Illinois Supreme and Appellate Court Case Summaries

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

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4 Supreme Court Cases Posted 12-28-12

1. Res Judicata/Child Custody Evaluators: Appellate court and trial court affirmed: Mother's Section 1983 civil suit, brought (and dismissed) in federal court, constituted res judicata as to state court claim for intentional infliction of emotional distress brought by mother against psychiatrist based upon court-appointed psychiatrist's recommendations in domestic relations case. Note: Court expressly did not rule on evaluator's absolute immunity claim. (Kilbride, C.J. (Burke, J., sp. concurring).

No. 2012 IL 113227 Cooney v. Rossiter  Filed 12-28-12 (TJJ)

In this appeal, we address whether plaintiffs’ cause of action against a court-appointed psychological evaluator is barred by res judicata and absolute immunity. The trial court dismissed plaintiffs’ suit on both grounds. The appellate court affirmed the  dismissal on res judicata grounds and, alternatively, absolute immunity. For the reasons that follow, we affirm.

2. Appellate Jurisdiction/Mortgage Foreclosure: Appeal dismissed: Trial court action in entering a judgment and scheduling a final sale of mortgaged property was not final and appealable until the trial court entered an order approving the judicial sale and directing a distribution; mortgagor's notice of appeal filed after judgment of foreclosure, but before approval of distribution, was premature and Appellate Court properly dismissed appeal. Freeman, J. (Karmeier, J., dissenting).

No. 2012 IL 113419 EMC Mortgage Corporation v. Kemp  Filed 12-28-12 (TJJ)   

The issue in this case is whether appellate jurisdiction exists to consider a challenge to an order issued during the pendency of a mortgage foreclosure action. Because appellate jurisdiction does not exist, we dismiss the appeal.

3. Domestic Relations: Certified question answered, appellate court reversed, and remanded: In a bifurcated dissolution of marriage proceeding, the date for valuating marital property is the date the judgment of dissolution of marriage is entered, and not any later date or dates on which issues relating to distribution of marital assets may be litigated. Theis, J. (Garman, J., dissenting).

No. 2012 IL 113496 In re Marriage of Mathis  Filed 12-28-12 (TJJ)

This case presents a certified question for interlocutory review (see Ill. S. Ct. R. 308) from the Champaign County circuit court: “In a bifurcated dissolution [of marriage] proceeding, when a grounds judgment has been entered, and when there is a lengthy  delay between the date of the entry of the grounds judgment and the hearing on ancillary issues, is the appropriate date for valuation of marital property the date of dissolution or a date as close as practicable to the date of trial of the ancillary issues?” The  appellate court decided that the latter date was appropriate, pursuant to section 503(f) of the Illinois Marriage and Dissolution of Marriage Act. 2011 IL App (4th) 110301. For the reasons that follow, we reverse and remand for further proceedings.

4. Civil Procedure/Forum Non Conveniens: Appellate court and trial court reversed, and remanded: In FELA case alleging that plaintiff, a former railroad employee, suffered lung injuries from exposure to toxic chemicals, including asbestos, where plaintiff resided in Mississippi, where "vast majority" of witnesses, including treating physicians, resided in Mississippi, and where exposure took place in Mississippi and Louisiana, trial court denial of defendants' motion to dismiss based upon doctrine of forum non conveniens was error. Freeman, J. (Kilbride, C.J., dissenting).

No. 2012 IL 113812 Fennell v. Illinois Central Railroad Company  Filed 12-28-12 (TJJ)

The circuit court of St. Clair County denied the motion of defendant, Illinois Central Railroad Company, to dismiss a personal injury suit of plaintiff, William Fennell, based on interstate forum non conveniens. A divided panel of the appellate court  affirmed. 2012 IL App (5th) 100504. This court allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315. We now reverse the judgment of the appellate court and the order of the circuit court, and remand the cause to the circuit court with  directions to dismiss the action in accordance with our Rule 187(c)(2).

1  Appellate Case Posted 12-31-12

1.  Criminal Law: Affirmed: Illinois Supreme Court Rule 366(b)(2)(i) (eff. Feb. 1, 1994) provides that “[n]o party may raise on appeal the failure to give an instruction unless the party shall have tendered it.”  Pursuant to Illinois Supreme Court Rule 451(c) (eff. July 1, 1997), “ ‘substantial defects’ in criminal jury instructions ‘are not waived by failure to make timely objections thereto if the interests of justice require.’ ”  Hutchinson, J.

No.  2012 IL App (2nd) 110288  People v. Walker  Files 12-31-12 (LJD)

Following a jury trial, defendant, Semaj Walker, was convicted of first-degree murder under a felony-murder theory (720 ILCS 5/9-1(a)(3) (West 2006)) and sentenced to 32 years’ imprisonment. Evidence presented at defendant’s jury trial revealed that defendant beat the victim, James Keniski; the victim was taken to a hospital for treatment of his injuries; the victim was a Jehovah’s witness; and, based on religious reasons, the victim’s wife prohibited treating doctors from giving the victim a necessary blood transfusion. The victim died soon thereafter. At trial, defendant did not claim that the jury should be given the instruction on causation that may apply in felony murder cases. As a result, the jury was not given that instruction. On appeal, defendant claims for the first time that he was denied a fair trial when the trial court failed to give the instruction sua sponte. For the reasons that follow, we affirm.

12 Appellate Cases Posted 12-28-12

1.  Insurance Law: Reversed: Unless it contravenes public policy, an unambiguous insurance policy provision will be applied as written. Id. “Statutes are an expression of public policy.  The statute 625 ILCS 5/7-317(b)(2) mandates that a liability insurance policy insure the named insured and permissive users.  An insurance policy provision that conflicts with section 7-317(b)(2) violates public policy and will be deemed void.  Named-driver exclusions have been upheld by our courts.  However, in those cases, the excluded drivers were not the sole named insured.   Jorgensen, J.

No. 2012 IL App (2nd)  120296   American Access Casualty Company v. Reyes Filed 12-28-12 (LJD)

The facts in this automobile-insurance-coverage case are undisputed. In September 2007, plaintiff, American Access Casualty Company, issued an automobile insurance policy to defendant Ana Reyes. The policy’s statement of declarations listed Reyes as the “named insured,” as well as the titleholder to the insured vehicle, a 1999 Chrysler 300M. However, in the policy’s section identifying the “operators” of the vehicle, the policy listed two persons: (1) Reyes, with the notation “EXCLUDED” instead of a driver’s license number; and (2) Jose M. Cazarez, with an “out of country/international” driver’s license number.1 Further, Reyes executed an endorsement providing that plaintiff would not afford any coverage under the policy to any claim or suit that occurred as the result of Reyes operating any vehicle. Finally, the policy contained a provision excluding bodily injury and property-damage liability coverage for “any automobile while in control of an excluded operator.”  For the following reasons, we conclude that the provision excluding Reyes from liability coverage conflicts with relevant statutory requirements and, thus, violates public policy. Accordingly, we reverse and remand.

2.  Mortgage Foreclosure: Affirmed:  An appeal under Rule 307 does not open the door to a general review of all orders entered by the trial court up to the date of the order that is appealed.  A motion for substitution of judge is different from other orders, because it bears "directly upon the question of whether the order on appeal was proper.  The substitution of
judge issue could be heard on interlocutory appeal.  In order for a postjudgment motion to have the effect of tolling the time in which to appeal the judgment, that motion must be "directed against the judgment.  To qualify as a postjudgment motion within the meaning of the rule governing the time for filing notice of appeals, a motion must request at least one of the forms of relief specified in section 2-1203 of the Code (735 ILCS 5/2-1203 (West 2008)), namely, rehearing, retrial, modification, vacation, or other relief directed against the judgment.  Absent ambiguity, the intention of the parties is to be ascertained by the language of the contract and not by the construction placed on it by the parties.  If a court can ascertain its meaning from the plain language of the contract, there is no ambiguity.   Quinn, J.

No. 2012 IL App (1st)  110749 Bank of America, N.A. v. Freed Filed 12-28-12 (LJD)

This consolidated appeal arises out of an action by plaintiff, Bank of America, N.A., to foreclose a $205 million loan guaranteed by defendants, Laurance H. Freed and DDL LLC. On appeal, defendants argue that the trial court erred by: (1) entering a judgment against them in the amount of $206,700,222.39, pursuant to a "carve-out" provision of the guaranty that required them to pay the full amount due, plus costs and interest, if they took "any action" in connection with the appointment of a receiver or the foreclosure of the lien; (2) denying their motion for a substitution of judge as of right in the citation to  discover assets proceeding that was commenced after the foreclosure judgment was entered; and (3) entering charging orders against 72 limited liability companies and limited partnerships in which defendants have an interest, where those entities were not made parties to the action. For the reasons set forth below, we affirm the trial court.

3.  Consumer Lease Act/Attorneys Fees/Appellate Jurisdiction: Affirmed in part, reversed in part, vacated in part; cause remanded with directions:  Absent a timely-filed posttrial motion, a trial court loses jurisdiction over a case pending before it 30 days after the entry of a final judgment terminating the litigation. After the expiration of that 30-day period, the trial court lacks the necessary jurisdiction to amend, modify or vacate its judgment.  There are recognized exceptions to that jurisdictional rule; a court may at any time modify its judgment to correct a clerical error or matter of form so that the record conforms to the judgment actually rendered.   This power may not, however, be employed to correct judicial errors or supply omitted judicial action.  A judicial error occurs when the judge commits an error in performing a judicial function.  The circuit court's "inadvertent omission" of the number of hours in its calculation of the attorney fees was a judicial error. Discussion of the requirements of the Consumer Leasing Act and the Consumer  Fraud act.   Hall, J.

No. 2012 IL App (1st)  111889 Robinson v. Point One Toyota, Evanston Filed 12-28-12 (LJD)

The plaintiffs, Emma J. Robinson and Latanya Kemp, appeal from an order of the circuit court of Cook County awarding partial summary judgment to the defendants, Toyota Motor Credit Corporation (TMCC) and River Oaks Toyota on the plaintiffs' joint claims under the federal Consumer Leasing Act (15 U.S.C §§1667a, 1667b (1994) (the CLA)). The defendants filed a cross-appeal and a separate appeal challenging the circuit court's jurisdiction.  On appeal from the circuit court's dismissal of the second amended complaint, this court ruled that res judicata barred the plaintiffs' joint CLA claims. We affirmed the circuit court's dismissal of the state claims but reversed the dismissal of the breach of contract claim.  On further review, the supreme court held that the joint CLA claims were not barred by res judicata but agreed that the plaintiffs failed to state a claim for violations of the Consumer Fraud Act. Accordingly, the supreme court reversed the judgment of this court and remanded the cause to the circuit court for further proceedings on the CLA counts.  After a stipulation, the trial court entered judgement on the Consumer Lease Act in favor of plaintiff's and in favor of defendant on the Consumer Fraud Count.  Attorneys fees were awarded.  More than 30 days later, plaintiff filed a motion to correct the order for fees. 

4.  Attorneys Fees: Affirmed:  The purpose of the Mechanics Lien Act is to protect those who, in good faith, furnish material or labor for construction of buildings.   A lienable improvement includes labor or services in improving land or a structure on the land, and performing any services or incurring any expense for an architect, structural engineer, or professional engineer. Attorney services are not covered by the Mechanics Lien Act; rather, they are covered by the Attorneys Lien Act.  A lien is a charge on property or personalty for the payment of a debt.  If properly recorded, it encumbers property to secure payment of the debt.   Quinn, J.

No. 2012 IL App (1st)  112971 Pedersen and Houpt, P.C. v. Main Street Village West Filed 12-28-12 (LJD)

After questions were raised by the trial court regarding the propriety of a law firm’s attempt to collect an attorney fees lien in a pending mechanic's lien case, the law firm filed a foreclosure action seeking payment of its attorney fees and priority over all mechanic's lien claimants. The trial court ruled that the Attorneys Lien Act (770 ILCS 5/0.01 et seq. (West 2010)), unlike the Mechanics Lien Act (770 ILCS 60/0.01 et seq. (West 2010)), and other statutes, did not provide for foreclosure as a mechanism to collect a statutory attorney fees lien and dismissed the action. This appeal by the law firm followed. For the reasons that follow, we affirm.

5. Administrative Review/ Income Tax: Affirmed in part and Reversed in part:  In administrative cases, our role is to review the decision of the administrative agency, not the determination of the circuit court. The applicable standard of review depends upon whether the question presented is one of fact, one of law, or a mixed question of fact and law. Discussion of the Illinois Income Tax Act and the regulations issued by the Department of Revenue to implement it.  Should the Department find that the return filed by the taxpayer understates the actual amount of tax owed, the Income Tax Act provides two relevant ways that the Department may seek to assess and collect that underpayment: (1) by summarily correcting a simple "mathematical error" on the return; and (2) with respect to other reasons for an understatement of tax, by issuing the taxpayer a "notice of deficiency" and proceeding with a more involved administrative procedure.  Rochford, J.

No. 2012 IL App (1st)  113053 AT&T Teleholdings, Inc. v. The Department of Revenue Filed 12-28-12 (LJD)

Defendants-appellants, the Department of Revenue (Department) and Brian A. Hamer, Director of Revenue (Director), 1 have appealed from an order of the circuit court reversing the Director's administrative decision to deny a corporate income tax refund to plaintiff-appellee, AT&T Teleholdings, Inc., f/k/a SBC Teleholdings, Inc., f/k/a Ameritech Corporation (Ameritech). For the following reasons, the judgment of the circuit court is affirmed in part and vacated in part.

6.  Estates and trusts: Affirmed:  In construing a contract, the court's primary objective is to give effect to the intent of the parties and because the contract's language is the best indicator of the parties' intent, a court should therefore abide by its plain language.  While the word "specific" is not defined in the Agreement, an undefined term in a contract will be given its plain and ordinary meaning, which is found in its standard dictionary definition.  Simon, J.

No. 2012 IL App (1st)  113384 Laport v. MB Financial Bank, N.A Filed 12-28-12 (LJD)

Plaintiff, Jody Laport, appeals from an order of the circuit court of Cook County granting the motion to dismiss her complaint filed by defendant, MB Financial Bank, N.A. On appeal, plaintiff contends that the court erred by dismissing her complaint on the basis that she did not comply with the terms of the parties' contract or Illinois law in directing defendant to take certain actions. For the reasons that follow, we affirm.

7.  Criminal Law: Reversed: When faced with a challenge to the sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  For an attempt crime, the elements are the intent to commit a specific offense (in this case, being an armed habitual criminal) and “any act that constitutes a substantial step toward the commission of the offense.”   A person commits the offense of
being an armed habitual criminal if he receives, sells, possesses, or transfers any firearm after having been convicted two or more times of any combination of the following: (1) a forcible felony; (2) various felonies; or (3) a Class 3 or higher drug offense.   Burke, J.

No.  2012 IL App (2nd) 110187  People v. Lipscomb-Bey Filed 12-28-12 (LJD)

Following a jury trial, defendant, John K. Lipscomb-Bey, was convicted of two counts of being an attempted armed habitual criminal  and one count of possession of a controlled substance.  He was sentenced to concurrent terms of 20 years’ imprisonment for the attempt convictions, to be  served consecutively with a 6-year term for the drug conviction. On appeal, defendant argues that: (1) the evidence was insufficient to show a substantial step for the attempt crimes; (2)  the speedy-trial term had run on the attempt charges, because they were subject to compulsory joinder; and (3) one of the attempt convictions must be vacated under the one-act, one-crime doctrine. We agree with  defendant’s first argument and therefore reverse his convictions of being an attempted armed habitual criminal.

8.  Criminal Law: Affirmed in Part and Vacate in Part: While a defendant on bail must make a demand for a speedy trial to commence the running of the statute, such a demand is not required of a defendant who remains in custody after arrest, for whom the 120-day period begins to run automatically. Pretrial delays caused by the defendant or by the parties’ agreement are not counted in determining the speedy-trial period. A “[d]elay shall be considered to be agreed to by the defendant unless he or she objects to the delay by making a written demand for trial or an oral demand for trial on the record.” The defendant has the burden of establishing a violation of his or her speedy-trial rights.  If a defendant is not tried within the statutorily mandated period, the charges against him must be dismissed.  Generally, a trial court’s determination of who is responsible for a delay is entitled to deference and will be affirmed absent an abuse of discretion.  The word “delay,” as used in the amended version of section 103-5(a), refers to any action by either party or the trial court that moves the trial date outside of the 120-day period.  A defendant may not do is acquiesce in the setting of a date outside the period, then later obtain a dismissal on the ground that he was denied a speedy trial.”   Under the one act, one-crime rule, multiple convictions may not be based on the same physical act.  Schostok, J.

No.  2012 IL App (2nd) 110606 People v. Brexton Filed 12-28-12 (LJD)

Following a bench trial, defendant, James A. Brexton, was convicted of burglary (720 ILCS 5/19-1(a) (West 2008)), retail theft (720 ILCS 5/16A-3(a) (West 2008)), and theft by emergency exit (720 ILCS 5/16A-3.5 (West 2008)). On appeal, defendant argues that his convictions must be vacated because he was denied his right to a speedy trial. Defendant alternatively argues that his retail theft conviction should be vacated under the one-act, one-crime rule. We agree with defendant’s second argument and therefore affirm in part and vacate in part.

9.  Arbitration: Reversed and Remanded:  The Act does not control which issues are subject to arbitration, and whether an issue is subject to arbitration is governed by the agreement between the parties.  Courts generally construe “generic” arbitration clauses broadly, concluding that the parties are obligated to arbitrate any dispute that arguably arises under an agreement containing a “generic” provision.  When the language of an arbitration clause is broad and it is unclear whether the subject matter of the dispute falls within the scope of [the] arbitration agreement, the question of substantive arbitrability should initially be decided by the arbitrator.  Merely because the Act is silent with respect to motions to reconsider, the Act precludes an arbitrator from entertaining such a motion if doing so is consistent with the parties’ agreement.  We hold that when, as here, the parties’ agreement is silent with respect to an arbitrator’s authority to entertain a motion to reconsider, the decision of whether such a motion may be entertained pursuant to the parties’ agreement should be left to the arbitrator in the first instance. Hutchinson, J.

No.  2012 IL App (2nd) 111277   Smola v. Greenleaf Orthopedic Associates, S.C. Filed 12-28-12 (LJD)

Plaintiff, Steven Smola, brought the current matter, alleging a personal injury claim against defendants, Greenleaf Orthopedic Associates, S.C., BQMCC, LLC, and Tomassetti Landscaping, Inc. Plaintiff alleged that he slipped and fell on “black ice” in a parking lot owned and maintained by defendants, causing injuries to his shoulder. The trial court dismissed plaintiff’s claim with prejudice, pursuant to the parties’ agreement to resolve the controversy by way of binding arbitration; the trial court retained jurisdiction to adjudicate liens and to enforce the terms of the arbitration award. The trial court concluded that the award was “final and binding upon the parties” and that plaintiff was barred from filing with the arbitrator a motion to reconsider the award. Contending that the trial court erred by finding that the award was final before the arbitrator ruled on plaintiff’s motion to reconsider, plaintiff now appeals. For the following reasons, we reverse and remand.

10.  Traffic/Statutory Summary Suspension: Affirmed: 4 bases for relief from Statutory Summary Suspension listed and 5th "Other issues" discussed.   There is no provision for reducing the period of the suspension.  An allegedly improper length of suspension otherwise imposed by the Secretary of the State is not one of the reasons the court can grant recission.   Schostok, J., McLaren, J. specially concurring

No.  2012 IL App (2nd) 120050  People v. Mayor Filed 12-28-12 (LJD)

Defendant, Ryan Mayor, appeals from the trial court’s order denying his petition to rescind the summary suspension of his driving privileges and from the court’s subsequent order denying his motion for reconsideration. He argues that he is entitled to rescission because the Secretary of State erroneously imposed a three-year suspension after erroneously determining that he was not a “ ‘first offender’ ” under section 11-500 of the Illinois Vehicle Code (the Code) (625 ILCS 5/11-500 (West 2010)). We affirm.

11.  Criminal Law: Reversed and remanded: Having thus implied that establishing probable cause requires some evidentiary foundation for an officer’s identification of a particular odor as that of burnt marijuana, the court refused to “define the exact number of training hours or employment years necessary to render an officer’s belief reliable.”  The great weight of foreign authority holds that, in a case involving raw rather than burnt marijuana, “the smell of marijuana [is] alone sufficient to furnish probable cause to search a vehicle without a warrant, at least where there is a sufficient foundation as to expertise."    Zenoff, J.

No.  2012 IL App (2nd) 120307  People v. Smith Filed 12-28-12 (LJD)

Defendant, Louis M. Smith, was charged with unlawful possession of cannabis (720 ILCS 550/4(b) (West 2010)) and unlawful possession of drug paraphernalia (720 ILCS 600/3.5(a) (West 2010)). He moved to suppress evidence that the arresting officer obtained after a traffic stop. The trial court granted the motion, holding that the officer’s testimony that he smelled the odor of fresh cannabis did not provide the probable cause needed to extend the stop and search the vehicle. The State appeals. We reverse and remand.

12.  Civil Discovery Sanctions: Affirmed:   Rule 219(c) provides that, if any party unreasonably fails to comply with discovery rules, the court, upon motion, may enter remedial orders, including barring a witness from testifying. Ill. S. Ct. R. 219(c) (eff. July 1, 2002). Additionally, the court may order the offending party to pay the other party reasonable expenses incurred  as a result of the misconduct, including a reasonable attorney fee. Id. Rule 219(c) provides that the trial court shall set forth with specificity the reasons and basis for any sanction either in the judgment order itself or in a separate written order.  A sanction ordering dismissal or that results in a default judgment is a drastic one to be invoked only in those cases where the  party’s actions “show a deliberate, contumacious or unwarranted disregard of the court’s authority.”  The factors a trial court is to use in determining a sanction listed and discussed. Schostok, J.

No.  2012 IL App (2nd) 120589  Rosen v. The Larkin Center, Inc.   Filed 12-28-12 (LJD)

Plaintiff, Donald Rosen, appeals two trial court orders that contributed to the grant of summary judgment in favor of defendants, The Larkin Center, Inc., and Dennis Graf1; Larkin is an agency that provides special education and care to students through its therapeutic day school. Those orders that plaintiff appeals are: (1) the discovery sanction barring plaintiff from testifying; and (2) the denial of plaintiff’s motion for leave to file an amended complaint. We affirm.

6 Appellate Cases Posted 12-27-12

1.  Unemployment insurance benefits: Reversed: Where the evidence showed that Armstrong was given five warnings and a memorandum regarding her tardiness or poor work performance, the chronic nature of the infractions, and the harm caused to Alternative Staffing and its employees, the Board's decision that Armstrong did not deliberately and willfully violate the employer's policies and procedures is clearly erroneous.  Cunningham, J. 

No. 2012 IL App (1st)  113332    Alternative Staffing, Inc. v. Illinois Department of Employment Security Filed 12-21-12 (RJC)

Plaintiff Alternative Staffing, Inc. (Alternative Staffing), discharged its employee, defendant Elizabeth Armstrong (Armstrong), for misconduct, and Armstrong applied for unemployment insurance benefits. Armstrong's claim with the Illinois Department of Employment Security (IDES) was initially denied, but on appeal, the Board of Review ultimately found her eligible for unemployment benefits, and the circuit court of Cook County affirmed that decision. Alternative Staffing now challenges that ruling on appeal. The Board's decision awarding Armstrong unemployment benefits is reversed.

2.  Criminal Law: Reversed: This appeal presents an issue of statutory construction.  An information setting forth offenses not charged at the preliminary hearing but arising from the same transaction as that involved at the preliminary hearing does not violate due process. Here, the dismissed counts arose from the same conduct as the aggravated vehicular hijacking and armed robbery counts of the preliminary hearing. The State presented sufficient evidence to meet the requirements of section 111-2(f) of the Code, and the trial court erred in dismissing the counts of being an armed habitual criminal, unlawful use of a weapon by a felon, and unlawful use or possession of a weapon by a felon. Cunningham, J. 

No. 2012 IL App (1st)  110801     People v. Velez Filed 12-21-12 (RJC)

This appeal arises from a January 21, 2011 order entered by the circuit court of Cook County which granted defendant-appellee, Raymond Velez's motion to dismiss one count of being an armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2010)), and two counts of unlawful use of a weapon
by a felon (720 ILCS 5/24-1.1(a) (West 2010)). On appeal, the State argues that the trial court erred in dismissing the counts for being an armed habitual criminal and unlawful use of a weapon by a felon. Reversed and remand. 

3.  Criminal Law: Affirmed: The fact that the reconstituted jury reached a verdict after a shorter length of time than that of the original jury's initial deliberations, in no way established that the reconstituted jury disobeyed the trial court's instructions to begin deliberations anew.  The defendant suffered no prejudice and was not deprived of a fair trial. Therefore, we hold that the trial court did not abuse its discretion in replacing Juror Chacon with Juror Boone after jury deliberations commenced. The trial judge instituted the use of the alternate juror exactly as the process was intended to be used. Viewing the evidence in the light most favorable to the State,  State proved beyond a reasonable doubt that the defendant was guilty of both first-degree murder and attempted first-degree murder. Cunningham, J. 

No. 2012 IL App (1st)  102687     People v. Carrilalez Filed 12-21-12 (RJC)

Following a jury trial in the circuit court of Cook County, defendant Jose Carrilalez1 was convicted of one count of first-degree murder and two counts of attempted first-degree murder. Subsequently, he was sentenced to 45 years of imprisonment for the first-degree murder conviction and two concurrent 20-year prison terms for the attempted first-degree murder convictions. On appeal, the defendant argues that: (1) the State failed to prove beyond a reasonable doubt that he was guilty of first-degree murder and attempted first-degree murders; and (2) the trial court abused its discretion when it replaced a juror with an alternate juror after deliberations had begun. Affirmed.

4.  Worker's Compensation: Judgment vacated and remanded: A judgment is final if it determines the litigation on the merits, and it is not final if the order leaves disputed matters pending and undecided.  Section 19(e) of the Workers' Compensation Act provides, in relevant part, that "a decision of the Commission shall be approved by a majority of a panel of 3 members of the Commission ***." In this case, the record affirmatively demonstrates that there was no approval by a majority of the 3-member panel of commissioners with regard to the claimant's entitlement to a permanent disability award. In the absence of a final determination by the Commission, the circuit court lacked the requisite subject-matter jurisdiction to entertain this matter and enter its order confirming the Commission's decision. Hoffman, J.

No. 2012 IL App (1st)  1113130WC    University of Illinois Hospital v. Illinois Workers' Compensation Commission Filed 12-21-12 (RJC)

Both the claimant, Martha Aragon, and the University of Illinois Hospital (University Hospital) have appealed from an order of the Circuit Court of Cook County which confirmed a decision of Illinois Workers' Compensation Commission (Commission), awarding the claimant certain benefits pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2008)), for injuries she allegedly received while in the employ of University Hospital. We consolidated the two appeals for review. For the reasons that follow, we vacate the judgment of the Nos. 1-11-3130WC and 1-11-3182WC (Consolidated) circuit court, and remand the cause to the Commission for entry of a final decision with regard to the claimant's request for permanent disability benefits.

5.  Criminal Law\Post-conviction petition: Reversed and remanded: Under Brady, due process requires the State to disclose evidence that is both favorable to the accused and "material" to either guilt or punishment. Commingling the contents of the 15 bags into 1 bag before sending the contents to the crime laboratory for analysis is, arguably, evidence material to guilt or punishment. According to defendant's affidavit, the State never informed the defense of this commingling before entering into a stipulation. The record does not appear to contradict defendant in this respect; indeed, in the trial transcript, both attorneys seem to speak of the commingling as a surprise to the defense.   "Prejudice" in connection with ineffective assistance applies equally to the Brady claim. Therefore, the postconviction petition raises an arguable violation of due process along with the arguable claim of ineffective assistance. Appleton, J.

No. 2012 IL App (4th)  110463    People v. Coleman Filed 12-24-12 (RJC)

Defendant, Cassian T. Coleman, who is serving a sentence of 25 years' imprisonment for unlawful delivery of a controlled substance (720 ILCS 570/401(a)(2)(D) (West 2006)), appeals from the summary dismissal of his petition for postconviction relief. See 725 ILCS 5/122-2.1(a)(2) (West 2010). The petition is not based entirely on "indisputably meritless legal theor[ies] or *** fanciful factual allegation[s]". Reversed and remanded.

6.  Criminal Law\Post-conviction petition: Affirmed: App. Crt. does not finds prejudice to be even "arguable" in this case, and is unconvinced that a rational defendant would have forgone the mitigating benefit of a guilty plea in order to try to meet the State's overwhelming evidence with the marginally probative evidence in his affidavits. Petition is found to be "frivolous" and "patently without merit." Appleton, J.

No. 2012 IL App (4th)  110455    People v. Gray Filed 12-24-12 (RJC)

Defendant, DeMarco C. Gray, appeals from the summary dismissal of his petition for postconviction relief. Affirmed.

1 Appellate Case Posted 12-26-12

1.  Criminal Law\Post-conviction petition: Affirmed: Here, the legal chain of causation connecting the stab wound to the victim’s arm, inflicted by defendant, to the victim’s ultimate death was unbroken. Consequently, defendant has not satisfied the first Strickland prong, that his appellate counsel’s performance was deficient. As defendant failed to demonstrate that counsel’s performance was deficient, we need not consider whether he was prejudiced by counsel’s performance. The issues of compulsory joinder and speedy trial are forfeited as they were not raised in the postconviction petition.  Zenoff, J. 

No. 2012 IL App (2d) 110695     People v. Mars Filed 12-26-12 (RJC)  

Defendant, Mark R. Mars, appeals from an order of the circuit court of Lake County dismissing his postconviction petition at the first stage. Defendant contends that the trial court erred in dismissing his petition at the first stage, because the petition sufficiently alleged that appellate counsel was ineffective for not challenging the State’s causation evidence and for not arguing that the 2007 indictment should have been dismissed because it charged offenses subject to compulsory joinder with the 2005 indictment and violated defendant’s right to a speedy trial.We affirm.

4 Appellate Cases Posted 12-24-12

1.  Criminal Law\UUW\Sentencing: Affirmed and remanded: Easley's prior conviction of UUW elevated his current UUW conviction under section 24–1.1(e), which states that "any second or subsequent violation shall be a Class 2 felony for which the person shall be sentenced to a term of imprisonment of not less than 3 years and not more than 14 years."  The trial court sentenced Easley to a Class 2 term of nine years which is well within the range authorized by the statute. Therefore, Easley's sentence did not constitute an improper second enhancement.  In the instant case, the defendant does not argue that his conviction under section 24-1.1 was 'enhanced' from section 24-1. Rather, defendant argues that his Class 2 conviction under section 24-1.1 is 'enhanced' from the Class 3 version of the offense found in section 24-1.1. The parties agree that the State gave defendant notice of the prior offense they were relying on, but they did not state their intention to seek an enhanced sentence.  When the State fails to comply with the requirements of section 111-3(c), the proper remedy is to vacate the defendant's enhanced sentence.  Harris, J. 

No. 2012 IL App (1st) 110023      People v. Easley Filed 12-24-12 (RJC) 

Defendant, Christopher Easley, appeals his conviction after a bench trial of unlawful use of a weapon (UUW) by a felon and his sentence of nine years' imprisonment. On appeal, Easley contends (1) he was subjected to improper double enhancement where his prior felony conviction of UUW was used both as an element of his current offense of UUW and used by the trial court to impose a harsher sentence; and (2) the trial court abused its discretion in sentencing him where it failed to give proper consideration to mitigating factors such as his employment, education, family circumstances and relationships, lack of violent criminal history and remorse. For the following reasons, we affirm Easley's conviction for unlawful use of a weapon by a felon, reduce the classification of this conviction from a class 2 to a class 3 felony, and remand for a new sentencing hearing.

2.  Criminal Law\UUW\Sentencing: Affirmed in part, reversed in part ans remanded for resentencing: In this case, the State charged defendant with two counts of unlawful use of a weapon by a felon, but it did not say in the charging instrument what class of the offense it sought to charge defendant. Under section 111-3(c) of the Code of Criminal Procedure, the State was required to give defendant notice that it would seek to increase his classification of offense from a class 3 offense to a class 2 offense. It failed to do so here.  Although defendant was convicted of two counts of unlawful use of a weapon by a felon, the circuit court intended to merge those two counts as shown by its specific statement that the counts merge.  Accordingly, the mittimus should be further corrected to reflect defendant's conviction for only one count of unlawful use of a weapon by a felon.  Harris, J. 

No. 2012 IL App (1st) 110959        People v. Whalum Filed 12-24-12 (RJC) 

A jury convicted defendant, Damian Whalum, of unlawful use of a weapon by a felon. 720 ILCS 5/24-1.1(a),(e) (West 2010). The circuit court sentenced defendant to a ten-year prison term pursuant to the mandatory class X sentencing provision in section 5-4.5-95(b) of the Uniform Code of Corrections based on defendant's prior convictions in the state of Wisconsin. 730 ILCS 5/5-4.5-95 (b) (West 2010). Defendant first asks this court to review, under either  People v. Sprinkle, 27 Ill. 2d 398 (1963), or under the second prong of the plain error doctrine, whether the circuit court improperly limited his counsel's cross-examination of the arresting officer. We decline to review the merits of defendant's argument under either the Sprinkle doctrine or the plain error doctrine because the circuit court properly limited defense counsel's cross-examination of the arresting officer. Defendant also raises several issues regarding his sentence.  The parties, however, dispute the following issues: whether the circuit court erred in enhancing defendant's sentence from the class 3 range into the class 2 range and whether defendant's mittimus should be corrected to reflect that he was convicted of only one count of unlawful use of a weapon by a felon. Based on the resolution of these two sentencing issues, defendant's mittimus needs further correction, according to statute, to reflect the proper amount of mandatory supervised release defendant shall serve. We hold the circuit court erred when it sentenced defendant as a class X offender and when it sentenced defendant in the class 3 range for the offense of unlawful use of a weapon by a felon. We order the mittimus be corrected to reflect the following: the proper amount of presentence custody credit, the correct term of mandatory supervised release, and that defendant be sentenced to only one count of unlawful use of a weapon by a felon.

3.  Real Estate\Quiet Title: Affirmed:  In order to maintain an action to quiet title one must hold title to the property.  CTLT does not have title to the property in question.  Without title to the property in question, CTLT lacks standing to file an action to quiet title  and the trial court properly dismissed its complaint to quiet title for lack of standing.  Harris, J. 

No. 2012 IL App (1st) 120817     Harris, N.A. v. Sauk Village Development, LLC Filed 12-24-12 (RJC)

Third party plaintiff, Chicago Title Land Trust Company (CTLT), appeals the judgment of the circuit court denying its motion filed pursuant to section 2-1203 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1203 (West 2008)), to reconsider and vacate orders dismissing the amended third party complaint and approving the judicial sale. On appeal, CTLT contends the trial court erred in denying its motion to reconsider when it made a mistake in law by ruling that CTLT has no standing to file its amended complaint. For the reasons that follow, we affirm.

4. Injunctions: Affirmed: The circuit court heard all of the arguments and considered them at length, but it ultimately determined that plaintiff had not shown that its remedy at law was inadequate. We cannot say that this was arbitrary or unreasonable, especially given the alleged facts in plaintiff’s own complaint regarding Berkadia’s violation of the servicing standard during the time leading up to the sale.  An evidentiary hearing on a motion for preliminary injunction is generally required where a verified answer is filed denying material allegations in the complaint.  In this case, defendants did not answer the complaint before the motion hearing, so none of the facts alleged in the complaint were yet in dispute.  An evidentiary hearing would not have added anything to this case or resolved any disputed issue of fact because none existed when the circuit court issued its ruling. The circuit court therefore did not err by ruling on the motion for a preliminary injunction without an evidentiary hearing. Connors, J. 

No. 2012 IL App (1st) 122812      Five Mile Capital Westin North Shore SPE, LLC v. Berkadia Commercial Mortgage, LLC Filed 12-24-12 (RJC) 

Plaintiff Five Mile Capital Westin North Shore SPE, LLC, brought this action seeking, among other things, an injunction against the sale of a multimillion dollar property. The circuit court denied Five Mile’s request for a preliminary injunction, and we affirm.

5 Appellate Cases Posted 12-21-12

1.  Juvenile\Neglect: Reversed and remanded: Under the facts of this case,  the evidence presented rebutted the presumption of neglect based on a diagnosis of failure to thrive. The State's evidence was not sufficient to support a finding of neglect, and the trial court's decision was against the manifest weight of the evidence. The State failed to prove that respondent breached her duty to provide a safe and nurturing shelter, such that Barion was neglected due to an injurious environment.  The evidence did not show that it was more likely than not that Barion was neglected based on respondent's failure to exercise care or an unintentional disregard of her duty.  The evidence set forth that respondent was proactive in seeking medical treatment for her son and her home was clean and stocked with food. The DCFS caseworker found respondent's feeding to be appropriate and no other concerns were raised. The adjudication of Barion as a neglected minor was not supported by the evidence presented. McBride, J.

No. 2012 IL App (1st) 113026    In re Barion S. Filed 12-21-12 (RJC) 

This case comes to us upon respondent's petition for rehearing. In the prior Rule 23 order, we dismissed the appeal for lack of jurisdiction based on the minor's argument that Supreme Court Rule 662 (Ill. S. Ct. R. 662(a) (eff. Oct. 1, 1975)) rendered respondent's appeal untimely. We have withdrawn our prior decision and issue this new opinion on rehearing. The adjudicatory and disposition orders are reversed and the cause is remanded to the circuit court for the entry of an order dismissing the petition and discharging the minor from custody.  Reversed and remanded.

2. Good Samaritan Act\Physicians: Reversed and remanded: "The Good Samaritan Act was meant to protect volunteers; it was never meant to be a shelter for practicing physicians who, acting in the scope of their employment, receive payment for their emergency services." On these facts, as a matter of law, Dr. Murphy received "a fee" for his emergency care of Anderson and thus did not provide emergency care "without fee" as contemplated by the Act. Dr. Murphy is not immune from liability under the Good Samaritan Act. Summary judgment on this basis is reversed.  Palmer, J.

No. 2012 IL App (1st) 122376   Home Star Bank and Financial Services v. Emergency Care and Health Organization Filed 12-21-12 (RJC)

Plaintiffs Darby Thomas and Home Star Bank & Financial Services, as guardian of the estate of Edward Anderson, a disabled person, filed suit against defendants Michael T. Murphy, O.D., and his employer, Emergency Care & Health Organization, Ltd. (ECHO), alleging Dr. Murphy was negligent in treating Anderson. The trial court granted summary judgment to defendants, finding Dr. Murphy immune from liability pursuant to section 25 of the Good Samaritan Act (Act) (745 ILCS 49/25 (West 2010)). Plaintiffs appeal, arguing the court erred in granting summary judgment to defendants as (1) there is a genuine issue of material fact regarding whether Dr. Murphy's conduct was in good faith; (2) the Good Samaritan Act should not apply to Dr. Murphy, a physician compensated to perform services for patients in a hospital; and (3) there is no other basis for granting summary judgment.  Reversed and remand.

3. Legal Malpractice\forum non conveniens: Affirmed: The sole issue on appeal is whether the trial court erred in denying defendants’ motion to transfer pursuant to the doctrine of forum non conveniens. The alleged legal malpractice arising from plaintiff’s dissolution proceedings occurred in Cook County.  The convenience of the parties did not weigh in favor of the transfer.  The private interest factors did not strongly favor a transfer to Du Page County.  Public interest factors did not weigh in favor of a transfer.  In balancing the private and public interest factors and evaluating the totality of the circumstances, the trial court found that the balance of factors did not favor transferring the case to Du Page County.  The trial court did not abuse its discretion in finding that Cook County was the more appropriate forum. Gordon, R., J.

No. 2012 IL App (1st) 112321       Dowd v. Berndtson Filed 12-21-12 (RJC) 

Plaintiff Lisa Dowd brought a legal malpractice action in the circuit court of Cook County against defendants Scott A. Berndtson and Scott A. Berndtson, P.C., in connection with defendants’ representation in certain matters related to plaintiff’s divorce. Defendants filed a motion to transfer the case pursuant to the doctrine of forum non conveniens, claiming the case should be litigated in Du Page County instead of Cook County. The trial court denied defendants’ motion and we granted defendants’ petition for leave to appeal pursuant to Illinois Supreme Court Rule 306(a)(2) (eff. Sept. 1, 2006). Affirmed. 

4. IL Dept. of Financial and Professional Regulation\Admin Hrngs.: Affirmed:  Plaintiff has failed to demonstrate that he was denied due process throughout the administrative process.  Plaintiff was provided sufficient opportunities to be heard during the administrative proceedings. The record-release authorizations were valid and the Director did not abuse his discretion in finding plaintiff in default. Lampkin, J.

No. 2012 IL App (1st) 112113    Wolin v. The Department of Financial and Professional Regulation Filed 12-21-12 (RJC)

Plaintiff, Howard E. Wolin, M.D., appeals the decision of the Illinois Department of Financial and Professional Regulation (Department) to indefinitely suspend his license to practice medicine. Plaintiff contends that the administrative proceedings he was provided failed to comply with the requirements of due process where he was deprived of a full and fair opportunity to be heard and subjected to the bias of the administrative decision makers.  Plaintiff further contends that the acting director of division of professional regulation abused his discretion when finding plaintiff in default and entering judgment against him. We affirm the Department’s decision to indefinitely suspend plaintiff’s medical license.

5. Criminal Law: Affirmed:  There was sufficient evidence for a rational trier of fact to find defendant guilty of the attempted first degree murder of Taylor under an accountability theory.  It was reasonable for the trier of fact to conclude that defendant subscribed to an unlawful venture that used violence and firearms and, as a natural consequence, resulted in the death of Collins and the severe wounding of Taylor. He was, therefore, in addition to being guilty of the murder of Collins, also guilty of the attempted murder of Taylor on a theory of accountability.Defendant's 20-year sentencing enhancement for attempted murder was imposed pursuant to section 8-4(c)(1)(C) of the Criminal Code, which uses language similar to section 5-8-1(d)(ii) of the Unified Code of Corrections.  Accordingly,  the unambiguous language of section 8-4(c)(1)(C) establishes that an accountable defendant, like Destephano Flynn, who personally discharged a firearm during the commission of the offense of attempted first degree murder, is subject to section 8-4(c)(1)(C)'s 20-year sentence enhancement. Lampkin, J. with Gordon, Robt. E., J. concurring in part and dissenting in part.

No. 2012 IL App (1st) 103687      People v. Flynn Filed 12-21-12 (RJC)

After a jury trial, defendant Destephano Flynn was convicted of first degree murder and attempted first degree murder and for personally discharging a firearm during each crime. He was sentenced to 66 years in prison. On appeal, he contends that: (1) the State failed to prove that he was accountable for attempted murder because he did not assist the codefendant in shooting the attempted murder victim and the State did not prove that the shooting of the attempted murder victim was an act in furtherance of the planned killing of the murder victim; and (2) the trial court erred by adding the 20-year firearm enhancement to defendant's sentences because the State did not prove that defendant was a principal in the murder and attempted murder offenses. Affirmed.

1 Appellate Case Posted 12-20-12

1.  Insurance: Affirmed: Cavenagh raises several issues on appeal, which can be grouped into three general categories: (1) the parties' claims as to ISBA Mutual's obligations under the policy; (2) Cavenagh's tort counterclaims; and (3) limitations on discovery prior to the summary judgment ruling in favor of ISBA Mutual.  Where the policy specifically defines "wrongful act," court is not at liberty to search for other possible definitions in order to "create an ambiguity where none exists."  ISBA Mutual's duty to defend is only triggered by allegations that the insured has committed an act of negligence, not an act classified as intentional.  Having found that the policy did not impose a duty to defend against the Bogusz suit, we conclude that the circuit court properly granted summary judgment to ISBA Mutual. Where we have affirmed the circuit court's determination that ISBA Mutual had no duty to defend under the policy, we find no error in the circuit court's decision to strike Cavenagh's estoppel defense.  The court did not abuse its discretion in granting ISBA Mutual's motion for protective order.  The circuit court did not abuse its discretion in considering the motion for protective order despite a technical violation of Rule 201(k).  Affidavit clearly did not comply with the requirements set forth in Rule 191(a): the affidavit set forth unsupported assertions and conclusions, and the affidavit set forth allegations clearly beyond Cavenagh's personal knowledge. Epstein, J.

No. 2012 IL App (2d) 111810 Illinois State Bar Association Mutual Insurance Company v. Cavenagh   Filed 12-20-12 (RJC) 

Illinois State Bar Association Mutual Insurance Company brought an action for declaratory judgment against its insured, Timothy J. Cavenagh, seeking a declaration that Cavenagh's professional liability insurance policy did not require ISBA Mutual to defend Cavenagh against a claim brought by a fellow attorney, Richard Bogusz. In response, Cavenagh claimed that ISBA Mutual was required to defend Cavenagh against Bogusz's complaint, and in a four-count counterclaim, he alleged breach of contract and tort claims based on ISBA Mutual's refusal to defend. The circuit court dismissed the counterclaim and granted summary judgment in favor of ISBA Mutual, and Cavenagh now appeals. For the reasons that follow, we affirm.   

3 Appellate Cases Posted 12-19-12

1.  Administrative Review: Affirmed: In reviewing a decision by an administrative agency, reviewing courts must review the final decision of that agency.   Reviewing courts apply different standards of review depending on whether the question presented is one of fact or law. In reviewing the Board's findings of fact, we deem those findings prima facie true and correct and will reverse only if they are against the manifest weight of the evidence.   Conversely, when the issue involves the agency's findings on a question of law, our review is de novo.     Finally, where the agency's decision presents a mixed question of fact and law, we apply the clearly erroneous standard of review and will reverse only if our review of the entire record leaves us with the definite and firm conviction that the decision was a mistake.  If an argument, issue, or defense is not presented in an administrative hearing, it is procedurally defaulted and may not be raised for the first time on administrative review.  Technical errors in the proceedings before the administrative agency or its failure to observe the technical rules of evidence shall not constitute grounds for the reversal of the administrative decision unless it appears to the court that such error or failure materially affected the rights of any party and resulted in substantial injustice to him or her.  When hearsay evidence is admitted without an objection, it is to be considered and given its natural probative effect." Neville, J.

No. 2012 IL App (1st) 111835 Pesoli v. The Department of Employment Security Filed 12-19-12 (LJD)

Fran Pesoli appeals from an order of the circuit court affirming the decision of the Board of Review of the Illinois Department of Employment Security (Board) which denied Pesoli's claim for unemployment insurance benefits pursuant to section 602(A) of the Illinois Unemployment Insurance Act (Act). 820 ILCS 405/602(A) (West 2008). On appeal, Pesoli contends that the evidence does not support the Board's finding that she was discharged for misconduct connected with her work.  We find that the Board's finding that Pesoli accessed a patient's confidential hospital records outside of her job responsibilities was not contrary to the manifest weight of the evidence. We hold that the Board's decision, that Pesoli was ineligible for unemployment insurance benefits under section 602(A) of the Act based on misconduct connected with her work, was not clearly erroneous because Pesoli was aware of her employer's confidentiality rule or policy and she disregarded the policy, which made her conduct willful, deliberate and potentially harmful to her employer. Accordingly, we affirm the Board's decision.

2.  Criminal Law: Affirmed: Once the grand jury has returned an indictment, it may not be broadened through amendment except by the grand jury itself. Id. at 9-10. The reason for this rule is to ensure that individuals’ rights are not at the mercy or control of a prosecutor.  However, an exception to this rule provides that an indictment may be amended on motion of the prosecutor or the defendant for the purpose of correcting formal defects if no surprise or prejudice to the defendant results.  Section 111-5 of the Code of Criminal Procedure  provides a list of formal defects, such as “[a]ny miswriting, misspelling or grammatical error,” though the list is not exclusive.  An amendment is substantive and therefore improper if (1) it materially alters the charge, and (2) it cannot be determined whether the grand jury intended the alteration.  When reviewing the trial court’s decision to allow or deny an amendment to the indictment, we apply an abuse-of-discretion standard.  Several cases discussed on the issue of formal v. informal amendment of indictment.  A fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined prior to the proceeding.   Voir dire is conducted to assure the selection of an impartial jury, free from bias or prejudice, and grant counsel an intelligent basis on which to exercise peremptory challenges.   In general, counsel’s actions during jury selection are considered a matter of trial strategy, and counsel’s strategic choices are virtually unchallengeable.  Zenoff, J.

No. 2012 IL App (2nd) 110346  People v. Jones Filed 12-19-12 (LJD)

Following a jury trial, defendant, George R. Jones, was convicted of aggravated battery (720 ILCS 5/12-4(a) (West 2008)) and sentenced to 4½ years’ imprisonment. In this direct appeal, defendant argues that: (1) the State improperly amended the indictment on the first day of trial and (2) his trial counsel was ineffective for failing to strike a juror and for waiting until surrebuttal to call a witness, who was not allowed to testify. We affirm.

3.  Traffic/Criminal Law: Appeal Dismissed:  Void orders are orders entered by a court (1) without jurisdiction or (2) that exceeded its jurisdiction by entering an order beyond its inherent power.   Once a court has acquired jurisdiction, no subsequent error or irregularity will remove the jurisdiction; thus, a court cannot lose jurisdiction because it makes a mistake in determining either the facts, the law, or both. Extensive discussion of double jeopardy. Hudson, J.

No. 2012 IL App (2nd) 110773 People v. Villafuerte-Medrano  Filed 12-19-12 (LJD)

Defendant, Manuel Villafuerte-Medrano, appeals his conviction of aggravated driving under the influence (aggravated DUI) (625 ILCS 5/11-501(d)(1)(G) (West 2006)), which was entered upon his plea of guilty. He argues that his conviction is void pursuant to double jeopardy principles because judgment had already been entered upon a bond forfeiture, and the Illinois Vehicle Code (625 ILCS 5/1-100 et seq. (West 2006)) provides that a bond forfeiture equates to a conviction of the underlying offense. However, defendant’s failure to comply with Illinois Supreme Court Rule 604(d) (eff. July 1, 2006) requires us to dismiss this appeal without reaching the merits.

4 Appellate Cases Posted 12-18-12

1.  Criminal Law: Affirmed: A discharge hearing pursuant to section 104-25 is not a criminal prosecution.  Instead, a discharge hearing is a civil, "innocence only" proceeding to determine whether to acquit a defendant of the charges when there is a finding of unfitness.  If the evidence presented at the discharge hearing is sufficient to establish defendant's guilt, he is found "not not guilty."  Although a defendant may not be convicted at the conclusion of a discharge hearing, the purpose of the hearing is the same as that of a criminal trial: "to test the sufficiency of the State's evidence of his guilt of the charged crime."  Although the court's judgment after a discharge hearing is not "a technical determination of guilt, the standard of proof is the same as that required for a criminal conviction." Testimony deemed reliable pursuant to section 115-10 is admissible in a discharge hearing.  Harris, J.

No. 2012 IL App (1st) 111071 People v. Orengo  Filed 12-18-12 (LJD)

Defendant, Carlos Orengo, appeals the circuit court's determination that he is "not not guilty" on 31 counts of criminal sexual misconduct after a discharge hearing pursuant to section 104-25 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/104-25 (West 2008)). On appeal, Orengo contends (1) the trial court erred in admitting outcry statements made by the three-year-old alleged victim, M.M., under section 115-10 of the Code (725 ILCS 5/115-10 (West 2008)) because that section does not apply to discharge hearings; and (2) without those statements, the evidence does not prove beyond a reasonable doubt that he committed the alleged acts. For the following reasons, we affirm.

2.  Probate/Statute Limitations: Certified Question Answered No: Rule 308 allows for permissive appeal of an interlocutory order certified by the trial court as involving a question of law as to which there is substantial ground for difference of opinion and where an immediate appeal may materially advance the ultimate termination of the litigation. We are limited to answering the specific question certified by the trial court to which we apply a de novo standard of review.  The six-month limitation period in subsection (a) has long been recognized as a jurisdictional limitation barring any claims filed beyond that period. However, we have previously characterized the limitation period of an inter vivos testamentary trust contest under section 13-223 as administrative and not jurisdictional.  Where the statutory language is clear and unambiguous, we may not depart from its plain meaning by reading into it exceptions, limitations, or conditions not expressed by the legislature.  Subsection (f) applies to “[a]n action to set aside or contest the validity” of a trust receiving a legacy from a will. An “action” has been defined as “an ordinary proceeding in a court of justice, by which one party prosecutes another party for the enforcement or protection of a right [or] the redress or prevention of a wrong ***. More accurately, it is defined to be any judicial proceeding, which, if conducted to a determination, will result in a judgment or decree.”   As our supreme court recently made clear, in this context specifically, a claim for intentional interference with an inheritance expectancy is not an action to “set aside or contest the validity” of a trust. It is a “personal action [in tort] directed at an individual tortfeasor.” Connors, J.

No. 2012 IL App (1st) 121153 In re Estate of Luccio Filed 12-18-12 (LJD)

Plaintiffs filed a complaint in the chancery division against defendant Khristian Rao, among others, for intentional interference with an inheritance expectancy and breach of fiduciary duty in a matter involving a testamentary trust. The case was then transferred to the probate division and consolidated with a pending action involving the estate of the decedent, Benjamin Luccio. Rao moved to dismiss the claims against her as time-barred under section 8-1(f) of the Probate Act of 1975 (Act) (755 ILCS 5/8-1(f) (West 2008)).  Certified Question about whether the 6 month limitations period applies to a tort action regarding a trust.  See opinion for exact question.

3.  Domestic Relations: Affirmed in part, Reversed in part and Remanded: Maintenance is designed to be rehabilitative and to allow a dependent spouse to become financially independent.  Permanent maintenance, on the other hand, is appropriate where it is evident that the recipient spouse is either unemployable or employable only at an income that is substantially lower than the previous standard of living.  Relevant factors for maintainence listed.  No one factor is determinative of the issue concerning the propriety of the maintenance award once it has been determined that an award is appropriate.  The propriety of a maintenance award is within the discretion of the trial court, and the court’s decision will not be disturbed absent an abuse of discretion. Pursuant to the Act, a noncustodial parent should pay 20% of her net monthly income for child support for one child.   When custody is shared, however, the court may apportion the percentage between the parents or disregard the statutory guidelines and instead consider the factors listed in section 505(a)(2) of the Act, which are listed in the opinion.  The Act’s statutory guidelines are applicable only where child support is the responsibility of a single parent.   In a split custody situation, a trial court is not required to conform to section 505 of the Act and state its reasons for deviating from the guidelines. Retirement benefits earned during marriage are considered marital property.  12 Factors for dividing marital property listed and discussed  Birkett, J.

No. 2012 IL App (2nd) 110522 In re Marriage of Smith Filed 12-18-12 (LJD)

Respondent, Lloyd A. Smith, appeals from an order of the trial court granting petitioner Sharyl L. Smith’s petition for dissolution of marriage. On appeal, Lloyd contends that the trial court erred in granting him maintenance of only $200 per month for two years. On cross-appeal, Sharyl argues that the trial court erred in: (1) granting Lloyd child support equal to 20% of her net income, when the parties shared custody of their minor child; and (2) in response to Lloyd’s posttrial motion for reconsideration, distributing her 401(k) equally between the parties, without first reevaluating the parties’ property distribution.  For the following reasons, we affirm the trial court’s order granting Lloyd maintenance in the amount of $200 per month for two years. However, we reverse the trial court’s orders awarding Lloyd child support equal to 20% of Sharyl’s income and dividing Sharyl’s 401(k) equally between the parties. Finally, we remand this cause for further proceedings consistent with this opinion.

4.  Probate/Discovery Sanctions: Affirmed in part and Reversed in part: Relevant information, for purposes of Rule 201(b)(1), which discusses "scope of discovery",  is either "that which is admissible at trial" or "that which leads to admissible evidence."A trial court is given great latitude in determining the scope of discovery, and discovery orders will not be disturbed absent an abuse of discretion." A decision is an abuse of discretion only if it is "clearly against logic."  The descriptions of the specific services the attorney provided, along with the amount of time the attorney spent on each service, are the explanation and justification for the fee charged.  The executor should not have paid any attorney fees whatsoever out of the estate without first obtaining the trial court's approval for each such payment—regardless of whether the attorney fees were for defending against petitioners' challenge of the will or defending against their petition to remove him from the executorship. The executor and his attorneys were on notice, from case law, that court approval was required before the payment of any attorney fees out of the estate.  Appleton, J.

No. 2012 IL App (4th) 120480  In re: the Estate of Blickenstaff Filed 12-18-12 (LJD)

Petitioners, Scott E. Blickenstaff and Kim D. Blickenstaff, are challenging the will of their deceased father, Wyverne A. Blickenstaff. They also have petitioned the trial court to remove their brother, Jon M. Blickenstaff, from the position of executor. During pretrial discovery in this litigation, petitioners requested the executor's personal financial documents as well as the billing statements corresponding to attorney fees he paid, without prior court approval, from the assets of the estate. The executor refused these requests. Later, the executor and his attorney, William R. Kohlhase, refused to comply with a court order to turn over the documents in question. They adhered to their position that, under the law, the documents were exempt from discovery.  Consequently, the court found them to be in contempt of court and fined them $100. Respondents, the executor and Kohlhase, appeal.

1 Appellate Case Posted 12-17-12

1.  Corporations/Derivative actions/Fraud: Affirmed,Consolidated appeal dismissed: In the absence of a timely filed post-judgment motion, a trial court loses jurisdiction over a case pending before it 30 days after the entry of a final judgment terminating the litigation.  To qualify as a post-judgment motion, a motion must be directed against the judgment and request one or more of the types of relief specified in section 2-1203 of the Code of Civil Procedure.  Laches is an equitable doctrine that precludes the assertion of a claim by a litigant whose
unreasonable delay in raising that claim has prejudiced the opposing party.  Traditionally, the defense of  laches was limited to actions arising in equity and was unavailable in actions at law.  It is now "routinely applied in lawsuits simultaneously seeking both legal and equitable remedies.  In order to succeed on a laches defense, a defendant must establish both (1) the plaintiff's lack of diligence in presenting her claim and (2) prejudice to the defendant as a result of the delay.  Hoffman, J.

No. 2012 IL App (1st) 113179 Mo v. Hergan Filed 12-17-12 (LJD)

In appeal number 1-11-3179, the plaintiff, Glenna Mo (on behalf of Rhombus Asset Management, Inc. (Rhombus), and Central and Eastern European Investment Fund (Central)) appeals the circuit court judgments dismissing six counts of her complaint against defendants Alexander Hergan and Mark Proskine, granting summary judgment in favor of Hergan on three counts of her complaint, and dismissing  Proskine from the case as a discovery sanction. In appeal number 1-11- 3731, the plaintiff appeals a circuit court ruling denying her postjudgment request for further proceedings, namely, a ruling on an issue  the court had deemed moot.  For the reasons that follow, we affirm the judgment of the circuit court in appeal number 1-11-3179, and we dismiss appeal number 1-11-3731.

4 Appellate Cases Posted 12-14-12

1. Civil Actions/Malicious Prosecution: Affirmed: Plaintiff's suit for malicious prosecution against former employee and employee's lawyers, which defendants had filed numerous actions against plaintiffs which were ultimately adjudicated in plaintiff's favor, properly dismissed by trial court for failure to plead "special injury" required for malicious prosecution action. Palmer. J.

No. 2012 IL App (1st) 111877 Independence Plus, Inc. v. Walter  Filed 12-14-12 (TJJ)

Plaintiff Independence Plus, Inc. (IPI), appeals from the dismissal of its malicious prosecution suit against defendants Frances Walter, Kristen Prinz and Prinz’s law firm, Bellows and Bellows, P.C. (Bellows). Defendants moved to dismiss IPI’s complaint under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2008)), contending, inter alia, that IPI had failed to allege special injury, as required to recover for malicious prosecution. The trial court initially denied defendants’ motion, but  upon reconsideration, the court granted it and dismissed IPI’s complaint. IPI now appeals. For the reasons that follow, we affirm.

2. Adoption Law: Affirmed: Father of child and his unmarried partner had standing to seek to adopt child, notwithstanding that they were not married, and mother's unfitness as a parent so as to terminate her parental rights was shown by clear and convincing evidence. Gordon, J.

No. 2012 IL App (1st) 121558 In re Adoption of K.B.D.  Filed 12-14-12 (TJJ)

The instant case arises from respondent Vicki F.’s appeal of the trial court’s order terminating her parental rights during a contested adoption proceeding, thereby permitting the adoption of nine-year-old K.B.D. (the child) by petitioners Aaron B.D. and  Jennifer D. Vicki claims that the trial court’s finding that she was unfit was against the manifest weight of the evidence. For the reasons that follow, we affirm.

3. Criminal Law: Affirmed in part, vacated in part, and remanded: Defendant's claim that he would not have pleaded guilty to armed violence and accepted 15-year sentence but for counsel's ineffective assistance of counsel stemming form an alleged failure to tell defendant of potential deportation consequences stemming from conviction, properly found by trial court to be insufficient to establish a viable claim of ineffective assistance where defendant failed to allege how he was prejudiced by counsel's alleged failure; certain fines vacated or reduced. Pope, J.

No. IL App (4th) 110780 People v. Pena-Romero  Filed 12-14-12 (TJJ)

Defendant, Macario Pena-Romero, appeals from the denial of his motion to withdraw his guilty plea. Defendant argues (1) he was denied effective assistance of guilty-plea counsel, (2) he was denied effective assistance of postplea counsel, (3) the circuit  clerk lacked authority to assess the $5 anticrime fee, (4) he is entitled to credit against the $4.75 drug-court assessment, and (5) the $25 violent crime victims assistance (VCVA) assessment should be reduced to $4. We affirm in part as modified, vacate in  part, and remand with directions.

4. Civil Rights Law: Reversed and remanded: trial court grant of summary judgment to defendants for civil rights violations stemming from a police officer's conduct in connection with a repossession of plaintiff's automobile found to be erroneous, where a genuine issue of material fact existed as to whether officer took an active role in assisting repo man in effectuating repossession over plaintiff's claim that it was not authorized by law. Pope, J.

No. 2012 IL App (4th) 120059 Murray v. Poani  Filed 12-14-12 (TJJ)

Plaintiffs, Anthony and Sharon Murray, brought suit under section 1983 of the Civil Rights Act of 1871 (Civil Rights Act) (42 U.S.C. § 1983 (2006)) against defendants, police officer Mark Poani and the Village of Chatham, for violating their constitutional  due process rights. Plaintiffs allege Officer Poani, acting under color of state law, became actively involved in a vehicle repossession and violated their constitutional due process rights. In September 2011, the trial court granted defendants'  motion for summary judgment. ¶ 2 Plaintiffs appeal, arguing the trial court improperly granted summary judgment on the evidentiary record. Specifically, plaintiffs assert the court improperly concluded (1) Poani did not participate or aid in the private  repossession, and (2) qualified immunity applied. Because we agree with plaintiffs an issue of material fact exists, we reverse and remand for further proceedings.

1 Appellate Case Posted 12-13-12

1. Criminal Law/DUI: Reversed: In municipal prosecution by Village prosecutors for DUI, where Village sought to amend ticket to substitute its name for the "People of the State of Illinois," but did not allege the municipal ordinance violated, leaving only citation to the Illinois Vehicle Code, the finding of guilty against the defendant was reversed. McDade, J.

No. 2012 IL App (3d) 110420 People v. Herman  Filed 12-13-12 (TJJ)

A Village of Frankfort (Village) police officer stopped defendant, Jessica Herman, for traffic violations occurring within the Village’s boundaries. The officer issued four citations to defendant, each alleging a violation of the Illinois Vehicle Code and  naming the People of the State of Illinois as plaintiff. Before trial, the court granted the Village’s motion to amend the citations allowing the Village to strike out the State of Illinois as the prosecuting authority and mark the box on the face of the citations to  replace the State with the Village as the prosecuting authority. Neither the State’s Attorney nor the Village attorney amended the citations to allege only violations of the municipal code. The court found defendant guilty of driving under the influence of  alcohol (DUI), a Class A misdemeanor, as charged as a violation of the DUI provisions of the Illinois Vehicle Code. 625 ILCS 5/11-501(a)(1), (c)(1) (West 2010). Defendant appeals her conviction based on the Village's lack of prosecutorial authority with  respect to the Illinois Vehicle Code violation. We reverse.

2 Appellate Cases Posted 12-12-12

1. Criminal Law: Reversed: Defendant's failure to appear in court on a date chosen by the State for return of a subpoena did not constitute a failure by defendant to appear on "a date set by the court" so as to constitute delay occasioned by the defendant, and trial court ruling denying defendant's motion to dismiss for failure to comply with the Speedy Trial Act was error. Birkett, J.

No. 2012 IL App (2d) 110544 People v. Bauman  Filed 12-12-12 (TJJ)

After a stipulated bench trial, defendant, Eric M. Bauman, was found guilty of driving under the influence of alcohol (DUI). 625 ILCS 5/11-501(a)(2) (West 2010). He was sentenced to 10 months’ supervision and assessed fines and fees. On appeal,  defendant argues that the trial court erred in denying his motion to dismiss this action for a violation of his right to a speedy trial. See 725 ILCS 5/103-5(b) (West 2010). For the following reasons, we find that the trial court erred in denying defendant’s  motion to dismiss. Therefore, we reverse the judgment of the trial court.

2. Criminal Law: Reversed: In case where officer observed defendant and driver of another car exit their vehicles in gas station parking lot, approach one another and exchange unknown objects, and part 10 seconds later, officer did not have enough information to conclude that there was a reasonable, articulable suspicion to justify stop of defendant and subsequent investigation while defendant detained. Schostok, J.

No. 2012 IL App (2d) 110974 People v. Petty  Filed 12-12-12 (TJJ)

Following a stipulated bench trial, the defendant, Christopher A. Petty, was convicted of possession of cannabis with intent to deliver (720 ILCS 550/5(b) (West 2008)) and sentenced to one year of conditional discharge. On appeal, the defendant argues that the trial court erred in denying his pretrial motion to suppress the evidence. In that motion, the defendant alleged that police officers had conducted an investigatory stop, which resulted in the discovery of the cannabis, without having a reasonable  articulable suspicion that he was engaged in criminal activity. We reverse.

3 Supreme Court Cases Posted 12-13-12  

1. Class Actions: Affirmed: The first question asked what was a decision on the merits which would preclude decertification. In affirming the appellate court, the supreme court said that there must be a complete determination of liability on a claim based on the facts disclosed by the evidence and which establishes a right to recover in at least one class member, but which is something short of a final judgment. The other three questions asked whether there would be a lack of authority to decertify in each of three specific situations, and the appellate court answered each question negatively. Its judgment was affirmed as to all of these rulings. The supreme court said that liability which would establish a right to recovery had not yet been determined in this case. The original trial judge did not decide whether the City violated the law by issuing a “fly-by” citation to Mashal or any other driver. Such a determination would have been a decision on the merits, but it did not happen here. The supreme court declined Mashal’s request to direct the appellate court to consider the propriety of the decertification order at this stage. The cause was remanded to the circuit court for further proceedings.  JUSTICE THOMAS delivered the judgment of the court, with opinion.Chief Justice Kilbride and Justices Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion. Justice Freeman specially concurred, with opinion.

No. 2012 IL 112341 Mashal v. The City of Chicago Filed 12-13-12 (RJC) 

A group of Chicago taxi drivers complained of the manner in which they were receiving traffic tickets and filed this class action in 2000. The lead plaintiff is Gazi Mashal. Cook County circuit judge Richard Siebel certified them as a class in 2002 and, in 2005, issued a partial summary judgment to the effect that a ticket should be issued to a driver at the scene or placed on the vehicle and that to substitute for this a mailed notice (or “fly-by ticket”) would be contrary to both statute and ordinance. The City, as defendant, had argued that such occurrences were either rare or had happened only if the driver was confrontational or fled. Judge Siebel did not address these factual issues in making his legal ruling. In 2007, the City sought to decertify the class. By this time, Judge Siebel had retired and had been replaced by Judge Stuart Palmer, who granted the City’s motion to decertify in 2008, concluding that commonality no longer existed, that the City was entitled to a trial for each and every ticket for a determination of the facts of each case, and that the class action approach was no longer appropriate. Plaintiff Mashal challenged this ruling, setting in motion the series of maneuvers which brought this appeal to the Illinois Supreme Court. He contended that Judge Siebel’s initial ruling that “fly-by” tickets were illegal was a “decision on the merits,” which, pursuant to statute, would preclude decertification of the class. Four questions concerning the “decision on the merits” issue were certified to the appellate court, whose judgment was affirmed by the supreme court in this decision.

2. Medical Malpractice: Reversed and remanded: In this decision, the supreme court said there was only one cause of action for negligence and the ruling that there was no actual agency did not entirely dispose of the claim, that is, there was not a final judgment on the merits for purposes of res judicata. Thus, there is no res judicata barrier to attempting to show that defendant hospital is liable on the basis of apparent agency.The appellate court was reversed and the cause was remanded to the circuit court for further proceedings on the negligence claim.   JUSTICE GARMAN delivered the judgment of the court, with opinion. Chief Justice Kilbride and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2012 IL 112898 Wilson v. Edward Hospital    Filed 12-13-12 (RJC) 

The plaintiff in this Du Page County medical malpractice action suffered serious injuries as a result of surgery to repair a broken leg. Injured in a 2003 automobile accident, he was admitted to defendant Edward Hospital and operated on without, the complaint alleged, a sufficient period of fasting. During the surgery he vomited and aspirated some of the vomit into his lungs, causing cardiac arrest and an anoxic brain injury. In this decision, the Illinois Supreme Court answered the circuit court’s certified question by holding that plaintiff’s claim against the hospital could go forward and was not barred by res judicata, despite the fact that the circuit court had entered partial summary judgment that two doctors who were also defendants were not actual agents of the hospital, while also finding a question of fact (precluding summary judgment) as to whether those doctors were the hospital’s apparent agents.  Pursuant to this circuit court ruling, there was a voluntary complaint dismissal and a refiling of the action to allege apparent (as opposed to actual) agency. The defense then sought a res judicata dismissal, which was refused, but the circuit court certified the question. The appellate court held that res judicata barred the action, but the supreme court, in this decision, reversed. The appellate court was reversed and the cause was remanded to the circuit court for further proceedings on the negligence claim.

3. Legal Malpractice: Affirmed Reversed and remanded: Although the supreme court affirmed the appellate court in this decision, it did not follow the appellate court’s reasoning. Res judicata is something that must be proved by the parties claiming it, and the defendants failed to do so. The elements of res judicata are not established here, and the oral remarks made by these judges in making various rulings were insufficient to establish the finality of a judgment which is essential to res judicata.   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. 2012 IL 113054  Hernandez v. Pritikin       Filed 12-13-12 (RJC)     

The plaintiff in this refiled legal malpractice action, Jesse Hernandez, developed Parkinson’s disease, allegedly as the result of his exposure to chemicals at Central Steel and Wire Company, where he worked from 1968 to 1995. His 2004 strict product liability and negligence lawsuit seeking tort-damages recovery from various companies involved in the manufacture and sale of those chemicals had been dismissed in 2005 as time-barred. From 1995 to 1996, Hernandez was represented by the law firm of Spector & Lenz, which filed a social security disability claim for him. From 1999 to 2002, he was represented by defendant attorneys, Bernstein, Grazian and Volpe, who filed a 1999 workers’ compensation claim, alleging chemical exposure at work. A third law firm was retained in 2004 and filed the above-referenced Cook County circuit court suit for civil damage recovery, which was subsequently dismissed as time-barred.

The suit at issue here initially alleged that the defendant Bernstein firm should have advised the plaintiff that he had other ways to recover beyond seeking the workers’ compensation benefits that it pursued for him. After a dismissal with leave to amend, the complaint was amended to add a charge that defendant attorneys were professionally negligent for failing to file a legal malpractice action against the Spector law firm for its failure to file a product liability suit on plaintiff’s behalf at a time when that claim was still viable. This complaint was later voluntarily dismissed and then refiled. Over the course of all these proceedings, several different judges had made rulings in the case, offering various opinions as to when, under the discovery rule, the plaintiff had acquired the knowledge which would start the running of the statute of limitations. In 2009, these defendants sought a dismissal, claiming that the matter had become res judicata, and they were successful in the circuit court, but the appellate court reversed. 

2 Appellate Cases Posted 12-11-12

1. Criminal Law: Affirmed: Trial court ruling granting defendant's motion to suppress evidence in cannabis case relating to search of defendant's home upheld; exigent circumstances did not exist and doctrine of "consent once removed" did not apply in case where informant was invited into defendant's home for purpose of delivering cannabis to defendant. Harris, J.

No. 2012 IL App (1st) 120016 People v. Krinitsky  Filed 12-11-12 (TJJ)

The State charged defendant, Neil Krinitsky, with possession of more than 5,000 grams of cannabis with intent to deliver; possession of more than 500 grams, but less than 2,000 grams of cannabis with intent to deliver; possession of less than 50 grams of  methylenedioxymethamphetamine (MDMA) with intent to deliver and possession of hydrocodone with intent to deliver. Defendant filed a motion to dismiss, quash his arrest, and suppress evidence, which the circuit court granted. The circuit court denied  the State's subsequent motion for reconsideration. At issue is whether the circuit court properly granted defendant's motion to dismiss, quash his arrest, and suppress evidence. We hold that the State has not met its burden of proving that exigent  circumstances existed to justify the entry into defendant's apartment. Therefore, the circuit court did not err in granting defendant's motion to dismiss, quash his arrest, and suppress evidence. We hold the State has waived its initial argument on appeal for  failing to first raise it in the circuit court. Additionally, we hold the State has not shown it has satisfied the elements of the "consent once removed" doctrine. We note that we express no opinion on whether the doctrine should be adopted by this court, just  that it does not apply to the specific factual situation at issue here.

2. Public Employee Labor Law: Reversed: Administrative law judge decision that attorney was not a "confidential employee" was error, and attorney position should not have been included in "stand alone" bargaining unit certified by Labor Board. Turner, J.

No. 2012 IL App (4th) 110356 The Department of Central Management Services v. The Illinois Labor Relations Board  Filed 12-11-12 (TJJ)

Pursuant to Illinois Supreme Court Rule 335 (eff. Feb. 1, 1994) and section 9(i) of the Illinois Public Labor Relations Act (Labor Act) (5 ILCS 315/9(i) (West 2008)), petitioner, the Department of Central Management Services/Department of State Police  (Department), seeks direct review of a decision of the Illinois Labor Relations Board, State Panel (Board), to include the position held by Nicholas Kondelis, an attorney with the State Police, in a stand-alone bargaining unit represented by the Illinois State  Employees Association, Laborers International Union, Local 2002 (Union). On review, the Department asserts Kondelis cannot be a member of the collective-bargaining unit because he is a (1) managerial employee under section 3(j) of the Labor Act (5  ILCS 315/3(j) (West 2008)), and (2) confidential employee under section 3(c) of the Labor Act (5 ILCS 315/3(c) (West 2008)). We reverse in part the Board's decision and vacate in part the certification of representation.

6 Appellate Cases Posted 12-10-12

1.  Insurance Law: Affirmed: Judgment on the pleadings is proper where the pleadings disclose no genuine issue of material fact and the movant is entitled to judgment as a matter of law, i.e. similar to a motion for summary judgment but limited to the pleadings.   The court must consider only those facts apparent from the face of the pleadings, judicial admissions in the record and matters subject to judicial notice.  If the words in the policy are unambiguous, a court must afford them their plain, ordinary, and popular meaning  Words are ambiguous if they are reasonably susceptible to more than one meaning.  Howse, J.

No. 2012 IL App (1st) 111764 Area Erectors, Inc. v. Travelers Property Casualty Company of America  Filed 12-7-12 (LJD)

Plaintiff Area Erectors, Inc., appeals from a circuit court order granting defendant Travelers Property Casualty Company of America's motion for judgment on the pleadings. For the reasons set forth below, we affirm the judgment of the circuit court.

2.  Criminal Law: Reversed and Remanded: A trial court is not automatically required to appoint new counsel anytime a defendant claims ineffective assistance of counsel.  Instead, the trial court must first conduct an inquiry to examine the factual basis underlying a defendant's claim.  The inquiry that the trial court conducts has evolved into what is now known as a " 'Krankel inquiry.' "  If the trial court determines that the defendant's claim lacks merit or pertains only to matters of trial strategy, then the court need not appoint new counsel and may deny the pro se motion.  A claim lacks merit if it is conclusory, misleading, or legally immaterial or does not bring to the trial court's attention a colorable claim of ineffective assistance of counsel.  Standards of review are listed depending on trial court's findings.  If the trial court conducted no inquiry and made no ruling, the appellate court may need to remand for the limited purpose of allowing the trial court to make an inquiry and ruling.  Cunningham, J.

No. 2012 IL App (1st) 102943 People v. McLaurin   Filed 12-10-12 (LJD)

This case arises from a September 17, 2010 order entered by the circuit court of Cook County, which denied defendant Markell McLaurin's (McLaurin) pro se posttrial claims for ineffective assistance of counsel and motion for a new trial. After a jury trial, McLaurin was found guilty of first-degree murder and was found to have discharged the firearm that proximately caused the death of Demarlon Jernigan (victim).  For the following reasons, we remand the case to the circuit court of Cook County for the court to conduct an adequate inquiry into the defendant's pro se claims of ineffective assistance of counsel.

3.  Criminal Law: Appeal dismissed: The timely filing of a notice of appeal is both jurisdictional and mandatory. Rule 604(d) requires the filing of a postplea motion within 30 days of the court’s imposition of the defendant’s sentence. If the postplea motion is denied, the defendant must file a  notice of appeal from the judgment within the time set forth by Illinois Supreme Court Rule 606(b)   Revestment occurs when the parties, (1) without objection, (2) actively participate (3) in further proceedings inconsistent with the merits of the prior judgment after the 30-day period has run.  Discussion of the history of the revestment doctrine. Burke, J. dissent by McLaren, J.

No. 2012 IL App (2nd) 110209 People v. Bailey  Filed 12-10-12 (LJD)

On March 14, 2007, defendant, Christopher B. Bailey, entered an open guilty plea to the offense of criminal sexual abuse, and the trial court sentenced him to 300 days, with credit for time served. On October 7, 2010, defendant filed a motion to vacate his plea and sentence as being void. The State filed a response, arguing against the motion, but it did not challenge the timeliness of the motion. The trial court denied the motion on January 28, 2011. Defendant filed a notice of appeal on February 25, 2011, appealing the denial of his motion to vacate his plea and sentence. He raises the following issues: (1) whether the trial court had jurisdiction (and therefore this court has jurisdiction) to rule on his untimely motion to vacate, pursuant to the revestment doctrine, and (2) whether the cause must be remanded for further proceedings on his motion because his trial counsel failed to file a certificate of compliance with Illinois Supreme Court Rule 604(d) (eff. July 1, 2006).  The State responds that the trial court was not revested with jurisdiction and thus this court lacks jurisdiction. We agree with the State and dismiss the appeal.

4. Criminal Law: Reversed and remanded: Trial court ruling granting defendant's motion to suppress evidence based upon a conclusion that Vehicle Code did not require defendant motorist to signal his intention to move to side of road was incorrect as a matter of law; cause remanded for trial court to make findings of fact relating to second motion relating to duration of stop and search of vehicle. McDade, J. (Wright, concurring in part and dissenting in part).

No. 2012 IL App (3d) 110867 People v. Tramble  Filed 12-10-12 (TJJ)

Defendant, Odell P. Tramble, was charged with unlawful possession of ammunition by a felon. Prior to trial, defendant filed two motions to suppress evidence. The trial court suppressed the evidence after finding that the police officers lacked sufficient  grounds to stop defendant's vehicle. The State appeals, arguing that the officers had probable cause to believe that defendant violated section 11-804(a) of the Illinois Vehicle Code. We reverse and remand.

5. Criminal Law: Reversed and remanded: Trial court sua sponte dismissal of defendant's 2-1401 petition, done prior to the expiration of 30 days from the date of filing of the petition, deemed erroneous in light of People v. Laughran, 233 ILL.2d 318 (2009); appellate court opinion expressly disagrees with People v. Nitz, 2012 IL App (2d) 091162. Wexstten, J.

No. 2012 IL App (5th) 110201 People v. Miller  Filed 12-10-12 (TJJ)

In April 2011, the defendant filed a pro se petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)). Eleven days later, the trial court dismissed the petition sua sponte. On appeal, the  defendant argues that we should vacate the trial court's judgment and remand for further proceedings. For the following reasons we agree.

6. Workers' Compensation: Reversed and remanded: Parties' initial agreement that review of arbitrator's decision would be permitted even if transcript was not available within 35-day period following receipt of arbitrator's decision would be binding upon parties, and claimant's failure to provide transcript within that period did not defeat Industrial Commission's jurisdiction or authority to review arbitrator's decision; trial court contrary ruling reversed. Hudson, J. (Holdridge, J., sp. concurring).

No. 2012 IL App (2d) 110670WC Ingrassia Interior Elements v. Illinois Workers' Compensation Commission  Filed 12-10-12 (TJJ)

Claimant, Roger Seymour, filed with the Illinois Workers’ Compensation Commission (Commission) a petition for review of an arbitrator’s decision denying his claim pursuant to the Workers’ Compensation Act. The Commission denied a motion by  respondent, Ingrassia Interior Elements, to strike the petition for lack of subject matter jurisdiction due to claimant’s failure to timely file a transcript of the proceedings before the arbitrator. Respondent sought review of the Commission’s denial, in the  circuit court of Winnebago County. The trial court concluded that the Commission lacked subject matter jurisdiction and held that the decision of the arbitrator was final. This appeal followed, and, for the reasons that follow, we reverse the trial court,  reinstate the Commission’s decision, and remand.

3 Appellate Cases Posted 12-7-12

1. Domestic Relations Law: Affirmed: Claim of respondent-husband in dissolution of marriage action that trial court did not have subject matter jurisdiction to resolve matter, due to wife's alleged failure to plead and prove 90-day residency requirement, not established where husband did not file an answer to wife's petition and residency was established by wife's uncontested testimony; husband failed to show that marital settlement agreement was unconscionable. Gordon, J.

No. 2012 IL App (1st) 111327 In re Marriage of Epting  Filed 12-7-12 (TJJ)

On March 3, 2009, petitioner Brenda Epting filed a petition for dissolution of marriage in the circuit court of Cook County. The Eptings' two children were both emancipated. On July 13, 2011, the parties entered into an oral marital settlement agreement  which was included in the prove-up for the dissolution. That same day, the parties reduced the oral marital settlement agreement to writing and signed it. The written settlement agreement provided that respondent Pedro Epting would pay $3,967 per month  for maintenance payments, based in part on Pedro's annual income of $119,678 and Brenda's annual income of $12,840. The written settlement agreement included a 50% income-sharing plan, suggested by the trial court during a pretrial conference. A  month after signing the written settlement agreement, Pedro filed a motion on August 11, 2011, to "vacate the prove-up and other relief," which the trial court denied. On October 11, 2011, the trial court entered a judgment dissolving the parties' marriage and incorporating the written marital settlement agreement. The dissolution judgment was signed by each party's attorney. Pedro's attorney then filed a motion to withdraw, and on October 27, 2011, Pedro filed a pro se motion to reconsider the denial of  Pedro's previous motion to vacate the prove-up. The trial court denied Pedro's pro se motion to reconsider on November 17, 2011, after holding a hearing on the motion. Pedro now appeals, claiming: (1) that the trial court lacked subject matter jurisdiction  to dissolve the marriage and (2) that even if the trial court had subject matter jurisdiction, it erred in denying his motion to reconsider. For the following reasons, we affirm.

2. Corporate State Taxation: Circuit Court Reversed: State Department of Revenue correctly included "flow-through miles" of natural gas in the numerator of plaintiff natural gas transport companies' apportionment factor in calculating state tax owed, despite claim that the "flow-through miles" are not "in this State" for purposes of the Tax Act where the natural gas originates and terminates outside Illinois. McBride, J.

No. 2012 IL App (1st) 113559 Panhandle Eastern Pipeline Company v. Hamer  Filed 12-7-12 (TJJ)

Defendants, Brian Hamer, as Director of the Illinois Department of Revenue (the Director) and the Illinois Department of Revenue (the Department), appeal from the circuit court's order reversing the Department's denial of refunds for corporate income tax  and interest to plaintiffs, Panhandle Eastern Pipeline Corporation and Texas Eastern Transmission Corporation. Plaintiffs had filed amended tax returns seeking a refund of income tax paid under section 304(d)(2) of the Illinois Income Tax Act (Tax Act)  (35 ILCS 5/304(d)(2) (West 2010)) on its gas pipelines that traverse Illinois, but neither begin or end within Illinois. Reversed.

3. Child Custody Law: Affirmed in part and dismissed in part: In case where trial court denied father's motion for immediate return of child from California, Appellate Court had jurisdiction to hear appeal as an interlocutory appeal under Supreme Court Rule 307, despite father's failure to specify such in his notice of appeal, but failure of father-appellant to provide a sufficient record prohibited appellate court from determining correctness of trial court ruling. McLaren, J.

No. 2012 IL App (2d) 120502 The Department of Health Care and Family Services v. Cortez  Filed 12-7-12 (TJJ)

Respondent, Jose D. Cortez, appeals from the trial court’s order dismissing his petition for custody of his minor child, Chantal, and for an order to return Chantal to Illinois. We dismiss in part and affirm in part.

2 Appellate Cases Posted 12-06-12

1.  Criminal Law: Affirmed:  Elements of Plain errors discussed.  The common-law rule is that evidence of crimes, wrongs, or acts by the defendant aside from the crime(s) for which he is being tried is inadmissible if the prior conduct is relevant solely to establish the defendant’s propensity to commit an offense such as the one charged.  Evidence of other crimes or acts is admissible for a host of purposes other than to show propensity.  Exceptions discussed.  Black’s Law Dictionary defines “possession” as “[t]he fact of having or holding property in one’s power; the exercise of dominion over property.”  Birkett, J.

No. 2012 IL App (2nd) 110761  People v. Gumila Filed 12-06-12-(LJD)

Following a bench trial, defendant, Vernor Gumila, was convicted of possession of child pornography (720 ILCS 5/11-20.1(a)(6) (West 2008)). The physical evidence at trial consisted of (1) several photographic images forensically extracted from defendant’s computer, which images defendant did not dispute constituted child pornography; and (2) the Internet browsing history for defendant’s computer, which showed a history of visiting Web sites with names suggestive of child pornography. Defendant argues that the latter was improper other-acts evidence. He also   argues that the evidence was insufficient to show that he knowingly and voluntarily possessed the images discovered on his computer. We reject both contentions and affirm.

2.  Workers Compensation: Reversed and Remanded: The determination of whether an injury to a traveling employee arose out of and in the course of employment is governed by different rules than are applicable to other employees.  A " 'traveling employee' " is defined as "one who is required to travel away from his employer's premises in order to perform his job."  The test of whether a traveling employee's injury arose out of and in the course of his employment is the reasonableness of the conduct in which he was engaged at the time of his injury and whether that conduct might have been anticipated or foreseen by Venture-Newberg.  Hoffman, J., Hudson, J., dissents, joined by Turner, J.

No. 2012 IL App (4th) 110847WC  The Venture-Newberg Perini Stone and Webster v. Illinois Workers' Compensation Commission Filed 12-06-12-(LJD)

The claimant, Ronald Daugherty, appeals the decision of the circuit court of Sangamon County finding that he is not entitled to benefits under the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2006)) for injuries he sustained while in the employ of the respondent, The Venture-Newberg Perini Stone & Webster (Venture-Newberg). On appeal, the claimant argues that the circuit court erred in setting aside the Commission's determination that his accident, which occurred while he was traveling from his motel to a jobsite, arose out of and in the course of his employment with Venture-Newberg. For the reasons that follow, we agree, and we therefore reverse the judgment of the circuit court and reinstate the Commission's decision.

1 Appellate Case Posted 12-05-12

1.  Criminal Procedure: Affirmed:  Pursuant to both the United States and Illinois Constitutions, a defendant has the right to represent himself in criminal proceedings.  The right of self-representation is "as basic and fundamental as [the] right to be represented by counsel. The court discusses the admonishments to be given to a pro se defendant who wishes to proceed without an attorney.  Despite a defendant's constitutional right to self-representation, "a trial court has the discretion to admonish [a defendant that self-representation] is 'universally viewed as unwise,' given the highly technical rules governing the conduct of a trial."  Steigmann, J.

No. 2012 IL App (2nd) 110670  People v. Burns Filed 12-05-12-(LJD)

Following a May through June 2011 bench trial, the trial court convicted defendant, Emerson T. Burns, of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2008)). In July 2011, the court sentenced defendant to 50 years in prison.   Defendant appeals, arguing only that the trial court abused its discretion by coercing him into withdrawing his request to proceed pro se. We disagree and affirm.

1 Appellate Case Posted 12-03-12

1.  In Personam Jurisdiction: Reversed and Remanded:  When the trial court decides the issue of personal jurisdiction based solely on documentary evidence, our review is de novo.  A court has specific jurisdiction over a defendant if the suit arises out of or relates to the defendant’s contacts with the forum state.  For specific jurisdiction, the suit must arise directly out of the contacts between the defendant and the forum.  In order for personal jurisdiction to comport with federal due process requirements, the defendant must have certain minimum contacts with the forum state such that maintaining the suit there does not offend traditional notions of fair play and substantial justice.  At a minimum, the court must find an act by which the defendant purposefully avails him or herself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.  The focus is on the defendant’s activities within the forum State, not on those of the plaintiff.  The purposeful-availment requirement exists so that an out-of-state defendant will not be forced to litigate in a distant or inconvenient forum solely as a result of random, fortuitous, or attenuated contacts or the unilateral act of a consumer or some other third person.  So long as a commercial actor’s efforts are ‘purposefully directed’ toward residents of another State,  that state may exercise personal jurisdiction over a nonresident defendant. For internet cases, the some federal courts have applied a sliding scale test to determine jurisdiction.  Though we have previously approved of the sliding scale test, we now clarify that it is not to be treated as the ultimate test for determining jurisdiction in Internet cases. Instead, the ultimate analysis is what it has always been—whether the quality and nature of the defendant’s contacts with the forum are such that it is fair and reasonable to assert personal jurisdiction.  The court goes on to discuss the sliding scale test and gives some examples. Hudson, J.

No. 2012 IL App (2nd) 120117 Innovative Garage Door Company v. High Ranking Domains, LLC Filed 12-03-12-(LJD)

In this breach-of-contract case, plaintiff, Innovative Garage Door Company (Innovative), appeals the trial court’s order dismissing its complaint against defendant, High Ranking Domains, LLC (HRD), for lack of personal jurisdiction. At issue is whether HRD’s activities are sufficient to establish jurisdiction over it. We conclude that they are. Accordingly, we reverse and remand for further proceedings.

Click on month for For Supreme Court & Appellate Opinions (with Summaries) posted during   November, 2012