act, and (3) denying her request for additional time to locate individuals to aid in providing factual support for her claims. We affirm in part,  reverse in part, and remand.

4 Appellate Cases Posted 10-24-13 

1. Civil Procedure/Voluntary Re-filing: Affirmed: Where plaintiff was not aware that first attorney (later replaced) had filed suit on his behalf, after such was discovered and voluntarily dismissed, one-year period period permitting re-filing began to run then, so that later voluntary dismissal of first lawsuit filed by second attorney barred re-filing thereafter. Howse, J.

No. 2013 IL App (1st) 121505  Fiorito v. Bellocchio  Filed 10-24-13 (TJJ)

This appeal arises from an order of the circuit court granting defendant Joseph Bellocchio's motion to dismiss plaintiff Michael Fiorito's personal injury action. On appeal, plaintiff contends that the trial court erred in granting defendant's motion to dismiss  on grounds that refiling was beyond the one-year right to refile provided by statute. For the following reasons, we affirm.

2. Freedom of Information Act: Affirmed: Inmate lawsuit regarding request under Freedom of Information Act request for "clinical services report" and letters from the victim's family or fiance objecting to plaintiff's parole in connection with sexual assault conviction, as such are expressly exempted from the FOIA. McLaren, J.

No. 2013 IL App (2d) 110698  Lucas v. Prisoner Review Board  Filed 10-24-13 (TJJ)

Plaintiff, Shaun B. Lucas, appeals from the trial court’s June 22, 2011, order dismissing, with prejudice, his complaint against defendants, the Prisoner Review Board (PRB), Kenneth D. Tupy, and Lisa Weitekamp, alleging violations of the Illinois Freedom  of Information Act (FOIA). 5 ILCS 140/1.1 et seq. (West 2010). We affirm.

3. Alien of Affections Act: Affirmed: Statutory exclusion of noneconomic compensatory damages under Alien of Affections Act was constitutional, despite claim that such exclusion violate the separation of powers. Jorgensen, J.

No. 2013 IL App (2d) 120391  Murphy v. Colson  Filed 10-24-13 (TJJ)

Plaintiff, Dean Murphy, filed a complaint against defendant, Dan Colson, and the trial court granted defendant’s motion for partial summary judgment, finding constitutional the statutory exclusion of certain noneconomic compensatory damages under the  Alienation of Affections Act (740 ILCS 5/1 et seq. (West 2008)) and the Criminal Conversation Act (740 ILCS 5/50 et seq. (West 2008)). Upon the court’s Rule 304(a) finding (Ill. S. Ct. R. 304(a) (eff. Sept. 20, 2006)), plaintiff appealed. For the reasons that follow, we affirm.

4. Neutral Site Custody Exchange Funding Act: Affirmed: $5 fee imposed by county ordinance and based upon the Act in all civil cases for the establishment of a neutral site for custody exchange in domestic relations case was sufficiently  related to the operation of the court system as to withstand a claim that it was unconstitutional. Goldenhersh, J.

No. 2013 IL App (5th) 120546  Smith-Silk v. Prenzler  Filed 10-24-13 (TJJ)

Plaintiffs, Andrea G. Smith-Silk and Thomas J. Koziacki, individually and on behalf of all others similarly situated, filed a complaint in the circuit court of St. Clair County against defendants, Kurt Prenzler, in his official capacity as treasurer of Madison  County, and Mark Von Nida, in his official capacity as circuit clerk of Madison County (Madison County defendants), along with Charles Suarez, in his official capacity as treasurer of St. Clair County, and Kahalah Dixon, in her official capacity as circuit  clerk of St. Clair County (St. Clair County defendants), in which they challenged a $5 "neutral site fee" (fee) charged to all litigants in Madison County and St. Clair County, sought a refund of the fee paid by named plaintiffs, as well as an injunction against the collection of additional fees, and requested class certification. After a hearing, the circuit court found the fee constitutional and dismissed plaintiffs' complaint against defendants. Plaintiffs now appeal. The Madison County defendants have filed a cross- appeal, but only in the alternative should we find the fee constitutional. For the following reasons, we affirm.

1 Appellate Case Posted 10-23-13

1. Criminal Law: Affirmed: Trial court decision denying defendant's motion to suppress statements based in part upon his alleged low IQ was not against the manifest weight of the evidence; trial court decision limiting testimony of defense expert witness was not error; evidence regarding old injury to child victim not error; and prosecutor argument was not improper. Hyman, J.

No. 2013 IL App (1st) 113201  People v. Goins  Filed 10-23-13 (TJJ)

A jury convicted defendant Tyrece Goins of aggravated battery of a child and acquitted him of attempted first degree murder. Goins was sentenced to 11 years in prison. In this appeal, Goins argues that the trial court erred in (1) denying the motion to
suppress his statement where the evidence did not establish that he knowingly and intelligently waived his Miranda rights, owing to his limited mental capacity inhibiting full understanding of the meaning of his rights; (2) limiting his expert's testimony to  information concerning Goins' IQ score; (3) denying his motion for a mistrial where the State's expert testified about a scar on the victim and the long-term effects of the victim's injuries; and (4) denying his motion for a new
trial where the State made improper remarks during closing and rebuttal arguments. We disagree and affirm.

5 Supreme Court Cases  Posted 10-18-13

1.  Insurance/Worker's Comp./IL Insurance Guaranty Fund/Affirmed:   The supreme court said that the question at issue here is a matter of insurance rather than workers’ compensation law.  There is a statutory cap of $300,000 on the amount the Fund must pay, but an exemption to this cap is provided for “any workers’ compensation claims.” Wells did not see any reason why the Fund should stop paying when this amount was reached, but the Fund stopped payment in 2005, arguing that payments to an excess, rather than a primary, insurer were not payments of “workers’ compensation claims” within the meaning of this statutory provision, and, thus, could not be exempted from the cap. The Fund argued that the exempting language “workers’ compensation claims” meant only claims brought directly by injured employees. Wells continued paying the employee and, in 2010, filed this action in the circuit court of Cook County, seeking a declaration that the Fund’s reimbursement payments should continue. The circuit court agreed with Wells, awarding summary judgment to it, and the appellate court affirmed. In this decision, the supreme court agreed with both lower courts, rejecting the distinctions made by the Fund between excess and primary coverage and between payments made directly or indirectly to employees.

  Justice Karmeier delivered the judgment of the court, with opinion.   Justices Freeman, Garman, Burke, and Theis concurred in the judgment and opinion. Chief Justice Kilbride dissented, with opinion.  Justice Thomas dissented, with opinion.

No. 2013 IL 113873   Skokie Castings, Inc. v. Illinois Insurance Guaranty Fund    Filed 10-18-13 (RJC)


Skokie Castings, Inc., the named plaintiff in this Cook County litigation, is the successor by purchase to Wells Manufacturing Company, a manufacturer of alloy castings and iron. In 1985, a Wells employee was seriously injured on the job, and, in 1993, the Illinois Industrial Commission ordered weekly lifetime benefits for total and permanent disability. Wells began to make the payments ordered by the Commission directly to the employee.   Wells was self-insured, meaning it had elected, pursuant to statute, to take full financial responsibility for its employees’ workers’ compensation claims. To limit its liability, Wells had obtained excess insurance from Home Insurance Company. When Wells’ payments to the injured employee reached $200,000, it began to seek reimbursement under this excess-liability coverage. Home paid benefits to the employee over the $200,000 “retention” limit in the policy until Home became insolvent in 2003 and was liquidated. At that point, the Illinois Insurance Guaranty Fund, the defendant here, took over the insolvent excess insurer’s obligations.

2. Electronic commerce/Internet Tax Freedom Act: Affirmed:  In this decision, the Illinois Supreme Court agreed that the challenged statute is invalid. The court noted that “performance marketing,” when engaged in through print media or on-the-air broadcasting, does not give rise to tax obligations under the Illinois statute. This enactment is therefore a discriminatory tax on electronic commerce within the meaning of federal law, which preempts it. The Illinois Supreme Court did not reach the commerce clause issue.  Justice Burke delivered the judgment of the court, with opinion. Chief Justice Kilbride and Justices Freeman, Thomas, Garman, and Theis concurred in the judgment and opinion. Justice Karmeier dissented, with opinion.

No. 2013 IL 114496   Performance Marketing Association, Inc. v. Hamer    Filed 10-18-13 (RJC)


The ability of out-of-state merchants to make sales to Illinois consumers without collecting and remitting sales or use taxes to the State of Illinois caused Illinois retailers, large and small, to ask the state legislature to “level the playing field.” The result was a taxing statute that became effective in 2011 and which has been called the “click-through” nexus law.  The plaintiff in this case is a trade group whose activities are impacted by this statute. “Performance marketing” refers to programs in which the display of advertising is paid for when a specific action, such as a sale, is completed. The clicking and the making of a sale can be tracked by means of codes. In an internet transaction, the publisher of an advertisement, or so-called “internet affiliate,” displays on its website texts or images, such as a retailer’s logo, containing a link to a retailer’s website and then is compensated by the retailer when a consumer clicks on the link and makes a purchase from the retailer. Out-of-state retailers who use such arrangements to generate sales of over $10,000 per year become subject to the obligation to collect and remit use tax under this statute.

On the federal level, discriminatory taxes on electronic commerce have been prohibited by the Internet Tax Freedom Act. This, and the commerce clause of the United States Constitution, are the basis of a challenge brought to the Illinois statute by the trade group, Performance Marketing Association, Inc., in the circuit court of Cook County. Plaintiff obtained an invalidation of this Illinois statute from the circuit court in its action for declaratory and injunctive relief. The circuit court was upheld.

3.  Illinois Educational Labor Relations Act: Reversed: The supreme court held that the challenged statute is indeed invalid as forbidden special legislation because the statutory language does not apply prospectively to school districts which may, after the statute’s effective date, employ peace officers in their own police departments. Although a general law could have been passed which would have affected a generic class of individuals, here, the affected class was closed on the effective date of the enactment. The supreme court held that “it does not appear there would be much for the circuit court to do upon remand” and reversed the circuit court outright, without remand. Justice Karmeier delivered the judgment of the court, with opinion. Justices Freeman, Thomas, Garman, Burke, and Theis concurred in the judgment and opinion. Chief Justice Kilbride specially concurred, with opinion.

No. 2013 IL 114853    The Board of Education of Peoria School District No. 150 v. The Peoria Federation of Support Staff    Filed 10-18-13 (RJC)


The Board of Education of Peoria School District No. 150 employs 26 full-time and part-time individuals who work as security agents and guards. No other school district in Illinois has this type of employee. Pursuant to the Illinois Educational Labor Relations Act, these employees were represented by a union certified by the Illinois Educational Labor Relations Board since 1989. The last collective-bargaining agreement pursuant to this certification expired June 30, 2010.  On July 23, 2010, the statute took effect which is challenged here. It purported to remove these employees from the oversight of the Illinois Educational Labor Relations Board and redefine them as “public employees” subject to the Illinois Public Labor Relations Act and the jurisdiction of the Illinois Labor Relations Board. This litigation raises the question of which board has jurisdiction.  The Board of Education of Peoria School District No. 150, as plaintiff, filed an action in the circuit court of Sangamon County, seeking a declaration that its labor disputes with these employees were governed by the statute concerning educational employees, rather than by the one concerning public employees. Named as defendants were the union and both labor boards. The 2010 enactment was challenged as invalid as “special legislation,” which is forbidden by the Illinois Constitution. The circuit court dismissed. The appellate court reversed the dismissal and remanded for further proceedings, suggesting that the challenged legislation is, in fact, unconstitutional. The cause reached the Illinois Supreme Court on appeal by both boards.

4.  PI/SOL/Deceased defendant: Reversed: The supreme court, in this decision, agreed, rejecting the appellate court’s holding to the contrary. Despite not originally knowing of the demise, on learning of it, the plaintiff should have sought leave to amend the complaint so as to substitute as defendant the decedent’s son, who was decedent’s personal representative. She should have then served process on that representative. The supreme court said that implicit in these obligations is a duty to use reasonable diligence, as to which the plaintiff fell short. Justice Karmeier delivered the judgment of the court, with opinion. Justices Freeman, Thomas, Garman, Burke, and Theis concurred in the judgment and opinion. Chief Justice Kilbride specially concurred, with opinion.

No. 2013 IL 114925   Relf v. Shatayeva   Filed 10-18-13 (RJC)


This Cook County litigation arises from an automobile accident that took place in February of 2008. The driver who was accused of wrongdoing in connection with the accident died shortly thereafter, on April 25, 2008. Pursuant to his will, which was admitted to probate that September, his son was issued letters of office to serve as independent administrator of the estate. The statute of limitations for plaintiff’s claim of personal injuries was two years. Just before that limitations period was to expire, in February of 2010, plaintiff filed suit. She apparently was unaware of the demise and her action against a dead person was, therefore, invalid. Attempts to serve process were initially unsuccessful, but a special process server eventually conveyed to the plaintiff, on May 17, 2010, the information that the defendant was dead.  Section 13-209 of the Code of Civil Procedure allows a two-year extension of the limitations period under certain conditions, one of which is that the plaintiff move to substitute the decedent’s personal representative as defendant. This the plaintiff did not do. Instead, after the original two-year limitations period had run, plaintiff sought and obtained the circuit court’s permission to have an employee of plaintiff’s attorney appointed as “special administrator” to defend the estate. This procedure has no statutory authorization. The circuit court had dismissed the action on limitations grounds. 

5.  Illinois Municipal Retirement Fund: Affirmed: The supreme court held that the work which was done between 1999 and 2009 was done by a separate corporate entity and was not precluded by statute. If the legislature had wanted to specifically prohibit this, it could have said so. In so deciding, the supreme court held that the legislature did not grant the Board of Trustees of the Illinois Municipal Retirement Fund the power to find that a corporation was a “guise” to circumvent the statutory forfeiture provisions. The court also noted that, earlier in the period under consideration, the Board had expressed the view that what the plaintiff had done was permissible, but that its position had evolved over time to the one presented in this appeal. The supreme court held it could not find a clear intent expressed in the statutes to prohibit outsourcing to a corporation created by a retired employee and imposing a forfeiture for doing so. To provide otherwise, legislative action is required.  Chief Justice Kilbride and Justices Garman, Karmeier, and Theis concurred in the judgment and opinion.  Justice Freeman dissented, with opinion, joined by Justice Burke.

No. 2013 IL 115035   Prazen v. Shoop   Filed 10-18-13 (RJ)


 At the end of 1998, the plaintiff in this case, Joseph Prazen, elected to participate in the state’s early retirement incentive plan and retired from his position as superintendent of the electrical department of the City of Peru. He had over 27 years of service, and he also had purchased five years of age-enhancement credit so as to raise his years of service to over 32 years for pension purposes.  Plaintiff had an unincorporated electrical business, which was incorporated just before he retired, of which he was then secretary and president. Just before he retired, the City entered into an agreement with this corporation for the operation of the City’s electrical department. It provided for management and supervision. Mayor Donald Baker signed the agreement on behalf of the City. The first year’s compensation under the contract was about $7,000 higher than plaintiff’s prior annual salary. This relationship lasted until 2009, when the corporation was dissolved. After that, the City used other independent contractors to perform the same duties.  In 2010, the Illinois Municipal Retirement Fund notified the plaintiff that, after participating in the early retirement incentive plan, he had violated the statutory prohibitions against returning to work because he had created a corporation that employed him and then contracted with the City so that plaintiff could simply go back to work at the same job. The Fund recalculated plaintiff’s years of service as 27 and claimed he should repay $307,100 as a statutory forfeiture. The circuit court of Sangamon County upheld the Fund.  In 2012, the appellate court held that the view taken below was not supported by statute, and, in this decision, the supreme court agreed.      

3 Supreme Court Cases Posted 10-03-13

1.  Criminal Law: Reversed:  The supreme court, in this decision, ruled that the view taken by the circuit court was not against the manifest weight of the evidence. The supreme court said that a record which shows rejection of a plea offer that was not based on alleged erroneous sentencing advice, but on other considerations, does not establish the prejudice which must be shown in order to establish a constitutional claim of ineffective assistance of defense counsel. Justice Karmeier delivered the judgment of the court, with opinion.  Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Burke, and Theis concurred in the judgment and opinion.

No. 2013 IL 114925    People v. Hale    Filed 10-03-13 (RJC)

 In 2001, a vehicle with a passenger inside was fired at approximately eight times by another motorist on the expressway. The driver who was fired at positively identified this defendant several times as the shooter. The passenger in the fired-at car was seriously injured, but she, also, identified the defendant as the shooter from a photo array. A Cook County jury found the defendant guilty of two counts of attempted murder, and, for this, consecutive sentences were imposed, as statute makes mandatory. The defendant was sentenced to 30 years’ imprisonment for the attempted murder of the passenger and to a consecutive 10-year term for shooting at the driver.  Later the defendant would claim that he would have accepted a plea bargain rather than go to trial if he had known he could receive consecutive sentences, and he blamed his trial attorney for failure to so advise him, claiming ineffective assistance of counsel. The appellate court reversed and remanded for the resumption of plea negotiations, but the supreme court did not agree and affirmed the results reached in the circuit court. The supreme court found that the defendant failed to show he was prejudiced as an element of his claim of denial of the constitutional right to counsel. At a hearing held on this issue, the record showed that the defendant had hoped to prove he was actually innocent and wanted to go to trial. The circuit court found that the defendant’s statements to the contrary were incredible. The defendant had called a witness to testify that she had been riding in his car and that her now-deceased boyfriend, who had been with her then, was the shooter. This was contrary to, and a recantation of, a signed statement she had given to authorities after the incident. In addition, the fired-at driver testified that he had been offered money, by one claiming to be a friend of the defendant, to recant his incriminatory version of events. All of this indicated that any alleged inaccurate sentencing advice given by defense counsel was not the reason why Hale did not enter into a plea agreement.  The circuit court judgment was upheld and the appellate court was reversed.

2.  Criminal Law/Postconviction Petition: Reversed:   In this decision, the Illinois Supreme Court said that, in order to succeed on this postconviction claim of actual innocence, the claimant must present new, material, noncumulative evidence that is so conclusive it would probably change the result on retrial. This standard, which is difficult to meet, was announced some time ago in the supreme court’s decision in People v. Washington, 171 Ill. 2d 475 (1996). Although, in this appeal, the State argued for a more rigorous standard with roots in federal law, the Illinois Supreme Court, in this decision, reaffirmed its earlier holding and said that its commitment to Washington is unwavering. Although the State’s evidence at the original trial had been sufficient to convict, there was no forensic evidence linking the postconviction petitioner to the attack, and the identifications which the State did offer were significantly impeached. At the postconviction hearing, Coleman presented the testimony of five men who admitted that they were present at the crime scene and who said that he was not. Although the credibility of three of them could be challenged on retrial because of their voluntary intoxication and of four of them because of their criminal records, their versions of events were remarkedly consistent on certain key details. The State did not dispute that the evidence was new, material and noncumulative.  A circuit court’s decision to deny relief following an evidentiary hearing in such a case is reviewed for manifest error. The supreme court said, in this decision, that the trial court’s ruling that Coleman’s showing was not conclusive enough to probably change the result on retrial was manifestly erroneous.  The supreme court awarded postconviction relief in the form of a new trial, at which the fact finder could, in light of the new evidence, determine the credibility of the witnesses and balance the conflicting eyewitness accounts.  Justice Theis delivered the judgment of the court, with opinion. Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Karmeier, and Burke concurred in the judgment and opinion.

No. 2013 IL 113307   People v. Coleman    Filed 10-03-13 (RJC)

 In this Peoria County case, the Illinois Supreme Court ordered a new trial for Christopher Coleman, who was convicted by a jury for events which took place when several men entered a house in Peoria in 1994. He was originally sentenced to consecutive terms of 30 years for armed robbery and aggravated criminal sexual assault. The appellate court affirmed on direct appeal, and Coleman was not successful in his initial postconviction claims.  This decision concerns a claim of actual innocence raised in a successive postconviction petition filed in 2009. The circuit court held an evidentiary hearing at which Coleman called eight witnesses and the State called an investigating detective. Coleman’s claim was that he had not been a member of the attacking group.

3.  Domestic Relations: Affirmed:   The supreme court said the marriage statute reflects a policy of giving circuit courts discretion to do equity by making interim fee awards where parties in dissolution proceedings lack resources. The court said that the Dowling case and the rules enacted pursuant to it come from a different context and are not pertinent to a marriage dissolution proceeding. For example, the advance payment retainer argued for attorney James might be appropriate in special circumstances, such as bankruptcy or a forfeiture proceeding. Arguments raised by James based on separation of powers and statutory conflict with the rules were rejected.  Justice Burke delivered the judgment of the court, with opinion. Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Karmeier, and Theis concurred in the judgment and opinion.

No. 2013 IL 114779   In re Marriage of Earlywine    Filed 10-03-13 (RJC)


This dispute over interim attorney fees in a marriage dissolution proceeding comes from Stephenson County. Divorce proceedings were initiated by the husband in 2010 through his attorney, Thomas James, and were complicated by the fact that the couple had a three-year-old son. Both parties had debts and neither had the present ability to pay attorney fees, but the husband’s family contributed over $8,000 on his behalf, which was paid to attorney James.  Pursuant to the “leveling of the playing field” provisions of the Illinois Marriage and Dissolution of Marriage Act, the circuit court entered a “disgorgement” order for the husband’s attorney to turn over to the wife’s attorney half of the fees previously paid to him, or $4,000. The appellate court affirmed, and the supreme court, in this decision, agreed.  When attorney James received the money paid to him, an agreement was signed with the husband, designating that the sums were an “advance retainer” so as to become the attorney’s property at that point, rather than being placed in a client trust account. Attorney James argued that this was pursuant to the Illinois Supreme Court’s opinion in Dowling v. Chicago Options Associates, Inc., 226 Ill. 2d 277 (2007), and attorney disciplinary rules which were enacted pursuant to it. The applicable provision of the marriage statute dates from 1997.  The results reached in the courts below in this regard were affirmed.

2 Appellate Cases Posted 10-17-13

1.  Criminal Law: Affirmed:  The law regarding whether a judge may testify to his or her occupation where he or she is called to testify regarding a nonjudicial matter is not well established.  We therefore apply the abuse-of-discretion standard.  The trial court here did not abuse its discretion in denying defendant's motion in limine. Occupation is an ordinary part of the background information elicited from any witness. While a judge's occupation may lend an air of credibility to his or her testimony, the jury is still free to disbelieve the witness. The occupation and related background of the witness are regarded as having value in determining the credit to be given her testimony and may be inquired into as a matter of right, even though an illegal occupation is disclosed. Epstein, J.

No. 2013 IL App (1st) 100580 People v. Degorski Filed 10-16-13 (LJD)

Juan Luna and James Degorski were charged with multiple counts of first degree murder for the 1993 shooting deaths of seven employees of a Brown's Chicken restaurant in Palatine, Illinois. Following a severed jury trial, Degorski was convicted and sentenced to natural life imprisonment. He argues on appeal that he was denied a fair trial where (1) former Assistant State's Attorney Michael McHale testified that he was now a Cook County circuit court judge and that he believed defendant's confession was reliable, and (2) the trial court allowed the State to play a video depicting removal of several of the employees' bodies from a walk-in freezer. For the reasons that follow, we affirm.

2.  Parks & Recreation: Affirmed: Park Commissioners land Sale Act allows sales of under three acres and does not restrict number of parcels which may be sold.  In determining the intent of the legislature, the court may properly consider not only the language of the statute, but also the reason and necessity for the law, the evils sought to be remedied, and the purpose to be achieved. Howse, J.

No. 2013 IL App (1st) 110334  In re Application of the Park District of La Grange Filed 10-16-13 (LJD)

Gordon Park is an approximately 17-acre park near the intersection of La Grange Road and Ogden Avenue in La Grange, Illinois. On March 3, 2009 petitioner the park district of La Grange (Park District) filed an application to the circuit court of Cook County under the Park Commissioners Land Sale Act (Act) (70 ILCS 1235/1 et seq. (West 2008)) to sell two parcels of land in Gordon Park. Respondent the La Grange Friends of the Parks (Objector) filed an objection pursuant to the Act. Following a trial on the application, on October 8, 2010 the circuit court granted the application. For the following reasons, we affirm.

3 Appellate Cases Posted 10-16-13

1.  Special Intorrogatory to Jury: Affirmed: A special interrogatory is in proper form if "(1) it relates to an ultimate issue of fact upon which the rights of the parties depend, and (2) an answer responsive thereto is inconsistent with some general verdict that might be returned." A  special interrogatory's response is inconsistent with a general verdict only where it is "clearly and absolutely irreconcilable with the general verdict." The purpose of a special interrogatory is not to instruct the jury, but to serve as a check on the jury's deliberation and to enable the jury to determine one or more specific issues of ultimate fact. The special interrogatory in this case, although deceptively brief, asks whether Smart was contributorily negligent, and if so, whether his negligence was the proximate cause of his injuries and, if so, whether the negligence attributable to Smart was greater than 50%. Form of the interrogatoriy was also improper. Mason, J.

No. 2013 IL App (1st) 120901  Smart v. The City of Chicago  Filed 10-16-13 (LJD)

Following trial, the jury returned a general verdict in favor of Todd Smart, who was injured while riding his bicycle on a bicycle path on a city street that was in the process of being resurfaced by the City of Chicago (City). The City claims that a new trial is warranted because the trial court erroneously refused to (1) submit a special interrogatory and (2) tender its proffered premises liability issues instruction to the jury. On appeal, the City claims that its special interrogatory was in proper form, asked a single, direct question that was not prejudicial to Smart, and tested the jury's general verdict.  For the reasons stated below, we affirm.

2.  Post Conviction Petition: Affirmed: At the second stage of the post conviction proceedings, all well-pleaded facts not positively rebutted by the trial record are taken as true.  The circuit court does not engage in fact-finding or credibility determinations at the second stage; rather, such determinations are made at the evidentiary stage. The prosecution must disclose evidence that is favorable to the accused and material either to guilt or to punishment."  The standard for materiality under Brady is whether there is a reasonable probability that, had the evidence beendisclosed to the defense, the result of the proceeding would have been different.  Under this standard, a reviewing court does not consider the sufficiency of the evidence, but rather whether "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Mason, J.

No. 2013 IL App (1st) 111351  People v. Harris Filed 10-16-13 (LJD)

Following a jury trial, defendant Ricardo Harris was convicted of two counts of murder, one count of attempted murder and one count of aggravated battery with a firearm. Harris was sentenced to death on the murder counts, and to consecutive terms of 30 years each on the remaining counts. The Illinois Supreme Court affirmed Harris's convictions and sentence on direct appeal. People v. Harris, 225 Ill. 2d 1 (2007). Harris's death sentence was subsequently commuted to natural life.   Harris, assisted by counsel, filed a postconviction petition. The circuit court granted the State's motion to dismiss the petition.For the reasons that follow, we affirm the judgment of the circuit court of Cook County.

3.  Tax Deed: Affirmed in part and Reversed and Remanded in part: In simple form, the question of standing asks whether a certain party is entitled to have the court decide the merits of a particular issue or dispute.  The doctrine of standing requires that a litigant, either in  an individual or representative capacity, have a real interest in the action brought before the court and in its outcome.  To have standing to bring suit in Illinois, a party need only have some injury in fact to a legally cognizable interest.  A plaintiff is not required to allege facts to establish standing.  Instead, the burden is on the defendant to plead and prove a lack of standing. Specifically as to tax deed proceedings, to have standing to file a section 2-1401 petition to collaterally attack a tax deed, a petitioner must have bona fide title or interest in the property.  Although Lincoln Title did not have an ownership interest in the property, as the company that had issued a title insurance policy on the subject property, it clearly could have redeemed the taxes on the subject property on behalf of the owner, Salta. Three ways top set saide at tax deed list and discussed.  Carter, J.

No. 2013 IL App (3rd) 120999  In re Application of the County Treasurer  Filed 10-16-13 (LJD)

Proceedings revolving around a tax deed issued by the County of Will..For the reasons that follow, we affirm the trial court's orders denying the motion to dismiss and granting the section 2-1401 petition, we reverse in part the trial court's order denying the emergency motion, and we remand  his case with directions for further proceedings.

2 Appellate Cases Posted 10-15-13

1.  Criminal Law: Appeal Dismissed: A negotiated plea is "one in which the prosecution has bound itself to recommend a specific sentence, or a specific range of sentence, or where the prosecution has made concessions relating to the sentence to be imposed and not merely to the charge or charges then pending."  The procedural requirements, which require a motion to withdraw the guilty plea, under Rule 604(d) are a "condition precedent" for an appeal from a defendant's guilty plea.  Purposes of Rule 604(d) are listed and discussed.  Cunningham, J.

No. 2013 IL App (1st) 113789  People v. Merriweather   Filed 10-15-13 (LJD)

Following the entry of a negotiated guilty plea for aggravated unlawful use of a weapon in the circuit court of Cook County, defendant James Merriweather was sentenced to three years of imprisonment and a mandatory supervised release (MSR) term of two years. Subsequently, instead of filing a motion to withdraw his guilty plea, the defendant filed a pro se notice of appeal before the circuit court.  For the following reasons, we dismiss this appeal.

2.  Forum Non Conveniens: Affirmed:  Forum non conveniens is an equitable doctrine founded in considerations of fundamental fairness that allows a trial court to decline jurisdiction when another forum " 'would better serve the ends of justice.' "  The trial court, however,  should exercise its authority "only in exceptional circumstances when the interests of justice require a trial in a more convenient forum."  Furthermore, the doctrine recognizes that the plaintiff has a substantial interest in choosing a forum to vindicate his rights.  The trial court has broad discretion to determine a motion based on forum non conveniens and a reviewing court will not overturn the trial court's determination absent an abuse of discretion.  The trial court abuses its discretion when no reasonable person would take the view adopted by the trial court.  When a defendant challenges plaintiff's choice of forum, the trial court conducts an unequal balancing test to determine whether plaintiff's chosen forum prevails. Due to the deference accorded plaintiff's choice of forum, in most cases his choice will prevail unless inconvenience factors associated with the chosen forum "greatly outweigh" plaintiff's substantial right to choose where to try his case. Harris, J.

No. 2013 IL App (1st) 130033 Taylor v. Lemans Corporation   Filed 10-15-13 (LJD)

Defendants Lemans Corporation, Moose Racing, Parts Unlimited, and Gibbs Motor Corporation (collectively defendants) appeal from the order of the circuit court denying their motion to transfer plaintiff Jack Taylor's product liability complaint to another county on the grounds of forum non conveniens. On appeal, defendants contend the trial court erred in denying their motion to transfer where (1) it gave undue deference to Taylor's choice of forum; and (2) it incorrectly required defendants to show that each factor considered in the balancing test used to determine forum non conveniens strongly favored a transfer. For the foregoing reasons, we affirm.

7 Appellate Cases Posted 10-11-13

1.  Criminal Law: Affirmed: The exclusionary rule provides for suppression of evidence obtained in contravention of the fourth amendment’s protection against unreasonable searches and seizures. The purpose of the exclusionary rule is to deter officers from recklessly preparing searchwarrant affidavits and from obtaining warrants based on false or misleading information; suppression is warranted when it will further the purpose of the rule.  Probable cause exists if the totality of the facts and circumstances known to theaffiant are sufficient to warrant a person of reasonable caution to believe that an offense occurredand that evidence of that offense is at the location to be searched.  In other words, there must be an established nexus between the criminal offense, theitems to be seized, and the place to be searched.  Reasonableinferences may be drawn to establish the nexus; direct information is not necessary.  Lavin, J., dissent by Epstein, J.

No. 2013 IL App (1st) 113780  People v. Rojas   Filed 10-11-13 (LJD)

Defendant Juan Rojas was charged by information with two counts of unlawful use of aweapon by a felon. The trial court granted defendant’s motion to quash the search warrant andsuppress evidence. The State appeals, contending the trial court erred in finding the searchwarrant lacked probable cause to search defendant’s residence, and that the trial court erred infailing to apply the good-faith exception to the exclusionary rule when it suppressed theevidence against defendant.

2.  Crimina Law: Conviction Vacated: Theft involving breach of fiduciary obligation has one year statute of limitations ( from the date the proper prosecuting officer becomes aware of the offense).  The fundamental rule of statutory construction is to ascertain and give effect to the legislature's intent.  The best indicator of the legislature's intent is the language of the statute and its plain meaning.  Elements of the crime are listed.    Knecht, J., dissent by Pope, J.

No. 2013 IL App (4th) 120334 People v. Chenoweth Filed 10-11-13 (LJD)

In January 2012, following a bench trial, defendant, Barbara J. Chenoweth, wasfound guilty of unlawful financial exploitation of an elderly person (720 ILCS 5/16-1.3(a) (West2004)). In March 2012, defendant filed (1) a motion to vacate judgment and dismiss thecause due to the expiration of the statute of limitations and (2) a motion to vacate judgment anddismiss the cause due to failure of the State to prove defendant guilty beyond a reasonable doubt. In April 2012, the trial court denied both motions and defendant was sentenced to four years'probation and ordered to pay $32,266 restitution. 

3.  Post Conviction Petition:  Reversed and Remanded: In the first stage of review, the circuit court must examine the petition within 90 days ofits filing and either (1) enter an order dismissing it as frivolous or patently without merit or (2) docket it for further consideration at the second stage of the postconviction proceedings.  This 90-day time limit is mandatory.  If the court fails to enter an order dismissing apostconviction petition as frivolous or patently without merit within 90 days, it must docket the petition for second-stage proceedings.  A sentence in conflict with a statute is void and may be challenged at any time.  Steigmann, J.

No. 2013 IL App (4th) 120665 People v. Longbrake Filed 10-11-13 (LJD)

In October 2009, a jury convicted defendant, Erik C. Longbrake, of two counts ofunlawful delivery of a controlled substance (720 ILCS 570/401(d) (West 2008)). The trial court later sentenced him to concurrent five-year prison terms. As part of his sentence, the courtordered defendant to pay a $2,000 drug assessment for each count. In September 2011, this courtaffirmed defendant's convictions and sentences, but we did not issue our mandate until January18, 2012.   On October 13, 2011, defendant filed a petition for postconviction relief pursuantto the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2010)). On January6, 2012, the trial court sua sponte dismissed defendant's petition with leave to refile, concludingit was not ripe for review because defendant's appeal was still pending.  Plaintiff appeals, arguing that the trial court erred by (1) sua sponte dismissing his October 13, 2011, postconviction petition without prejudice and with leave to refile and (2) dismissing his petition as frivolous and patently without merit on May 16, 2012, more than 90 days after he first filed his petition. Defendant also argues that the $2,000 drug assessment for each count must be reduced to $1,000 each. We agree and reverse.

4.  Magnuson-Moss Warranty: Revewrsed and Remanded: Section 2-619 of the Code provides a defendant may file a motion for dismissal on nine different enumerated grounds, including "[t]hat the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." Because a section 2-619 motion admits the legal sufficiency of the complaint, filing such a motion after filing an answer, without requesting leave to withdraw the answer, is procedurally improper.   Section 2-619 motions "must be filed before the last date, if any, set by the trial court for the filing of dispositive motions".  However, filing an answer does not preclude a section 2-619 motion, even if it is procedurally improper, and a trial court has discretion to consider a section 2-619 motion filed outside the pleadings phase.   It is well settled that the 'affirmative matter' asserted by the defendant must be apparent on the face of the complaint;  otherwise, the motion must be supported by affidavits or certain other evidentiary materials.  Written warranties provided with consumer goods must be examined under the requirements of both the Act and the UCC.  A "warrantor" is "any supplier or other person who gives or offers to give a written warranty or who is or may be obligated under an implied warranty."  Where the warrantor makes a written warranty to the consumer, an implied warranty may not be disclaimed or modified but may be limited in duration to the duration of the written warranty.   A disclaimer of an implied warranty in violation of the Act is ineffective for state law purposes.  Knecht, J.

No. 2013 IL App (4th) 120943 Clemons v. Nissan North America, Inc. Filed 10-11-13 (LJD)

In June 2009, plaintiff, Latesha Clemons, filed a complaint against defendant, Nissan North America, Inc. (Nissan), alleging breach of written warranty pursuant to the Magnuson-Moss Warranty—Federal Trade Commission Improvement Act (Act) (15 U.S.C. §§ 2301 to 2312 (2006)) (count I) and breach of implied warranty (count II). Nissan is an automobile manufacturer. In June 2012, Nissan filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2010)), alleging the dealer which sold the vehicle disclaimed the warranties through an "as is" clause. In July 2012, the trial court granted Nissan's motion to dismiss.  Plaintiff appeals, arguing the trial court erred in granting Nissan's motion to dismiss because the manufacturer's warranty had not been disclaimed. We reverse and remand.

5.  Products Liabilloty/Asbestos: Affirmed: To survive a motion for summary judgment on the issue of exposure to adefendant's asbestos product, the plaintiff must satisfy the "frequency, regularity, and proximity"test, which requires that a plaintiff "show that the injured worker was exposed to the defendant's asbestos through proof that (1) he regularly worked in an area where the defendant's asbestos was frequently used and (2) the injured worker did, in fact, work sufficiently close to this area so as to come into contact with the defendant's product." Turner, J.

No. 2013 IL App (4th) 121042 Bowles v. Owens-Illinois, Inc.    Filed 10-11-13 (LJD)

In October 2009, plaintiff, Virginia Bowles, individually and as independentexecutrix of the estate of Jerald Bowles, deceased, filed suit against Owens-Illinois, Inc. (Owens-Illinois), John Crane, Inc. (John Crane), and other defendants, seeking damages in connectionwith decedent's lung cancer allegedly caused by his exposure to asbestos and/or asbestos-containing products. In June 2012, the trial court granted motions for summary judgment filedby Owens-Illinois and John Crane.  On appeal, plaintiff argues the trial court erred in granting the motions for summary judgment filed by Owens-Illinois and John Crane on her exposure counts. We affirm.

6.  Forcible Entry and Detainer: Affirmed in part and Reversed in Part:  In determining whether the trial court erred in entering a judgment in favor of plaintiff in an action brought under the Forcible Entry and Detainer Act, the standard of review is whether the ruling was against the manifest weight of the evidence.  The only matter to be resolved in an action for forcible entry and detainer is the right of possession.  When a lease contains an option to purchase and such an option is accepted and exercised according to its terms, it becomes a present contract for the sale of the property and the lease agreement extinguishes, thereby transforming the partes' relationship from lessor-lessee to vendor-vendee.  Once a lessee becomes a vendee, it then enjoys a complete defense to an action for eviction.  However, the lessee must exercise the option in strict conformity with all the conditions prescribed by the lessor, and the failure by the lessee to comply with those conditions renders any attempt to exercise the option ineffective in creating a binding sale contract. It is the intention of the landlord, not the tenant, that determines whether a holdover tenancy is to be created.  When assessing the reasonableness of fees, a trial court may consider a multitude of factors, including the nature of the case, its difficulty level, the skill and standing of the attorney, the degree of responsibility required, the usual and customary charges for similar work, and the connection between the litigation and the fees charged.  When a trial court reduces the amount requested in a fee petition, its ruing should include the reasons justifying such a reduction. Taylor, J.

No. 2013 IL App (1st) 122076 Wendy and William Spatz Charitable Foundation v. 2263 North Lincoln Corporation Filed 10-11-13 (LJD)

Defendants 2263 North Lincoln Corporation (Lincoln), Bobby Burleson and Kevin Killerman appeal from a judgment of the circuit court of Cook County in a forcible entry and detainer action, granting possession of real property with the common address of 2257-2263 North Lincoln Avenue, Chicago, Illinois (the property), in favor of plaintiff the Wendy and William Spatz Charitable Foundation (Spatz), which had acquired that property before defendants' lease expired. Defendants contend that the court erred in awarding possession to Spatz because before Spatz acquired the property, Lincoln had exercised its option to purchase the property from its prior owner, Victory Gardens Theater (VGT), and therefore, could not be evicted. On cross-appeal from the order, plaintiff contends that while the trial court properly awarded attorney fees to Spatz pursuant to the lease with defendant, it improperly reduced the amount of fees. Plaintiff further contends that the trial court erred in denying its holdover claim against defendant, in which plaintiff sought double rent for the time defendant occupied the property after the lease expired.

7.  Domestic Relations: Affirmed: Interim attorney's fees and costs may be awarded from the opposing party, in a pre-judgment dissolution proceeding in accordance with subsection (c-1) of Section 501, which provides that the trial court may assess attorney fees and costs in favor of the petitioning party's counsel while the case is still pending.  Except for good cause shown, a proceeding for (or relating to) interim attorney's fees and costs in a pre-judgment dissolution proceeding shall be nonevidentiary and summary in nature. The seeking party must demonstrate that she has the inability to pay and the other party has the ability to pay both parties' fees. The petition for interim fees and costs must be supported by one or more affidavits that delineate relevant factors which are listed in the opinion. W hen a party appeals from a contempt sanction imposed for violating an interim fee order, the contempt finding is final and appealable and presents to the reviewing court the propriety of the underlying order.   Palmer, J.

No. 2013 IL App (1st) 122882 In re Marriage of Patel  Filed 10-11-13 (LJD)

Petitioner Sonal Patel and respondent Vipul Patel are engaged in dissolution of marriage proceedings in the circuit court of Cook County. Respondent appeals from an order of the circuit court ordering him to pay petitioner's interim attorney fees and from the court's subsequent order finding him in indirect civil contempt and imposing sanctions for his failure to comply with the order to pay the attorney fees.  We affirm.

2 Appellate Cases Posted 10-9-13

1. Negligence/Jury Instructions/Special Interrogatory: Affirmed: The special interrogatory in this case, although deceptively brief, asks whether Smart was contributorily negligent, and if so, whether his negligence was the proximate cause of his injuries and, if so, whether the negligence attributable to Smart was greater than 50%. The City's special interrogatory is impermissibly compound because it would have required the jury to consider multiple questions relating to the cause of Smart's injuries. The form of the special interrogatory was in direct contradiction to the established rule that a special interrogatory must be phrased as a single, straightforward question. The special interrogatory was also not in proper form because its language was prejudicial to Smart.  In sum, the City's special interrogatory asked a question that was impermissibly compound and its introductory language was prejudicial to Smart. Also, the trial court did not err in refusing to tender the City's proffered premises liability instruction. Mason, J.

No. 2013 IL App (1st) 120901    Smart v. The City of Chicago    Filed 10-9-13 (RJC)

Following trial, the jury returned a general verdict in favor of Todd Smart, who was injured while riding his bicycle on a bicycle path on a city street that was in the process of being resurfaced by the City of Chicago (City). The City claims that a new trial is warranted because the trial court erroneously refused to (1) submit a special interrogatory and (2) tender its proffered premises liability issues instruction to the jury. On appeal, the City claims that its special interrogatory was in proper form, asked a single, direct question that was not prejudicial to Smart, and tested the jury's general verdict. The City also claims that its proffered premises liability issues instruction should have been tendered to the jury because: (1) Smart's claims relate to the street's condition; (2) the City was not engaging in any activity on the day of Smart's accident; and (3) it does not operate a business. For the reasons stated below, we affirm.

2. Criminal Law/Postconviction petition: Affirmed in part and vacated in part; cause remanded with directions: Defendant's procedural due process rights were not violated.  Circuit court did not err in denying defendant's motion to relitigate his motion to suppress statements. Defendant's sentence is vacated and renmanded for a new sentencing hearing so that defendant's mandatory sentence of natural life in prison without the possibility of parole is reconsidered in accordance with the principles set forth by the United States Supreme Court in Miller v. Alabama. Goldenhersh, J.

No. 2013 IL App (5th) 110112    People v. Johnson    Filed 10-9-13 (RJC)

Following trial, the jury returned a general verdict in favor of Todd Smart, who was injured while riding his bicycle on a bicycle path on a city street that was in the process of being resurfaced by the City of Chicago (City). The City claims that a new trial is warranted because the trial court erroneously refused to (1) submit a special interrogatory and (2) tender its proffered premises liability issues instruction to the jury. On appeal, the City claims that its special interrogatory was in proper form, asked a single, direct question that was not prejudicial to Smart, and tested the jury's general verdict. The City also claims that its proffered premises liability issues instruction should have been tendered to the jury because: (1) Smart's claims relate to the street's condition; (2) the City was not engaging in any activity on the day of Smart's accident; and (3) it does not operate a business. For the reasons stated below, we affirm. 

2 Appellate Cases Posted 10-7-13

1. Illinois Income Tax Act: Reversed and remanded: Given all of the facts, along with the treatment of Scioto by the IRS and the advantages of conformity with federal law, Scioto constituted an insurance company for federal income tax purposes and should have been treated in a similar fashion for purposes of the Illinois Income Tax Act. Turner, J.

No. 2013 IL App (4th) 110678    Wendy's International v. Hamer    Filed 10-7-13 (RJC)

In 2004, the Department of Revenue (Department) issued two notices of deficiencies for corporate income taxes against plaintiff, Wendy's International, Inc. (Wendy's). In 2008, Wendy's paid the notices under protest and filed two separate actions against defendants, Brian Hamer, in his official capacity as the Department director; the Department; and Alexi Giannoulias, in his official capacity as Treasurer of the State of Illinois, seeking to enjoin the imposition of corporate income taxes. Both parties filed motions for summary judgment. In July 2011, the trial court allowed  defendants' motion and denied Wendy's motion. On appeal, Wendy's argues the trial court erred in finding Scioto Insurance Company was not an insurance company for Illinois income tax purposes. We reverse and remand with directions.

2. Illinois Insurance Placement Liability Act/Illinois Insurance Code: Reversed and remanded: The court found that because Lessaris was an insurance "agent," rather than an insurance "broker," he did not owe plaintiffs a duty of care in procuring insurance coverage for them.  The trial court  erred in deciding to grant defendants' motions to dismiss based upon that finding. Under section 2-2201 of the Illinois Insurance Placement Liability Act (Act) (735 ILCS 5/2-2201 (West 2010)), the insurance agent-broker dichotomy no longer exists for purposes of duty of care.  Section 2-2201 of the Act eliminated the common-law distinction between insurance agents and brokers for purposes of duty of care. Steigmann, J.

No. 2013 IL App (4th) 120986    Skaperdas v. Country Casualty Insurance Company    Filed 10-7-13 (RJC)

In March 2012, plaintiffs, Steven A. Skaperdas and Valerie R. Day (on behalf of herself and as a representative of her son, Jonathan Jackson), sued defendants, Country Casualty Insurance Company (Country Casualty) and Tom Lessaris, seeking, in pertinent part, (1) to recover from Lessaris for his negligence in procuring insurance coverage from Country Casualty on plaintiffs' behalf and (2) a declaration of insurance coverage. In April 2012, Lessaris filed a motion to dismiss, arguing that he did not owe plaintiffs a duty of care in procuring insurance coverage. Shortly thereafter, Country Casualty filed a motion to dismiss, arguing that if the trial court determined that Lessaris cannot be liable to plaintiffs, Country Casualty could not be liable to plaintiffs for negligence under the theory of respondeat superior. Following a June 2012 hearing on defendants' motions to dismiss, the trial court granted both motions. The court found that because Lessaris was an insurance "agent," rather than an insurance "broker," he did not owe plaintiffs a duty of care in procuring insurance coverage for them. Plaintiffs appeal, arguing that the trial court erred by granting defendants' motions to dismiss, given that under section 2-2201 of the Illinois Insurance Placement Liability Act (Act) (735 ILCS 5/2-2201 (West 2010)), the insurance agent-broker dichotomy no longer exists for purposes of duty of care. Because we agree that section 2-2201 of the Act eliminated the common-law distinction between insurance agents and brokers for purposes of duty of care, we reverse and remand for further proceedings.

5 Appellate Cases Posted 10-4-13

1. Freedom of Information Act: Affirmed: Plaintiff's request to Illinois Attorney General that it produce under Freedom of Information Act "any and all" documents used, or that could be used by the Attorney General in complying with FOIA laws was unduly burdensome and the trial court properly granted summary judgment in favor of the Attorney General Holder White, J.

No. 2013 IL App (4th) 120742  Shehadeh v. Madigan  Filed 10-4-13 (TJJ)

In March 2012, plaintiff, Jamal Shehadeh, filed a complaint pursuant to the Illinois Freedom of Information Act, alleging the Attorney General was improperly withholding records. The previous month, plaintiff had requested from the Attorney General  "copies of any publications, opinions, reports or other records that would or could be used for guidance by [the Attorney General's] office or any other public body in complying with Illinois' FOIA laws." The Attorney General responded that complying  with plaintiff's request would be unduly burdensome under section 3(g) of FOIA. Following an August 2012 hearing, the circuit court granted the Attorney General's motion for summary judgment, dismissing plaintiff's complaint. Plaintiff appeals, arguing  the circuit court erred by granting summary judgment because (1) the Attorney General did not prove its search for records was adequate, (2) FOIA did not obligate plaintiff to narrow the scope of his search, and (3) the Attorney General failed to show the  production of plaintiff's requested records would unduly burden its operations. We affirm.

2. Criminal Law: Affirmed: Trial court properly denied defendant's pro se post-trial motion claiming that his trial counsel was ineffective  over defendant's claim that hearing was an actual "evidentiary hearing" rather than the initial preliminary hearing envisioned by People v. Krankel, 102 Ill.2d 181 (1984). Although procedure used by the trial court was improper- - in that it swore trial counsel to testify under oath and did not give defendant opportunity to cross-examine him- - any error was harmless beyond a reasonable doubt. Pope, J.

No. 2013 IL App (4th) 120981  People v. Jolly  Filed 10-4-13 (TJJ)

On July 19, 2012, this court remanded this case to the trial court " 'for the limited purpose of allowing the trial court to conduct the required preliminary investigation' to determine if a full evidentiary hearing" into defendant John Willie Jolly's pro se claims  of ineffective assistance of counsel should be held. People v. Jolly, 2012 IL App (4th) 110033-U, slip order at 4 (quoting People v. Moore, 207 Ill. 2d 68, 81, 797 N.E.2d 631, 640 (2003)). On September 26, 2012, the court held a hearing pursuant to this  court's order and ruled it would not appoint new counsel for defendant because "each of the allegations lacks merit and/or pertains to trial strategy." Defendant appeals, arguing the trial court's denial of defendant's request for new counsel must be reversed where the court "conducted a quasi-evidentiary hearing at which the State presented testimony and argument" instead of a preliminary hearing pursuant to People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984). We affirm.

3. Motor Vehicle Negligence: Affirmed: Trial court properly granted summary judgment to one defendant in motor vehicle accident case alleging personal injury, where pleadings and deposition testimony established that defendant struck rear of plaintiff's vehicle on interstate highway only after defendant and plaintiff swerved to avoid collision with second defendant whose car had crossed median and came into oncoming traffic. Knecht, J.

No. 2013 IL App (4th) 120985  Rettig v. Heiser  Filed 10-4-13 (TJJ)

In September 2011, plaintiff, Colleen K. Rettig, filed a complaint alleging negligence against defendants, Ricky P. Heiser and Diane M. Moore, following a vehicular collision between Heiser and Rettig. Moore is not a party in this appeal. Heiser, in July  2012, moved for summary judgment, alleging the facts show his conduct, in avoiding a head-on collision with Moore, was not the proximate cause of Rettig's injuries. The trial court agreed with Heiser and granted his motion. Rettig appeals, arguing  summary judgment was improper because (1) in a rear-end collision, the question of whether the rear driver is negligent is a question of fact for a jury to determine; (2) Heiser failed to cite authority in his summary judgment motion; (3) the emergency- doctrine defense was not pleaded as an affirmative defense or raised until Heiser's reply brief on summary judgment; and (4) no authority supports Heiser's position. We affirm.

4. Criminal Law: Affirmed: Trial court properly denied defendant's pre-trial motion "to quash arrest" over claim that video recording by police camera disputed officer's claim that rear registration plate light was out at time of stop, and defendant's flight from police was an intervening cause that obviated any illegality regarding the stop in any event; officer properly testified to events shown on police car video when defendant sought to fire gun at police; and defendant proved guilty beyond a reasonable doubt of attempt first degree murder where evidence established that defendant sought to fir gun at police, despite fact that gun did not fire. Steigmann, J. (Pope, sp. concurring).

No. 2013 IL App (4th) 121153  People v. Ramirez  Filed 10-4-13 (TJJ)

In September 2012, a jury convicted defendant, Jesus Ramirez, of two counts of attempt (first degree murder), armed violence, and possession with intent to manufacture-deliver a controlled substance (more than 900 grams of a substance containing  cocaine). The trial court later sentenced defendant to an aggregate 90 years in prison. Defendant appeals, arguing that (1) the trial court erred by not granting his "motion to quash arrest"; (2) plain error was committed when the trial court permitted a police  officer to testify about what he saw on a video recording; and (3) the State failed to prove him guilty beyond a reasonable doubt of attempt (first degree murder). We disagree and affirm.

5. Criminal Law: Affirmed: Despite testimony at trial by defendant's paramour that she did not know who beat her, prior statements by her and statements at arrest by defendant were sufficient to prove defendant guilty beyond a reasonable doubt, and question by prosecutor to officer to effect that "defendant did not declare his innocence, did he[during interrogation by officer and in face of numerous expletives by defendant alluding to his belief that "she" should have been beaten up, did not improperly shift the burden of proof. Appleton, J.

No. 2013 IL App (4th) 120394  People v. Appelt  Filed 10-4-13 (TJJ)

A jury found defendant, George A. Appelt, guilty of aggravated battery, and the trial court sentenced him to imprisonment for four years. Defendant appeals for two reasons. First, he argues the evidence is insufficient to support his conviction. Second, defendant argues the trial court abused its discretion by overruling his objection, and by denying his motion for a mistrial, on the ground that a question the  prosecutor asked a police officer during direct examination shifted the burden of proof to the defense. The prosecutor asked the police officer whether, in a statement that defendant made in the squad car, he declared his own innocence and suggested that  someone else had battered Jackson. (The police officer answered no.) Because this question did not imply that defendant had any obligation to present evidence in the trial itself, the question did not shift the burden of proof to the defense, and the court did  not abuse its discretion by overruling the objection and denying the motion for a mistrial. So, disagreeing with both of the arguments that defendant makes in this appeal, we affirm.

2 Appellate Case Posted 10-3-13

1.  Contribution Act: Affirmed: "The 'good faith' of a settlement is the only limitation which the Act places on the right to settle and it is the good-faith nature of a settlement that extinguishes the contribution liability of the settling tortfeasor."   The Act does not define "good faith," nor does it provide any procedural guidelines as to when or how a good-faith determination is to be made. Id. When deciding whether a settlement was made in good faith, the settling parties carry the initial burden of making a preliminary showing of good faith.  Once
the settling parties make a preliminary showing of good faith, the party challenging the good faith of the settlement must prove the absence of good faith by a preponderance of the evidence.  When a court decides whether a settlement was negotiated in good faith, it must strike a balance between the two important public policies underlying the Act–the encouragement of settlements and the equitable apportionment of damages among tortfeasors.  The fact that a settlement is advantageous to a party is not necessarily an indication of bad faith.  The disparity between the settlement amount and the damages sought in the plaintiff's complaint is not an accurate measure of the good faith of a settlement, and the small amount of the settlement alone does not require a finding of bad faith.    Hoffman, J., dissent by DeLort, J.

No. 2013 IL App (1st) 122674  Miranda v. The Walsh Group, LTD. Filed 10-3-13 (LJD)

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 affirm.

Traffic Court/DUI: Reversed and Remanded:  Collateral estoppel bars the litigation of an issue that has been fairly and completely resolved in a prior proceeding.  The prerequisites to applying collateral estoppel are (1) an identity of issues; (2) a final judgment on the merits in the prior proceeding; and (3) that the party against whom estoppel is asserted was a party, or is in privity with a party, in the prior proceeding.  However, even if the foregoing criteria are met, collateral estoppel should not be applied unless it is clear that doing so would not be unfair to the party to be estopped.  Probable cause to arrest exists when the facts the officer knows are sufficient to lead a reasonably cautious person to believe that the defendant has committed a crime.   McLaren, J.

No. 2013 IL App (2d) 121346  People v. Anderson  Filed 10-3-13 (LJD)

Defendant, Paul D. Anderson, was charged with driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2012)). He moved to quash his arrest and suppress evidence, contending that he had been arrested without probable cause. The trial court granted the motion. The State appeals, arguing that (1) collateral estoppel requires reversal, because the sole issue in this case, probable cause to arrest, was decided adversely to defendant when this court reversed the trial court’s rescission of the summary suspension of defendant’s driving privileges (People v.  nderson, 2012 IL App (2d) 120576-U); and (2) defendant’s arrest was supported by probable cause. We agree with the State’s second contention only, and we reverse and remand.

2 Appellate Case Posted 10-2-13

1.  Foreclosure: Affirmed:  For res judicata to apply, the party must show each of the following elements: (1) a final judgment on the merits rendered by a court of competent jurisdiction; (2) an identity of causes of action; and (3) an identity of the parties or their privies.  The transactional test considers separate claims as part of the same cause of action, even without substantial overlap in the evidence, as long as the claims "arise from a single group of operative facts, regardless of whether they assert different theories of relief."  Well-settled Illinois case law permits lenders to bring separate enforcement actions on the mortgage and the note. Hyman, J.

No. 2013 IL App (1st) 121964  Turczak v. First American Bank Filed 10-2-13 (LJD)

For plaintiffs to close a short sale, defendants, the second mortgagee and the law firm that represented the second mortgagee, conditioned the release of the second mortgage on plaintiffs paying $6,000. This payment forms the basis for plaintiffs' claims.  We affirm. Illinois law holds a lender may proceed in separate suits to enforce the mortgage and the underlying promissory note, and the second mortgagee's rights in the property were not extinguished as a matter of law.

2.  Premises LiabilityPublic Nuisance: Affirmed: A public nuisance is defined as the "doing of or the failure to do something that injuriously affects the safety, health or morals of the public, or works some substantial annoyance, inconvenience or injury to the public."   The  pleading must allege facts in support of the following four distinct elements of a public nuisance claim: (1) the existence of a public right; (2) a substantial and unreasonable interference with that right by the defendant; (3) proximate cause; and (4) injury.  The nuisance must affect an interest common to the general public, must produce a common injury, or be dangerous or injurious to the general public, or it must be harmful to the public health, or prevent the public from a peaceful use of their land and the public streets, or there must be some direct encroachment on public property.'  A public right is " 'collective in nature and not like the individual right that everyone has not to be assaulted or defamed or defrauded or negligently injured.' " A private nuisance, however, that interferes with public rights can also
constitute a public nuisance."   Welch, J., dissent by Goldenhersh, J.

No. 2013 IL App (5th) 120325  Burns v. Simon Properties Group, LLC Filed 10-2-13 (LJD)

The plaintiff, Mercedena Burns, appeals from the order of the circuit court of Madison County dismissing her three-count complaint filed against the defendant, Simon Properties Group, LLP, also known as Simon Property Group (Illinois), L.P., after she fell in a pothole and sustained injuries in a parking lot at the Alton Square Mall (mall). For the reasons which follow, we affirm the decision of the circuit court.

1 Appellate Case Posted 10-1-13

1. Real Estate Property Tax: Confirmed: Property Tax Appeal Board could properly conclude that property was worth an amount different than that claimed by either the municipality or the taxpayer, and here that decision was not against the manifest weight of the evidence. Schostok, J.

No. 2013 IL App (2d) 121031  Kraft Foods, Inc. v. Illinois Property Tax Appeal Board  Filed 9-30-13 (TJJ)

This is an action for direct review of a final administrative decision of the Illinois Property Tax Appeal Board (PTAB or Board). In its decision, the PTAB concluded that, for purposes of tax year 2007, the industrial property leased and occupied by taxpayer  Kraft Foods, Inc. (Kraft), had a total assessed value of $13,312,000, reflecting a fair market value of $40 million. Kraft, claiming an assessed value of $10,791,000 and a fair market value of $30 million, has appealed from the PTAB’s decision. We confirm the PTAB’s decision.

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