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  Illinois Supreme and Appellate Court Case Summaries
    

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No. By Laurence J. Dunford (LJD), Matthew Bertani (MB), Anne Therieau Hayes and Timothy J. Joyce(TJJ)

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People v. Garcia, 2015 IL App (1st) 131180

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2015 IL App (5th) 120401

8 Appellate Cases Posted 03-23-17

1.     Juvenile Delinquency: One-Act, One-Crime: Affirmed in Part, Reversed in Part: Under the one-act, one-crime doctrine, a criminal defendant may not be convicted of multiple offenses based on the same physical act.   Unless one offense is a lesser-included offense of another, “[m]ultiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. The one-act, one-crime doctrine involves a two-step analysis.  First, we determine whether respondent’s conduct involved multiple acts or a single act.  If respondent’s conduct involved only one physical act, multiple adjudications are improper. If respondent’s conduct involved multiple physical acts, we move to the second  step of determining whether one offense is a lesser-included offense of another.  Multiple adjudications are improper only if one offense is a lesser-included offense of the other.   O'Brien, J.

No. 2017 IL App (3rd) 160702   In re G.A.T.   Filed 3-23-17 (MGB)


Respondent was adjudicated delinquent on 2 Counts each of  Aggravated Criminal Sexual Abuse, Sexual Exploitation of a Child and Battery. He alleges the adjudication on 4 of the Counts must be vacated under the one-act, one-crime Rule. State concedes the ACSA and Battery Counts involving the insertion of a finger into victim's anus are the same act and the battery should be vacated. As to two other Counts, we conclude that coercing a victim to remove his clothes and inserting a finger in his anus are separate acts, and that the Sexual Exploitation Count based on the clothes removal is not a lesser included offense of ACSA as charged. Regarding the remaining Counts, they allege separate acts that took place on three different occasions and multiple adjudication are thus not barred by the Rule. 

2. Criminal Law: Suppression of Evidence: Street Value Fine:   Affirmed: Generally, a traffic stop ends when the paperwork of the driver and any passengers has been returned to them and the purpose of the stop has been resolved.  There is no seizure if the motorist understands that he or she is free to leave and voluntarily prolongs the contact. An officer may convert a lawful traffic stop into a consensual encounter by returning the driver’s documentation and informing the driver that he or she is free to leave.  The encounter can become a seizure, however, if, inter alia, the Mendenhall factors are present.  A street-value fine based on the entire weight of suspected illegal narcotics can be imposed on a defendant regardless of how much was tested.  Schmidt, J.


No.2017 IL App (3rd) 142141  People v. West  Filed 3-23-17 (MGB)


Defendant sentenced to 12 years DOC on convictions for Unlawful Possession of Cannabis with intent to deliver and Unlawful possession of Cannabis. Defendant appeals Trial Court's denial of his Motion to Suppress evidence finding the stop was not unreasonably prolonged. Stop was not unreasonably prolonged where Trooper issued a warning and told Defendant he was free to go 14 minutes after he initiated the stop, and Defendant consented to additional questions 20 seconds later and twice consented to a search of his vehicle. In this case, none of the Mendenhall factors are present in the alleged seizure before or after the traffic stop. Defendant gave his consent, not  once, but twice after Johnson explicitly told him he was free to leave. There is nothing plainly unreasonable about the trial court’s finding. As such, we affirm the trial court’s denial of defendant’s motion to suppress.

3.  Replevin: UCC:  Affirmed: Purchaser of motor vehicle which took "title" pursuant to a duplicate Certificate of Title bearing the legend "This is a duplicate certificate and may be subject to the rights of a person under the original certificate"  remained subject to lien noted on original certificate.  Hudson, J.

No. 2017 IL App (2nd) 160397  BMW Financial Services, N.A. v. Felice   Filed 3-23-17 (MGB)


Plaintiff, BMW Financial Services, N.A., LLC (BMW Financial), filed a replevin complaint in the circuit court of Du Page County, seeking possession of a 2011 Porsche Panamera. BMW Financial and Auto Showcase filed cross-motions for summary judgment. The trial court granted BMW Financial’s summary judgment motion, denied Auto Showcase’s motion, and awarded possession of the Porsche to BMW Financial. Auto Showcase filed a timely notice of appeal. A third party to this action caused the secretary of state to issue a duplicate title to a motor vehicle in which BMW had a lien interest by submitting a fraudulent release to the SOS, and then sold the vehicle to Auto Showcase. The Appellate Court affirmed the trial court finding that the issuance of the duplicate title that by its terms noted potential rights under the original title did not extinguish the original lien.

4.  Mortgage Foreclosure:  Rule 191(b) Summary Judgment Discovery: Attachment of Allonge to Negotiable Instrument:  Standing: Motions to Withdraw: Affirmed: Failure to comply with Rule 191(b) defeats an objection on appeal that insufficient time for discovery was allowed. An affidavit from an attorney does not comply with Rule 191(b), which requires affidavits from the party. The affidavit must state specifically what the affiant believes the prospective witness would testify to if sworn and reasons for the affiant’s belief, and requires facts, not conclusions. Attachment by paper clip (rather than staple or other more permanent method) is "affixed" to a negotiable instrument and satisfies Section 3-204(a) of the UCC. Trial Court complied with Rule 13 when it ruled on Motion to Confirm Sale filed prior to Motion to Withdraw, and then granting Motion to Withdraw. McBride , J.

No. 2017 IL App (1st) 160357  Olive Portfolio Alpha, LLC v. 116 West Hubbard Street, LLC   Filed 3-23-17 (MGB)


Following a grant of Summary Judgment for Plaintiff and Order Confirming Sale,Defendant appeals, arguing that (1) the trial court erred in granting summary judgment when defendant had raised affirmative defenses and denied defendant’s motion for an extension of time to file a response; (2) the trial court erred in denying discovery pursuant to Supreme Court Rule 191(b) ; and (3) the trial court erred in granting counsel’s motion to withdraw simultaneously with approving the judicial sale and not providing defendant 21 days to obtain new counsel and file a response. Here, the defendant's  affidavit was based on speculation and supported by pages printed from the internet to support her conclusion that Sabal conducted business on behalf of plaintiff in Illinois. Moreover, she failed to state in her affidavit that the material facts were known only to persons whose affidavits the affiant was unable to procure.  As the district court observed in Berg, the statute did not define “affixed” and the dictionary definition was to “secure to something; attach.” The statute does not limit the language of affix to only permanent forms of attaching. Thus, we conclude that a paper clip is sufficient to satisfy the requirement of affixing an allonge to an instrument under section 3-204.  Accordingly, defendant did not need further discovery to establish that the allonge was affixed to the 2012 Note, and the trial court did not abuse its discretion for denying this request for additional discovery. “Standing is an affirmative defense and, as such, it is the defendant’s burden to prove that the plaintiff does not have standing.However, defendant has not satisfied its burden to establish that plaintiff lacks standing. Defendant has cited no authority that the holder of a mortgage is transacting business in Illinois, such that registration (as a foreign corporation) is required, in order to pursue a foreclosure action, nor that a loan servicer’s actions separate from its work on the subject mortgage can be imputed to the holder. Defendant has not cited any authority finding that a trial court has to rule on motions in a specified order. Plaintiff’s motion to confirm the sale was filed prior to counsel’s motion to withdraw. The motion to withdraw was continued only because counsel failed to properly serve defendant, and counsel concluded that he was “ethically” prohibited from preparing a response to plaintiff’s pending motion. We point out that no action occurred on the case during the 21-day period after the motion to withdraw was granted. The trial court complied with Rule 13(c).

5.     Criminal Law: Domestic Battery: Lesser Included Offense of Reckless Conduct:  Affirmed: Reckless Conduct is a lesser included offense of Domestic Battery. A defendant may be convicted of an uncharged offense if it is a lesser-included offense of a crime expressly charged in the charging instrument, and if the evidence at trial rationally supports a conviction on the lesser-included offense and an acquittal on the greater offense.  To determine whether an uncharged offense is a lesser-included offense of a charge, we apply the “charging instrument” approach, wherein we determine whether the facts in the charging instrument include “a broad foundation or main outline of the lesser offense. The charging instrument need not explicitly state all of the elements of the lesser offense in order -to meet this standard, so long as any missing elements can be reasonably inferred from the allegations.    Ellis, J.

No. 2017 IL App (1st) 151988   People v. Lane.   Filed 3-23-17 (MGB)


Defendant Benjamin Lane was charged with domestic battery. After a bench trial, the court found him guilty of the uncharged offense of reckless conduct, finding that reckless conduct was a lesser-included offense of domestic battery. In this appeal, defendant argues that the trial court erred in making this finding. We disagree and hold that the trial court properly convicted defendant of reckless conduct. Victim testified defendant intentionally struck her. Defendant testified they struggled over a parking pass. Given the testimony at trial, the court could rationally conclude that defendant unintentionally hit Austell’s face while they fought over the parking pass and that defendant’s attempt to forcibly take the pass constituted a conscious disregard of the risk that he would hit Austell during the struggle. Defendant makes no argument that one offense may not be considered a lesser-included offense of another where they share the same sentencing ranges. He has forfeited any such argument. We note that, despite the sentencing ranges, domestic battery involves more culpable mental states—knowledge or intent—than recklessness .An included offense is defined as one “established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged. 720 ILCS 5/2-9(a).  That definition says nothing about the level of punishment for the two offenses. Thus, even though they shared the same punishment, reckless conduct could still be considered a lesser-included offense of domestic battery in this case because of its less culpable mental state. struggle.


6.  Illinois Income Tax Act: Required Amended Return: Affirmed:  Taxpayer's execution of an with the IRS Form 870-LT, titled, “Settlement Agreement for Partnership Items and Partnership Level Determinations as to Penalties, Additions to Tax and Additional Amounts and Agreement for Affected Items,” on behalf of  an LLC, which was a member of another LLC,  which adjusted the 2nd LLC's Tax Returns, constituted an "agreed to"  or "finally determined" change in federal income taxes requiring Taxpayer to notify IDOR within 120 days of such change under the Illinois Income Tax Act.  Ellis, J.

No. 2017 IL App (1st) 151449  Rogers v. Illinois Department of Revenue   Filed 3-23-17 (MGB)


Petitioners listed a $495,000 loss on their 2002 federal return based on a loss suffered by a partnership called Wacker-Madison, LLC (Wacker-Madison). Although petitioners did not have a direct interest in Wacker-Madison, one of the partners in Wacker-Madison was another partnership called Abingdon Trading, LLC (Abingdon). John held an interest in Abingdon, meaning that Wacker-Madison’s loss passed along to Abingdon and again to John. After the Internal Revenue Service (IRS) conducted an audit of Wacker-Madison, it notified petitioners that the $495,000 was incorrect. John signed a settlement agreement with the IRS on behalf of Abingdon, which adjusted the loss on Wacker-Madison’s 2002 return.  Illinois Independent Tax Tribunal granted summary judgment in favor of the Department for Petitioners' violation of the reporting requirements of the Act. Because Abingdon was taxed as a partnership, and petitioners held their interest in Wacker-Madison by virtue of their interest in Abingdon, Abingdon was a pass-thru partner and John was an indirect partner in Wacker-Madison. See 26 U.S.C. § 6231(a)(9) (2000) (pass-thru partner may be “a partnership”); Jimastowlo Oil, LLC v. Commissioner of Internal Revenue, 106 T.C.M. (CCH) 161, 2013 WL 4516184, at *8 (T.C. 2013) (“LLCs taxable as partnerships *** constitute ‘pass-thru’ partners under section 6231(a)(9)”). Further, petitioners were bound as indirect partners via the settlement between the IRS and their pass-thru partner, Abingdon   The settlement agreement showed that John, acting on behalf of Abingdon, which was a partner in Wacker-Madison, agreed to a change in the amount of loss reported on Wacker-Madison’s 2002 tax returns. Because the settlement agreement finally adjusted Wacker-Madison’s 2002 returns, which, in turn, required petitioners to adjust their federal return, we hold that petitioners agreed to the adjustment of their 2002 tax returns under section 506(b). Thus, the Tribunal did not err in awarding the Department summary judgment on this basis. .

7.  Criminal Law: Sex Offender Registration: Sufficiency of Evidence: Reversed: Evidence that defendant was incarcerated in Chicago and that he admitted he had previously attempted to register in Chicago, but was refused, was insufficient to support a conviction for failure register within 3 days of establishing a residence or temporary domicile.  Ellis, J.

No. 2017 IL App (1st) 142950  People v. Gomez   Filed 3-23-17 (MGB)


The State charged defendant with one count of failing to register as a sex offender under section 3(a)(1) of the Sex Offender Registration Act, alleging that defendant “knowingly failed to register, in person, as a sex offender with the Chicago police department within 3 days of establishing a residence or temporary domicile in the city of Chicago.” 
In order to prove a violation of section 3(a)(1) in this case,  the State was required to prove both (1) that the defendant resided or was temporarily domiciled at a specific location within Chicago, and (2) that the defendant failed to register there. While defendant’s presence at the Chicago police station could lead to the logical inference that defendant was present in Chicago when he was arrested, it does not prove that defendant resided in Chicago on that date, nor could it possibly prove that he had resided in Chicago both on that day and at least two other days in that calendar year, to reach the necessary three-day, temporary domicile element under the statute. Without any evidence placing defendant’s residence in Chicago for at least three days, the State failed to prove that defendant permanently resided, or was temporarily domiciled, in Chicago. The fact that defendant, at one point, attempted to register at an address located within Chicago tells us nothing about his length of stay at that address. We do not know if defendant resided at that address for one or more days before he attempted to register, or how long he remained at that address after being denied registration, if at all. Reversed.

8.  Criminal Law: Identification: In Court Demonstration: Reversed: In Court Demonstrations should be probative of the facts in issue and conducted under substantially similar circumstances as those which surrounded the original occurrence.  Ellis, J., Burke, J., dissenting with opinion.

No. 2017 IL App (1st) 142358  People v. White   Filed 3-23-17 (MGB)


Defendant appeals conviction at Bench Trial for delivery of controlled substance. He was not arrested at delivery, but several days later based upon identification by purchasing officer (Leveille) in photo array.   Specifically, defendant argues the court erred when it (1) ruled the tattoo on his left arm was irrelevant, (2) did not permit Leveille to acknowledge the tattoos on either of his arms, (3) precluded him from demonstrating the transaction with Leveille, and (4) improperly compelled him to show his right forearm with his palm facing down during a partial in-court demonstration. We find merit in these claims.   Evidence that defendant’s tattoos would have been visible to Leveille at the time of the drug transaction was unquestionably probative and relevant to the credibility of the officers’ identifications of defendant as the drug dealer in question. And by having the officer demonstrate exactly his positioning vis-à-vis defendant during the events in question, the demonstration would have been conducted under substantially similar conditions.  Instead, the trial court decided that its own view of defendant’s right forearm, when turned palm down, from its vantage point on the bench “about two feet above” defendant, was all the court needed to know—that when defendant’s palm was turned down, the tattoo on the right forearm was not visible. The court also erred by not allowing defense counsel to introduce any evidence whatsoever regarding the tattoo on defendant’s left arm. The court deemed it irrelevant, reasoning that the man who handed the officer the drugs did so with his right hand, not his left. The flaw in this reasoning is that Leveille  did not limit his testimony to only seeing defendant’s right arm; he said that he first saw defendant emerging from a garage into the alley and then walking up to Leveille. This was not, as the State suggests, a mere technical evidentiary ruling that limited only a discrete piece of evidence; the court’s rulings effectively denied defendant any defense whatsoever.  Reversed and remanded for new trial.


2 Appellate Cases Posted 3-22-17

1. Criminal Law: Affirmed: Convictions for aggravated criminal sexual abuse of defendant's 15-year-old niece affirmed; trial court properly admonished defendant regarding pro se representation; defendant was not entitled to have his Franks motion "reconsidered" on direct appeal with information, including new affidavits, not part of the trial record; motion to suppress evidence properly denied over claim that police search of lockbox exceeded scope of search authorized by warrant; and trial court properly conducted voir dire. Lavin, J.

No. 2017 IL App (1st) 133398  People v. Garcia  Filed 3-22-17 (TJJ)


Following a jury trial, defendant Ivan Garcia was found guilty of the aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2008)) of his 15-year-old niece, when he was nearly twice her age, and sentenced to a total of 20 years in prison. He appeals raising a number of contentions relating to the court’s compliance with Illinois Supreme Court rules, the denial of his pretrial motions challenging the search warrant, his right to a lawyer and right to self-representation, as well as the use of propensity evidence and other trial errors. We address each in turn as we affirm.

2. Criminal Law: Affirmed in part and vacated in part and remanded: Post-conviction hearing at third stage properly denied by circuit court where defendant claimed that it was a violation of due process for the trial judge's husband not to be removed from the jury for cause during voir dire, or that trial counsel rendered ineffective assistance for failing to use a peremptory challenge against that juror. Certain fines vacated. Pope, J.

No. 2017 IL App (4th) 150830  People v. Bowens  Filed 3-22-17 (TJJ)


Defendant, D’Arious M. Bowens, appeals the third-stage denial of his postconviction petition, arguing (1) the trial judge committed reversible error when she allowed her husband to serve on the jury. In the alternative, defendant contends (2) he received ineffective assistance of counsel when his attorney failed to use a peremptory strike against the judge’s husband, (3) the $50 court-finance assessment was improperly imposed by the circuit clerk, and (4) he is entitled to per diem credit against his $200 domestic-violence assessment. We affirm in part, vacate in part, and remand with directions.


2 Appellate CasesPosted 3-21-17

1. Negligence: Certified questions answered: In action for injuries to a high school football player allegedly resulting from athletic trainer's failure to adequately assess player's head injury, Appellate Court ruled in response to questions certified by the trial court that plaintiffs were required to provide a health care professional's certificate under Section 2-622 of the Code of Civil Procedure that there was a medical basis for the action, but the certificate cannot be prepared by an athletic trainer, but must be submitted by a physican otherwise eligible to provide such certificate generally. Pierce, J.

No. 2017 IL App (1st) 161902  Williams v. Athletico, Ltd  Filed 3-21-17 (TJJ)


Plaintiffs Jodine Williams and Christopher Williams, both individually and as plenary coguardians of Drew Williams, a disabled person, filed suit in Cook County circuit court against Athletico, Ltd. (Athletico), Accelerated Rehabilitation Centers, Ltd. (ARC), and Albert Buzon, ATC a/k/a Wojciech Buzun1 (collectively, defendants), alleging that defendants were negligent for failing to assess Drew for symptoms of head trauma during a high school football game. Plaintiffs alleged that defendants failed to (1) assess Drew for symptoms of head trauma “following a significant blow to the head,” (2) “evaluate [Drew] for a concussion until the fourth quarter of the game,” and (3) “recognize the signs of [Drew] suffering a brain trauma.” ¶ 2 Defendants moved to dismiss plaintiffs’ complaint pursuant to section 2-619 of the Code of Civil Procedure on the ground that, because the complaint sounded in healing arts malpractice, plaintiffs were required to comply with section 2622 of the Code, and this failure warranted dismissal under section 2-622(g) of the Code. The trial court denied defendants’ motion to dismiss; however, it certified the following three questions of law pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 1, 2016): “1. Whether it is  necessary for a plaintiff to attach a certificate from a health care professional, pursuant to section 2-622 of the Code of Civil Procedure, where the complaint alleges negligent conduct by an Athletic Trainer during a high school football game in which the  trainer was hired to provide on-site injury evaluation to ensure the health and well-being of the participating athletes. 2. Whether it is necessary for a plaintiff to attach a certificate from a health care professional pursuant to section 2-622 of the Code where the complaint alleges negligent conduct by a licensed Athletic Trainer for failing to evaluate an athlete for a concussion following a head trauma suffered while participating in an athletic program. 3. If so, must the health care professional that issues the  certificate pursuant to section 2-622 of the Code be someone in the same profession, with the same class of license as the defendant Athletic Trainer.” We allowed defendants’ application for leave to appeal pursuant to Rule 308(a). For the following  reasons, we reframe the first and second certified questions and answer in the affirmative, and answer the third certified question in the negative. We remand for further proceedings consistent with this opinion.

2. Criminal Law: Affirmed: Allowing video of defendant's traffic stop played for jurors during deliberations but in courtroom in presence of all participants was not an abuse of discretion and did not require a new trial. Carter, J. (O'Brien, J., separate concurring opinion) (Holdridge, J., dissenting).

No. 2017 IL App (3d) 140752  People v. McKinley  Filed 3-21-17 (TJJ)


Defendant, James W. McKinley, appeals from his conviction for aggravated driving under the influence of alcohol (DUI) arguing that, during jury deliberations, the circuit court erred in allowing the jury to view the videotape of defendant’s traffic stop and field sobriety tests in the courtroom instead of the jury room. We affirm.

1 Appellate Case Posted 3-20-17 

1. Mortgage Foreclosure: Reversed and remanded: Despite numerous visits by process servers to subject property over a period of time, Appellate Court concluded that plaintiff had not engaged in due diligence regarding service attempts so as to permit alternative service by mail, where plaintiff took no steps to ascertain where defendant was living at time service was sought; foreclosure judgment reversed. Harris, J.

No. 2017 IL App (1st) 160773  Urban Partnership Bank v. Ragdale  Filed 3-20-17 (TJJ)


This is an appeal from a mortgage foreclosure action involving residential property owned by defendant-appellant, Nickole Ragsdale (hereinafter “the defendant”). Urban Partnership Bank (hereinafter “the plaintiff”), as successor of ShoreBank, provided  defendant with a loan, which was secured by a residential mortgage on 4601 S. Vincennes (hereinafter “the Subject Property”) in Chicago. Defendant defaulted on the loan. Plaintiff then filed this foreclosure action to recover the Subject Property. The plaintiff failed to personally serve the defendant with a copy of the foreclosure action. After several unsuccessful attempts, the plaintiff filed a motion for alternative service, which the circuit court granted. The plaintiff then carried out the alternative service, and the circuit court entered judgment in favor of plaintiff in July 2014. The Subject Property was sold at judicial sale in November 2014, which the circuit court confirmed in February 2015. In June 2015, the defendant filed a petition under section 2-1401 of the Code of Civil Procedure, seeking to quash service. After a protracted briefing schedule, the circuit court denied the petition in March 2016. Defendant now appeals from the circuit court order denying her 2-1401 petition. Upon review, we find the circuit court did err in denying the section 2-1401 petition. As set forth below, the due diligence affidavit attached to the motion for alternative service failed to comply with the requirements set forth in the applicable section. Accordingly, we hold the defendant was not properly served and the circuit court did not have personal jurisdiction over her.


2 Appellate Cases Posted 3-17-17

1. Elections: Affirmed: In complicated proceedings before municipal election board in which petitioner unsuccessfully objected to ten separate candidates for offices in municipal election, petitioner's failure in pleadings filed in circuit court for administrative review to particularize which board rulings she was seeking review on left the circuit court without authority to review the board decisions, and in any event petitioner's claims that certain candidates were ineligible as candidates because of amounts owed to the municipality in question was without basis. Pierce, J.

No. 2017 IL App (1st) 170398  Ervin v. Alsberry  Filed 3-17-17 (TJJ)


Nkyia Ervin filed a petition in the circuit court seeking judicial review of multiple electoral board decisions overruling her objections to the nomination petitions by various candidates in the upcoming Consolidated Election. The circuit court dismissed the petition, and Ervin appeals. For the following reasons, we affirm.

2. Workers' Compensation: Affirmed: In case where employee failed to accede to employer's requests for copies of medical bills in order to facilitate payment of same in connection with workers' compensation award, circuit court properly reversed Commission award of Section 19(l) penalties against employer where delay in paying award of medical expenses was justified by employee's failure to respond to employer's request. Harris, J.

No. 2017 IL App (1st) 161237WC  Theis v. Illinois Workers' Compensation Comm'n  Filed 3-17-17 (TJJ)


In May 2014, claimant, Brittany Theis, was awarded benefits under the Illinois Workers' Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2012)), for an injury to her right arm resulting from a March 3, 2013, fall at work. Neither she nor the employer, Steak 'n Shake Operations, Inc., filed a petition for review. ¶ 2 In October 2014, claimant filed a petition for penalties and fees pursuant to sections 19(l), 19(k), and 16 of the Act. Following a December 2014 hearing, the Illinois Workers' Compensation Commission (Commission) awarded claimant section 19(l) penalties in the amount of $4,920, but it denied claimant's request for section 19(k) penalties and section 16 fees. On judicial review, the circuit court reversed the Commission's award of section 19(l) penalties, but it otherwise confirmed the Commission's decision. Claimant appeals, asserting the Commission's award of section 19(l) penalties was appropriate. We affirm.

7 Appellate Cases Posted 3-16-17

1. Criminal Law: Affirmed: Defendant-immigrant who pleaded guilty to burglary not entitled to have his plea vacated where he failed to show that any decision to reject a plea bargain would have been "rational" pursuant to People v. Valdez, and 113-8 warnings regarding potential immigration consequences of plea not improper for use of word "may," even though in this instance it was a virtual certainty that defendant would be subject to deportation upon conviction. Burke, J.

No. 2017 IL App (1st) 131306-B  People v. Unzueta  Filed 3-16-17 (TJJ)


Defendant Adrian Unzueta appealed from an order of the circuit court of Cook County, granting the State’s motion to dismiss his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). He contended that he made a substantial showing of a claim of ineffective assistance of counsel based on counsel’s failure to advise him of the deportation consequences of his guilty plea. In November 2015, our court affirmed the trial court’s judgment, finding defendant failed  to make a substantial showing of a constitutional violation where he failed to demonstrate that he was prejudiced by counsel’s performance. People v. Unzueta, 2015 IL App (1st) 131306, ¶¶ 31, 33. Defendant filed a petition for leave to appeal with the Illinois Supreme Court. In November 2016, the supreme court denied defendant’s petition but also entered a supervisory order directing us to vacate our judgment and consider the effect of its decision in People v. Valdez, 2016 IL 119860, “on the issue of  whether defendant made a substantial showing of a claim of ineffective assistance of counsel based on counsel’s failure to advise him of the deportation consequences of his guilty plea, and determine if a different result is warranted.” In accordance with the supreme court’s directive, we vacated our earlier judgment. After reconsidering this case in light of Valdez, we determine that a different result is not warranted. Accordingly, we affirm.

2. Criminal Law: Affirmed: Defendant's motion to suppress evidence properly denied over claim that police statement to defendant to "come here" did not constitute a seizure in light of the totality of the circumstances, and was instead a request, and trial court did not err in not conducting a fitness hearing despite ordering a fitness examination, as the reports of the responding doctors did not raise a bona fide doubt as to fitness. Burke, J. (Ellis, J., dissenting)

No. 2017 IL App (1st) 143412  People v. Qurash  Filed 3-16-17 (TJJ)


A two-count criminal information charged defendant, Ramsey Qurash, with (1) possession of a controlled substance (Diazepam) and (2) possession of cannabis after having previously been convicted of possession of a controlled substance. The Cook  County trial judge found defendant guilty of possession of a controlled substance (less than 200 grams of Diazepam) and possession of cannabis (10 to 30 grams) and sentenced him to concurrent prison terms of three years. On appeal, defendant contends  that (1) the trial court erred in denying his motion to suppress because the officer’s statement of “come here” to defendant was a seizure and (2) the court erred in failing to hold a fitness hearing. For the reasons stated below, we affirm.

3. Negligence: Affirmed: In action for injuries sustained by plaintiff while riding in a taxi, resulting in award for plaintiff of $21,000,000 and loss of consortium for his wife of almost $4,000,000, trial court did not err in allowing plaintiff's expert to offer an opinion regarding speed; properly allowed evidence that plaintiff was a man of "careful habits"; properly refused a special interrogaory on sole proximate cause; and properly denied reducing damages for loss of consortium. McBride, J. (Cobbs, J., dissenting).

No. 2017 IL App (1st) 151107  Jacobs v. Yellow Cab Affiliation, Inc.  Filed 3-16-17 (TJJ)


Yellow Cab Affiliation, Inc. (YCA) was sued as the apparent principal of Chicago taxicab driver Cornelius C. Ezeagu, whose alleged negligence while exiting a highway caused a high speed crash and severe traumatic brain injuries to his passenger,  attorney Marc M. Jacobs. YCA and Ezeagu now appeal from a $21.98 million jury verdict and judgment in favor of Jacobs and a $3.96 million award to his wife, Deborah Jacobs. YCA contends the trial court erred by (1) letting the Jacobses proceed on  claims of apparent agency; (2) excluding evidence that the cab’s appearance, which was the basis for the apparent agency allegations, was involuntary and mandated by Chicago ordinance; (3) giving a jury instruction relevant only to medical negligence  claims; and (4 and 5) allowing evidence and a jury instruction as to the passenger’s purported habit of taking YCA vehicles so that he could show, despite having no memory of the evening, that he had deliberately chosen the YCA vehicle. Ezeagu, who  contends the accident was caused by his passenger’s sudden urging to exit the highway when it was too late to safely do so, argues it was error to (1) allow an accident reconstruction expert to speculate about the cab’s highway speed despite eyewitness  testimony, (2) allow the passenger to put on testimony that he was a man of “careful habits,” (3) give a confusing jury instruction about the passenger’s habit of taking YCA cabs, (4) refuse a special interrogatory on sole proximate cause, and (5) reject a  motion for remittitur of the wife’s award for loss consortium. We allowed Taxicab, Limousine & Paratransit Association (TLPA) to file an amicus curiae brief. For the following reasons, we affirm.

4. Real Estate Property Taxes: Affirmed: County could properly seek payment for real estate taxes three years past in case where taxpayer had erroneous "homestead exemption," despite owner's claim that statutory scheme permitting county to seek payment did not apply retroactively. McBride, J.

No. 2017 IL App (1st) 152563  Mulry v. Berrios  Filed 3-16-17 (TJJ)


A homestead is a property taxpayer’s primary residence and the legislature has granted limited homestead exemptions from taxation to certain groups, such as military veterans, senior citizens, and long term occupants. See 35 ILCS 200/9-275(a) (West 2014). The main question presented by Evergreen Park property owner Barbara R. Mulry is whether the statute adopted in 2013 encompasses tax years 2010, 2011, and 2012. Mulry contends the statute has been applied retroactively in violation of the contract clause and due process guarantee of the state and federal constitutions and that an administrative hearing officer’s decision in favor of tax assessment and 10% interest is primarily based on computer records admitted into evidence without adequate foundation. Affirmed.

5. Filing Fees: Affirmed: $10 fee imposed as part of filing fees generally in civil filings for "Children's Waiting Room Fee" not unconstitutional over claims that it constitutes a tax and is over-inclusive in that the vast majority of litigants will never use it. Burke, J.

No. 2017 IL App (1st) 160579  Gatz v. Brown  Filed 3-16-17 (TJJ)


Plaintiff, Randall Gatz, individually and on behalf of all others similarly situated, brought this putative class action lawsuit against defendants Dorothy Brown, in her capacity as clerk of the circuit court of Cook County, and Maria Pappas, in her capacity as  treasurer of Cook County, challenging the constitutionality of the $10 children’s waiting room fee (Room Fee) assessed to all civil litigants who file an initial pleading in the circuit court. The trial court granted defendants’ motion to dismiss plaintiff’s  complaint with prejudice pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2014)). For the reasons stated below, we affirm.

6. Criminal Law: Affirmed: Conviction for public indecency affirmed: other crimes evidence relating to instances where defendant was sexually suggstive to other minor females was properly admitted; he was proved guilty beyond a reasonable doubt; trial counsel was not ineffective; and sentence of 360 days in jail and two years' probation properly authorized by statute. Birkett, J.

No. 2017 IL App (2d) 151107  People v. Fretch  Filed 3-16-17 (TJJ)


Following a bench trial, defendant, Ian F. Fretch, was convicted of several offenses, based on evidence that he knowingly exposed his penis and masturbated in the presence of G.G., a female minor. Defendant brings four main contentions on appeal: (1) the trial court erred in admitting other-acts evidence; (2) the evidence was insufficient to support defendant’s convictions; (3) defendant’s trial counsel was constitutionally ineffective in various respects; and
(4) the trial court was not authorized to sentence defendant to a two-year period of probation to run consecutively to a 360-day term of imprisonment. We reject all four contentions and affirm.

7. Judgment Liens: Affirmed: Plaintiff's judgment and judgment lien on a particular piece of property owned by the judgment debtor, but sold by the debtor prior to plaintiff's action to forecleose the lien, did not permit plaintiff to enforce the lien where plaintiff did not properly revive the judgment within seven years of its issuance. Hutchinson, J.

No. 2017 IL App (2d) 160126  Schindler v. Watson  Filed 3-16-17 (TJJ)


This case involves the expiration of a judgment lien on real estate. Defendant Norman Watson, the judgment debtor, sold the subject property to defendants Peter H. Cozzi and Anne V. Cozzi roughly two months before the lien was scheduled to expire.  Plaintiff, Ralph J. Schindler, Jr., the judgment creditor, apparently unaware of the sale, did nothing to enforce his lien rights before the expiration date. Afterward, he filed a foreclosure complaint, which the trial court dismissed as untimely. He now  contends that the sale operated to extend the expiration date and allow his foreclosure on the lien. He raises arguments similar to those that were rejected in Barth v. Kantowski, 409 Ill. App. 3d 420 (2011), a case decided by our Third District Appellate  Court. Although we decline to follow Barth, we affirm the trial court’s dismissal of plaintiff’s untimely foreclosure complaint.

4 Appellate Cases Posted 03-15-17

Grinyou v. 303 Taxi, LLC 2017 IL App (1st) 160193

1. Civil Law:  Reversed:  we conclude that the plain language requires that the compensation of a provisional director appointed under the Act be paid by the corporation, not its shareholders.  Pucinski, J.

No. 2017 IL App (1st) 152135 Sinkus v. BTE Consulting Filed 3-15-2017 (ATH)

 

Consolidated appeals arise from orders holding the plaintiff, John Sinkus (“Sinkus”), in indirect civil contempt for failing to comply with the trial court’s orders directing him, as a shareholder of defendant BTE Consulting (“BTE”), to contribute to the compensation of BTE’s court-appointed provisional director. On appeal, Sinkus contends that the trial court lacked authority to order him to compensate the provisional director, because section 12.56(g) of the Business Corporation Act specifically provides that provisional directors are to be compensated by the corporation.

2. Civil Law:  Affirmed:  The Illinois Public Aid Code permits the defendants to implement the reimbursement reductions in the manner they see fit, so long as the total reductions do not exceed 2.25% of the total Illinois General Revenue Fund (GRF) Medicaid appropriation for fiscal year 2015, the plaintiffs’ allegations that the defendants applied the reimbursement reductions to funds other than the GRF, even when taken as true, do not establish that the defendants exceeded the scope of their authority. As plaintiffs’’ claims are based on a law of the State of Illinois, the Court of Claims holds exclusive jurisdiction over this matter.  Pucinski, J.

No. 2017 IL App (1st) 152755 Helia Healthcare of Belleville, LLC v. Norwood  Filed 3-15-2017 (ATH)

 

Plaintiffs, skilled nursing facilities in Illinois, appeal from the trial court’s dismissal of their complaint against the defendants, Felicia F. Norwood, the Director of Healthcare and Family Services, and the Illinois Department of Healthcare and Family Services.  Plaintiffs allege the trial court erred when it concluded that it lacked subject matter jurisdiction over the plaintiffs’ claims because the Court of Claims held exclusive jurisdiction.  Affirmed.

3. Civil Law:  Affirmed:  In the absence of a showing from which the court could infer the existence of a duty, no recovery by plaintiff is possible as a matter of law and summary judgment in favor of the defendant is proper. Similarly, plaintiff’s negligence claim must fail if the undisputed evidence does not establish a breach of duty owed to plaintiff by defendant or a proximate relationship between defendant’s breach and plaintiff’s alleged injuries. The evidence in the record, viewed in the light most favorable to Gerasi, reveals no genuine issue of material fact regarding Gilbane’s breach of duty or any proximate relationship between a breach and Gerasi’s injuries.  Mason, J.

No. 2017 IL App (1st) 133000 Gerasi v. Gilbane Building Co. Filed 3-15-2017 (ATH)


Plaintiff appeals from an order granting summary judgment to defendant Gilbane Building Company (Gilbane). Gerasi contends that questions of material fact exist as to whether Gilbane retained control over the work of its subcontractor, Geary Electric (Geary), such that Gilbane may be directly liable for its negligence in exercising its retained control.
 We find no issues of material fact exist.  Affirmed.

4. Criminal Law:  Affirmed:  Viewing the evidence in the light most favorable to the State, there was sufficient evidence to find Murphy guilty of burglary beyond a reasonable doubt when the evidence at trial established the defendant’s presence in a restricted access building on a Sunday morning and his conduct in attempting to open doors and examining and moving boxes. Mason, J.

No. 2017 IL App (1st) 142092 People v. Murphy Filed 3-15-2017 (ATH)

 

Following a bench trial, the defendant was found guilty of burglary. He was sentenced to eight years in prison. On appeal, Murphy contends that he was not proven guilty beyond a reasonable doubt because the State failed to establish that he did not have permission to be inside the building or that he intended to commit a theft. He also contests the imposition of certain fines and fees. We affirm and correct the fines and fees order.

1 Appellate Case Posted 03-14-17

Grinyou v. 303 Taxi, LLC 2017 IL App (1st) 160193

1. Civil Law:  Affirmed:  Under the doctrine of respondeat superior, a principal may be held liable for the tortious actions of an agent which cause a plaintiff’s injury, even if the principal does not himself [or herself] engage in any conduct in relation to the plaintiff.” The burden of proving the existence and scope of an agency relationship rests on the party seeking to impose liability on the principal. 303 Taxi’s purchase of the statutory minimum amount of insurance for which it was later reimbursed by VEM through the monthly dues was not, standing alone, sufficient evidence to establish a principal-agent relationship. But, that evidence, coupled with the cumulative evidence of control 303 Taxi exercised over VEM was more than sufficient to support the jury’s finding of agency.  While not admissible to show fault, the existence of insurance may be shown in connection with issues such as agency, ownership, control, bias, or prejudice of a witness.  In this case, the testimony of liability insurance was properly admitted to show that 303 Taxi exercised control over VEW, thus to establish the agency relationship.    Evidence regarding a party’s financial circumstances may be admitted if relevant to an issue.   Testimony regarding payments made to 303 Taxi were not for the purpose of emphasizing 303 Taxi’s wealth but to show the majority of VEM’s business came from 303 Taxi showing that 303 Taxi exercised leverage and control over VEW to create an agency relationship. Hyman, J.

No. 2017 IL App (1st) 160193 Grinyou v. 303 Taxi, LLC Filed 3-14-2017 (ATH)


Edvard Grinyov brought a negligence action after being injured when a taxicab driven by Igor Maslennikov struck him. The cab was owned by VEM Transportation LLC, Maslennikov’s employer. Grinyov sued Maslennikov, VEM Transportation LLC, and 303 Taxi, L.L.C., which provided dispatch services to VEM. Grinyov contended that VEM and 303 Taxi are vicariously liable for his injuries as they were engaged in a joint venture, or, in the alternative, had a principle-agency relationship. The jury returned a special verdict against all three defendants on plaintiff’s agency theory. 303 Taxi appeals arguing the evidence did not support the jury’s finding that VEM was 303 Taxi’s agent and that 303 Taxi was unfairly prejudiced by evidence concerning the parties’ insurance coverage and 303 Taxi’s financial status.

2 Appellate Cases Posted 03-13-17

Grinyou v. 303 Taxi, LLC 2017 IL App (1st) 160193

1. Civil Law:  Affirmed: A rational jury could have concluded that Officer Kennedy’s conduct in following the SUV, using his lights and siren and going the wrong way down a one-way street in a residential area, caused the accident that resulted in Ms. Freeman’s death. The evidence also supports the finding that Officer Kennedy could reasonably have foreseen that his conduct in following the SUV that was being driven recklessly by Mr. Jones would result in an accident and if followed by a police vehicle, this person would continue to drive recklessly, speed, and drive through intersections without stopping or consideration of any traffic signals or signs. Therefore, Mr. Jones’s reckless driving was not an intervening force that broke the causal link between Officer Kennedy’s conduct and the accident. The City claims that the circuit court’s questioning of the juror who dissented from the initial verdict; the court’s direction to the jury to return to deliberations the following day, after having at first indicated to the jury that it would be dismissed from service; and the court’s acceptance of the verdict the following morning, after only five to seven minutes of further deliberations, were improper. If the circuit court finds “that any juror does dissent from the verdict submitted to the court, then the proper remedy is for the trial court, on its own motion if necessary, to either direct the jury to retire for further deliberations, or to discharge it.” Mikva, J.


No. 2017 IL App (1st) 153644 Freeman v. The City of Chicago Filed 3-13-2017 (ATH)

 

Defendant City of Chicago appeals from a jury verdict in favor of plaintiff Sheri Freeman, administrator of her mother Tommye Freeman’s estate.  On July 3, 2008, Ms. Freeman was struck by a car driven by Rodney Jones after Chicago Police officers attempted to pull over Mr. Jones.  Mr. Jones sped away from the officers and drove through a red light at the intersection of 76th and State Streets, striking Ms. Freeman, who subsequently died from her injuries.  On appeal the city claims that the court erred in (1) not granting its motion for judgment notwithstanding the verdict because the evidence at trial demonstrated that Officer Kennedy’s actions were not the proximate cause of Ms. Freeman’s injuries and (2) it is entitled to a new trial because the jury’s verdict was the product of coercion.

 

2. Criminal Law:  Affirmed:  A police officer’s use of a grand jury subpoena to launch an investigation that excludes the grand jury until after the officer has obtained materials that are impressed with a constitutionally protected privacy interest—and has used those materials to obtain a warrant to search a suspect’s home (obviously another constitutionally sensitive intrusion)—raises serious problems. The officer’s deliberate act of making the subpoena returnable to him, combined with his subsequent refusal to transmit the documents obtained to the grand jury, amounted to an abuse of the subpoena power. The subpoena itself was defective, and the handling of the confidential information that it produced was tainted by the original defect and by the subsequent disregard of the grand jury, which should have originally received the information. That said, however, we cannot say that defendant carried his burden to prove that the improprieties, however deliberate, prejudiced him. Had the detective followed the proper procedure by making the subpoena returnable to the grand jury the State could still have obtained the information and used it to obtain the warrant to search defendant’s home. Spence, J.


No. 2017 IL App (2d) 150884 People v. O'Dette Filed 3-13-2017 (ATH)

 

After a stipulated bench trial, the defendant was convicted of possessing child pornography and sentenced to three years’ probation. On appeal, he contends that the trial court erred in denying his motion to suppress evidence that he alleged was obtained by the abuse of the grand jury’s subpoena power. In this case, a grand jury subpoena was issued to AT&T with records to be sent directly to the Lake County Sheriff’s Office.  The documents were returned directly to the detective who issued the subpoena.  When the subpoena was issued, there was no grand jury convened to investigate the defendant. The grand jury never reviewed the documents and the information was used to obtain a search warrant for the defendant’s home. Affirmed. 

3  of 5 Appellate Cases Posted 03-10-17


1.    Civil Procedure: Limitations: Reversed and remanded with directions: Section 13-217 of the Code of Civil Procedure does not allow a third refiling of the same action.   Delport, J.

No. 2017 IL App (3rd) 160254   Bush v. J&J transmissions, Inc.  Filed 3-10-17 (MGB)


Can plaintiff file a third complaint against defendants in the circuit court where he previously (1) filed and voluntarily dismissed a complaint in the circuit court and (2) 3 refiled the complaint in federal court, which the court dismissed the Federal Claim and declined to exercise jurisdiction over State Law claims.  Because Illinois courts have interpreted section 13-217 of the Code as only allowing one refiling of a complaint based on the same underlying facts, we answer the certified question in the negative. The fact that one of the dismissals was voluntary and the other was by the federal court does not change our conclusion. Though this section provides plaintiffs with the absolute right to refile their complaint within one year or within the remaining period of limitations when, as here, plaintiff voluntarily dismissed his complaint, it was not intended to permit multiple refilings. Timberlake v. Illini Hospital, 175 Ill. 2d 159, 163 (1997). The Illinois Supreme Court has interpreted this statute as permitting “one, and only one,” refiling of a claim. Flesner v. Youngs Development Co., 145 Ill. 2d 252, 254 (1991).

2.   Delinquent Minors: Siezure: Affirmed:  The age of a minor must be considered in determining whether an encounter with the police is consensual, which does not require probable cause or reasonable articulable suspicion, or a  siezure, which would require such basis.  Encounter followed by repeated requests by the police that a 13 year old "come here" was not a consensual encounter. Police officers had reasonable articular suspicion to support a Terry  stop where minor was out at 11:00 p.m. in violation of curfew ordinance.    Knecht, J.

No. 2017 IL App (1st) 162648  In re Elijah W.   Filed 3-10-17 (MGB)


Respondent, Elijah W., a 13-year-old minor, was charged as a juvenile with two counts of possession of a controlled substance. Both counts were based on illegal drugs which Chicago police officers confiscated from Elijah’s person. Elijah filed a motion to quash his arrest and suppress evidence, alleging he was seized without probable cause or a reasonable, articulable suspicion of criminal activity, and without a valid search or arrest warrant. Elijah  argues that at the time of the stop, the police lacked the requisite reasonable, articulable suspicion justifying the seizure. He contends that fact that he was located in a high narcotics trafficking area and that three of the officers in the police cruiser recognized him were wholly insufficient to support a Terry stop. Elijah argues that Officer Meeks’s testimony fails to establish that they stopped him for violating curfew. We disagree.

3.     Consumer Fraud: Punitive Damages for Conversion: Summary Judgment:  Affirmed:  Where plaintiffs failed to update credit card information and give written notice to storage facility of change of address, Trial Court properly granted summary judgment in favor of defendants because defendants' violation of notice provisions of Storage Act were not the proximate cause of plaintiffs' damages for the sale of their possessions by storage facility. Punitive damages for the tort of conversion properly lie where the defendant acts willfully or with such gross negligence to indicate a wanton disregard of the rights of others.” Punitive damages are not awarded for acts that constitute ordinary negligence, such as mere inadvertence, mistake, and errors of judgment.   Hall, J.

No. 2017 IL App (1st) 150383   Fogt v. 1-800-Pack-Rat, LLC  Filed 3-10-17 (MGB)


The plaintiffs  filed an interlocutory appeal from an order of the circuit court of Cook County granting summary judgments to the defendants—1-800-Pack-Rat, LLC, WM Pack-RAT of Illinois, LLC, WM Pack-Rat, LLC, Waste Management, Inc., and WM Storage, No. 1-15-0383 Inc. (collectively, the defendants)—and denying the plaintiffs’ motions for summary judgment. Plaintiffs stored personal belongings at storage facility. In violation of Rental Agreement, plaintiffs did not update credit card when the card on deposit was cancelled, and did not give written notice that they had moved. Household items were sold at auction. While defendants sent notice to address on file, they did not comply with notice provisions of the Storage Act.  Court had granted summary judgment if favor of plaintiffs on the conversion theory, but entered summary judgment in favor of defendants on the issue of punitive damages. There is no question that the defendants acted voluntarily and intentionally in auctioning the plaintiffs’ property, since that is the basis for finding that they had converted the plaintiffs’ property. However, in order to determine if punitive damages are appropriate, the conduct must not just be willful, but that the defendant acted willfully or with such gross negligence to indicate a wanton disregard for the rights of others. . Such conduct is not present under the uncontested facts of this case.


4 Appellate Cases Posted 03-07 and 3-09-17


1.    Criminal Law: Motion to Suppress Evidence: Terry frisk in Tier 3 Encounter: Affirmed: Act of Officer turning his car around and approaching Defendant on foot to determine if he was involved in reported robbery or had seen anyone running was not a siezure. Repeated requests by Officer that Defendant remove his hands from his pockets was not a seizure. A police officer may conduct a Terry frisk during a ­ consensual encounter upon developing reasonable suspicion the citizen is armed and dangerous; the officer need not develop reasonable suspicion of criminal activity.   Knecht, J.

No. 2017 IL App (4th) 140672   People v. Evans  Filed 3-9-17 (MGB)


Defendant convicted of possession of controlled substance appeals only trial court's denial of his Motion to Suppress Evidence. We agree with the trial court’s conclusion officer Harrold had reasonable suspicion defendant was armed.  Officer Harrold was alone with defendant at a late hour in an area officer Harrold knew was a high-narcoticscrime area. Officer Harrold was substantially smaller than defendant. Defendant informed officer Harrold he was coming from a house officer Harrold knew, through his work as a police officer, belonged to a person who trafficked narcotics, and in officer Harrold’s experience, individuals who deal with narcotics are often armed with a weapon. Officer Harrold was concerned for his safety because of the size difference, and he did not know whether defendant had a gun or knife in his pocket. Defendant acted peculiarly by continually placing his hands in his pockets, even after officer Harrold asked him to remove his hands from his pockets several times throughout the conversation, and defendant ultimately refused to remove his hands and asked why he needed to. DTaking all the factors together, it was objectively reasonable for officer Harrold to suspect defendant may have been armed with a weapon.

2.    Abused and Neglected Children: Standing:  Affirmed:  Father of neglected child whose parental rights were terminated has standing to contest trial court's finding in adjudicatory hearing related to mother's fitness to care for and have custody of the neglected child. Trial court finding that mother, who admitted allegations of neglect petition, was fit to have custody of one of two neglected children was not against the manifest weight of the evidence.  Knecht, J.

No. 2017 IL App (4th) 160737  In re AL. S.   Filed 3-7-17 (MGB)


Mother and father admitted and stipulated to State's Petition that two minor children were neglected. The trial court entered an adjudicatory order finding the minors to be neglected. Following a  dispositional hearing, the court (1) made both minors wards of the court, (2) granted guardianship of the minors to the Department of Children and Family Services (DCFS), (3) found respondent unfit to care for either minor, (4) found Samantha S. unfit to care for Al. S., (5) found it was in Al. S.’s best interest to grant custody to DCFS, (6) found Samantha S. fit, willing, and able to care for An. S., and (7) found it was in An. S.’s best interest to allow Samantha S. to retain custody. Respondent appeals, arguing the trial court erred by allowing Samantha S. to retain custody of An. S. Respondent maintains the court should have transferred custody to DCFS. After reviewing the record, we cannot say it is clear the trial court should have reached the opposite result with respect to its determinations (1) Samantha S. was fit, willing, and able to care for An. S.; and (2) the continuation of custody was in An. S.’s best interest. given the recent observations indicating the home was safe and Samantha S. was engaging in services, applying new parenting techniques, and assuring An. S. was on a schedule, the court concluded Samantha S. could safely parent An. S and it was in An. S.’s best interest to remain in her custody. Under the circumstances presented, we find the trial court’s dispositional findings are not against the manifest weight of the evidence.

3.    Hospital Law: Suspension of Privileges: Right to Fair Hearing: Reversed:  The Hospital Licensing Act, 210 ILCS 5/10.4 requires at minimum procedures regarding clinical privilege decisions of medical staff shall include (1) written notice of the adverse determination, (2) an explanation of the rationale underlying the adverse action including all considerations based on the quality of care, and (3) a statement of the medical staff member’s right to request a fair hearing on the adverse action.  When a physician sues over the suspension of clinical privileges, the court will only ask whether the suspension violated any bylaw. If not, the court will defer to the superior qualifications of hospital officials who made the decision.  Steigmann, J., Harris, J., Dissenting with opinion.

No. 2017 IL App (4th) 160513  Murphy v. Advocate Health & Hospitals Corp.   Filed 3-7-17 (MGB)


This is an appeal from the trial court's denial of physician's motion for TRO and preliminary injunction alleging Hospital violated State law in summarily suspending his hospital privileges. In this case, the record shows that after considering E.W.’s case, 4 separate peer review cases, and 10 Midas reports, BroMenn’s executive staff detected a pattern of inadequate medical care sufficient to warrant the summary suspension of Murphy’s privilege to practice medicine at BroMenn. After Murphy exercised his right to a fair hearing afforded by filing a request for an intraprofessional conference, Murphy requested further all pertinent information that BroMenn’s executive committee considered in substantiating its summary suspension determination as permitted by BroMenn’s medical staff bylaws. We conclude that BroMenn failed to comply with it disclosure obligations to Murphy, which, as a result, denied Murphy a  ­ fair hearing. In so concluding, we reverse the trial court’s finding that BroMenn’s mere identification of the 4 peer review cases and 10 Midas reports, without providing Murphy the substance of those reports, was sufficient to comply with the disclosure requirements of its medical staff bylaws. Accordingly, we reverse and remand with directions for a fair intraprofessional conference to be conducted.


4.   Municipal Law: Demolition or Repair Proceedings: Exhaustion of Remedies: Inverse Condemnation: Reversed: In general, a party’s failure to exhaust administrative remedies is a straightforward basis for disposing of that party’s complaint by way of a section 2-619(a)(9) motion to dismiss. However, it is well settled that the exhaustion requirement does not apply when, as here, the court proceedings are instituted by the local authorities. When municipal authorities seek one form of relief (either repair or demolition) under section 11-31-1(a) of the Municipal Code, the building’s owner is entitled to file a counterclaim seeking an alternative form of relief.  Church's allegation  that cost to repair a structure far exceeded the value of the structure stated a cause of action that the Village's denial of a demolition permit imposed a "substantial burden" on the Church's free exercise of religion in violation of The Religious Land Use and Institutionalized Persons Act.    Church also stated claims for inverse condemnation in that the institution of repair proceedings and/or the denial of a demolition permit accomplished a "taking."  Hutchinson, J.

No. 2017 IL App (2d) 150278  Village of West Dundee v. First United Methodist Church.   Filed 3-7-17 (MGB)


Village filed suit against Church for repair of the structure located in historic district. Church's amended counterclaim alleged the repair costs of the building far exceeded the value thereof and constituted a "substantial burden" in violation of the RLUIPA and sought the right to demolish the structure. It also sought claims for inverse condemnation. The Trial Court granted Village's combined 2-615, 2-619 Motion to Dismiss the Counterclaim, and found for the Village at trial. The Church’s amended countercomplaint sufficiently stated several claims and was not barred on failure-to-exhaust grounds; therefore, the amended countercomplaint should not have been dismissed. Accordingly, the judgment of the circuit court of Kane County is vacated; the order that dismissed the Church’s amended countercomplaint is reversed; and the cause is remanded to the trial court for further proceedings consistent with this opinion


3 Appellate Cases Posted 03-06-17

1.    Criminal Law: Sentencing: Cruel and Unusual Punishment: Affirmed: The eighth amendment allows the State to punish a criminal for each crime he commits, regardless of the number of convictions or the duration of sentences he has already accrued. Where an adult defendant receives  a sentence that approaches the span of the defendant’s lifetime, that term does not implicate the eighth amendment right barring cruel and unusual punishment. A challenge under the proportionate penalties clause if the Illinois Constitution contends that the penalty in question was not determined according to the seriousness of the offense. Our supreme court has upheld the constitutionality of mandatory firearm enhancements under the proportionate penalties clause, finding that in fixing a penalty for an offense, the potential for rehabilitation need not be given greater weight or consideration than the seriousness of the offense.   Harris, J., Mikva, J., Dissenting with Opinion

No. 2017 IL App (1st) 142557   People v. Thomas   Filed 3-6-17 (MGB)


Following a jury trial, defendant Derrick Thomas was convicted of first degree murder, attempted first degree murder and attempted armed robber.  Defendant, who was 18 years old at the time of these offenses, was sentenced to consecutive terms of 45 years for first degree murder, 31 years for attempted first degree murder, and 4 years for attempted armed robbery, for a total sentence of 80 year.  Defendant contends his  sentence violates the eighth amendment to the United States Constitution  and the proportionate penalties clause of the Illinois Constitution.  Defendant asserts those protections were violated because the trial court was bound by the mandatory firearm sentencing enhancements that applied in his case and the court was not able to consider his age or the mitigating factors related to his youth to impose a term of less than 80 years, a de facto life sentence. In conclusion, as an adult offender defendant cannot obtain relief under the holdings of Miller, Roper, and Graham. Moreover, defendant’s sentence did not violate the proportionate penalties clause because mandatory firearm enhancements are intended to account for the serious nature of weapons offenses as well as defendant’s rehabilitative potential. The record also establishes that, in its discretion, the trial court considered defendant’s age and background in imposing the shortest possible sentence in this case. Therefore, defendant has not demonstrated a violation of his constitutional rights under either the eighth amendment or the proportionate penalties clause. We note that while this appeal was pending, another division of the first district decided People v. Harris, 2016 IL App (1st) 141744. In Harris, the court held, contrary to our determination here, that the 76-year sentence given to the defendant who was 18 years old at the time of the offense, violated the proportionate penalties clause of the Illinois constitution because the trial court was not allowed to consider the defendant’s rehabilitative potential.We respectfully disagree with Harris.

2. Criminal Law: Suppression of Evidence: Unlawful Entry for Arrest: Affirmed: Where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton, because as long as the police have probable cause for holding the suspect in custody, such statements are neither the product of being in unlawful custody nor the fruit of having been arrested in the home rather than someplace else. The same rule applies to evidence recovered from Defendant's person once he was removed from the home, even though the entry into the residence to effectuate the arrest was unlawful.   Connors, J.


No.2017 IL App (1st) 142141  People v. Garcia  Filed 3-6-17 (MGB)


Defendant,  who was under 18 years of age at the time of his arrest, was charged with unlawful possession of a firearm and firearm ammunition after police made a warrantless entry into his home and subsequently performed a search of his person, which produced a gun. Officers had gone to defendant’s home to arrest him on an unrelated misdemeanor complaint. The Trial Court denied Defendant's Motion to Quash and Suppress the gun, and Defendant was convicted after a bench trial. Like in Harris, because the officers had probable cause, defendant was not unlawfully in custody when he was removed from his home and searched before being placed into the officers’ vehicle.  (“Because the officers had probable cause to arrest [the defendant] for a crime, [the defendant] was not unlawfully in custody when he was removed to the station house, given Miranda warnings, and allowed to talk.”). We find that where officers had probable cause to effectuate defendant’s arrest, and while their entry into his home to do so was unlawful under Payton, the evidence recovered outside his home is not required to be suppressed. The trial court properly denied defendant’s motion to quash arrest and suppress evidence.

3.  Criminal Law: Ineffective Assistance of Counsel: Affirmed: Trial Court erred in not conducting a proper preliminary inquiry into defendant's claim of ineffective assistance under Krankel A preliminary examination of the claim should operate as a neutral and non-adversarial proceeding in which the court inquires of the Defendant and his counsel. The State's participation, if any, should be de minimis.   However, record disclosed the Court repeatedly admonished Defendant regarding the basis of his claimed counsel's error, whether the charge to which he plead was probationable, the objective record established the error in conducting the hearing was harmless. Burke, J.

No. 2017 IL App (2nd) 150681   People v. Skillom   Filed 3-6-17 (MGB)


Defendant sought to withdraw his plea of guilty to Aggravated Robbery asserting that his counsel did not adequately explain to him that although he would plead to a Class 1, his prior  two Class 2 Felony convictions required he be sentenced as a Class X offender. Here, there is no question that the trial court erred in the manner in which it inquired into defendant’s claim, as it did not do so in a “neutral and nonadversarial proceeding.”  At the hearing on defendant’s initial motion to withdraw his plea, when defense counsel brought defendant’s claim to the trial court’s attention, counsel was permitted to question defendant, and the State was permitted to cross-examine him. Defendant’s sole allegation of ineffectiveness was that defense counsel gave defendant incorrect advice as to whether the offense was probationable. It also invited closing arguments from the defense and State.  In rejecting this allegation, the trial court based its decision solely on its recollection that, during the guilty plea hearing, it fully admonished defendant that he was subject to Class X sentencing, which had a mandatory minimum sentence of six years and was nonprobationable. A review of the transcript from the guilty plea hearing shows that defendant was told six times that he was subject to Class X sentencing. It shows that defendant was told three times that he faced a mandatory minimum sentence of six years. It shows that defendant was specifically told that the offense was nonprobationable, and it shows that he indicated to the court that he understood. Given the  court’s exhaustive admonishments and defendant’s expressed understanding of the same, any prejudice resulting from counsel’s alleged incorrect advice was cured. Accordingly, as defendant’s claim here is rebutted by the objective record, the error committed during the inquiry into that claim was harmless.

4 Appellate Cases Posted 3-3-17

1. Insurance Coverage: Affirmed: Trial court properly granted summary judgment to mortgage company in insurance copmpany's declaratory judgment action that it need not pay on insurance policy, in case where, even if owner/insured violated policy by renting rather than residing in property at issue, "mortgage clause" constituted a separate policy which entitled mortgage company to insurance proceeds after fire at property as that "separate" contract existed whether owner resided at property or not. Reyes, J.

No. 2017 IL App (1st) 151835  Stonegate Insurance Co. v. Hongsermeier  Filed 3-3-17 (TJJ)


Plaintiff Stonegate Insurance Company, a property insurer, appeals an order of the circuit court of Cook County granting summary judgment in favor of defendant Ocwen Loan Services, LLC. Defendant is the mortgagee and named loss payee in an  insurance policy that was issued by plaintiff. On appeal, plaintiff argues the circuit court erred in granting summary judgment and allowing defendant to recover under the insurance policy because (1) the insured owners did not occupy the property, which  was a condition precedent to coverage, (2) questions of fact exist as to whether the mortgage clause in the policy provides defendant with coverage, and (3) the fraud clause in the policy precludes coverage for the owners of the residential premises and defendant. For the following reasons, we affirm.

2. Criminal Law: Affirmed: Trial court conclusion that un-recorded statements by defendant were properly admissible in murder prosecution erroneous, but error harmless in light of overwhelming evidence of guilt; trial court properly excluded evidence of third party's confessions to other crimes committed around time of this offense, where trial court admitted into evidence statement of that person who allegedly confessed to crime on trial; and error in refusing testimony of Indonesian attorney as to why defendant travelled to Indonesia around time of crime harmless in light of evidence against defendant, including DNA evidence. Schostok, J.

No. 2017 IL App (2d) 140878  People v. Whitfield  Filed 3-3-17 (TJJ)


In this direct appeal from his conviction of first-degree murder, the defendant, Hezekiah Whitfield, raises three arguments: (1) the trial court should have suppressed his unrecorded custodial statement to police pursuant to section 103-2.1 of the Code of  Criminal Procedure of 1963 (Code) (725 ILCS 5/103-2.1 (West 2010)), which renders such statements presumptively inadmissible in a murder trial; (2) the trial court erred in limiting his ability to present evidence of other crimes committed by someone  else who had been convicted of the same murder (a conviction that was later overturned); and (3) the trial court should have allowed him to present evidence explaining his travel to Indonesia shortly after the police obtained a DNA sample from him. Although we agree with certain of these arguments, we affirm on the basis that the trial court’s errors were harmless in light of the compelling DNA evidence against the defendant.

3. Criminal Law: Reversed and remanded: Defense acquiescence to trial court response to jury question regarding "unanimity on second degree murder" prohibited defendant from complaining of issue on apeal, but trial court refusal to poll jury after return of guilty verdict for first degree murder as to whether each juror found a mitigating factor was error. Burke, J.

No. 2017 IL App (2d) 140930  People v. Manning  Filed 3-3-17 (TJJ)


Following a second jury trial, defendant, Arthur Manning, was found guilty of first-degree murder and sentenced to 25 years in prison. He timely appealed and now argues that “[t]he trial court reversibly erred where it: (a) failed to give a direct answer when the jury asked if non-unanimity regarding the mitigating factor meant that the charge would ‘revert’ from second degree murder to first degree murder; and (b) refused to poll the jury specifically to determine if any juror believed that a mitigating factor existed.” For the reasons that follow, we reverse and remand for a new trial.

4. Public Pensions: Affirmed: Repeal by City of provision permitting employees to cash in unused vacation days prior to retirement, which could sometimes lead to higher pension annuity then unavailable after repeal, did not violate pension protection clause of State constitution. Appleton, J.

No. 2017 IL App (3d) 140793  Pisani v. City of Springfield  Filed 3-3-17 (TJJ)


Plaintiffs are Josephine “Jody” Pisani and her union, the International Brotherhood of Electrical Workers Local 193. Defendant is the City of Springfield, Illinois. Pisani sues on behalf of herself and a class of defendant’s employees who (1) are participants  in the Illinois Municipal Retirement Fund (Fund) and (2) refrained from taking advantage of a vacation buyback provision in defendant’s code of ordinances before the city council passed an amendment, in 2015, that repealed the provision. Before its  repeal, the provision allowed defendant’s employees to cash in their unused vacation days several months before their retirement. The lump sum boosted their final rate of earnings, thereby boosting the amount of their retirement annuity, payable out of the  Fund. Plaintiffs claimed that the elimination of this pension-spiking opportunity violated the pension protection clause (Ill. Const. 1970, art. XIII, § 5) and the contracts clause (Ill. Const. 1970, art. I, § 16). They sought a declaratory judgment to that effect  as well as an injunction against the enforcement of the 2015 amendment. The parties filed cross-motions for summary judgment. The trial court granted defendant’s motion and denied plaintiffs’ motion. Plaintiffs appeal. Affirmed.

2 Appellate Cases Posted 3-2-17

1. Mortgage Foreclosure: Affirmed: Foreclosure affirmed over claim by mortgagors that bank did not comply with HUD regulations requiring proof that bank mailed request to mortgagors for face-to-face meeting required by HUD regualtions in government-insured mortgages, since earlier bankruptcy action by mortgagors and resultant discharge of debt meant that lack of contract no longer required face-to-face meeting. McLaren, J.

No. 2017 IL app (2d) 151189  PNC Bank, National Ass'n v. Wilson  Filed 3-2-17 (TJJ)


Defendant Jeremy T. Wilson appeals from summary judgment rendered against him and in favor of plaintiff, PNC Bank, National Association, in a foreclosure action upon a mortgage loan between the parties. The mortgage is insured by the Federal  Housing Administration (FHA), a division of the United States Department of Housing and Urban Development (HUD). Jeremy contends that the trial court erred by rendering summary judgment in PNC Bank’s favor, because PNC Bank did not comply  with federal regulations prior to instituting its foreclosure action. Jeremy argues that the evidence in the record demonstrates the existence of a genuine issue of material fact with respect to his defense that PNC Bank failed to comply with HUD regulations, specifically, title 24, section 203.604, of the Code of Federal Regulations (24 C.F.R. § 203.604 (2014)), which requires a lender, before bringing a foreclosure action against a defaulting borrower, either to have a face-to-face meeting with the borrower or make “a reasonable effort” to arrange a face-to-face meeting. For the following reasons, we affirm.

2. Criminal Law: Reversed and remanded: In post-conviction matter where defendant complained on several court dates that appointed counsel was not communicating with him, despite counsel's contrary claims, trial court failure to warn defendant that he "stood to lose his appointed counsel if his behavior continued" required reversal of trial court denial of the petition after appointed counsel withdrew and defendant proceeded pro se. Lytton, J. (Schmidt, J., dissenting).

No. 2017 IL App (3d) 140793  People v. Lesley  Filed 3-2-17 (TJJ)


Defendant, Myron T. Lesley, raises two issues for our review. First, he argues that the trial court erred in forcing him to represent himself at his evidentiary hearing due to disagreements he had with his appointed counsel without first warning defendant that his conduct could result in the waiver of his right to counsel, and second, the trial court applied a misconduct standard of proof at the evidentiary hearing. Because we reverse and remand on the first issue, we need not reach the second.

1 Appellate Case Posted 3-1-17

1. Criminal/Traffic: Affirmed: Trial court properly denied petition to rescind statutory summary suspension over claim that trial court should have prohibited arresting officer from testifying as sanction for accidental destruction of squad car video of defendant's arrest, as trial court did not abuse its discretion in entering lesser sanction of shifting burden to the State. O'Brien, J. (Schmidt, J., sp. concurring).

No. 2017 IL App (3d) 150750  People v. Acevedo  Filed 3-1-17 (TJJ)


The defendant, Damien Acevedo, appealed the denial of his petition to rescind a statutory summary suspension after being charged with driving under the influence. Affirmed.

2 Appellate Cases Posted 2-28-17

1. Criminal Law: Affirmed: Trial court properly denied leave to file successive post-conviction petition in case where report of Illinois Torture Inquiry and Relief Commission constituted only "a reassessment" of evidence previously available to defendant when he filed prior post-conviction petitions and thus did not qualify as "new evidence," and additional claim regarding perjury of a witness did not establish such. Neville, J. (modified on denial of rehearing).

No. 2016 IL App (1st) 150583  People v. Hauad  Filed 2-18-17 (TJJ)


A jury found Jaime Hauad guilty of two murders and an aggravated battery with a firearm. In a proposed supplement to a successive postconviction petition, Hauad alleged that new evidence showed that (1) the trial court should have barred the prosecution from presenting testimony about statements Hauad allegedly made while in police custody, (2) the prosecution withheld evidence that would have substantially impeached a key prosecution witness, and (3) Hauad did not commit the offenses. The trial court denied Hauad’s motion for leave to supplement the successive postconviction petition. We hold that the report of the Illinois Torture Inquiry and Relief Commission (Torture Commission) constitutes only a reassessment of evidence available to Hauad before he filed his prior postconviction petitions, and thus it does not qualify as new evidence. The new evidence about a key witness does not show that she committed perjury. Because Hauad has not shown that the evidence would probably have changed the result of the trial, he has not sufficiently shown prejudice needed to add the allegation to the successive postconviction petition. Hauad has not adequately explained his failure to present the evidence of actual innocence in support of his prior postconviction petitions. Accordingly, we affirm the trial court’s judgment.

2. Estates: Affirmed in part, reversed in part, and remanded: Dismissal of family menber's (son's) petition to be named guardian of his mother's estate pursuant to Section 2-619 of the Code of Civil procedure was error, where affidavits/letters of treating and evaluating doctors were insufficient as to form and content to permit trial court to conclude that petition should have been dismissed, but petitioner request for further medical evaluation properly denied. Harris, J.

No. 2017 IL App (4th) 160416  In re Estate of Kirk  Filed 2-28-17 (TJJ)


Petitioner, Philip E. Dawson, petitioned the trial court to appoint him the guardian of his elderly mother, Ilene C. Kirk, and her estate, alleging she was a disabled person and unable to care for herself or her property. The court dismissed Philip’s petition, and he appeals. We affirm in part, reverse in part, and remand for further proceedings.

2 Appellate Cases Posted 2-27-17

1. Criminal Law: Affirmed in part and vacated in part: Conviction for unlawful use or possession of firearm by felon upheld over claim that predicate prior felony conviction was for a aggravated unlawful use of weapon since abrogated by Aguilar, but Illinois Supreme Court decision in McFadden requires opposite conclusion, as defendant was still found to be in possessiojn of a firearm after having been convicted of a felony, since he took no steps to have that prior conviction vacated before commission of this subsequent weapons offense. Harris, J.

No. 2017 IL App (1st) 122370-B  People v. Smith  Filed 2-27-17 (TJJ)


Defendant, Jamal Smith, appeals his convictions for unlawful use of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1(a) (West 2008)) and aggravated unlawful use of a weapon by a felon (AUUW) (720 ILCS 5/24-1.6 (West 2008)) and his sentence of five years’ imprisonment. On appeal, Smith contends (1) the trial court improperly limited defense counsel’s cross-examination of Officer Moore; (2) the supreme court’s decision in People v. Aguilar, 2013 IL 112116, rendered the predicate felony used to prove an element of his offense unconstitutional and void; therefore, his convictions for UUWF and AUUW should be vacated; and 3) if his UUWF conviction is affirmed, this court should reduce his conviction from a Class 2 felony to a Class 3 felony. On March 25, 2014, this court issued a judgment vacating both convictions. On September 28, 2016, our supreme court, in the exercise of its supervisory authority, directed this court to vacate the March 25, 2014, judgment and reconsider in light of People v. McFadden, 2016 IL 117424, and People v. Burns, 2015 IL 117387. The parties submitted supplemental briefs on the issue. Upon reconsideration, we vacate Smith’s conviction of AUUW but affirm his conviction of UUWF.

2. Medical Negligence/Infliction of Emotional Distress: Affirmed: Jury verdict in favor of hospital and medical care providers in connection with suit alleging medeical negligence in connection with 2-year-old child's death after heart surgery, and for reckless and negligent infliction of emotional distress, upheld in face of claim that verdicts were against manifest weight of the evidence, and claims relating to privilege for hospital documents under Medical Studies Act, and alleged erroneous jury instructions. Lampkin, J.

No. 2017 IL App (1st) 143967  Eid v. Loyola University Medical Center  Filed 2-24-17 (TJJ)


After the death of Miranda Eid, a minor, her parents Mohammed and Lisa Eid brought suit against Loyola University Medical Center (Loyola), alleging negligent medical treatment of Miranda following her pacemaker replacement surgery. Mrs. Eid also sought damages for reckless infliction of emotional distress based on Loyola’s nurses leaving medical tubing in place when Miranda’s body was released for burial. The jury returned a verdict in favor of Loyola, and Mr. and Mrs. Eid appealed. For the reasons that follow, we affirm the judgment of the circuit court.

5 Appellate Cases Posted 02-24-2017

1.    Workers' Compensation: Wage Differential: Trial Court Reversed and matter Remanded to Commission with Instructions:  In making the calculation of a wage differential under section 8(d)(1) of the Act , the Commission must determine "the average amount which [the claimant] is able to earn in some suitable employment or business after the accident." In calculating this average amount, if the claimant is working at the time of the calculation, the claimant must prove his actual earnings for a substantial period after he returns to work, and the Commission may apply his then current average weekly wage to the calculation. However, as in the case at bar, if the claimant is not working at the time of the calculation, the Commission must  rely on functional and vocational expert evidence. Moore, J. 

No. 2017 IL App (1st) 160002WC   Crittenden v. Illinois Workers' Compensation Comm'n   Filed 2-24-17 (MGB)


The sole issue on appeal is whether the circuit court erred by confirming the Commission's decision regarding the amount of the wage differential award. There is no dispute that he is incapable of returning to his prior employment or that he is entitled to a differential. Only the amount is at issue. In its decision, the Commission used $13.78 as the average amount the claimant is able to earn. However, the Commission did not identify a suitable occupation for the claimant and, accordingly, did not identify $13.78 as the average amount the claimant is able to earn in any suitable occupation. Rather, the Commission found that the claimant's lack of effort in obtaining alternative suitable employment led the Commission to find that the claimant is capable of earning the highest amount that Mr. Blumenthal opined he was capable of earning, which was $13.78 per hour. Turning to the record, $13.78 was identified in Blumenthal's  (Petitioner's Expert) report as the average wage of a school bus driver. However, the record is clear that, at the time of the hearing, the claimant did not possess a driver's license. As such, he was not qualified for the occupation of school bus driver. In addition, there is no other evidence in the record reflecting an occupation that the claimant is able and qualified to perform that has an average wage of $13.78 per hour. Accordingly, the Commission's calculation of the claimant's wage differential is against the manifest weight of the evidence. As such, the circuit court's judgment confirming the Commission's decision must be reversed, the Commission's wage differential award vacated, and this cause remanded to the Commission for further proceedings, including the identification by the Commission of an occupation the claimant is able and qualified to perform, and a calculation of the wage differential using the average wage of that occupation.

2. Dissolution of Marriage: Interlocutory Appeal of Temporary Support or Maintenance Orders: Appeal Dismissed for Lack of Jurisdiction: Temporary Child Support and Maintenance Orders are not "orders affecting the care and custody of a child" and thus Supreme Court Rule 306(a)(5) does not confer Jurisdiction upon the Appellate Court to hear an appeal of such matters.    McBride, J.


No.2017 IL App (1st) 161893  In re Marriage of Doughtery  Filed 2-24-17 (MGB)


Trial Court child support for 5 children at 57% of Husband's net income, and awarded $250.00 in Maintenance to Wife. Husband filed Interlocutory Appeal asserting: (1) the trial court abused its discretion in deviating from the child support guidelines by awarding respondent 57.2% of petitioner’s net income for child support without a compelling reason to support the deviation and (2) the trial court abused its discretion by awarding maintenance to respondent in the amount of $250. He did not raise any issue of Custody.  Under the doctrine of in pari materia, two legislative acts that address the same subject are considered with reference to one another, so that they may be given harmonious effect.The doctrine is consistent with our acknowledgment that one of the fundamental principles of statutory construction is to view all of the provisions of a statute as a whole. Since we are to interpret supreme court rules the same as statutes, the doctrine of in pari materia is relevant when reviewing these rules governing expedited interlocutory appeals. The comment in Rule 311 further clarifies the intent and operation of both Rule 306(a)(5) and Rule 311(a). These rules relate to expedited interlocutory appeals involving custody or the allocation of parental responsibilities. Significantly, neither rule, nor any comment suggests that a temporary support or maintenance order may be brought independently.

3. Banking:  Golden Parachute/Severance: Doctrine of Legal Impossibility: Reversed and Remanded: The doctrine of legal impossibility, or impossible performance, excuses performance of a contract only when performance is rendered objectively impossible either because the subject matter is destroyed or by operation of law. The doctrine has been narrowly applied based upon judicial recognition that the purpose of contract law is to allocate the risks that might affect performance and that performance should be excused only in extreme circumstances.  One particular example of impossibility excusing performance is an intervening governmental regulation or order.  Significantly, however, the doctrine does not apply to excuse performance as long as it lies within the power of the promisor to remove the obstacle to performance. The party advancing the doctrine has the burden of proving  impossibility.  Hoffman, J.


No.2017 IL App (1st) 161102  Rosenberger v. United Community Bancshares, Inc.  Filed 2-24-17 (MGB)



Plaintiff, filed suit asserting the Bank failed to pay him severance of two times his annual earnings upon the termination of his employment. Bank asserted it could not do so because the severance constituted a "golden parachute" prohibited by statute for troubled banks absent regulatory approval. The trial court granted the Bank's motion for summary judgment finding that although there was some evidence Plaintiff was a "white knight" who was employed to rescue the Bank from failure and was thus exempt from the golden parachute prohibition, that payment of the severance was a legal impossibility because it was prohibited by statute absent regulatory approval. If denied Bank's motion for summary judgment on the claim that Plaintiff was terminated for cause.The Bank presented no evidence demonstrating that it applied for an exception to make the severance payment. Nor has the Bank pointed to any evidence showing that it could not make the necessary certification under section 359.4(a)(4).  In fact, the deposition testimony of a Bank Representative established that there is no evidence that Plaintiff engaged in any disqualifying act to preclude the Bank from making the necessary certifications in order to request regulatory approval of the payment. Accordingly, that creates a genuine issue of material fact whether the Bank could have sought and obtained agency approval for the severance payment. We conclude, therefore, that the circuit court erred in granting summary judgment in UCB's favor on grounds that its performance under the Employment Agreement was rendered objectively impossible by operation of law. Turning to the alternative argument of the Bank that Plaintiff was not entitled to severance because he was terminated for cause, we conclude reasonable minds could differ as to whether Plaintiff failed to follow the executive committee's instructions relating to weekly progress reports, and thus the remains a genuine issue of material fact. We reverse and remand for further proceedings.



4. Professional Regulation: Termination of Physician: Constitutionality of Statute: Affirmed: A statute is presumed to be constitutional.  As a result, the party challenging the constitutionality of a statute bears the burden of demonstrating its invalidity. A court has a duty to construe a statute in a manner that upholds its validity and constitutionality if it can reasonably be done.  A statute is facially invalid only if no set of circumstances exists under which the statute would be valid.  ¶  We review  de novo the constitutionality of a statute and whether a party’s constitutional rights have been violated., Lampkin, J.


No.2017 IL App (1st) 151665  Shushunov v. Illinois Department of Financial & Professional Regulation  Filed 2-24-17 (MGB)



Plaintiff pled guilty to attempted armed robbery  and aggravated battery in connection with an incident involving his wife’s boyfriend. At the time of the incident, plaintiff was a physician licensed in Illinois. Plaintiff and his wife were in the process of divorce. In relevant part, in May 2011, plaintiff entered his wife’s boyfriend’s home, specifically, his bedroom, where plaintiff found the man speaking to plaintiff’s wife on the phone. Plaintiff, who was armed with a handgun and was wearing black leather gloves at the time, shouted, “My name is Sergei. Leave my wife alone!” Plaintiff then punched the boyfriend multiple times in the face while pointing the handgun at his abdomen. Plaintiff instructed the boyfriend to remove the SIM card  from his phone. In response, the boyfriend threw his phone on the bed and never saw it again. The boyfriend’s two daughters, ages 10 and 14, were also in the home at the time of the incident. Plaintiff was sentenced to two years of probation with the first six months spent in Cook County jail. Defendants sent plaintiff a notice of intent to permanently revoke plaintiff’s medical license pursuant to section 2105-165(a)(3) of the Act based on his forcible felony conviction.  plaintiff filed his second amended complaint, the subject of which underlies this appeal. In the second amended complaint, plaintiff sought a declaratory judgment that (1) section 2105-165(a)(3) is unconstitutional on its face and overbroad because there are no set of circumstances under which the automatic revocation provision would be valid for individuals convicted of forcible felonies; (2) section 2105-165(a)(3) is overbroad, overinclusive, and unconstitutional as applied to him where it prohibits his ability to seek an agreement with defendant to never practice medicine in Illinois and where the statute has no rational relationship to a legitimate purpose; (3) application of the Regulation defining “forcible felony” violated ex post facto laws where it was improperly retroactively applied; (4) the retroactive application of the Regulation violates the statute on statutes; (5) the retroactive application of the Regulation constitutes double jeopardy, as it was not in effect when he pled guilty; (6) section 2105-165(a) and the Regulation constitute an impermissible bill of attainder; and (7) section 2105-165(a) and the Regulation create an improper, irrebuttable presumption. Defendants responded by filing a section 2-615 motion to dismiss plaintiff’s second amended complaint. The Trial Court granted a 2615 Motion to Dismiss. We affirm the dismissal of plaintiff’s second amended complaint. In so finding, we hold that subsection 2105-165(a)(3) is constitutional on its face and as applied to plaintiff and similarly hold that the Regulation (68 Ill. Adm. Code 1130.120, adopted at 37 Ill. Reg. 1192 (eff. Feb. 1, 2013) ) is constitutional.

5. Criminal Law: Lineup and In Court Identification: Expert on Eyewitness Testimony: Non-IPI Jury Instructions: Affirmed: The defendant bears the burden of proving that a pretrial identification was impermissibly suggestive. The court employs a two-prong test to determine whether a witness’s identification was so tainted by suggestive identification procedures that its admission at the defendant’s trial violated due process.  First, the court must determine whether the pretrial identification procedures were suggestive; if so, then the court must determine whether the identification testimony was so tainted as to make it unreliable.  In evaluating the reliability of the tainted identification, the court considers (1) the witness’s opportunity to view the suspect during the offense, (2) the witness’s degree of attention, (3) the accuracy of any prior descriptions given, (4) his level of certainty at the time of the identification, (5) the length of time between the crime and the identifications, and (6) any prior acquaintance with the person identified that would enhance the witness’s ability to recognize himA statute is presumed to be constitutional.  As a result, the party challenging the constitutionality of a statute bears the burden of demonstrating its invalidity. A court has a duty to construe a statute in a manner that upholds its validity and constitutionality if it can reasonably be done.  A statute is facially invalid only if no set of circumstances exists under which the statute would be valid.   When deciding whether to admit expert testimony, the trial court should balance the probative value of the testimony against its prejudicial effect and should “carefully consider the necessity and relevance of the expert testimony in light of the particular facts of the case before admitting that testimony for the jury’s consideration. Expert testimony addressing matters of common knowledge is not admissible ‘unless the subject is difficult to understand and explain. A non-IPI instruction should be used only if the IPIs for criminal cases do not contain an accurate instruction and if the tendered nonIPI instruction is accurate, simple, brief, impartial, and free from argument. Id. Additionally, the instructions as a whole must not be misleading or confusing. Lampkin, J.


No.2017 IL App (1st) 142559  People v. Ortiz  Filed 2-24-17 (MGB)



Defendant was convicted by a jury of attempted first degree murder, armed robbery, and aggravated vehicular hijacking. He was sentenced to natural life in prison as a habitual offender.  On appeal, he challenges the trial court’s rulings that (1) denied his motion to suppress the victim’s lineup and in-court identifications as unduly suggestive, (2) denied his motion to allow expert witness testimony on the issue of the reliability of eyewitness identifications, and (3) denied a defense jury instruction regarding eyewitness identifications.  At the time of the offense, the victim stated the perpetrator, who wore a nylon stocking over his head, was a medium-complexioned black man, and later a light complected black man. Defendant was initially identified through DNA evidence from victim's vehicle. He is described as a white, Hispanic, and the photo array and line-up participants were chosen on that basis. Victim selected to photographs as possibly being the perpetrator, one which included defendant, and later selected defendant from and in person lineup, based in part on a deformity of his nose. Defendant was not grossly dissimilar from the other participants in the photo array and lineup, and any differences in appearance between him and the other men were minor. Neither defendant’s longer hair nor amount of facial hair nor the color and style of his shirt rendered his appearance grossly dissimilar to the other participants. Moreover, Bollinger had told the police that the attacker wore a tan jacket during the October 2010 offense and Bollinger could not see the attacker’s hair because he wore a black nylon hair covering. Consequently, the offender’s hairstyle and shirt were not major factors in Bollinger’s identification of his attacker approximately 15 months after the offense. We conclude the trial court did not err in denying defendant’s motion to suppress the identification testimony because the identification procedures were not suggestive. Distinguishing People v. Lerma, . People v. Lerma, 2016 IL 118496,the Court stated defendant’s conviction does not rest solely on the lineup and in-court identifications made by Bollinger. Victim had the ability to observe the perpetrator over a significant period of time. Unlike Lerma, the defense could and did vigorously cross-examine Bollinger about his ability to see his attacker, his inability to identify an offender from the photo array, and the circumstances of the identifications. Furthermore, strong DNA evidence and also circumstantial evidence outside of the identification testimony supported defendant’s conviction. We find no abuse of discretion when the trial court denied defendant’s request to give the jury the non-IPI No. 4 instruction. The court had granted defendant’s request, over the State’s 1-14-2559 20 objection, to give the jury the non-IPI No. 3 instruction that included the witness’s certainty factor, which defendant finds problematic on appeal, among the factors the jury should consider when weighing identification testimony. The jury was properly instructed on the issue of identification through the instructions as a whole, and we agree with the trial court’s characterization that defendant’s non-IPI No. 4 instruction reads more like a defense argument than a jury instruction.

2 Appellate Cases Posted 2-23-17

1. Probate Law:  Reversed and Remanded:  Under section 23-3 of the Probate Act, the trial court shall issue a citation to the representative it wishes to remove as an estate representative. The citation directs the representative to show cause why he or she should not be removed as representative.  The representative may file a responsive pleading to the reasons for removal. After the court conducts a hearing, it can make a determination on the representative’s removal pursuant to the causes listed in section 23-2 of the Probate Act.  Illinois courts recognize that evidence of substantial compliance with section 23-3 is shown when a party was “awarded a fair hearing” and was not “prejudiced by formal deficiencies in procedure.”  Here, petitioner was not properly notified of the alleged causes for her removal or that removal was under consideration.  Furthermore, we cannot conclude that petitioner was given an opportunity to be heard on the issue of her removal as guardian.  Therefore, petitioner was prejudiced by formal deficiencies in procedure requiring remand.  As a result, this case is remanded for a removal hearing in accordance with the statute to determine whether petitioner should be removed as guardian. McDade, J.


No. 2017 IL App (3d) 150834 In re Estate of Tait Filed 2-23-2017 (ATH)


Petitioner Susann M. Zoleske was appointed guardian of the estate of her mother, Marion Young Tait. The trial court removed petitioner as guardian. Petitioner appeals, arguing that the trial court erred when it removed her as guardian because it did not comply with section 23-3 of the Probate Act of 1975.  Appellate court agreed; reversed and remanded.

Termination of Parental Rights:  Reversed:  A single ground of unfitness under section 1(D) of the Adoption Act is sufficient to support a finding of unfitness in termination of parental rights hearing.  If the trial court finds a parent unfit, the court must conduct a second hearing to determine, by a preponderance of the evidence, whether it is in the best interest of the minor to terminate parental rights.  Acts constituting depravity must be of sufficient duration and repetition to establish moral deficiency and either an inability or unwillingness to conform to accepted morality.”  Given that the State’s evidence did not raise even a rebuttable presumption of depravity, we cannot say that the certified copies of the respondent’s convictions which was the only evidence submitted on the issue of depravity, standing alone, are clear and convincing proof of depravity.  The State introduced nothing negative about respondent’s character except his past convictions. What the court failed to take into account, however, was that respondent was never assessed for services and was never given a service plan.  To use respondent’s lack of compliance with nonexistent services—services that were consciously and intentionally withheld—to terminate his parental rights is paradoxical.  Accordingly, we hold that the State failed to prove either ground of unfitness as alleged, and we reverse the judgment of the trial court terminating respondent’s parental rights.  Zenoff, J.


No. 2017 IL App (2d) 160657 In re Keyon R. Filed 2-23-2017 (ATH)


The trial court found respondent, Merrick R., to be an unfit parent and ruled that it was in the best interest of his minor child, Keyon R., to terminate his parental rights. Respondent appeals only the unfitness finding.  Reversed.

4 Appellate Cases Posted 2-22-17

1. Civil Law:  Affirmed:  The Local Governmental and Governmental Employees Tort Immunity Act clearly requires more than "circumstantial evidence" of the nature of the injury to prove a municipality's negligence liability. The Act requires the plaintiff to prove that the municipality "had actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition."  Notice must be of the specific defect that caused the plaintiff's injuries, not merely the condition of the area.  Plaintiff bears the burden of proving that the City had at least constructive notice of a specific condition that was not reasonably safe. Because the plaintiff could not meet this requirement of the Act, summary judgment in favor of the City was appropriate. Cunningham, J.

No. 2017 IL App (1st) 152397 Krivokuca v. City of Chicago Filed 2-22-2017 (ATH)

 

The plaintiff filed a negligence action against the City of Chicago after the vehicle he was driving struck a pothole and a sinkhole opened up in the road causing the car to fall into the sinkhole. Plaintiff appeals from (1) the order of the circuit court granting the City's motion to dismiss the second negligence count of the plaintiff's complaint premised upon the doctrine of res ipsa loquitur and (2) the subsequent order granting summary judgment to the City with respect to the first count of the complaint asserting ordinary negligence. We affirm.

2. Criminal Law:  Vacated and Remanded: At the time the motion to reconsider was heard, Rule 604(d) required the attorney’s certificate to aver that the attorney had examined the report of proceedings from both the plea of guilty and the sentencing hearing. At the time the motion was filed, Rule 604(d) only required the certificate to state that the attorney had examined the report of proceedings from the plea of guilty. The certificate the defense attorney filed only averred that she had reviewed the report of proceedings from the guilty plea, not from the sentencing hearing. Therefore, the defense attorney’s certificate complied with the version of Rule 604(d) in place at the time the motion was filed, but not at the time the motion was heard and ruled upon.  Rule 604(d) should be applied retroactively.  The remedy for failing to strictly comply with the requirements is remand to the trial court for new postplea proceedings.  O’Brien, J.


No. 2017 IL App (3d) 160183 People v. Gonzalez Filed 2-22-2017 (ATH)


Defendant, Juan M. Gonzalez, appeals from the denial of his motion to reconsider sentence, arguing that a new Illinois Supreme Court Rule 604(d) certificate needed to be filed and new postplea proceedings held, as the filed certificate was not compliant with the amended rule.  We vacate the trial court’s decision on the motion to reconsider sentence and remand for new postplea proceedings.


3. Criminal Law: Reversed and Remanded:  An off-duty police officer’s use of a radar gun outside of his jurisdiction, before personally witnessing a driver commit other traffic offenses unrelated to excessive speed, will not taint subsequently developed probable cause to conduct an arrest by the officer acting in his civilian capacity.  Wright, J.


No. 2017 IL App (3d) 150879 People v. Williams Filed 2-22-2017 (ATH)


The State appeals from an order granting defendant’s motion to quash his arrest for driving under the influence of alcohol by a Lockport police officer, acting within his jurisdiction, after an off-duty Palos Hills police officer placed defendant in custody for improper lane usage.  During the hearing on the motion to quash arrest and suppress evidence, the off-duty Palos Hills police officer testified that he witnessed defendant driving erratically outside the officer’s jurisdiction and stopped defendant for improper lane usage. However, since the off-duty Palos Hills police officer initially measured defendant’s speed with a radar gun before witnessing the improper lane violation, the court quashed defendant’s arrest for DUI as a product of the invalid citizen’s arrest by the off-duty Palos Hills police officer.

4. Criminal Law:  Affirmed:  Defendant contends that the trial court erred in merely accepting the DHS report that the defendant had been restored to fitness without conducting an independent analysis of the report or exercising any discretion in finding the defendant fit.   Defendant did not raise the issue in his postconviction petition and therefore cannot raise it for the first time on appeal from the dismissal of the petition.  Having found that the defendant’s postconviction counsel did not provide unreasonable assistance in failing to include the fitness restoration hearing issue in the petition at the first stage of proceedings, we also find that postconviction counsel did not render unreasonable assistance in failing to amend the petition at the second stage of proceedings.  Our supreme court has held that appointed postconviction counsel does not render deficient assistance when he or she fails to raise issues the defendant did not raise in the initial pro se petition.  Defendant claims that he received ineffective assistance of plea counsel because his attorney failed to advise him that he faced presumptively mandatory deportation if he pled guilty.  As the immigration consequences of a conviction for aggravated fleeing and eluding a peace officer are not apparent on the face of the immigration statute, we find that plea counsel was required only to warn the defendant “that his plea ‘may’ have immigration consequences.”  Thus, taking the allegations in the postconviction petition as true, plea counsel’s failure to advise the defendant that his plea may have immigration consequences constituted deficient performance.  However, this was cured by the trial court’s admonishments to the defendant at the guilty plea hearing that he ‘may’ have immigration consequences.  Holdridge, J.


No. 2017 IL App (3d) 140754 People v. Garcia-Rocha Filed 2-22-2017 (ATH)

 

The defendant, Jaime Garcia-Rocha, appeals the dismissal of his postconviction petition at the second stage of proceedings. The defendant argues that (1) his petition made a substantial showing that his due process rights were violated when the trial court failed to hold a proper fitness restoration hearing before accepting his guilty plea, (2) he received unreasonable assistance of postconviction counsel where postconviction counsel failed to adequately raise the issue concerning the fitness restoration showing, (3) his petition made a substantial showing that he received ineffective assistance of plea counsel where plea counsel failed to advise him that his guilty plea would result in presumptively mandatory deportation, and (4) he received unreasonable assistance of postconviction counsel regarding his ineffective assistance of plea counsel claim.  Affirmed.

4 Appellate Cases Posted 2-21-17

1.    Criminal Law: Felony Murder: Probable Cause: Reinitiation of Interview by Defendant:  Voluntary Statements: Jury Instructions:  Affirmed:  Defendant was not in custody when he voluntarily accompanied police to the Station from his home. However Defendant was under arrest at the Station when he was relieved of his wallet and phone, placed in  a 5 foot square interview room, Mirandized, and advised he has to stay for questioning. Probable Cause existed for such arrest, and Defendant initially invoked his right to counsel. Analytically, when determining the admissibility of any statement procured after the defendant has invoked his right to have counsel present during a custodial interrogation, we  conduct a two-part inquiry.  The first step is to determine whether the defendant or the police reinitiated discussion after the defendant invoked his right to counsel.  This entails determining from whence the impetus for the additional discussion came: if from the police, then Edwards bars the admissibility of statements made in response to the further interrogation; if from the defendant, then we proceed to the second step. The second step is to determine whether, in light of the totality of the circumstances, including the fact that the defendant reopened the discussion, the defendant voluntarily, knowingly, and intelligently waived his right to the presence of counsel during the further custodial interrogationThe test for voluntariness of a Statement  is whether the defendant made the decision freely, without compulsion or inducement, or whether the defendant’s will was overborne at the relevant time. To implement this test, we consider the totality of the circumstances surrounding the statements, including the defendant’s age, intelligence, education, experience, and physical condition at the relevant time; the duration of the interrogation; the presence of Miranda warnings; the presence of any physical or mental abuse; and the legality and duration of the detention. The trial court’s decision regarding voluntariness presents an issue of fact, and we will not disturb it unless it was against the manifest weight of the evidence.  Statements made during 5 smoking breaks, 4 of which took place in an area not covered by a camera, and the 5th in an area covered by video but no audio were not inadmissible under725 ILCS 5/103-2.1, which requires that all custodial interrogations in a murder investigation be  electronically recorded unless such recording is not feasible. Trial Court properly refused Defendant's proffered IPI 7.15A regarding whether victim's death was foreseeable where Defendant rather than a 3rd Party committed the Act resulting in such death. Birkett, J.


No. 2017 IL App (2d) 150511 
People v. Mandoline Filed 2-21-17 (MGB)


Following a jury trial in the circuit court of Du Page County, defendant was convicted of first-degree murder  and aggravated arson ), and he was sentenced to consecutive terms of imprisonment of 27 years for murder and 12 years for aggravated arson. Defendant appeals, arguing that: (1) probable cause did not exist for his arrest; (2) defendant did not voluntarily reinitiate questioning with the police after the initial interrogation had ceased due to his invocation of his right to counsel; (3) his statements to the police were not voluntary, knowing, and intelligent; (4) his statements were obtained in violation of section 103-2.1 of the  Code, which requires the electronic recording of custodial interrogations in murder investigations; and (5) the trial court erroneously refused a jury instruction bearing on the proximate-cause theory of felony murder.  In our view, considering the factors required to determine whether an arrest occurred, we conclude that, by around 7:45 a.m., defendant had been arrested. Accordingly, we hold that the trial court’s determination that defendant was not arrested until 8:44 a.m. was in error. However, we concluded there was probable cause for that arrest. We hold that the trial court’s determination that defendant voluntarily reinitiated the discussion with the police was not against the manifest weight of the evidence. Because defendant reinitiated the discussion, we hold that the trial court did not err in denying defendant’s motion to suppress on this point. Based on our review of the circumstances, we conclude that defendant voluntarily gave his statements following the 11:36 a.m. waiver. Because defendant reinitiated the discussion with Malatia and Evoy and his subsequent statements were voluntarily given, we affirm the trial court’s judgment on this point. We also note that the comments to IPI Criminal 4th No. 7.15A (Supp. 2011) suggest that it is to be given in situations “where the defendant did not perform the acts which caused the death of the deceased.” Based on the fact that the comments suggest that IPI Criminal 4th No. 7.15A (Supp. 2011) does not apply to a situation in which the defendant is alleged to have committed the act that resulted in the death of the deceased, and the fact that the only cases we have been able to find in which IPI Criminal 4th No. 7.15A has been used are those in which the defendant did not perform the act that caused the death of the deceased, we hold that the trial court did not err in refusing defendant’s proposed jury instruction.

2.    Insurance Law: Duty to Defend:Affirmed in Part, Reversed in Part, Remanded with Directions:   Managing Partner (Centex Real Estate Corporation), which signed Construction Contract on behalf of  Owner (Centex Homes) with Contractor (McGreal)  was not an "additional insured" under Pekin Policy defining "additional insureds" as those persons or entities for whom you are performing operations under a written contract.  Owner was an "additional insured" under the Policy even though the Construction Contract required a purchase order to initiate activity, where insurance Policy required only a written contract requiring the putative insured as an additional insured. Generally, when determining whether an insurer has a duty to defend, a court “must compare the allegations in the underlying complaint to the policy language.” “If the underlying complaint alleges facts within or potentially within policy coverage, an insurer is obligated to defend its insured even if the allegations are groundless, false or fraudulent.”  In making this determination, “[t]he allegations in the underlying complaint must be liberally construed in favor of the insured.” In order to find that an insurer owes a duty to defend an additional insured based on that additional insured’s potential vicarious liability, two components must be present. First, there must be a potential for finding that the named insured was negligent and, second, there must be a potential for holding the additional insured vicariously liable for that negligence. Where the facts alleged support multiple theories of recovery, there is a duty to defend if any one of those theories potentially falls within policy coverage. Valley Forge Insurance Co. v. Swiderski Electronics, Inc., 223 Ill. 2d 352, 363 (2006). It is “the alleged conduct, rather than the labeling of the claim in the complaint, [that] determines whether the insurer has a duty to defend  Mikva, J.

No. 2017 IL App (1st) 153601 Pekin Insurance Company v. Centex Homes   Filed 2-21-17  (MGB)


 Injured worker employed by McGreal sued both Centex entities for injuries sustained at construction site. Trial Court granted summary judgment for Pekin finding Centex Real Estate was not an additional insured, and although Centex Homes was, Pekin had no duty to defend because the Complaint alleged direct and not vicarious liability as to Centex Homes.  We recently held that, in order to meet the first requirement, the underlying complaint need not expressly allege that the named insured was negligent. . Indeed, as the Third Circuit noted in Ramara, “silence as to any acts or omissions”  by the named insured must be understood as the possible result of tort immunity for employers under the workers compensation laws and should not be a basis for refusing to defend an additional insured. Applying the CSR Roofing test to the allegations in this case is straightforward. The question is whether the Nowak complaint alleges facts to support a theory of recovery under which McGreal’s acts or omissions were the cause of Mr. Nowak’s injuries. See CSR Roofing, 2015 IL App (1st) 142473, The answer, clearly, is yes. Once the CSR Roofing court determined that the underlying complaint contained sufficient allegations to suggest negligence by the named insured, the court asked only whether it could eliminate the possibility that the additional insured could be held vicariously liable for that negligence. We believe that the approach taken in CSR Roofing and Illinois Emcasco, of not parsing the underlying complaint for allegations of a specific amount or level or type of control by the additional insured over the named insured, is the correct one. In this case, the potential exists that a jury could find that McGreal was negligent in the erection of the balloon wall, that Centex Homes retained sufficient operative control over that element of construction such that McGreal was its agent, and that therefore Centex Homes was vicariously liable for the negligence of its agent. It does not matter whether this is likely, it is a potentiality. As such, Pekin owes Centex Homes a duty to defend in the underlying lawsuit. In summary, we agree with the circuit court’s findings that Centex Homes, and not Centex Real Estate, is an additional insured. However, we find that the circuit court erred in concluding that Pekin has no duty to defend Centex Homes and further find that its grant of summary judgment in favor of Pekin on that basis was in error.  Accordingly, we reverse the circuit court’s grant of summary judgment in favor of Pekin and against Centex Homes, and remand for the circuit court to enter summary judgment in favor of Centex Homes. The circuit court’s order granting Pekin summary judgment as to Centex Real Estate may stand.

3.    Collective Bargaining: Review of Labor Relations Board: Reversed in Part, Affirmed in Part:    A matter is a mandatory subject of bargaining if it (1) involves wages, hours, and terms and conditions of employment and (2) is either not a matter of inherent managerial authority or (3) is a matter of inherent managerial authority but the benefits of bargaining outweigh the burdens bargaining imposes on the employer’s authority.A matter concerns wages, hours, and terms and conditions of employment if it (1) involved a departure from previously established operating practices, (2) effected a change in the conditions of employment, or (3) resulted in a significant impairment of job tenure, employment security, or reasonably anticipated work opportunities for those in the Union. Further, a rule that subjects employees to potential discipline concerns the terms and conditions of employment.  In a matter of first impression, Section 10(a) of the Illinois Public Labor Relations Act shall be construed consistent with the National Labor Relations Act and shall prohibit any work rule that is overbroad on face such that it would reasonably tend to chill protected activity.  A rule that explicitly restricts protected activity, it is unlawful. If the rule does not explicitly restrict protected activity, the rule is unlawful under any of the following conditions: (1) employees would reasonably construe the language to prohibit protected activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of protected rights. Connors, J.

No. 2017 IL App (1st) 152993 International Brotherhood of Teamsters, Local 700 v. Illinois Labor Relations Board   Filed 01-25-17 (MGB)


Petitioner, the International Brotherhood of Teamsters, Local 700 (Union), appeals from a decision and order of the Illinois Labor Relations Board, that upheld two general orders issued by respondents,  one which precludes members from associating with any gang member and requiring them to complete a disclosure form about gang affiliations, and another provides rules for on and off duty behavior apply to social media activity.  The Gang Order states that an employee may not associate with anyone who the employee “knew or should have known *** is or was a member of a Known Criminal Organization.” Even if the “should have known” language was in a previous order, the Gang Order re-defined the category of people with whom an employee may not associate. While the previous orders prohibited associating with people who had criminal records, were under criminal investigation or indictment, or had a particular reputation, the Gang Order prohibits associating with people who are members of a group with certain traits. The disclosure requirement also amounts to a change that affects the terms and conditions of employment. Under the Gang Order, employees must disclose “any and all memberships and associations” and states that “[f]ailure to disclose a relevant membership or association is a violation ofpolicy.” Refusal to complete information or falsifying information on the disclosure form results in “[d]isciplinary action up to and including termination. However, the Gang Order is also a matter of inherent managerial authority. Balancing the interests of the parties, the gang issue is not so immediate that it outweighs the benefits of bargaining. Under these circumstances the Board's Decision was clearly erroneous. Because respondents refused to bargain the Gang Order—a subject of mandatory bargaining—in spite of the Union’s demand, they violated the Act. We find that the mere maintenance of the social media policy does not violate the Act. The Union may be correct that employees could interpret the social media policy to prohibit protected activity, but the possibility that employees could interpret the policy that way is not enough. Where the rule does not refer to protected activity, “we will not conclude that a reasonable employee would read the rule to apply to such activity simply because the rule could be interpreted that way. For the reasons stated above, respondents violated the Act by refusing to bargain the Gang Order. However, the social media policy is not overbroad and does not violate the Act. We reverse the Board’s decision as to the Gang Order and affirm the Board’s decision as to the social media policy in the Rules of Conduct Order.

4.    Criminal Law: Post Conviction Proceedings: Reasonable Assistance of Counsel:  Wur supreme court has held that “there is no difference between appointed and privately retained counsel in applying the reasonable level of assistance standard to postconviction proceedings, and that if a defendant does not receive reasonable assistance from his privately retained postconviction counsel, the courts must reverse the  postconviction ruling and remand for the defendant to receive reasonable assistance. Postconviction counsel’s duties to provide reasonable assistance “include consultation with the defendant to ascertain his contentions of deprivation of constitutional right, examination of the record of the proceedings at the trial, and amendment of the petition, if necessary, to ensure that defendant’s contentions are adequately presented. [Citation.] Fulfillment of the third obligation does not require counsel to advance frivolous or spurious claims on defendant’s behalf.”  Illinois Supreme Court Rule 651  establishes the duties for appointed postconviction counsel.  Neville, J.


No. 2017 IL App (1st) 100467-B
People v. Csaszar Filed 2-21-17 (MGB)


After a bench trial, the trial court found Martin Csaszar guilty of solicitation of murder for hire  and sentenced him to 30 years in prison. With the assistance of retained counsel, Csaszar filed a postconviction petition in 2008. The trial court granted the State’s motion to dismiss the petition without an evidentiary hearing. On appeal, Csaszar argues only that his retained counsel did not provide reasonable assistance with postconviction proceedings.Csaszar argues primarily that his privately retained counsel should have included in the postconviction petition a claim that “the surveillance videotape played at his trial had been edited so as to delete a critical portion of the meeting between himself, James Anderson, and Agent Shaffer and that his trial attorneys had been ineffective for failing to challenge the redacted tape.”  Counsel told Csaszar that he omitted the claim because he watched the videotape and saw no evidence of tampering, and Csaszar’s sister also watched the videotape and saw no evidence of tampering. We see no grounds in this record to disbelieve counsel’s statement that the surveillance videotape did not substantiate Csaszar’s claim. Csaszar has not shown that competent counsel would have advanced nonfrivolous claims other than the claims presented by postconviction counsel. Thus, Csaszar has not shown that his postconviction counsel failed to provide a reasonable level of assistance. Accordingly, we affirm the dismissal of Csaszar’s postconviction petition.


8 Appellate Court Cases Posted 2-17-17

Sienna Court Condominium Ass'n v. Champiion Aluminum Corp., 2017 IL App (1st) 143364

1. Fitness Hearing/Right to Counsel:  Reversed and Remanded: where a trial court finds a bona fide doubt exists as to a defendant’s fitness to stand trial, the defendant loses the ability to knowingly and intelligently waive the right to counsel. To allow the defendant to proceed pro se is therefore a violation of the sixth amendment right to counsel. Once a bona fide doubt is established, court is required to appoint counsel to represent the defendant until he or she regains fitness to stand trial.  Pope, J.


No. 2017 IL App (4th) 150054 People v. Washington
Filed 2-17-17 (ATH)


Defendant argues the court’s decision finding her unfit to stand trial should be reversed and the cause remanded for a new fitness hearing because once the court had a bona fide doubt as to her fitness, the court was required to appoint counsel to represent her during the fitness hearing, even over her objection. The State concedes the trial court erred by failing to appoint counsel to represent defendant at the fitness hearing and agrees the court’s decision should be reversed and this cause remanded for a new fitness hearing, during which defendant is to be represented by counsel. We reverse and remand with directions.

 

2. Postconviction Petition: Affirmed:  Under Rule 651(c), postconviction counsel must file a certificate, indicating he or she “has consulted with petitioner by phone, mail, electronic means or in person to ascertain his or her contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.”  counsel stated he “examined the record of proceedings at the trial court and postconviction pleadings of record.” He further certified he discussed defendant’s contentions and his postconviction proceedings in person and by mail. Accordingly, we find defendant’s postconviction counsel substantially complied with Rule 651(c).  Knecht, J.

No. 2017 IL App (4th) 140594 People v. Jones Filed 2-17-17 (ATH)


Defendant appeals from the second-stage dismissal of his postconviction petition arguing  postconviction counsel failed to provide reasonable assistance in violation of Illinois Supreme Court Rule 651(c) and because he made a substantial showing of ineffective assistance of trial counsel. We affirm.

 

3. Civil Law:  Affirmed:  Section 801 (5) of the Uniform Partnership Act clearly denotes that a judicial determination of only one of the following tow factors is required to support an order dissolving a partnership; (1) the partners have engaged in conduct relating to the partnership that has made it not reasonably practicable to carry on the business in partnership and (2) it is not otherwise reasonably practicable to carry on the land trust business in conformity with the family’s partnership agreement.  The terms of the partnership agreement do not prevent the partners from filing a petition to judicially dissolve the partnership under section 801(5) of the Act or the court from entering a dissolution order where a provision in section 801(5) has been met.  Lytton, J.


No.  2017 IL App (3d) 160022 Palmer v. Mellen Filed 2-17-17 (ATH)

 

Plaintiffs, Martha Palmer and other relatives, filed a complaint seeking dissolution of a family land trust and partnership against the remaining partners, Chris Mellen and his siblings.  Trial court granted summary judgment in favor of plaintiffs.  On appeal defendants argue that the trial court erred for among other reasons, that ruling as a matter of law that the partnership should be dissolved and ignoring provisions of the partnership agreement.  Affirmed. 

 

4. Judicial Estoppel:  Reversed and Remanded:  The analytical framework for determining whether judicial estoppel should bar a claim is a two-step process.  First, the trial court must determine whether the party to be estopped has: (1) taken two positions; (2) that are factually inconsistent; (3) in separate judicial or quasi-judicial administrative proceedings; (4) intending for the trier of fact to accept the truth of the facts alleged; and (5) succeeded in the first proceeding and received some benefit.  Judicial estoppel must be proved by clear and convincing evidence.  McLaren, J.


No. 2017 IL App (2d) 160329 Knott v. Woodstock Farm & Fleet, Inc. Filed 2-17-17 (ATH)


Plaintiff, Terence Knott, appeals from an order of the circuit court of McHenry County granting defendant, Woodstock Farm & Fleet, doing business as Blain’s Farm & Fleet, summary judgment, based on the doctrine of judicial estoppel. Because the trial court improperly applied the doctrine of judicial estoppel, we reverse and remand.


5. Civil Law:  Reversed and Remanded:  Where the Attorney General or the State’s Attorney fails to file suit, a quo warranto action may be pursued by an interested party, with leave of court, to challenge a public official who “usurps, intrudes into, or unlawfully holds or executes any office, or franchise, or any office in any corporation created by authority of this State.”  If a quo warranto action is successful, the public official may be removed from office.  Section 3.1-10-5(b) of the Municipal Code has been interpreted to disqualify an individual with a felony conviction from holding the office of alderman.  Specific question raised on appeal is whether plaintiff-appellant, as alderman of the sixth ward of the City, has standing to bring a quo warranto action.  Plaintiff-appellant, as another member of the city council, has an interest in assuring that the legislative process is not tainted by one who “usurps” an office of government and has a duty to prevent someone who is not eligible to hold the office of alderman from participating in the council’s business. Plaintiff-appellant, as an alderman and member of the city council, has a substantial interest in a quo warranto action seeking the removal of Mr. Brown, based on his ineligibility to hold the office of alderman. Therefore, plaintiff-appellant has standing to bring a quo warranto action.  Rochford, J.

No.  2017 IL App (1st) 161118 People el rel. Wofford v. Brown Filed 2-17-17 (ATH)


Plaintiff-appellant, Keith Price, appeals from the denial of a petition for leave to file a quo warranto complaint seeking the removal of defendant-appellee, Lamont D. Brown, who had been convicted of two felonies, from the office of alderman of the fourth ward of defendant-appellee, the City of Harvey.  We reverse and remand.

6. Adverse Possession:  Affirmed:  The sole issue before us is whether Knorrek adequately pled a claim of adverse possession.  To establish title by adverse possession, the party must possess the disputed property for 20 and prove that the possession was: “‘(1) continuous; (2) hostile or adverse; (3) actual; (4) open, notorious and exclusive; and (5) under a claim of title inconsistent with that of the true owner.’  Permission to use land can never ripen into a claim for adverse possession as it is permissive and therefore not hostile or adverse.  If there is consent to the occupancy and possession of the property, adverse possession cannot be established.  Cunningham, J.

No. 2017 IL App (1st) 151823 In re Estate of Cargola Filed 2-17-17 (ATH)

 

Following the circuit court of Cook County’s dismissal of her complaint to quiet title, petitioner-appellant appeals from that dismissal of her claim for adverse possession. We affirm.

7. Civil Law:  Affirmed:  Breach of implied warranty of habitability claims against design professionals have largely been rejected in Illinois and most other jurisdictions.” We reject the plaintiff’s argument that we should expand the extent of the implied warranty of habitability to a new class of defendants who designed, but were not involved in the actual construction, of the condominiums at issue. Architect or engineering firm that assisted in design but otherwise did not participate in the construction of the real property is not subject to the implied warranty of habitability. The implied warranty of habitability also does not extend to material suppliers who did not perform any construction.  The developer or general contractor’s insolvency was the key factor in determining whether the purchaser can proceed against a subcontractor for breach of the implied warranty of habitability.   It is the burden of the purchaser to establish that the general contractor is insolvent before it can proceed against the subcontractor” on an implied warranty of habitability claim.  We do not find that potential recovery from insurance policies held by an insolvent developer or insolvent general contractor precludes an implied warranty of habitability claim against subcontractors who participated in the construction of the residence. Similarly, we do not find that the recovery of any proceeds from an insolvent developer’s “warranty fund” bars a property owner from maintaining a cause of action for breach of implied warranty of habitability against subcontractors of the developer who participated in the construction of the residence. Cunningham, J.


No. 2017 IL App (1st) 143364 Sienna Court Condominium Ass'n v. Champion Aluminum Corp. Filed 2-17-17 (ATH)

 

This case involves three consolidated appeals arising from the plaintiff condominium association’s lawsuit alleging defects in the design and construction of a condominium development.  The first appeal concerns whether claims for breach of the implied warranty of habitability may be asserted against design professionals and material suppliers who otherwise did not actually perform construction work. Claims were properly dismissed. A second appeal asks us to resolve a number of related certified questions, asking whether a property owner may assert a claim of breach of implied warranty of habitability against a subcontractor of an admittedly insolvent developer or general contractor. In the third appeal, the condominium development’s general contractor (which is insolvent and has been dissolved) appeals the dismissal of its counterclaims against various entities, asserted long after its dissolution.  Counterclaims were properly dismissed.

8. Criminal Law:  Reversed and Remanded: A person commits reckless discharge of a firearm by discharging a firearm in a reckless manner which endangers the bodily safety of an individual."  Defendant asserts that the evidence presented at trial did not demonstrate beyond a reasonable doubt that his reckless conduct endangered "an individual" since the State presented no evidence that another person or others were in the vicinity of the discharge.  We conclude that our legislature intended the term "an individual" to mean someone other than the "person" who is charged with the offense of reckless discharge of a firearm.  Discharging a firearm in an empty apartment in Chicago, without evidence that other people or homes were in the vicinity of the discharge, was insufficient to establish that the defendant endangered the bodily safety of another individual or others. Accordingly, we reverse the defendant's conviction for reckless discharge of a firearm.  Hoffman, J.

No.  2017 IL App (1st) 142956 People v. Grant Filed 2-17-17 (ATH)

 

Following a bench trial, the defendant was convicted of one count of reckless discharge of a firearm and two counts of unlawful use of a weapon by a felon (UUWF). On appeal, the defendant argues the evidence was insufficient to prove him guilty beyond a reasonable doubt of reckless discharge of a firearm and one of his convictions for UUWF must be vacated as it violates the one-act, one-crime rule. Reversed in part and remanded.


6 Supreme Court Cases Posted 2-17-17

1. Administrative Review: Circuit court and appellate court affirmed: Where notice of adverse decision to petitioner seeking administrative review of DCFS decision placing her on Central Register did not advise that the date the letter was mailed was the statutory day upon which the 35-day period to seek administrative review in circuit court would begin, and not the actual date on which the letter was actually received by certified mail, trial court and appellate court properly concluded that petitioner's action for administrative review was not time-barred. Freeman, J. (Thomas, J., dissenting).

No. 2017 IL 120105  Grimm v. Calica  Filed 2-17-17 (TJJ)


The central issue in this case is one of jurisdiction—specifically, so-called special statutory jurisdiction under the Administrative Review Law. See 735 ILCS 5/3-101 et seq. (West 2012). Section 3-103 of that statute states that a complaint for judicial  review of an administrative agency decision must be filed “within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected by the decision.” 735 ILCS 5/3-103 (West 2012). Here, plaintiff Christine Grimm  filed such a complaint in Lake County circuit court 36 days after the date of a decision against her by the Department of Children and Family Services (Department). Grimm conceded that her complaint was untimely but insisted that the jurisdictional bar of  section 3-103 could be lifted because the Department’s decision was misleading and, consequently, violated due process. The trial and appellate courts agreed. See 2015 IL App (2d) 140820. For the reasons that follow, we affirm.

2. Administrative Review: Appellate court affirmed: In action by corporation against City seeking to vacate judgment imposed by City administrative agency for building code violations, "appearance" of non-attorney at agency hearing who had no apparent or actual connection to corporate building owner was insufficient notice of proceedings by City seeking the judgment, such that corporation had right to seek to have judgment vacated on remand. Karmeier, C.J. (Freeman, J., dissenting).

No. 2017 IL  117720  Stone Street Partners, LLC v. City of Chicago Department of Administrative Hearings  Filed 2-17-17 (TJJ)


Stone Street Partners, LLC (Stone Street), brought this action in the circuit court of Cook County to obtain administrative review and declaratory and other relief, including an award of damages, after discovering that a judgment had been recorded against one of its properties for failure to pay $1050 in fines and costs imposed by the city of Chicago’s department of administrative hearings (the Department) for violation of various provisions of the city’s building code more than a decade earlier. Stone Street’s complaint, which named as defendants the city of Chicago, the Department and its director, and the city of Chicago’s department of buildings and the commissioner of that department (collectively the City), asserted that the original administrative proceedings were a nullity and could not serve as the basis for the judgment subsequently recorded against its property because, inter alia, it had not been given the requisite notice and therefore had no opportunity to contest the violations alleged by the City before judgment was entered against it. Following a motion filed by the City pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2012)), the circuit court rejected Stone Street’s cause of action in its entirety. The appellate court, with one justice partially dissenting, subsequently affirmed in part, reversed in part, and remanded for further proceedings. 2014 IL App (1st) 123654. We allowed the City’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2013). For the reasons that follow, the judgment of the appellate court is affirmed, and the cause is remanded to the circuit court for further proceedings.

3. Criminal Law/Automatic Transfer: Appellate court and circuit court reversed: Juvenile defendant charged by automatic transfer with first degree murder, but found guilty of non-automatic transfer offense of second degree murder, improperly sentenced as an adult where State did not petition for hearing under Juvenile Court Act to have defendant sentenced as an adult. Burke, J. (Karmeier, C.J., dissenting).

No. 2017 IL 118966  People v. Fort  Filed 2-17-17 (TJJ)


At issue in this appeal is whether a minor who is tried in adult court under the “automatic transfer” provision of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/5-130 (West 2008)) but is later not convicted of the charges which brought him into adult court is subject to mandatory adult sentencing under the Act. Defendant, age 16, was charged with multiple counts of first degree murder and tried in adult court but was convicted only of the uncharged offense of second degree murder. See 720 ILCS 5/9-2(a)(2) (West 2008). The circuit court of Cook County sentenced defendant as an adult to 18 years in prison. We hold that the trial court erred in automatically sentencing defendant as an adult pursuant to section 5-130(1)(c)(i) of the Act because second degree murder was not a “charge[ ] arising out of the same incident” as the first degree murder charges. 705 ILCS 405/5-130(1)(a), (1)(c)(i) (West 2008).

4. Criminal Law: Appellate court and circuit court reversed: Defendant mailing to circuit court simply stating "ineffective assistance of counsel," prior to hearing on motion to reconsider sentence, sufficient to trigger trial court responsibility to conduct preliminary hearing as to defendant's claim as set forth in People v. Krankel in order to ascertain efficacy of claim. Burke, J. (Thomas, J., dissenting).

No. 2017 IL 120071  People v. Ayres  Filed 2-17-17 (TJJ)


A pro se posttrial claim alleging ineffective assistance of counsel is governed by the common-law procedure developed from our decision in People v. Krankel, 102 Ill. 2d 181 (1984), and its progeny. Here, we must decide whether defendant’s allegation of “ineffective assistance of counsel” in his posttrial petition to withdraw guilty plea and vacate sentence triggered the circuit court’s duty to inquire into the factual basis of defendant’s claim. For the reasons set forth below, we answer that question in the affirmative.

5. Criminal Law: Appellate court reversed, circuit court affirmed: After proper vacature per Aguilar of defendant's previous plea of guilty on count of aggravated unlawful use of weapon charge, State could seek reinstatement of counts nolle pros'd at time of plea only if those counts were not barred by statute of limitations at time reinstatement was sought. Karmeier, C. J. (Theis, J., dissenting).

No. 2017 IL 120162  People v. Shinaul  Filed 2-17-17 (TJJ)


Defendant Cornelius Shinaul, who was 17 years old at the time, was arrested on February 9, 2009, for various firearm possession offenses. On April 8, 2009, he was charged with nine felony counts—eight aggravated unlawful use of a weapon (AUUW) counts and one unlawful possession of a firearm count. Following a Rule 402 conference (Ill. S. Ct. R. 402 (eff. July 1, 1997)) on June 2, 2009, defendant, as part of a negotiated plea agreement, pled guilty to count I of the information (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)) in exchange for the State agreeing to a nolle prosequi on the remaining charges. The Cook County circuit court accepted the guilty plea and sentenced defendant to 24 months’ probation based on the Class 4 felony offense of AUUW. 720 ILCS 5/24-1.6(d)(2) (West 2008). Pursuant to the agreement, the remaining counts against defendant were nol-prossed by the State. Defendant served and completed the full term of his sentence. On October 28, 2013, defendant brought a petition for relief under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)), seeking to vacate the conviction on the basis that it was void under this court’s decision in People v. Aguilar, 2013 IL 112116, ¶ 21, which held that the Class 4 form of AUUW set forth in section 24-1.6(a)(1), (a)(3)(A), (d) was facially unconstitutional. Conceding that defendant’s conviction should be vacated in light of Aguilar, the State filed a motion to reinstate certain AUUW counts that were previously nol-prossed. The circuit court held a hearing on both defendant’s petition and the State’s motion. At no time did defendant challenge whether the State could bring its motion in this proceeding. Rather, defendant argued that the nol-prossed charges were time-barred. Addressing the parties’ arguments, the circuit court agreed that Aguilar voided defendant’s conviction and that defendant could withdraw his guilty plea.1 In the circuit court’s detailed analysis, the court also denied the State’s motion on the basis that reinstatement of the charges would violate the one-act, one-crime doctrine. Following the conclusion of the hearing on the parties’ motions, the circuit court entered a written order consistent with its oral pronouncement. Circuit court affirmed.

6. Federal Employers' Liability Act: Appellate court reversed, circuit court affirmed: In FELA action arising out of incident where railroad motor vehicle was being used to transport employees when it was rear-ended by a third party, trial court properly instructed jury as to causation under FELA and defendant railroad could properly argue that thurd party was sole cause of plaintiff's injuries so as to permit railroad to avoid liability. Burke, J. (Kilbride, J., sp. concurring).

No. 2017 IL 120438  Wardwell v. Union Pacific R.R. Co.  Filed 2-17-17 (TJJ)


At issue in this appeal is whether, in an action brought under the Federal Employers’ Liability Act (45 U.S.C. § 51 et seq. (2006)), a defendant railroad may argue to the jury that a third party was the only person whose negligent conduct caused the plaintiff’s injuries. For the reasons that follow, we hold that it may.

1 Appellate Case Posted 2-15-17

1. Criminal Law: Reversed and remanded: Trial court erred in allowing evidence regarding "course of police investigation" that suggested that co-defendants had implicated defendant so as to lead police to him, where extent to which such evidence was introduced violated defendant's right to confrontation. Fitzgerald Smith, J.

No. 2017 IL App (1st) 140204  People v. Ochoa  Filed 2-15-17 (TJJ)


Following a jury trial, defendant Daniel Ochoa was convicted of first degree murder and aggravated discharge of a firearm in the 2002 shooting death of 15 year-old Marilu Socha. The jury also found that defendant personally discharged a firearm that  proximately caused the death of the victim. The trial court sentenced defendant to 45 years’ incarceration for first-degree murder, 35 years’ incarceration for the firearm sentence enhancement, and 10 years’ incarceration for aggravated discharge of a  weapon, to be served consecutively. On appeal, defendant contends the trial court erred where (1) he was denied his right to confrontation where the State elicited improper hearsay testimony from police officers, (2) it improperly allowed the State to argue  that the shooting was a gang initiation, and (3) the firearm sentence enhancement is unconstitutionally vague on its face and as applied to him. For the following reasons, we reverse and remand for a new trial.

8 Appellate Cases Posted 2-14-17

1. Criminal Law: Affirmed: Fact that trial court dismissed initial post-conviction petition at first stage more than 90 days after its filing, did not render that decision void, but only voidable, pursuant to Illinois Supreme Court decision in People v. Castleberry; thus, trial court properly dismissed second post-conviction petition in which defendant claimed he was entitled to relief stemming from trial court's initial alleged error. Connors, J.

No. 2017 IL App (1st) 123357-B  People v. Williams  Filed 2-14-17 (TJJ)


Defendant, Marcus Williams, appeals the trial court’s order that dismissed his petition for postconviction relief. Defendant argues that because the trial court dismissed his petition over 90 days from the date of its filing and docketing, the court’s order was  void pursuant to the Post- Conviction Hearing Act, which requires that a court examine a petition brought pursuant thereto within 90 days after its filing and docketing. The State, on the other hand, asserts that the court’s order dismissing defendant’s  petition was merely voidable as opposed to void and therefore not subject to collateral review. For the reasons that follow, we agree with the State and affirm the judgment of the circuit court.

2. Criminal Law: Reversed and remanded: Trial court did not abuse discretion in admitting defendant's prior conviction for predatory criminal sexual assault in trial for similar offense after defendant testified, but did err in refusing to permit defense questions on voir dire regarding potential bias stemming from claim that defendant was seeking to engage with prostitute at time of alleged offense. Neville, J. (Mason, J., concurring in part and dissenting in part).

No. 2017 IL App (1st) 142548  People v. Encalado  Filed 2-14-17 (TJJ)


A jury found Theophil Encalado guilty on three counts of aggravated criminal sexual assault. In this appeal, we find that the trial court did not abuse its discretion when it permitted the prosecution to impeach Encalado’s testimony by showing that he had a  prior conviction for predatory criminal sexual assault. However, we find that the trial court abused its discretion when it refused to ask venire members questions about potential bias against persons who participate in prostitution. Accordingly, we reverse the convictions and remand for a new trial.

3. Criminal Law: Affirmed: Extended Class 2 sentence of nine years in the penitentiary for delivery of less than 1 gram of heroin not excessive in light of defendant's five prior drug convictions; no circumstances were shown on the record to conclude that trial court was punishing defendant for going to trial. Mason, J.

No. 2017 IL App (1st) 142613  People v. Means  Filed 2-14-17 (TJJ)


Following a bench trial, defendant Stacey Means was found guilty of the Class 2 felony of delivery of less than one gram of heroin. Means was sentenced to an extended term of nine years’ imprisonment and two years of mandatory supervised release. On  appeal, Means maintains that his sentence is excessive in light of the nature of the offense, his nonviolent criminal background, his history of substance abuse, and the financial impact of his incarceration on taxpayers. Means also contends that the $2,000  controlled substance fine assessed against him should have been $1,000 because he was convicted of a Class 2, not a Class 1 felony. We affirm Means’ sentence and order the clerk of the circuit court of Cook County to correct the order assessing fines, fees,  and costs to reflect a $1,000 controlled substance fine.

4. Criminal Law: Public Defender fee order vacated and remanded: Hearing as to State's request for defendant to pay fees in connection with services of Public Defender insufficient as it did not address defendnat's ability or inability to pay; in reviewing seeming split of appellate cases, this court concluded that defendant had been afforded a "hearing" albeit an insufficient one and thus the 90-day requirement in Section 113-3.1 governing such hearings was complied with. Mikva, J.

No. 2017 IL App (1st) 143551  People v. Glass  Filed 2-14-17 (TJJ)


Following a jury trial, defendant Robert Glass was convicted of delivery of a controlled substance and sentenced to five years’ imprisonment. On appeal, Mr. Glass contends that the $500 public defender reimbursement fee assessed against him must be  vacated because no hearing was held to determine his ability to pay. He further challenges various fines, fees, and costs imposed by the trial court. We vacate the challenged fines and fees; modify the fines, fees, and costs order; and remand for a second  hearing on whether Mr. Glass should be required to reimburse any part of the cost of his public defender and, if so, what amount.

5. Civil Procedure/Discovery: Affirmed: Trial court procedure requiring minor children allegedly victimized by sexual assaults by similarly aged children while attending public school, wherein children would sit for depositions under particular conditions and procedures borne of recommendations by doctors who did court-ordered independent medical evaluations was not an abuse of discretion. Hall, J.

No. 2017 IL App (1st) 150109  Doe v. The Board of Education of the City of Chicago  Filed 2-14-17 (TJJ)


This is an interlocutory appeal brought pursuant to Illinois Supreme Court Rule 304(b)(5) seeking review of a contempt order and the discovery order denying plaintiffs’ motion for a protective order.

6. Employment Agreement/Securities Trading: Affirmed in part and reversed in part: Jury decision to award trader for annual wages affirmed; evidentiary rulings prohibiting plaintiff from presenting evidence regarding practices of firm with other traders proper; but trial court should have awarded additional amount on claim for return of capital by plaintiff. Simon, J.

No. 2017 IL App (1st) 153263  Gilmore v. Carey  Filed 2-14-17 (TJJ)


This appeal is before the court following a jury trial. Plaintiff Christopher Gilmore sued his former employer and its two principals. Plaintiff sought, among other claims, a return of his capital contribution and wages he claims he is owed. The jury awarded  plaintiff $128,219.03, and the court entered judgment in that amount, plus interest. Plaintiff appeals arguing that he is entitled to more. We affirm in part and reverse in part.

7. Condominium Law: Affirmed: Trial court properly denied claim by condo owner plaintiff that bylaws and declarations and Condominium Act prevented condo board from enforcing claim as to plaintiff for $10,000 deductible amount under insurance policy in connection with fire that originated in plaintiff's unit, despite claim by plaintiff that amount expended by board to repair the damage was less than amount tendered under insurance policy. Connors, J.

No. 2017 IL App (1st) 160286  Gelinas v. The Barry Quadrangle Condominium Association  Filed 2-14-17 (TJJ)


Plaintiff, Matthew Gelinas, appeals the circuit court’s order that granted the motion to dismiss with prejudice brought by defendants, his condominium association and its board of directors. Plaintiff contends that the circuit court erred when it determined  that the condominium association’s bylaws and declarations and the Condominium Property Act (Act) (765 ILCS 605/1 et seq. (West 2012)), allowed the condominium association to assess an insurance deductible to a single unit owner. Defendants assert  that the complaint was properly dismissed because the bylaws, declarations, and the Act authorized plaintiff to be charged the amount “not covered by insurance.” We agree with defendants and affirm the trial court’s ruling.

8. Criminal Law: Affirmed: Trial court properly denied leave to filed a successive post-conviction petition claiming that defendant's initial post-conviction counsel had afforded unreasonabe assistance of counsel to defendant in connection with proceedings under the initial post-conviction petition, as such does not constitute a cognizable constitutional claim under the Post-Conviction Hearing Act. Steigmann, J.

No. 2017 IL App (4th) 141088  People v. Dalton  Filed 2-14-17 (TJJ)


In May 2009, defendant, Geoffrey C. Dalton, pleaded guilty to criminal sexual assault. The trial court sentenced him to 10 years in prison. In June 2010, defendant filed a petition for postconviction relief pursuant to the Post-Conviction Hearing Act,  alleging that he was subject to an indeterminate term of Mandatory Supervised Release (MSR), which he argued was different from the term of MSR contained in his plea agreement. The trial court appointed counsel for defendant and ultimately dismissed  defendant’s amended postconviction petition. This court affirmed that decision on appeal. People v. Dalton, No. 4-10-1033 (May 7, 2012). In October 2014, defendant filed a motion for leave to file a successive postconviction petition, arguing that postconviction counsel had failed to comply with Illinois Supreme Court Rule 651(c). The trial court denied the motion. Defendant appeals, arguing that the trial court erred by denying his motion for leave to file a successive postconviction petition. We  disagree and affirm.

8 Appellate Cases Posted 2-10-17

1. Criminal Law: Reversed and remanded: Trial court action in disqualifying counsel in criminal case at State request, where counsel's father- - himself an attorney- - had represented a potential witness was erroneous where the testimony of that witness was relatively insignificant, and where other witnesses could establish such claimed facts, so that defendnat's right to counsel of his choice was improperly denied. Mason, J.

No. 2017 IL App (1st) 131097  People v. Buckhanan  Filed 2-7-16 (TJJ)


We reverse the disqualification of Buckhanan’s counsel and remand for a new trial. Nothing in the State’s theory of disqualification, either as originally articulated or as revised after the hearing, warranted depriving Buckhanan of his chosen counsel. And  although the State’s evidence was more than sufficient to sustain Buckhanan’s conviction, the error in disqualifying his attorney, standing alone, mandates reversal of the circuit court’s judgment and remand for a new trial.

1. Criminal Law: Affirmed: Conviction for armed habitual criminal affirmed over claim that predicate offense of aggravated unlawful use of weapon was now inapplicable per Aguilar decision, as that claim was guided by Illinois Supreme Court decision in McFadden, as predicate conviction is still valid and can support its use as a predicate felony unless it had been vacated prior to possession of this weapon on date in question, and evidence sufficient to prove defendant guilty beyond a reasonable doubt despite claim that defendant had no control over gun found in attic. Cunningham, J.

No. 2017 IL App (1st) 132884  People v. Faulkner  Filed 2-10-17 (TJJ)


Following a bench trial, the circuit court of Cook County found defendant Dorian Faulkner guilty of one count of being an armed habitual criminal (AHC) and two counts of unlawful use or possession of a weapon by a felon (UUWF), and sentenced him to six years of imprisonment. On direct appeal, he argues that: (1) his AHC conviction should be reversed because it was predicated on a prior conviction for aggravated unlawful use of a weapon (AUUW) that was based on a statute found to be unconstitutional and void by People v. Aguilar, 2013 IL 112116; and (2) his AHC and UUWF convictions should be reversed because the State failed to prove beyond a reasonable doubt that he had constructive possession of the firearm and ammunition recovered by the police. On August 31, 2015, we issued an opinion affirming the UUWF convictions but reversing the AHC conviction. People v. Faulkner, 2015 IL App (1st) 132884. In September 2016, our supreme court issued a supervisory order directing us to reconsider that judgment in light of its decision in People v. McFadden, 2016 IL 117424. We now affirm the convictions for both AHC as well as UUWF.

3. Criminal Law: Affirmed: Defendant convicted of sex offense in 1983 was not required to register as a sex offender in light of age of conviction, but 2014 conviction for felony theft triggered statutory provision which now required defendant to so register in light of subsequent felony conviction. Appellate court affirmed registration requirement in face of claim that it violated ex post facto provision of constitution. Rochford, J.

No. 2017 IL App (1st) 143150  People v. Bingham  Filed 2-10-17 (TJJ)


Following a bench trial in September 2014, the trial court convicted defendant, Jerome Bingham, of theft, which was elevated to a Class 4 felony due to a previous retail theft conviction, and sentenced him to three years’ imprisonment. Defendant had a prior conviction in 1983 for attempted criminal sexual assault for which he had not been required to register as a sex offender because the conviction occurred prior to enactment of the Sex Offender Registration Act (Act) (730 ILCS 150/1 et seq. (West 2012)), in 1986. Under section 3(c)(2.1) of the Act (730 ILCS 150/3(c)(2.1) (West 2012)), as amended in 2011, defendant’s 2014 felony theft conviction in this case required him to register as a sex offender for the 1983 attempted criminal sexual assault. On appeal, defendant contends (1) the Act is unconstitutional as applied to him; (2) the Act violates the ex post facto clauses of the United States and Illinois Constitutions; (3) his theft conviction was improperly elevated from a Class A misdemeanor to a Class 4 felony, and the trial court improperly imposed an enhanced three-year sentence for the Class 4 felony conviction; and (4) the trial court erroneously imposed a DNA analysis fee and failed to apply the $5 per day credit for presentence incarceration to several charges that qualify as fines. We affirm defendant’s conviction, three-year sentence, and the requirement that he register as a sex offender. We vacate his DNA analysis fee, credit him with $65 as against his fines, and direct the clerk of the circuit court to modify the fines and fees order accordingly.

4. Mortgage Foreclosure: Reversed and remanded: Trial court ruling that mortgage holder which had acquired mortgage by assignment from licensed mortgagee, but was not itself licensed to transact mortgage business, and thus did not have standing to enforce mortgage and seek judicial sale, was error, as plaintiff-assignee was not required by law to be so licensed in order to seek to enforce terms of mortgage. Lampkin, J.

No. 2017 IL App (1st) 152730  Nationstar Mortgage LLC v. Missirlian  Filed 2-10-17 (TJJ)


In a mortgage foreclosure action, a mortgage assignee’s lack of a license to conduct the business of residential mortgage lending was not a basis to invalidate the assignment, and thus, the trial court erred when it concluded the assignee lacked standing to pursue foreclosure, denied confirmation of the foreclosure sale, and dismissed the foreclosure action.

5. Domestic Relations: Affirmed: Trial court award changing child custody to respondent father affirmed in the face of false claims by the mother to authorities and the children's school regarding allegations that the father had physically and emotionally abused the children. Cunningham, J.

No. 2017 IL App (1st) 160098  In re Marriage of Wendy L. D.  Filed 2-10-17 (TJJ)


Petitioner-Appellant Wendy L. D., n/k/a Wendy L. S. (Wendy), appeals from the December 31, 2015 order awarding custody of the parties’ children to respondent-appellee George T. D. (George). For the following reasons, we affirm the ruling of the circuit court of Cook County.

6. Juvenile Delinquency: Reversed and remanded: Trial court decision to deny defense request to have officer's surveillance location revealed was error, and presence of prosecutor, but not defense attorney, in chambers during trial court's voir dire of testifying officer violated juvenile's right to be present. Hoffman, J.

No. 2017 IL App (1st) 162381  In re Manual M.  Filed 2-10-17 (TJJ)


The respondent, Manuel M., appeals from the trial court's judgment adjudicating him a delinquent minor by reason of his commission of two counts of aggravated unlawful use of a weapon and one count of unlawful possession of a firearm and the resulting  sentence of 18 months' probation and 30 days' commitment to the Juvenile Temporary Detention Center with the order of commitment stayed. For the reasons which follow, we reverse the respondent’s delinquency adjudication and sentence and remand the matter for a new trial.

7. Civil Procedure/Discovery: Affirmed: Nursing home administrator's report and certain witness statements generated in connection with 88-year-old woman's fall in nursing home were not subject to any privilege under the the Quality Assurance Act or Medical Studies Act, and were properly ordered by trial court to be turned over in discovery to plaintiffs in connection with lawsuit alleging negligence by the nursing home. Schostok, J.

No. 2017 IL App (2d) 160042  Lindsey v. Butterfield Health Care II, Inc.  Filed 2-10-17 (TJJ)


In this consolidated appeal, the defendant Butterfield Health Care II, Inc., doing business as Meadowbrook Manor of Naperville (Meadowbrook), claims that certain of its documents are privileged and that the circuit court of Du Page County should not  have ordered it to produce them during discovery in a lawsuit filed against it by plaintiff, Jannie Lindsey, as the guardian of Laura Lindsey. Meadowbrook insists that the Medical Studies Act (735 ILCS 5/8-2101 et seq. (West 2014)) and the Long-Term Care Peer Review and Quality Assessment and Assurance Protection Act (the Quality Assurance Act) (745 ILCS 55/1 et seq. (West 2014)) protect it against having to disclose those documents. We agree with the trial court that the documents at issue should be produced.

8. Criminal Law: Reversed: Conviction for being a child sex offender in a public park vacated, as statutory provision prohibiting such deemed unconstitutional as it is not reasonably related to its stated goal of protecting children, and strips away a "wide swath" of innocent conduct. McDade, J. (Carter, J., dissenting).

No. 2017 IL App (3d) 140627  People v. Pepitone  Filed 2-9-17 (TJJ)


The defendant, Marc A. Pepitone, was convicted of being a child sex offender in a public park (720 ILCS 5/11-9.4-1(b) (West 2012)) and was sentenced to 24 months of conditional discharge, 100 hours of public service, and $400 in fines and costs. On appeal, Pepitone argues that (1) section 11-9.4-1(b) is unconstitutional on its face because it bears no reasonable relationship to protecting the public and (2) section 11-9.4-1(b) violates the ex post facto clause because his prior conviction occurred before section 11-9.4-1(b) took effect. We hold that section 11-9.4-1(b) is facially unconstitutional and therefore reverse the circuit court’s judgment.

1 Appellate Case Posted 2-9-17

1. Civil Procedure/Sanctions: Affirmed: Trial court properly properly imposed sanctions against insurance company for its conduct in a declaratory judgment action for claiming that insured in motor vehicle accident did not cooperate with insurance company (thus arguably excusing coverage) when company had previously been advised that insured was in custody awaiting trial on criminal charges thus potentially mitigating insurer's claim of failure to cooperate. Ellis, J.

No. 2017 IL App (1st) 160775  American Access Casualty Company v. Alcauter  Filed 2-9-17 (TJJ)


Defendant Kimberly Krebs, the other driver involved in the car accident with Alcauter, filed a motion for sanctions against AACC and Newman, arguing that she had informed Newman of Alcauter’s arrest and detention prior to trial and that AACC proceeded to trial anyway. The trial court granted Krebs’s request for sanctions. AACC appeals, arguing that Newman reasonably relied on the representations of counsel assigned to represent Alcauter at the arbitration that Alcauter had been contacted  about the arbitration. While conceding that the facts did not support its declaratory-judgment action, AACC argues that it should not be faulted simply for advocating a losing cause. We affirm the imposition of sanctions. The record shows that, well before  the scheduled trial date, Newman was informed of the possibility that Alcauter had been incarcerated. Yet Newman did no serious investigation of that possibility and failed to forthrightly bring Alcauter’s arrest to the attention of the trial court. Instead,  AACC and Newman elected to proceed to trial, knowing that its declaratory-judgment claim lacked factual support.

4 Appellate Cases Posted 2-6 and 2-7-17

1. Uninsured Motorist Coverage: Notice of Claim:  Affirmed:  In deciding whether a provision within an insurance agreement violates public policy, we must determine whether the agreement is so capable of producing harm that its enforcement would be contrary to the public interest. An agreement will not be invalidated unless it is clearly contrary to what the constitution, the statutes, or the decisions of the courts have declared to be the public policy of Illinois, or unless it is manifestly injurious to the public welfare.  Whether an insurance provision violates public policy depends on the particular facts and circumstances of the case. While 215 ILCS 5/143a does not state a limit on when an uninsured motorist claim may be made, our supreme court has held that the purpose underlying this statute “cannot be circumvented by the insertion of a contrary or restricting provision in an insurance policy."   Harris, J.

 

No. 2017 IL App (1st) 161144  Smith v. American Heartland Insurance Company Filed 2-6-17 (MGB)

 

Plaintiff sustained injuries while a passenger in a vehicle owned by Pearson which was struck by a hit and run driver.  Pearson's insurance coverage was split between Defendant (liability and uninsured) and another (collision).  Pearson had not yet been provided with policies at the time of collision, but had a card naming each insurer but not specifying which coverage each provided.  UIM policy required notice within 120 days for hit and run incidents. Plaintiff's attorney, using information provided by Pearson, notified collision carrier of claim, but not Defendant. Defendant, once notified and after taking several months to investigate claim, denied coverage based upon lack of timely notice. Based on the above, the 120-day notice provision Heartland seeks to enforce against Smith is a dilution or diminution of the uninsured motorist statute and is therefore against public policy as applied to her.  Accordingly, we affirm the entry of judgment in favor of Smith, and her claim for uninsured motorist benefits should proceed to arbitration.


2. Collective Bargaining Agreements:  Trial Court's vacating of Arbitrators Award Affirmed:  Judicial review of an arbitrator’s award is extremely limited, and a Court  mustenforce a labor-arbitration award if the arbitrator acts within the scope of his or her authority and the award draws its essence from the parties’ collective-bargaining agreement. An arbitration award draws its essence from the collective bargaining agreement when the arbitrator, in making a decision, limits himself or herself to interpreting and applying the agreement. Hyman, J. 

 

No. 2017 IL App (1st) 161499  The Forest Preserve District of Cook County, Illinois v. Illinois Fraternal Order of Police Labor Council Filed 2-7-17 (MGB)

 

The Union represents a bargaining unit of sergeants employed by the District. The Union filed two grievances regarding the placement of newly promoted patrol officers on the sergeant’s salary schedule. The Union argued that newly promoted sergeants should be placed on the sergeant’s salary schedule based on their years of service with the District. The District maintained the Personnel Rules governed. Those rules provide that a newly promoted sergeant’s salary is comparable to a two step increase on the patrol officer’s salary schedule, regardless of his or her tenure with the District. The Arbitrator sustained the Union's grievances.  The Trial Court reversed the Arbitator's Decision, finding for the Disctrict. Establishing that an arbitrator has failed to interpret the collective bargaining agreement and has, instead, imposed his or her own personal view of right and wrong on the labor dispute presents a huge challenge. . Nevertheless, we agree with the circuit court that the District has cleared this hurdle. Arbitrator Cox’s rationale for deviating from the Personnel Rules was the District’s “long established practice” of paying newly promoted sergeants based on their years of service. But, as the circuit court noted, Arbitrator Cox provides no examples of this historical practice. Neither does the Union. Moreover, even if the Union could provide evidence of the District’s practice of deviating from the Personnel Rules, a long-standing policy outside of the CBA does not draw its essence from the CBA. Thus, the circuit court correctly vacated the award of the Arbitrator.


3. Personal Injury: Sexual Abuse: Statute of Limitations: Discovery Rule: Dismissal Affirmed:  An action for damages for personal injury based on childhood sexual abuse must be commenced within 2 years of the day the person abused discovers or through the use of reasonable diligence should discover that the act of childhood sexual abuse occurred and that the injury was caused by the childhood sexual abuse.” 735 ILCS 5/13-202.2(b).  The statute further provides that the limitations period under subsection (b) does not begin to run until the victim of the abuse is 18 years old. Pursuant to the discovery rule, “a party’s cause of action accrues when the party knows or reasonably should know of an injury and that the injury was wrongfully caused.   Discovery Rule does not apply to save a claim where plaintiff  knew of the abuse at the time it occurred and the memory was not repressed.  Further, knowledge of the injury is presumed where plaintiff was aware of the abuse as it was occurring. Mason, J. 

 

No. 2017 IL App (1st) 160536    Doe v. Carlson  Filed 2-7-17 (MGB)

 

This case arises from Cherie Carlson’s alleged sexual abuse of Jane Doe, beginning when Doe was 16 years old. Alleged abuse occurred when Doe was 16  t0 20 years old, ending in 1999. Doe filed suit against Carlson, among others, on November 15, 2013. Carlson moved to dismiss the suit on the grounds that the statute of limitations had expired in 2001, two years after Doe knew or should have known both that the abuse occurred and that her injury was caused by the abuse.  The trial court agreed and grantedthe Motion to Dismiss. Ordinarily, the issue of when the statute of limitations begins to run under the discovery rule is one of fact, but when the answer is clear from the pleadings, we may decide this issue as a matter of law. Doe does not allege her memories of the abuse were repressed. Further, while she denied awareness of the fact that the contact between her and Carlson was criminal, she admitted that she knew the contact was “wrong” and “inappropriate” at the time it was occurring. Doe elaborated that she did not believe her encounters with Carlson amounted to a consensual dating or sexual relationship. It is well-settled that under the discovery rule a plaintiff need not appreciate the criminality of the conduct at issue to be charged with knowledge that her injury was wrongfully caused.  Finally,s, Doe, at the age of 20, informed a third party that Carlson had been “sexually inappropriate” with her. Indeed, Doe had considered reporting Carlson’s conduct earlier, but decided against it after remembering that another girl whom Carlson mentored made similar allegations that Carlson “inappropriately touch[ed]” her, only to end up leaving the church with her family. Doe also recalled that her youth group leader at the time ordered the members not to discuss those allegations. Taken together, and contrary to her argument on appeal, Doe’s testimony establishes that she knew of Carlson’s abuse at the time it occurred.  Turning then to the issue of when Doe knew that her injuries were caused by the sexual abuse (the second prong of section 13-202.2(b)), pursuant to Clay, knowledge of injury is presumed where the victim was aware of the sexual abuse as it was occurring . And even assuming arguendo that this presumption of knowledge of injury is inapplicable, Doe’s testimony nevertheless reveals that she had actual knowledge of the cause of at least a portion of her injuries when they occurred.

4. Telephone Consumer Protection Act. Summary Judgement for Plaintiff Affirmed:  The TCPA prohibits the use of any fax machine or other device to send unsolicited advertising faxes. 6, ¶ 52. The purpose of the TCPA is to prevent the transmission of “junk faxes” which intrudes into the privacy interests of phone customers and causes the recipient to assume the cost of paper and ink used to receive the unsolicited faxes.  Upon finding that a defendant “willfully or knowingly violated the [TCPA], the court may award treble damages. To prevail on a TCPA claim, plaintiff must show that (1) defendant used a fax machine, computer, or other device to send one or more faxes to plaintiff’s fax machine; (2) the faxes contained material advertising the “ ‘commercial availability [or quality] of any property, goods, or services’ ”; and (3) plaintiff did not give prior permission or express invitation for defendant to send the fax.  Pierce, J. 

 

No. 2017 IL App (1st) 150690    Loncarevic and Associates, Inc. v. Stanley Foam Corporation  Filed 2-7-17 (MGB)

 

Trial Court granted summary judgement in favor of Plaintiff on TCPA claim in case certified as a class action. The issue was whether defendant should be liable for faxes sent to Illinois. In the instant case, it is undisputed that (1) plaintiff received the two unsolicited advertising faxes sent by B2B that advertised Stanley Foam’s product; (2) Christie, an employee of defendant, approved the substance and content of the faxes; and (3) defendant employed and paid B2B to transmit the faxes advertising Stanley Foam’s product and business. However, the parties dispute whether the faxes sent outside of the tristate area were transmitted “on behalf of” defendant. Applying agency principles in this case, after reviewing the parties’ submissions, the operative complaint, and the discovery on file, we find that the trial court was correct when it found that there is no genuine issue of material fact that defendant was the “sender” of the unsolicited advertising faxes transmitted by B2B on behalf of Stanley Foam that were received by plaintiff, a business located outside the tristate area. Based on this record, we find that there is no genuine issue of material fact that the faxes at issue were prepared, approved, and paid for by defendant, through the acts of its employee, Christie, under specific and broad authority to advertise as he saw fit. Therefore, we find that the faxes sent outside of the tristate area were sent “on behalf of” defendant.  Summary Judgement in favor of plaintiff is affirmed. 

2 Appellate Cases Posted 2-3-17

1. Mortgage Foreclosure:  Affirmed:  Legislation was meant to clarify the previous law and make clear that a violation of the Licensing Act does not render a mortgage void. Thus, as the amendment makes clear, there is not (and has never been) a right to void a mortgage that violates the Licensing Act. There is, therefore, no public policy requiring that mortgage contracts be held void when an entity is not licensed pursuant to the Licensing Act. Accordingly, the circuit court correctly entered the judgment of foreclosure as well as the order approving the sale. Reyes, J.

 

No. 2017 IL App (1st) 153010 Wells Fargo Bank, N.A. v. Maka Filed 2-3-17 (ATH)

 

This matter arises out of a mortgage foreclosure on a property owned by defendant.  Defendant raised the issue before the circuit court that his mortgage was void because the original lender, Alliance Mortgage Company d.b.a. BNY Mortgage (Alliance) was not licensed at the time the loan was originated pursuant to the Residential Mortgage License Act of 1987.  On appeal, defendant maintains that because Alliance was not licensed in Illinois when the mortgage was originated his mortgage is void as against public policy and consequently the judgment of foreclosure was improperly granted.


2. Attorney’s Fees:  Affirmed:  Illinois follows the ‘American rule,’ which prohibits prevailing parties from recovering their attorney fees from the losing party, absent express statutory or contractual provisions. In the absence of a statutory basis for the recovery of its attorney fees, plaintiff may only recover those fees pursuant to contract.  Here, however, as correctly noted by the trial court, plaintiff has failed to identify any written instrument or condominium declaration, i.e., any contract, providing for its recovery of attorney fees in this action against defendant.  Rochford, J. 

 

No. 2017 IL App (1st) 153516 Blackstone Condominium Association v. Speights-Carnegie Filed 2-3-17 (ATH)

 

Plaintiff filed a complaint alleging a failure to pay condominium assessments.  Plaintiff sought damages, plus attorney fees and costs under a breach of contract theory.  After bench trial, the court found in favor of the plaintiff and entered a judgement.  Subsequent to the trial, the court denied a petition for attorney’s fees finding that the underlying action was for breach of contract, but that plaintiff had failed to produce a written instrument or condominium declaration providing for attorney fees in the event of a breach by defendant.  Plaintiff appealed.  Trial court affirmed. 


1 Appellate Case Posted 2-2-17

1. Unempployment Insurance/Contributions: In case where Department of Employment Security initially denied employee's claim for unemployment benefits, but then reversed that ruling, upward calculation of contribution by employer to Department during middle of calendar year, made retroactive to beginning of applicable year, was not prohibited by Unemployment Insurance Act. McBride, J.

No. 2017 IL App (1st) 143299  Perry & Associates, LLC v. The Illinois Department of Employment Security  Filed 2-2-17 (TJJ)


Plaintiff Perry & Associates, LLC appeals from the circuit court’s order affirming the administrative decision of defendants, the Illinois Department of Employment Security (Department) and the Director of Employment Security (Director), holding that  the raise in plaintiff’s rate for contributions to the Illinois Unemployment Insurance Trust Fund (Fund) for calendar year 2013 was proper. On appeal, plaintiff argues that the Department cannot retroactively change the contribution rate for an employer  midyear because (1) this change violates the terms of section 1509 of the Unemployment Insurance Act (Act) (820 ILCS 405/1509 (West 2012)),(2) the unilateral ability to increase the rate at any time on any year violates public policy, (3) the retroactive  application of the rate and imposition is improper, (4) the Department caused delays in proceedings by failing to provide a fair hearing such that it is inequitable to assess interest, and (5) the refusal to address the benefits to the claimaint as a defense to the  rate was improper.

4 Appellate Cases Posted 2-1-17

1. Public Employment/Unfair Labor Practices: Affirmed: State labor relations board properly ruled that county sheriff was guilty of an unfair labor practice when sheriff unilaterally changed rules regarding secondary employment and refused to bargain about same, despite sheriff's claim that actions were within his "inherent managerial authority." Fitzgerald Smith, J.

No.2017 IL App (1st) 153015  County of Cook v. Illinois Labor Relations Board  Filed 2-1-17 (TJJ)


Respondent-appellee International Brotherhood of Teamsters, Local 700 (Union), the representative of three bargaining units of Cook County correctional officers, deputy sheriffs, and fugitive investigators, filed a charge with the Illinois Labor Relations Board (Board), alleging that petitioners-appellants, County of Cook and the Sheriff of Cook County (“Sheriff” or “the Employer”), committed an unfair labor practice by unilaterally changing their secondary employment policy and refusing to bargain over it when they issued a general order establishing new policies and procedures governing their employees’ ability to work a second job. The Employer appeals, contending the Board’s decision must be reversed because the new secondary employment policy  is not subject to bargaining, as it is within the Employer’s inherent managerial authority; the new secondary employment policy does not change hours, wages or conditions of employment; and the new secondary employment policy does not impose new  discipline on employees. The employer also contends the complaint should be dismissed because the Union was not denied the opportunity to bargain over the issue of secondary employment. For the following reasons, we affirm.

2. Criminal Law: Affirmed: Defendant's actions in purposely driving his vehicle into another oncoming vehicle was sufficient to justify guilty verdict for first degree murder, and ought not to have been reduced to reckless homicide. Jorgensen, J.

No. 2017 IL App (2d) 141281  People v. Oelerich  Filed 2-1-17 (TJJ)


After a jury trial, defendant, Mark D. Oelerich, was convicted of first-degree murder and aggravated driving under the influence of cannabis. He was sentenced to concurrent terms of 24 years’ imprisonment for first-degree murder and 14 years for  aggravated DUI. On appeal, defendant contends that his conviction of murder should be reduced to reckless homicide because the State failed to prove beyond a reasonable doubt the mens rea for murder. We affirm.

3. Criminal Law: Affirmed: Defendant proved guilty beyond a reasonable doubt of double murder; trial court rulings on evidentiary issues not an abuse of discretion; trial court ruling denying defense to call expert witness on identification testimony not an abuse of discretion; and post-trial claim that others committed the murders was not newly discovered and did not raise a doubt as to defendant's guilt. Pierce, J.

No. 2017 IL App (1st) 122640  People v. Anderson  Filed 2-1-17 (TJJ)


Defendant Robert Anderson was convicted of four counts of first degree murder related to the shooting deaths of Moises Reynoso and Robert Lilligren. Defendant was subsequently sentenced to life in prison. Defendant now appeals and raises eight issues:  (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the trial court erred in admitting hearsay testimony; (3) the trial court erred by precluding defense counsel from questioning Officer Jeong Park as to whether he would describe  defendant as “black”; (4) the trial court erred when it excluded evidence of defendant’s prior acquittal for an unrelated charge; (5) the trial court erred in denying defendant’s motion in limine for expert testimony on eyewitness identification; (6) the trial  court abused its discretion in denying defendant’s motion for new trial in light of allegedly newly discovered evidence; (7) the prosecutor’s remarks in closing argument were prejudicial and denied defendant a fair trial; and (8) the trial court erred in  denying his request for a new trial based on his allegations of ineffective assistance of counsel. For the following reasons, we affirm the judgment of the trial court.

4. Civil Procedure: Affirmed: Trial court properly dismissed as res judicata plaintiff's second independent action seeking to quiet title of garage space in condominium building, as issue had been squarely decided in first case. Schostok, J.

No. 2017 IL App (2d) 160466  Jaworski v. Skassa  Filed 2-1-17 (TJJ)


Plaintiff, Violetta Jaworski, appeals from the dismissal of her claim to quiet title to a garage in her condominium complex. She contends that her claim should not have been dismissed on res judicata grounds, as the prior action, initiated by defendant  Danuta Skassa (defendant), did not result in a final judgment or decide the issue of ownership of the garage. Because defendant believes that plaintiff has filed this appeal for improper purposes, defendant asks this court to impose sanctions against plaintiff.  For the reasons that follow, we affirm, but we deny defendant’s request to impose sanctions.

5 Appellate Cases Posted 1-31-17 

1. Criminal Law: Affirmed: Trial court properly ruled that defendant was not under arrest at police station but voluntarily wished to remain there where defendant was homeless, expressed a desire to remain in order to stay warm, and expressed a desire to help police find out what happened to his friend the victim; trial court properly determined that initial failure to warn defendant of Miranda was cured prior to later interview in light of the passage of time and the different tenor of the interview. Mason, J. (Hyman, J., concurring in part and dissenting in part).

No. 2017 IL App (1st) 140893  People v. Soto  Filed 1-31-17 (TJJ)


Following a jury trial, defendant Raul Soto was convicted of first-degree murder for the deadly beating of his roommate and sentenced to 27 years’ imprisonment. During the murder investigation, Soto voluntarily accompanied police to the police station  and cooperated with the investigation. After spending two nights at the police station, Soto made The trial court agreed with Soto that his first two incriminating statements were inadmissible mainly because, although the police had probable cause to arrest  Soto for the murder, they failed to give him Miranda warnings before eliciting an incriminating statement and the taint from that statement rendered inadmissible his second statement given minutes after his first. But the trial court found that Soto’s third incriminating statement, given more than 24 hours later, was admissible based on the curative measures taken after the unwarned interrogation. The trial court also found that Soto voluntarily, knowingly, and intelligently waived his Miranda rights, despite  his asserted cognitive defects and low intelligence level. On appeal, Soto challenges the admissibility of his third incriminating statement. Finding no error in the trial court's rulings, we affirm.

2. Criminal Law: Affirmed: Trial court properly dismissed post-conviction petition in murder case at second stage where petitioner claimed only that detective in other cases had been deemed to have violated other defendants' rights in unrelated cases by compelling false identification testimony, where claim in this case did not assert that detecticve had done so in this case but relied only on his misconduct in other matters. Pierce, J. (Hyman, J., dissenting).

No. 2016 IL App (1st) 141660  People v. Gonzalez  Filed 12-27-16 (TJJ)


Petitioner Tony Gonzalez appeals from the trial court’s second-stage dismissal of his amended petition for postconviction relief brought pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). Gonzalez asks this court to  reverse the dismissal of his amended postconviction petition asserting claims of actual innocence and a Brady violation and requesting remand for a third-stage evidentiary hearing. Affirmed.

3. Criminal Law: Affirmed: Trial court ruling denying motion to suppress statements by 17-year-old defendant not against manifest weight of the evidence; fact that trial court ordered an examination as to defendant's fitness was not itself indicative of a bona fide doubt of defendant's fitness so as to require a fitness hearing; and consecutive sentences totalling 90 years in the penitentiary for murder and attempt murder did not violate Miller v. Alabama prohibition against mandatory minimum life sentences for juveniles, where sentences imposed were not minimum sentences. Scmidt, J. (Wright, concurring in part and dissenting in part).

No. 2017 IL App (3d) 130190-B  People v. Edwards  Filed 1-31-17 (TJJ)


Following a stipulated bench trial, the Will County circuit court found defendant, Matthew Edwards, guilty of first degree murder and attempted murder. Prior to trial, defendant filed a motion to suppress, claiming his confession to police was involuntary  based on the fact that he was 17 years old at the time, had a fifth grade reading level, suffered from various mental disorders, and that the investigating officers did not allow him to speak to his mother or another concerned adult despite his request to do so.  The trial court denied the motion.

4. Mortgage Foreclosure: Affirmed: Trial court properly denied defendant's post-judgment motion to quash service of process by publication in connection with mortgage foreclosure proceedings where party seeking to quash service did not move to quash service within 60 days of filing its appearance in court, in violation of particular provision of Illinois Mortgage Foreclosure Law. Carter, J. (Holdridge, J., dissenting).

No. 2017 IL App (3d) 140566  The Bank of New York Mellon v. Laskowski  Filed 1-31-17 (TJJ)


Plaintiff, the Bank of New York Mellon (Bank), in its capacity as the trustee for the certificate holders of a certain alternative loan trust, brought an action against defendant, Pacific Realty Group, LLC (Pacific) and others to foreclose upon a mortgage held  on certain real property in Bolingbrook, Will County, Illinois. Well into the proceedings, after the subject property had already been sold at a sheriff’s sale, Pacific filed its appearance in the case. On that same court date, the trial court entered a dismissal for  want of prosecution (DWP) against the Bank for failing to appear. The DWP was later vacated. About 90 days after Pacific had filed its appearance, it filed a motion to quash service of process. The trial court denied Pacific’s motion and later confirmed  the sale of the property and the proposed distribution of the proceeds. Pacific appeals, arguing that the trial court erred in denying its motion to quash service of process. We affirm the trial court’s judgment.

5. Criminal Law: Vacated and remanded: In case where defendant was charged with offense in Will County and warrant issued on case on the same date, as defendant was in custody in Cook County at time of charge and issuance of warrant, defendant was entitiled to time credit for penitentiary sentence on Will County case while he was in custody in Cook County prior to being brought to Will County. O'Brien, J. (Wright, J., dissenting).

No. 2017 IL App (3d) 140907  People v. Brown  Filed 1-31-17 (TJJ)


Defendant, Christopher Brown, appeals the denial of his request to correct the mittimus to reflect additional presentence custody credit. We vacate and remand with directions.

3 Appellate Cases Posted 1-30-17

1. Criminal Law: Affirmed: Evidence was sufficient to prove defendant guilty beyond a reasonable doubt of aggravated domestic battery despite claim that defendant's physical deformities prevented him from stabbing victim in manner claimed; trial court comments in ruling on a defense motion did not indicate prejudice on part of trial judge; and failure of defendant in making victim's mental health records part of record on appeal resulted in forfeiture of claim that trial court erred in refusing evidence on victim's mental condition. Harris, J.

No. 2017 IL App (1st) 143403  People v. Jones  Filed 1-30-17 (TJJ)


Defendant, Michael Jones, was convicted after a bench trial of aggravated domestic battery, and the trial court sentenced him to five years’ imprisonment and four years of mandatory supervised release (MSR). On appeal, defendant contends: (1) the State  did not prove him guilty of aggravated domestic battery beyond a reasonable doubt where severe deformities in his hands and arms, along with his lack of strength and range of motion, rendered him incapable of stabbing the victim in her chest; (2) he is  entitled to a new trial where the record shows that the trial court prejudged his case and rejected his defense before defendant’s expert witness had testified; and (3) he was denied his right to present a full defense when the trial court refused to admit mental  health records of the victim. For the following reasons, we affirm.

2. Parental Rights: Affirmed: Trial court did not err in going forward on an expedited proceeding for termination of parental rights, in light of the procedural history of the case and the procedural safeguards accorded to respondent mother, and trial court decision to terminate parental rights was not against the manifest weight of the evidence despite claim that parental rights were terminated "only" because of anticipatory neglect. Mikva, J.

No. 2017 IL App (1st) 162306  In re Tyianna J.  Filed 1-30-17 (TJJ)


This is an appeal from the circuit court’s orders adjudicating the minor Davion N. a ward of the court and terminating the parental rights of Davion’s natural mother, respondent Traci F. In this case the juvenile court took the somewhat unusual step of  terminating Traci’s parental rights as to Davion at the dispositional hearing. On appeal, Traci makes the following arguments in favor of reversal: (1) the circuit court’s finding that Davion was abused and neglected was against the manifest weight of the  evidence; (2) the court abused its discretion by permitting expedited termination at the dispositional hearing; (3) Traci’s procedural due process rights were violated because no hearing was held to determine if the statutory criteria for expedited termination  roceedings were met; (4) Traci’s procedural due process rights were violated because the court terminated her parental rights prior to conducting an adjudicatory hearing to determine if Davion was abused or neglected; (5) the court’s finding that Traci was  unfit was against the manifest weight of the evidence; and (6) the court’s finding that termination of Traci’s parental rights and the appointment of a guardian with the ability to consent to adoption was in Davion’s best interest was against the manifest  weight of the evidence. For the reasons that follow, we affirm the judgment of the circuit court.

3. Real Estate Sales/Fraudulent Misrepresentaation: Affirmed: In action by plaintiff to recover proceeds in connection with building sold to defendant, trial court properly denied defendant claim that plaintiff had misrepresented zoning status of building and ability to convert building to 13 units rather than nine, as defendant could reasonably have discovered zoning status before purchase by exercise of reasonable caution. Carter, J.

No. 2017 IL App (3d) 160141  Kupper v. Powers  Filed 1-30-17 (TJJ)


Defendant, Robert L. Powers, appeals the dismissal of his third amended countercomplaint and the trial court’s order granting summary judgment in favor of plaintiffs. Specifically, defendant argues that the trial court erred in dismissing his fraudulent misrepresentation claim because the alleged false statements made by plaintiffs, Robert H. Kupper II, Kevin I. Kupper, Alan Kupper, and David G. Kupper, as beneficiaries of the Heritage Bank of Central Illinois, as trustee under the provisions of a trust agreement dated January 27, 2006, known as trust No. 20-101, were false statements of material fact. Defendant contends that the trial court erred in dismissing his negligent misrepresentation claim because plaintiffs owed a public duty to convey accurate  information about the zoning of the premises. Defendant also argues that the trial court erred in dismissing with prejudice his claim that plaintiffs violated the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et  seq. (West 2014)), which was pled in his first amended countercomplaint. Additionally, defendant contends that the trial court erred in granting plaintiffs’ motion for summary judgment because (1) the trial court lacked jurisdiction to rule on the motion  and (2) there were genuine issues of material fact. We affirm.


4 Appellate Cases Posted 1-27-17

1. Child Support: Affirmed: Under the doctrine of comity, courts may defer to the laws or interests of a foreign country and decline to exercise jurisdiction that is otherwise properly asserted.  Recognition of a foreign judgment may be withheld where it is contrary to the public policy of the state where the recognition is sought, the country in which the decree was rendered does not recognize American decrees, or the judgment was obtained in bad faith, by fraud or by taking advantage of the foreign law.  In this case, the Thai judgment was not contrary to Illinois public policy,  Because an unmarried man who causes conception through sexual relations “is legally obligated to support a child, then the equivalent resulting birth of a child caused by the deliberate conduct of artificial insemination should receive the same treatment in the eyes of the law.”  Lampkin, J.

No. 2017 IL App (1st) 133703 In re Parentage of A.H. Filed 1-20-17 (ATH)

In this action against the biological father, the mother filed a petition to recognize and enroll a judgement from a court in Thailand that adjudicated the defendant to be the father of triplets conceived by gamete intrafallopian transfer (GIFT) and ordered support obligations on him.  The court concluded that the circuit court properly extended comity to the foreign judgment because it was not contrary to Illinois public policy and the father failed to establish that the judgment was obtained by fraud or that he was denied a full and fair opportunity to present a defense in the foreign proceeding.


2. Juvenile Law: Affirmed: Mother’s contention on appeal that the trial court’s finding that she is an unfit parent and also its termination of her parent rights because the parent-child reunification services that the State required her to complete were not reasonably accommodated to her developmental disability were forfeited as this claim was never made in the trial court.  The trial court in its termination finding relied upon the mother’s lack of reasonable progress and reasonable degree of interest not unfitness on the parent’s developmental disabilities.  In this case the mother missed several therapy sessions, refused to participate in counseling, was late to visitation and when there, behaved inappropriately.  It is well established that a failure to comply with an imposed service plan and infrequent or irregular visitation with the child may support a finding of unfitness.  Delort, J.

No. 2017 IL App (1st) 161944 In re Jeanette L. Filed 1-27-17 (ATH)

 

Following a hearing, the trial court adjudicated minor-respondent, Jeanette L., to be an abused and neglected minor, and made her a ward of the court. The trial court subsequently found Jeanette L.’s biological parents, respondents Georgina L.1 and Clarence M., unfit parents and terminated their parental rights. Georgina L. appeals, contending that the trial court’s findings should be reversed because the State failed to provide her with reasonable accommodations under the Americans with Disabilities Act.  We affirm judgment of circuit court.  

3. Workers Compensation:  Affirmed:  The primary purpose of the Workers compensation Act is to provide financial protection for injured workers by providing prompt and equitable compensation, including the payment of undisputed medical expenses, for employees who are injured while working, regardless of fault.  Medical payments made by, or due from, an employer for injuries sustained by an employee in a work accident are clearly “amounts paid or payable” under the Act, regardless of whether the employer pays the medical provider directly or the employee.  Further, we note that setoff provisions in the uninsured motorist policy, like the one at issue here, have consistently been recognized by the courts as enforceable agreements that are not contrary to public policy because they merely place an employee in the same position he would occupy had the tortfeasor been minimally insured.  Harris, J.

No. 2017 IL App (4th) 160028 Country Preferred Insurance Company v. Groen Filed 1-27-17 (ATH)

Plaintiff filed an amended motion for summary judgment asserting defendant could not maintain an uninsured motorist claim, since she had already received workers’ compensation benefits in excess of the uninsured motorist policy’s limits. Defendant filed a cross-motion for summary judgment, asserting that the setoff provision (1) violated the Workers Compensation Act and was unenforceable and (2) excluded medical payments made by her employer directly to her medical providers. In its written order, the court granted plaintiff’s motion and denied defendant’s motion finding that the setoff provision was enforceable, unambiguous, and not against public policy.

4. Civil Procedure/Contracts: Affirmed and vacated in part: Seemingly false allegation in complaint by plaintiffs regarding the existence of a written contract, when plaintiffs thereafter acknowledged that there was only an alleged oral contract, justified trial court imposition of sanctions under SCR 137, but matter remanded for consideration of whether less serious sanction than dismissal was appropriate. Hall, J

No. 2016 IL App (1st) 150180  Stiffle v. Marz  Filed 12-30-16 (TJJ)


The plaintiffs, Kimberly and Scott Stiffle, appeal from an order of the circuit court of Cook County granting the defendant’s, Baker Epstein Marz’s, motion for sanctions pursuant to Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994) and dismissed the plaintiffs’ second amended  complaint with prejudice. On appeal, the plaintiffs contend that the circuit court erred when it found they violated Rule 137 and that dismissal of their second amended complaint with prejudice was too severe a sanction. For the reasons set forth below, we affirm in part and  vacate in part the order of the circuit court.


1 Appellate Case Posted 1-24-17 and 2 Appellate Cases Posted  1-25-17

1.     Criminal Law: Judgment of Conviction Affirmed:   Where Post Conviction Petition asserting grounds of ineffective assistance of counsel identified the evidence Petitioner asserted should have been advanced, but was not supported by affidavit or an explanation why no affidavits were attached, Trial Court properly granted State's Motion to Dismiss the proceeding at the second stage thereof.   McLaren, J.

No. 2017 IL App (2d) 140941  People v. Spivey   Filed 1-25-17 (MGB)


Defendant, Kavin Spivey, appeals from an order of the circuit court of Lake County granting the State’s motion to dismiss his petition under the Post-Conviction Hearing Act  seeking relief from his convictions of attempted first-degree murder, armed violence (, armed robbery, and being an armed habitual criminal.  Trial Court determined his pro se Petition included the gist of a claim for ineffective assistance, and appointed counsel for the second stage.  The Petition was not amended during the second stage and the trial court granted the State's Motion to Dismmiss. We note the existence of authority holding that the failure to comply with section 122-2 is not a ground for a second-stage dismissal. People v. Barkes, 399 Ill. App. 3d 980, 987 (2010) (citing Hall, 217 Ill. 2d at 332). However, more recent authority severely undermines Barkes. In People v. Allen, 2015 IL 113135, our supreme court held that the failure to notarize a statement styled as an evidentiary affidavit was not a ground for the summary dismissal of a postconviction petition. The court added, however, that, “[w]here a defendant has submitted an unnotarized statement, the State may challenge this nonjurisdictional procedural defect at the second stage of proceedings.” Id. ¶ 35. Furthermore, the court was careful to note that, “[w]here a defendant’s counsel is unable to obtain a properly notarized affidavit, the court may dismiss the postconviction petition upon the State’s motion.” Id. If the presence of an unnotarized statement styled as an evidentiary affidavit is a ground for the second-stage dismissal of a postconviction petition, it would be reasonable and logical to permit the dismissal of a petition because of the absence of an affidavit. In both instances, the opportunity to cure the defects is extant during the second-stage proceedings.  For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.     

2.    Criminal Law: Post Conviction: Affirmed:    Evidence was sufficient to sustain conviction for delivery of controlled substance on theory of accountability beyond a reasonable doubt.  A defendant may be found guilty on an accountability theory if the State establishes beyond a reasonable doubt that the defendant shared the criminal intent of the principal or that there was a common criminal design.  A defendant’s intent may be inferred from the nature of his or her actions and the circumstances surrounding the criminal conduct. Words of agreement are not necessary to establish a common purpose to commit a crime, and accountability may be established through a defendant’s knowledge of and participation in the criminal scheme, even though there is no evidence that he or she directly participated in the criminal act itself.  Birkett, J.

No. 2017 IL App (2d) 150731 People v. Hernandez   Filed 01-25-17 (MGB)


Following a bench trial, defendant, Jose L. Hernandez, was convicted of unlawful delivery of a controlled substance and sentenced to 20 years imprisonment.  He appeals, contending that the State failed to prove beyond a reasonable doubt that he knowingly participated in the transaction. Here, the evidence sufficiently proved that defendant served as a lookout while his father and brother conducted a drug transaction. He conducted a "heat run",  in driving a vehicle in a circuitous and erratic route designed to reveal surveillance.  He parked his vehicle a block from his home despite available parking spots. He drove in tandem with a vehicle which ultimately delivered the drugs and positioned his vehicle so as to serve as a look-out at the point of delivery.  His vehicle, though not directly involved in the transaction, was fitted with a secret department in which contraband could be hidden. The persons involved in the physical delivery were his father and brother. All of these factors point to defendant’s knowing participation in the drug delivery and render extremely unlikely any innocent explanation for his conduct. See People v. McDonald, 168 Ill. 2d 420, 447 (1995) (“the trier of fact is not required to disregard inferences that flow from the evidence, nor is it required to search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt”). The judgment of the circuit court of Du Page County is affirmed.


3.    Family Law: Disgorgement of Attorney's Fees: Reversed: Trial Court did not have discretion to consider retirement assets of a Party requesting interim fees when determining his or her ability to pay attorney fees. A spouse requesting fees need not be destitute and neither party's estate should be exhausted nor their economic stability undermined. Fees actually earned and paid to attorney are not "available"  under 750 ILCS 5/501(c-1)(3) and thus may not be ordered to be disgorged to pay the fees of counsel for the opposing party.  Carter, J.

No. 2017 IL App (3d) 150101 In re Marriage of Goesel   Filed 01-24-17 (MGB)


This appeal arises from the dissolution of marriage proceedings between petitioner, Christine Goesel, and respondent, Andrew Goesel. Contemnor, Laura Holwell, served as an attorney for Andrew. After Christine filed a petition for interim attorney fees, the trial court found that neither Andrew nor Christine had the current ability to pay attorney fees and ordered Holwell to disgorge $40,952.61 of attorney fees that Andrew had paid to her. Holwell did not pay the disgorgement amount, and the trial court held her in contempt.   The Appellate Court concluded trial court properly determined Wife's inability to pay her own fees, that her retirement assets should not be considered, nor should she be ordered to liquidate a real estate asset. Turning to the issue of funds paid to Husband and whether they were subject to disgorgement, the Appellate Court stated:  We find the most reasonable interpretation of the term “available funds,” as that term relates to previously paid “retainers or interim payments” to an attorney as used in section 501(c-1)(3) of the Act, are those funds that are currently being held for a client that have not yet been earned by the attorney at the time the attorney is given notice of the petition for interim attorney fees and would be “available” to be returned to the client if the attorney was to immediately cease services. We reverse the disgorgement order and vacate the trial court’s order finding Holwell in contempt of court.


2 Appellate Cases Posted 1-23-17

1. Public Pensions: Affirmed: Trial court had jurisdiction to enforce Settlement Agreement between pension fund and municipality where agreement expressly provided that circuit court retained jurisdiction to enforce terms; municipality properly deemed to owe amounts for which it should have levied taxes in past years; and attorneys' fees properly awarded to pension fund per settlement agreement. Harris, J.

No. 2017 IL App (1st) 153095  Board of Trustees of the Harvey Police Pension Fund v. City of Harvey  Filed 1-23-17 (TJJ)


The City of Harvey appeals from a circuit court order enforcing the terms of a settlement agreement entered into between the City of Harvey and the Board of Trustees of the Harvey Police Pension Fund. In 2006, the Board of Trustees of the Harvey Police  Pension Fund filed suit against the City of Harvey for various violations of the Illinois Pension Code. In February 2008, the parties entered into a settlement agreement by which the City of Harvey agreed to pay the Harvey Police Pension Fund $551,079.83  in back property taxes the City of Harvey had collected but failed to remit. The City of Harvey also agreed, commencing with the 2006-2007 fiscal year, to annually levy a tax upon all taxable property as required in section 3-125 of the Illinois  Pension Code. Affirmed.

2. Criminal Law: Affirmed: Defendant's appointed post-conviction counsel was not obligated to file amended or supplemental post-conviction petition in addition to pro see petition already filed, nor was counsel obligated to withdraw as defendant's counsel if appointed counsel believed petition was without merit. Holdridge, J.

No. 2017 IL App (3d) 140165  People v. Malone  Filed 1-23-17 (TJJ)


The defendant, William A. Malone, appeals from the dismissal of his postconviction petition, arguing that postconviction counsel provided unreasonable assistance by failing to amend the postconviction petition or withdraw as counsel. Affirmed.

1 Appellate Court Case Posted 1-20-17

1. Neglect: Termination of Parental Rights: Depravity: Reversed and Remanded: A conviction  following plea of guilty to charge of  Unlawful Use of Weapon, where the Statute creating that offense of UUW was later declared facially unconstitutional, could not serve as the basis for a finding of depravity in support of a Petition to Terminate Parental Rights, even though respondent had not caused conviction to be vacated in post-conviction proceeding. Appellate Court had the ability to vacate the conviction in the adoption action, even though it was a collateral proceeding.   McDade, J., Wright, J., Dissenting with Opinion.

No. 2017 IL App (3d) 160277  In re N.G.  Filed 1-19-17 (TJJ)


Respondent was found depraved based upon 3 Felony Convictions, one of which was based on a Statute subsequently found facially unconstitutional in People v. Aguilar, 2013 IL 112116. Trial Court's then conducted a best interests hearing, concluding that Respondent's  parental rights should be  terminated. We find: this is an action collateral to the 2008 criminal prosecution; there is, unlike the situation in McFadden, no dispute about which conviction the respondent is attacking and no dispute about which section of the statute was the basis for that conviction; and we are indisputably a court with reviewing authority.  We therefore find the respondent’s 2008 conviction for aggravated unlawful use of a weapon null and void and hold that it cannot serve as a basis for a depravity consideration pursuant to section 1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i) (West 2014)). Accordingly, we vacate the 2008 conviction, reverse the circuit court’s unfitness finding and, reverse, by necessity, the court’s best interest determination, and remand the case for further proceedings consistent with this decision.

4 Supreme Court Cases Posted 1-19-17

1. Personal Property Tax/Rental Vehicles: Appellate court reversed, circuit court affirmed: City of Chicago "ruling" that rental vehicles leased in suburbs by City residents would be presumed to have been used in the City and thus subject to City tax relating to leased vehicles violated home rule provision of State constitution due to its extraterritorial effect. Garman, J.

No. 2017 IL 119945  The Hertz Corporation v. The City of Chicago  Filed 1-19-17 (TJJ)


Defendant, the city of Chicago (City), imposes a tax on the use of personal property within its borders. The tax applies to the lease of personal property within the City and to the use of property in the City that is rented or leased outside the City. In 2011,  the City’s director of the department of revenue (now the City comptroller) issued Ruling 11, which provided guidance to suburban vehicle rental agencies located within three miles of Chicago’s borders, including plaintiffs, as to the collection of the tax. Personal Property Lease Transaction Tax Second Amended Ruling 11 (eff. May 1, 2011) (Ruling 11). Ruling 11 stated that beginning July 1, 2011, in the event of an audit, the City department of revenue (Department) would hold the suburban rental  agencies responsible for paying the tax unless there was written proof that the lessee was exempt from paying the tax based upon the use of the leased vehicle outside the City. In the absence of such proof, Ruling 11 provided, the Department would assume  that a customer who is a Chicago resident would use the leased vehicle primarily in the City and that a customer who is not a Chicago resident would use the vehicle primarily outside the City.

2. Criminal Law: Appellate court and circuit courts affirmed: Defendant's post-conviction petition not filed timely and therefore properly dismissed despite seeming ambiguity with respect to deadline where defendant does not file a petition for leave to appeal in connection with his direct appeal to appellate court; failure to file petition timely was due to defendant's culpable negligence; and second trial judge could hear and rule upon State motion to reconsider first judge's denial of State's motion to dismiss. Freeman, J.

No. 2017 IL 120310  People v. Johnson  Filed 1-19-17 (TJJ)


Defendant Allen R. Johnson appeals from the dismissal of his postconviction petition as untimely. This court allowed defendant’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Jan. 1, 2015)), and we now consider the timeliness of defendant’s petition  within the meaning of section 122-1(c) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(c) (West 2008)). For the following reasons, we affirm the judgment of the appellate court.

3. Open Meetings Act: Appellate and circuit courts affirmed: School district complied with requirements of State Open Meetings Act where "public recital" of item on board's agenda relating to separation agreement reached in closed sessions with outgoing school superintendent was sufficient under tha Act; it was not necessary for public recital to list "key terms" of agreement, or agreement itself. Garman, J.

No. 2017 IL 120343  The Board of Education of Springfield School District No. 186 v. The Attorney General of Illinois  Filed 1-19-17 (TJJ)


On administrative review, the circuit court of Sangamon County reversed the Attorney General’s binding opinion finding violations of the Open Meetings Act (Act) (5 ILCS 120/1 et seq. (West 2012)). The appellate court affirmed the judgment of the  circuit court. 2015 IL App (4th) 140941. This court granted the Attorney General’s petition for leave to appeal pursuant to Illinois Supreme Court Rule 315 (eff. Jan. 1, 2015). The Illinois Association of School Boards, Illinois Association of School  Administrators, and Illinois Association of School Business Officials filed an amicus curiae brief pursuant to Illinois Supreme Court Rule 345 (eff. Sept. 20, 2010), as did the Illinois Municipal League. For the reasons that follow, we affirm the judgment of  the appellate court.

4. Public Employment/Discharge Hearing: Appellate court reversed, circuit court affirmed: In case where city police officer was terminated following hearing in front of police board, as to which decision he did not seek administrative review, subsequent request by officer for arbitration under collective bargaining agreement was properly barred by waiver and res judicata as issues in second claim requesting arbitration could have been litigated in initial hearing before police board. Thomas, J.

No. 2017 IL 120643  The Village of Bartonville v. Lopez  Filed 1-19-17 (TJJ)


At issue in this case is whether defendants, Salvador Lopez and Policemen’s Benevolent Labor Committee, Inc., are precluded from seeking grievance arbitration of Lopez’s termination from his employment with plaintiff Village of Bartonville’s police  department. The trial court granted summary judgment in favor of plaintiff on its complaint for declaratory judgment and to stay arbitration. The appellate court, with one justice specially concurring and one justice dissenting, reversed the trial court and  remanded the case to the trial court with directions to order the parties to proceed to arbitration. 2016 IL App (3d) 150341. This court allowed plaintiff’s subsequent petition for leave to appeal.

2 Appellate Cases Posted 1-17-17

1. Filing Fees: Motions to Vacate:  Grand of 2-615 Motion reversed:  Section 27.2a(g)(2) of the Clerks of Court Acts, which imposes a fee for filing a petition to vacate or modify "any final judgement or order of court" allows the imposition of a fee only for final judgements and final orders.  It does not apply to non-final orders such as dismissals for want of prosecution.  A dismissal for want of prosecution does not become final until the expiration of plaintiff's one year absolute right to refile under the Code of Civil Procedure.  Where Plaintiff seeks mandamus relief to compel an officials compliance with the law, and not a tort action seeking damages, Plaintiff need not demonstrate an express or implied grant of a private right of action in the relevant Statute. Mason, J. 


No. 2017 IL App (1st) 151738   Gassman v. The Clerk of the Circuit Court of Cook County   Filed 1-17-17 (MGB)


Section 27.2a(g)(2) of the Clerks of Courts Act (Act) imposes a fee for filing a petition to vacate or modify “any final judgment or order of court.” 705 ILCS 105/27.2a(g)(2) (West 2012). Pursuant to this section, in separate underlying cases, plaintiffs were each charged a $90 fee for filing a petition to vacate a dismissal for want of prosecution. Plaintiffs paid under protest and then filed the present lawsuit, seeking mandamus relief and arguing that the fees were not authorized by the statute because a dismissal for want of prosecution is not a final order of court. The Clerk sought dismissal under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2014)), arguing that the word “final” in section 27.2a(g)(2) applies only to judgments, not to orders of court. The trial court dismissed the action. Plaintiffs appeal, arguing that the Clerk’s interpretation of the statute is incorrect. We agree with plaintiffs and reverse. Although this is presumably a fictitious name, there is no indication in the record that “A.N. Anymous” obtained leave of court to file a complaint under a fictitious name, as required by Illinois law. 735 ILCS 5/2-401(e) (West 2014) (parties may only appear under fictitious names “[u]pon application and for good cause shown”). Accordingly, on remand, we direct plaintiffs to file an amended complaint omitting any fictitious names.

2. Criminal Law:  Jury Waiver: Armed Habitual Criminal Statute Facially Constitutional: One Act, One Crime:  Affirmed in Part, Reversed only as to One Count: For a jury waiver to be effective, the trial court must ensure that the defendant knows that the facts of his case would be determined  by a judge and not a jury and the resulting consequences of that decision. A jury waiver is generally valid where defense counsel waives that right in open court and the defendant does not object to the waiver. Defendant bears the burden of establishing that his jury waiver was invalid.  Armed Habitual Criminal Statute is not facially unconstitutional. An attack on a statute as facially unconstitutional is the most difficult challenge to mount. People v. Davis, 2014 IL 115595, ¶ 25. Only where there are no circumstances in which the statute could be validly applied is a statute facially unconstitutional. Id. A statute is not facially invalid merely because it could be unconstitutional in some circumstances. Id. Accordingly, a facial challenge cannot succeed if any circumstance exists where the statute could be validly applied.  The one-act, one-crime rule prohibits convictions for multiple offenses based on the same single physical act.  Under the one-act, one-crime rule, a court should impose a sentence on the more serious offense and vacate the less serious offense.  Mason, J.


No.2017 IL App (1st) 143632   People v. West  Filed 1-17-17 (MGB)


Following a bench trial, defendant Esau West was convicted of (1) armed habitual criminal (AHC), (2) aggravated unlawful use of a weapon (AUUW), and (3) unlawful use of a weapon (UUW) by a felon. The trial court imposed a six-year imprisonment term for each conviction, to be served concurrently. On appeal, West claims that (1) his jury waiver was invalid because the trial court failed to adequately admonish him, (2) the AHC statute is facially unconstitutional, and (3) his AUUW conviction must be vacated because it was based on the same physical act—possession of a loaded firearm—as his AHC conviction. The trial court adequately admonished West that by signing the waiver form and tendering it to the court, he would be waiving a jury trial and that the court, and not a jury, would hear the evidence. Consequently, the trial court adequately the trial court adequately conveyed to West that his case would not be heard by a jury. The fact that the trial court did not inquire into whether West’s waiver was the product of any promise or threat is an insufficient basis to undermine his otherwise valid waiver. Significantly, at no point did West object to his case proceeding to a bench trial despite his presence in court; instead, he affirmatively indicated that he understood he was waiving his right to have a jury hear the evidence in his case. A facial unconstitutionality challenge to the AHC statute on grounds identical to those raised by West has been previously considered and rejected by two different panels of this court in People v. Johnson, 2015 IL App (1st) 133663, and People v. Fulton, 2016 IL App (1st) 141765. We find no basis to invalidate the substantial authority upholding the constitutionality of the AHC statute and adopt the soundly reasoned decisions in Johnson and Fulton. Accordingly, we reject West’s claim that the ACH statute is facially unconstitutional as a violation of due process. The State acknowledges that West’s convictions for AHC and AUUW are both based on West’s possession of the same loaded 9-millimeter handgun and concedes that his less serious conviction of AUUW must be vacated. We agree with the parties that West’s convictions for AHC and AUUW violate the one-act, one-crime rule because they arose out of the same physical act—possession of the same loaded firearm. Because West’s AUUW conviction is a Class 2 felony ( and his AHC conviction is a Class x felony, we vacate the less serious offense of AUUW and direct the clerk of the circuit court to correct West’s mittimus by vacating the AUUW conviction.


1 Appellate Case Posted  1-12-17 and 2 Cases Posted 1-13-17

1. Orders of Protection: Trial Court Affirmed:     In the absence of a record of proceedings and sufficient common law record, Court will presume that the Trial Court's Order conformed to the law and had a sufficient factual basis.  Carter, J., McDade, J., dissenting with written opinion urging dismissal of the Appeal.


No. 2016 IL App (3d) 160070   Lynn v. Brown   Filed 1-12-17 (MGB)


Respondent appealed grant of Plenary Order asserting that he was not allowed to present evidence. No report of proceedings of the plenary hearing was filed and the common law record did not indicate the manner in which the hearing was conducted. Respondent was granted parenting time by separate Order incorporated in the Plenary Order after the filing of the Notice of Appeal.  The Majority found the allegations of the Petition supported the entry of the Order.


2. Criminal Law: Domestic Battery:  Jury Finding of Guilty Affirmed: Other-crimes evidence in Domestic Battery case under 725 ILCS 5/115-7.4  may be admissible for any relevant purpose, including to establish Defendant's  propensity to commit the charged offense.  In admitting such evidence, the trial court must balance the probative value of the evidence against its prejudicial effect, considering, in particular, the other crime's proximity in time and degree of factual similarity, in addition to other relevant facts and circumstances. The other-crimes evidence need only have "general similarity" to the offense charged.   In reviewing the sufficiency of evidence, the Appellate Court, determines whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt.  The combination of the recorded statements of the recanting victim and the testimony concerning the similar prior acts, was sufficient to sustain a conviction. Steigmann, J.


No. 2016 IL App (4th) 140658   People v. Heller   Filed 1-12-17 (MGB)


Defendant sentenced to 4 1/2 years after being convicted of Domestic Battery following jury trial in which victim recanted, her recorded statement was entered into evidence, and testimony of former spouse of the defendant concerning an alleged battery occurring in 2010 was admitted. Considering victim's  statements to police, along with the testimony of former wife, we conclude that the evidence was sufficient to prove defendant guilty beyond a reasonable doubt of domestic battery.  In this case, the other crime and the charged offense were similar enough to support admitting the other-crimes evidence. During both alleged offenses, defendant positioned himself on top of his victim and struck her on the face. In addition, both offenses were a reaction by defendant to the prospect of another romantic partner being involved with the victims, who had both been romantic partners with defendant. Both attacks occurred in the home of the victim. Defendant can not claim error in Instruction regarding evdence of other crimes where he affirmatively acquiesced to the limiting instruction. Note: The Court provides a proposed modification of IPI 3.14 to use in such cases, referencing a prior unpublished 1st District Decision.



3. Criminal Law: Sexual Exploitation of a Child: Affirmed:   Trial Court properly admitted testimony of prior Wife that Defendant had repeatedly suggested that they demonstrate sex acts in the presence of his son (her stepson) to teach son about sex in prosecution for crime requiring that such acts be performed "with knowledge that a child... would view his or her acts."  Defendant's argument that his words in suggesting sex acts be demonstrated  were protected free speech and were not "conduct"  is not well founded.  Jury was properly given limiting instruction IPI 3.14.   Carter, J., Schmidt, J.


No. 2016 IL App (3d) 140770   People v. Gordon   Filed 1-13-17 (MGB)


Defendant, Douglas E. Gordon, appeals from his conviction for sexual exploitation of a child. He argues that the trial court erred in allowing the jury to hear evidence of statements he made years prior to the events in question. We affirm. The State filed a motion to admit certain evidence. In the motion, the State alleged that the evidence at trial would show that defendant engaged in oral sex and sexual intercourse with his girlfriend in front of his son in an attempt to teach his son about sex. The State sought to introduce evidence that defendant had suggested to his then-wife, approximately two to three years earlier, that they demonstrate sexual intercourse for their son. The State argued that such evidence was relevant to show defendant’s intent, motive, and absence of a mistake. The State argued that the testimony in question was not “other crimes evidence” and was not “especially prejudicial in any way.” Defense counsel argued that Carolyn’s credibility was lacking and the evidence presented would be “far more prejudicial than it is probative.” The trial court ruled that Carolyn’s testimony would be admissible. To be sure, Carolyn’s testimony did present some danger of unfair prejudice. Evidence that defendant repeatedly stated a desire to engage in sexual intercourse in front of his young son presents a risk of convincing the jury that defendant “is a bad person deserving punishment.” People v. Donoho, 204 Ill. 2d 159, 170 (2003). Such risk, however, is ever-present in cases concerning sexual offenses committed against minors. Carolyn’s testimony was strictly limited to the factual similarities between defendant’s prior statements and the events in question, and that testimony was of a high probative value. Moreover, the trial court instructed the jury that Carolyn’s testimony could only be considered insofar as it was probative of defendant’s mental state or a lack of mistake. See Ill. R. Evid. 105 (eff. Jan. 1, 2011) (requiring a trial court to restrict the evidence to its proper purpose and to thus instruct the jury). Accordingly, we find that the trial court did not abuse its discretion in concluding that probative value was not “substantially outweighed by the danger of unfair prejudice.”

2 Appellate Cases Posted 1-9-17

Criminal Law: Affirmed:  Based on the nature of the attack and the significance of the injuries inflicted, a trier of fact could conclude the defendant intended to kill the two victims.  In cases where there is no witness with personal knowledge of what a recording portrays, a sufficient foundation may be laid under the silent witness theory. Under this theory, a recording may be admitted without the testimony of a witness with personal knowledge of what the recording portrays as long as there is sufficient proof of the reliability of the process that produced the recording. Generally, this is shown if the recording’s proponent presents “evidence as to (1) capability of the device for recording; (2) competency of the operator; (3) proper operation of the device; (4) preservation of the recording with no changes, additions, or deletions; and (5) identification of the speakers.  Defendant has forfeited the issue with respect to mental health records as he failed to include any of the mental health records in the record before this court. Harris, J.

No. 2017 IL App (1st) 142085 People v. Viramontes  Filed 1-09-17 (ATH)

On appeal, defendant challenges his conviction for attempted murder, the admission of jail house phone recordings, and the trial court’s refusal to tender all of co-defendant Marcy Cruz’s mental health records. After a review of the facts and relevant case law, we conclude the facts of this case are such that a jury could find the defendant intended to kill both victims when he violently struck each of them in the head with a baseball bat. We further find the trial court did not abuse its discretion in admitting jail house phone tapes, because the State had laid a sufficient foundation. Finally, we conclude that defendant’s failure to include mental health records on appeal results in the forfeiture of this issue.

 

Criminal Law:  Remanded: The statutory amendment in this case, that is, removal of the clause limiting the certification requirement from Rule 604(d) to those defendants moving to withdraw their guilty pleas is clearly procedural.  As such, it may be applied retroactively. It is well-settled that defense counsel must strictly comply with the certification requirements of Rule 604(d). Counsel did not certify that he examined the report of proceedings of the sentencing hearing. Because Rule 604(d) requires counsel to certify that he has examined the transcript of the sentencing hearing, counsel failed to strictly comply with the rule.  As such the remedy is to remand to the trial court for such compliance. O’Brien, J.

No. 2017 IL App (3d) 160019 People v. Evans  Filed 1-09-17 (ATH)

Defendant pled guilty to home invasion and was sentenced to 12 years’ imprisonment. Defendant has tried to challenge that sentence as excessive through a postsentencing motion numerous times, but each time this court has remanded the matter on appeal either because defense counsel failed to strictly comply with Illinois Supreme Court Rule 604(d) or on jurisdictional grounds. On this appeal, defendant once again argues that his attorney failed to strictly comply with Rule 604(d). We agree and must remand the matter for strict compliance with that rule.

5 Appellate Cases Posted 1-6-17

1. Citation to Discover Assets: Affirmed: Trial court properly granted 2-1401 relief to third party served with a citation to discover assets against whom a judgment was entered in default for failure to respond to the citation, where the citation was filled out improperly and where the third party held no assets of the judgment debtor and had no relationship with that party. Burke, J.

No. 2016 IL App (1st) 160778  R&J Construction Supply Co. v. Adamusik  Filed 1-5-17 (TJJ)


On October 1, 2008, plaintiff, R&J Construction Supply Company, Inc., filed a complaint against Gregory Adamusik, d/b/a United Masonry & Tuckpointing, alleging breach of contract. Plaintiff obtained a default judgment against Adamusik in the amount  of $9395.84 plus costs. At plaintiff’s request, the circuit court revived the judgment on June 23, 2015. On June 26, 2015, plaintiff issued a third-party citation to discover assets (CDA) to appellee, Edmar Corporation, in order to recoup any funds owed to  Adamusik/United Masonry from Edmar. On August 25, 2015, following Edmar’s failure to answer or appear again, the trial court confirmed the conditional judgment and entered a final judgment against Edmar in the amount of the Adamusik judgment of  $9395.84 plus costs and interest. On November 23, 2015, Edmar filed a petition to vacate the judgment entered against it pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)) arguing that plaintiff failed to  establish a basis to issue its initial third-party citation to Edmar and that Edmar had no relationship with plaintiff or Adamusik. Edmar argued that the citation was not properly filed and any judgment based on the improperly filed citation should be vacated.  After a hearing, the trial court granted the section 2-1401 petition, vacated the conditional and final judgments, and dismissed the citation against Edmar. Plaintiff now appeals.

2. Juvenile Delinquency: Reversed and remanded: Trial court erred in ruling that juvenile respondent in gun prosecution would not be able to learn from testifying prosecution officer location of surveillance point from where officer purportedly observed respondent, and trial court erred in conducting in camera interview of officer in presence of prosecutor but not respondent's attorney. Hoffman, J.

No. 2016 IL App (1st) 162381  In re Manuel M.  Filed 1-5-17 (TJJ)


The respondent, Manuel M., appeals from the trial court's judgment adjudicating him a delinquent minor by reason of his commission of two counts of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a) (West 2014)) and one count of  unlawful possession of a firearm (UPF) (720 ILCS 5/24-3.1(a)(1) (West Supp. 2015)) and the resulting sentence of 18 months' probation and 30 days' commitment to the Juvenile Temporary Detention Center with the order of commitment stayed. For the reasons which follow, we reverse the respondent’s delinquency adjudication and sentence and remand the matter for a new trial.

3. Real Estate Tax Sales: Affirmed: Trial court properly denied petition for tax sale and tax deed, where petitioner's efforts to serve homeowner were deemed "cursory" and did not constitute a bona fide attempt to comply with service requirements such that petitioner was not entitled to a sale in error and a refund. O'Brien, J.

No. 2016 IL App (3d) 150809  In re Application of the County Collector  Filed 1-6-17 (TJJ)


Petitioner Steve Sodeman bought a property owned by Mary Gatewood at a tax sale and filed for a tax deed. The trial court denied his petition because Sodeman failed to serve the property owner and taxpayer. He subsequently sought a sale in error, which  the trial court also denied, finding that Sodeman did not make a bona fide attempt to comply with the statutory notice requirements. We affirm.

4. Domestic Relations/Child Support: Affirmed: Trial court's award of 50% of husband's severance check to pay back child support was proper, and was not subject to being reduced because of husband's obligation to pay child support to children with second ex-wife. Carter, J.

No. 2016 IL App (3d) 160420  In re Marriage of Schomburg  Filed 12-14-16 (TJJ)


This appeal arises from posttrial proceedings stemming from the dissolution of the marriage between the respondent, Duane Osland, and his first ex-wife, the petitioner, Julie Schomburg. Duane appeals the trial court’s denial of his request for  reimbursement of monies garnished from his severance and bonus checks, which had been paid to Julie for child support and child support arrearages. On appeal, Duane argues that he not only has an obligation to pay child support to Julie, but he also has  an obligation to pay his child support for his daughter from his second marriage with Tunde Osland, his second ex-wife. Tunde is not a party in this case. Duane requests this court to (1) reapportion the 50% lien amounts that were placed on his bonus and  severance checks and redistribute the money equally between his two current child support orders and (2) vacate the child support order from his other divorce case (case number 14-D-03) ordering him to pay $3452.42 from his severance check to his  second ex-wife, Tunde. We affirm the trial court’s denial of Duane’s petition, in which he requested the reallocation of the garnished amounts that he had styled as a petition to modify child support.

5. Workers' Compensation: Affirmed: Claimant's request for additional benefits in connection with workers' compensation claim after initial award properly denied where claimant failed to prove a material change in his mental or physical condition after the initial award. Hoffman, J.

No. 2017 IL App (1st) 1600005WC  Murff v. Illinois Workers' Compensation Comm'n  Filed 1-6-17 (TJJ)