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2015 IL App (5th) 120401



 5 of 12 Appellate Case Posted  11-10-16

1. Civil Procedure: Forum Non Conveniens: Affirmed:   The doctrine allows a circuit court to decline jurisdiction and transfer an action when it appears that another forum can better serve the convenience of the parties and the ends of justice.  A trial court is vested with considerable discretion in determining whether to grant or deny a forum non conveniens motion, and its ruling will not be reversed unless it can be shown that the court abused its discretion in balancing the relevant public- and private-interest factors.  Our supreme court has repeatedly reminded us that a trial court's discretionary power under the forum non conveniens doctrine should be exercised only in exceptional circumstances when the interests of justice require a trial in a more convenient forum. Factors of private interest include: (1) the convenience of the parties, (2) the relative ease of access to sources of testimonial, documentary, and real evidence, and (3) all other practical considerations that make the trial of a case easy, expeditious, and inexpensive. Factors of public interest include: (1) the interest in deciding controversies locally, (2) the unfairness of imposing the expense of a trial and the burden of jury duty on residents of a forum with little connection to the litigation, and (3) the administrative difficulties presented by adding litigation to already congested court dockets.  The defendant has the burden to show that the balance of relevant private- and public-interest factors strongly favors transfer to another forum. The defendant must show that the plaintiff's chosen forum is inconvenient to the defendant, and that another forum is more  convenient to all parties.  The plaintiff has a substantial interest in selecting the forum where his rights will be vindicated, and the plaintiff's choice of forum should rarely be disturbed unless other factors strongly favor transfer. A plaintiff's choice of forum is given somewhat less deference when the plaintiff chooses a forum other than his home forum or the location where some part of the action arose.  But less deference does not mean no deference.      Cates, J.


No. 2016 IL App (5th) 150055   Foster v. Hillsboro Area Hospital, Inc.   Filed 11-10-16 (MGB)


Plaintiffs,  brought a multi-count, medical negligence complaint in the circuit court of Madison County, against 8 defendants, 6 of which filed Motions to Transfer the case to Montgomery County.  Plaintiffs were residents of Montgomery County when the case was filed.  The Trial Court denied the Motion. The residences of the individual defendants and defendant entities are spread among several Counties, including the two in question. .We take judicial notice that Madison County and Montgomery County are contiguous, and that the distance between the Madison County courthouse in Edwardsville and the Montgomery County courthouse in Hillsboro is approximately 42 miles, which substantially reduces the burden of travel and makes it unlikely that a trial in Madison County would be more costly or inconvenient. In this case, the circuit court determined that the defendants failed to meet their burden to show that the balance of factors strongly favored transfer of this case to Montgomery County, and that Montgomery County was more convenient to all parties. After reviewing the record, we cannot say that no reasonable person would have taken the view of the circuit court. Therefore, we conclude that the circuit court did not abuse its discretion in denying the moving defendants' motions to transfer based on intrastate forum non conveniens.  Accordingly, the judgment of the circuit court of Madison County is affirmed.

2.  Worker's Compensation:  Injury Arising out of Employment: Voluntary Recreational Program: Reversed: Under section 11 of the Act, "[a]ccidental injuries incurred while participating in voluntary recreational programs including but not limited to athletic events, parties and picnics do not arise out of and in the course of the employment even though the employer pays some or all of the cost thereof."  However, "[t]his exclusion shall not apply in the event that the injured employee was ordered or assigned by his employer to participate in the program."    Stewart, J.


No. 2016 IL App (1st) 153034WC   Calumet School District # 132 v. Illinois Workers' Compensation Comm'n.   Filed 11-10-16 (MGB)



The claimant, a middle school science teacher, filed an application for adjustment of claim under the Workers' Compensation Act seeking compensation for an accidental injury he sustained on March 23, 2011, while participating in a student/teacher basketball game in the employer's gymnasium after school. After an arbitration hearing, the arbitrator awarded the claimant benefits under the Act, finding that he was not engaged in a "voluntary recreational program" at the time of his injury and that his injury arose out of and in the course of his employment. The employer sought review of the arbitrator's decision before the Illinois Workers' Compensation Commission (Commission), which affirmed and adopted the arbitrator's decision. The employer filed a timely petition for judicial review in the circuit court of Cook County, which reversed the Commission's decision, finding that the claimant was participating in a "voluntary recreational program" under section 11 of the Act at the time of his injury and that his injury, therefore, did not arise out of and in the course of his employment. we can certainly envision circumstances under which participation in a basketball game would constitute a "recreational" activity and, therefore, fall within the voluntary-recreational activity exclusion set forth in section 11 of the Act. However, we do not believe that the facts of this case present such a situation. The evidence presented at the arbitration hearing established that the claimant was not a basketball player and did not want to participate in the student/teacher basketball games. He repeatedly tried to avoid having to participate in the games. Had his principal not  repeatedly pressured him to participate in the games, he would not have done so of his own accord. He testified that his performance review was imminent; that he had not yet been offered a position for the next school year; and that he was concerned that if he again declined to participate, it might reflect badly in his performance review, and he might not be offered a position for the next school year. Moreover, he testified that he considered attendance and participation in after-school events involving the students to be a part of his job as a teacher. This evidence is sufficient to support a finding that the claimant did not participate in the basketball game for his own "diversion" or to "refresh" or "strengthen" his spirits after toil and that he, therefore, was not engaged in a "recreational" activity under section 11 of the Act at the time of his injury. Thus, the Commission's finding that the claimant was not engaged in a "voluntary recreational program" under section 11 of the Act at the time of his injury is not against the manifest weight of the evidence. Judgment of Circuit Court Reversed.


3.  Worker's Compensation:  Nature and Extent: Affirmed:  Section 8.1b of the Act,  directs the Commission to consider the following in determining PPD: (i) the reported level of impairment pursuant to subsection (a); (ii) the occupation of the injured employee; (iii) the age of the employee at the time of the injury; (iv) the employee's future earning capacity; and (v) evidence of disability corroborated by the treating medical records. The Statute does not require the Commission consider the report of a physician regarding degree of impairment as the "primary factor" to be added to or subtracted to by the consideration of the remaining factors. Rather,  the Act provides that it but one of 5 factors to be considered and weighed.  Stewart, J.


No. 2016 IL App (1st) 152576WC   Con-Way Freight, Inc. v. Illinois Workers' Compensation Comm'n   Filed 11-10-16 (MGB)


Claimant was injured when a dolly weighing several hundred pounds ran over his feet. Employer's retained physician opined Claimant had impairment of 4% in one foot and no impairment in the other. The Arbitrator awarded 30% of one and 8% of the other, which was affirmed by the Commission and the Circuit Court.  Nothing within this statutory language allows us to require the Commission to treat the impairment rating as the "primary factor." In fact, such a requirement would be contrary to the plain language of the statute. The Commission is obligated to weigh all of the factors listed within section 8.1b(b) and make a factual finding with respect to the level of the injured worker's permanent partial disability, with no single factor being the  sole determinant of disability. The Commission in the present case properly followed section 8.1b(b)'s requirement by weighing Dr. Levin's report along with the four other listed factors, making specific findings with respect to each enumerated factor. Therefore, the Commission’s award does not violate the language of the Act as a matter of law.


4.  Worker's Compensation:  Arising out of and in Course of Employment: Circuit Court Reversed, Arbitrator Decision Reinstated:  There are three categories of risk to which an employee may be exposed: (1) risks that are distinctly associated with one's employment; (2) neutral risks that have no particular employment or personal characteristics, such as those that the general public is commonly exposed; and (3) 2 risks that are personal to the employee.  In analyzing risk, the first step is to determine whether a claimant's injuries arose out of an employment-related risk. A risk is distinctly associated with employment "if, at the time of the occurrence, the employee was performing acts he was instructed to perform by his employer, acts which he had a common law or statutory duty to perform, or acts which the employee might reasonably be expected to perform incident to his assigned duties.  A  risk is incidental to the employment where it belongs to or is connected with what an employee has to do in fulfilling his duties. If a claimant's injury is determined not to have resulted from an employment-related risk, we must then consider whether it was a result of a neutral risk or a personal risk. Injuries arising out of neutral risks, which have no particular employment or personal characteristics, are generally not compensable. Springfield,  Neutral risks include stray bullets, dog bites, lunatic attacks, lighting strikes, bombings, hurricanes, and falls while traversing stairs, public sidewalks and commercial driveways.  However, injuries arising out of neutral risks  may be compensable if the claimant can show he was exposed to a risk to a greater degree, either qualitatively or quantitatively, from that of the general public.  Finally, injuries arising out of personal risks, which "include exposure to elements that cause nonoccupational diseases, personal defects or weakness, and confrontations with personal enemies" are generally not compensable.  An exception to this general rule of noncompensability concerns injuries caused by idiopathic falls where "work place conditions significantly contribute[d] to the injury by increasing the risk of falling or the effects of a fall.  Harris, J.


No. 2016 IL App (1st) 152116WC   Mytnik v. Illinois Workers' Compensation Comm'n  Filed 11-10-16 (MGB)


Claimant suffered a herniated disc when reaching for a dropped bolt on an assembly line.  Here, we find the manifest weight of the evidence establishes claimant's injuries occurred as a result of a risk distinctly associated with his employment. While the act of "bending" may be an act performed by the general public on a daily basis, the evidence established that bolts would regularly fall out of the articulating arm during the assembly process. When a bolt would fall, claimant had to "run down there, bend over, reach and *** pick it up before the [rotating platform] r[an] it over." In other words, picking up fallen bolts was an integral part of claimant's job. Because the risk associated with claimant's act of bending to pick  up the bolt was a risk distinctly associated with his employment, he established that his injury "arose out of" his employment. The Commission's failure to find an employment-related risk is against the manifest weight of the evidence. We also find that the record does not support the Commission's determination that claimant's injury was not compensable because his "preexisting back condition was so deteriorated that his back simply gave out during a basic daily activity We reverse the circuit court's judgment confirming the Commission's decision, reverse the Commission's decision, and reinstate the decision of the arbitrator.



5.  Worker's Compensation:  Nature and Extent: Affirmed:  Section 8.1b of the Act,  directs the Commission to consider the following in determining PPD: (i) the reported level of impairment pursuant to subsection (a); (ii) the occupation of the injured employee; (iii) the age of the employee at the time of the injury; (iv) the employee's future earning capacity; and (v) evidence of disability corroborated by the treating medical records.  There was sufficient evidence of record for the Commission to consider each of the factors.  Hudson, J.

No. 2016 IL App (1st) 151300WC   Flexible Staffing Services v. Illinois Workers' Compensation Comm'n  Filed 11-10-16 (MGB)


Claimant, a welder, ruptured a bicep tendon when a 400 pound metal rail fell from a saw horse. Employer's physician estimated degree of impairment at 6%.  Arbitrator awarded 30%, which was reduced to 25% by the Commission and affirmed in the Circuit Court. None of respondent’s contentions regarding the Commission’s findings lacking evidentiary support are well founded. In turn, we reject respondent’s argument that the Commission erred in determining the level of disability as it purportedly could only rely upon the first and, to an extent, the fifth factors. Quite simply, we owe the Commission considerable deference on such medical questions. Long.  It is not within our purview to rebalance the five factors set forth in section 8.1b(b) and substitute our judgment for that of the Commission.  Furthermore, we also cannot say that the Commission’s decision is contrary to the manifest weight of the evidence.


3 Appellate Cases Posted 11-09-16

1. Criminal Law: Affirmed:  Once the State has established a prima facie case establishing the foundation for a piece of evidence,, the burden then shifts to the defendant to show actual evidence of tampering, alteration, or substitution.  The Frye test is applied only if the scientific principle, technique, or test offered by the expert to support his or her conclusion is new or novel.  We find no error in the trial court’s determination that no Frye hearing was required where the test and methodology used by Anderson was not new or novel.  Under Doyle v. Ohio, it is error to comment on a defendant’s post-arrest silence or his request for counsel.  In Illinois, once a defendant makes a post-Miranda oral statement, the introduction of evidence that the defendant subsequently refused to memorialize that statement does not necessarily violate the fifth amendment or conflict with the Doyle opinion.  Fitzgerald Smith, J.


No. 2016 IL App (1st) 131009 People v. Banks Filed 11-9-16 (ATH)


After a jury trial, the defendant was found guilty of arson and two murders and was sentenced to two terms of life imprisonment and 15 years of imprisonment, all which were to be served consecutively.  The defendant appeals alleging numerous errors from his trial including the court erred in admitting DNA evidence, he was prejudiced by the “misuse” of his criminal history, he was prejudiced by comments about his right to remain silent and his request for counsel and was denied effective assistance of trial counsel.  Affirmed.

2. Criminal Law: Affirmed:  Accountability can be inferred from the circumstances regarding the unlawful conduct such as the presence of the defendant during the commission of the offense, his failure to report the incident as well as his flight from the scene.  A verbal agreement between offenders is not required to show a common purpose to commit a crime.  In this case, the trial evidence established defendant’s accountability in that it showed he was with members of his gang before, during, and after the vehicular invasion and homicide. A rational jury could infer from the eyewitness testimony, medical testimony, and video evidence that defendant and Miller intended to kill or cause great bodily harm to Abdallah, or knew that their conduct would create the strong possibility of death or great bodily harm. Fitzgerald Smith, J.


No. 2016 IL App (1st) 141780 People v. Doolan Filed 11-9-16 (ATH)


After a jury trial, the defendant was convicted of first degree murder, vehicular invasion, and aggravated battery and sentenced to 24 years of imprisonment. On appeal, the defendant contends that he was not proven guilty beyond a reasonable doubt.  We affirm defendant’s convictions. 

 

3. Mechanic’s Lien: Affirmed:  The Mechanics Lien Act permits a lien upon property where a benefit has been received by the owner and where the value or condition of the property has been increased or improved by the furnishing of the labor or materials. As the intent of the parties is the most important factor in determining whether an item is a removable trade fixture or a permanent improvement, the easement agreement which established the parties did not intend the tower to be a permanent land improvement, the tower was a trade fixture. Schostok. J.

 

No. 2016 IL App (2d) 160009 AUI Construction Group, LLC v. Vaessen  Filed 11-9-16 (ATH)

The instant controversy arises from a wind energy system that was developed by GSG 7 and built on the property of Louis and Carol Vaessen. After the tower was completed, one of the subcontractors that worked on the tower filed a complaint to foreclose a mechanic’s lien against the Vaessens’ property. The circuit court found the wind energy system remained GSG 7’s personal property and was a nonlienable trade fixture rather than an improvement to the property and granted the Vaessens’ motion to dismiss.  Subcontractor appeals and we affirm.

1 Appellate Case Posted 11-08-16

Mediation Procedure: Affirmed: When parties to a contract select Illinois law as the governing law, Illinois law applies to all provisions of the contract, including the arbitration provision.  Where parties to a contract agree to arbitrate in accordance with state law, the FAA does not apply, even when involving interstate commerce. The terms of a contract must be given their plain, ordinary, popular, and natural meaning. Whether an ambiguity exists presents a question of law for the trial court to decide.  There is no ambiguity if a court can ascertain a contract’s meaning from its general language. Disagreement among the parties as to the meaning of terms does not render a contract ambiguous. Absent an ambiguity, “ ‘the intention of the parties *** must be ascertained bythe language utilized in the contract itself, not by the construction placed upon it by the parties.’ The words ‘subject to,’ used in their ordinary sense, mean ‘subordinate to,’ ‘subservient to’ or ‘limited by.  Hyman, J.

No. 2016 IL. App.(1st) 160369 G3 Analytics, LLC v. Hughes Socol Piers Resnick & Dym Ltd.  Filed 11-08-16 (LJD)


Plaintiffs, G3 Analytics and Ken Elder, hired two Chicago law firms to investigate and prosecute potential claims under the Illinois False Claims Act (740 ILCS 175/1et seq.(West2014)) and the federal False Claims Act (31 U.S.C. § 3729 et seq. (2012)). After the defendants spent several months investigating the claims, plaintiffs terminated the relationship. When plaintiffs did not pay the legal fees which defendants billed them, defendants demanded mediation under the alternative dispute resolution (ADR) provision of the fee agreement. Plaintiffs refused to participate in mediation and instead sought a declaratory judgment that the fee agreement was unenforceable. Defendants moved to dismiss. In response, plaintiffs contended that Illinois law governed the fee agreement and under Illinois law, a trial court, rather than an arbitrator, decides the issue of the agreement’s enforceability. The trial court disagreed and dismissed the action, finding that federal law, rather than Illinois law, governed the ADR provision due to the fee agreement’s ties to interstate commerce. We agree with the trial court’s reasoning, and affirm.

3 Appellate Cases Posted 11-07-16

1.  Ral Estate Broker's Act: Affirmed: Section 10(l) of the Act provides that the prevailing party is entitled to recover the “ cost of proceedings asserting or defending a broker’s claim of lien, including reasonable attorneys’fees, costs, and prejudgment interests.”  A party is a “prevailing party” for the purposes of awarding attorney fees when a judgment is entered in his favor and he achieves some sort of permanent affirmative relief after adjudication on the merits  The court’s grant of the injunction was just a preliminary stage, was not a final disposition on the merits of plaintiff’s claim asserting an improper lien, and did not confer plaintiff a permanent reliefThe court’s grant of the injunction was just a preliminary stage, was not a final disposition on the merits of plaintiff’s claim asserting an improper lien, and did not confer plaintiff a permanent relief.  A broker’s right to commission depends on whether the sale was procured through his efforts or through information derived from him, and cannot be defeated by the owner’s making the sale through another broker.  Simon, J.

No. 2016 IL. App.(1st) 152129 Halpern v. Titan Commercial LLC  Filed 11-07-16 (LJD)


This case arises out of a dispute over a real estate broker’s commission. Defendants Titan Commercial LLC (Titan) and its principal Ben Rosenfield filed a broker’s lien against a property. Plaintiff Charna Halpern filed a complaint to extinguish the lien as improper. In turn, defendants filed a counterclaim seeking payment of their real estate broker’s commission. Following a bench trial, the trial court awarded defendants a $50,000 commission and denied plaintiff’s claim for attorney fees.

3. Medical Negligence:  Reversed and remanded: In a medical malpractice action raising a lack of informed consent, the four essential elements are: (1) the physician had a duty to disclose material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would not have consented to; and (4) plaintiff was injured by the proposed treatment.”  Since the issue of proximate causation in an informed consent case  relates to what a person of ordinary prudence would do under the same or similar circumstances as those confronting the plaintiff, it is even more compelling that the members of the jury, based on their own knowledge and experience, and using their native common sense, understand and determine the issue of whether, after proper disclosure, a prudent person would have nonetheless proceeded with the proposed treatment.”  Therefore, expert evidence as to what a reasonable person would do is not necessary.    Steigmann, J.

No. 2016 IL. App.(4th) 150843 Crim v. Dietrich Filed 11-07-16 (LJD)

In August 2015, plaintiffs, Kristopher Crim and Teri Crim, acting on behalf of their biological son, Collin Crim (born June 17, 2005), filed a fourth amended medical malpractice claim against defendant, Gina Dietrich, D.O., alleging that she failed to comply with the standard of care applicable to an obstetrician.The Crims claimed, in pertinent part, that Dietrich’s negligent failure to obtain Teri’s informed consent prior to Collin’s natural birth resulted in a fracture to Collin’s right clavicle and nerve damage that extended down his right side to his shoulder, wrist, hand, and fingers. Following the presentation of the Crims’ case at a September 2015 jury trial, Dietrich moved for a partially directed verdict on the issue of informed consent, which the trial court granted. The Crims appeal, arguing that the trial court erred by (1) granting Dietrich a directed verdict on the issue of informed consent and (2) barring certain medical testimony. Because we agree with the Crims’ first argument, we reverse.

3.  Post Judgement Petitions: Reversed: At any time during the proceedings, the defendant may request leave to voluntarily withdraw his petition, as the defendant did here. Although the Post-Conviction Hearing Act explicitly provides that a defendant may voluntarily withdraw his petition, it does not provide any guidance concerning when or how a voluntarily withdrawn petition may be reinstated.  The limitations period under the Post-Conviction Hearing Act in this case is three years from the date of conviction "unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence." A logical reading of the two provisions together leads us to conclude that a defendant seeking to reinstate or refile a voluntarily withdrawn petition is subject to the same rule–that is, a defendant seeking to reinstate a voluntarily withdrawn petition after more than one year must be given the opportunity to demonstrate that the delay was not due to his culpable negligence.  Chapman, J.

No. 2016 IL. App.(5th) 130579 People v. York Filed 11-07-16 (LJD)


This appeal involves a provision of the Post-Conviction Hearing Act (725 ILCS5/122-1et seq. (West 2012)) which allows a defendant to voluntarily withdraw his petition (725 ILCS 5/122-5 (West 2012)). The statute does not specify when a petitioner who voluntarily withdraws his petition may refile it. The defendant in this casevoluntarily withdrew his petition after it was docketed for second-stage proceedings. Sixteen months later, he filed a new pro se petition, raising the same issue he raised in his earlier petition and asking the court to "set aside the withdrawal" of his earlier petition. The trial court summarily dismissed the petition, providing two alternative bases for its ruling: (1) if viewed as a successive petition, the court found that the defendant did not allege facts establishing cause and prejudice and (2) if viewed as a nonsuccessive petition, the court found that it was not filed timely. The defendant appeals, arguing that (1) the petition is not a successive petition and (2) the court erred in dismissing it at the first stage on the basis of untimeliness. We reverse.


3 Appellate Cases Posted 11-04-16

1.  Appellate Legal Negligence: Affirmed:  On appeal from a summary judgment entered in favor of the attorney defendants, our review is de novo.  As such, we must independently examine the evidentiary ma terial submitted in support of and in opposition to the motion for summary judgment. We strictly construe all of the evidentiary material submitted in support of the  motion and liberally construe all evidentiary material submitted in opposition. When the movant’s right to judgment as a matter of law is free from doubt, summary judgment should be encouraged as it aids in the expeditious disposition of the litigation.   It was the plaintiffs’ burden to plead and prove that the attorney defendants owed them a duty of care, that the attorney defendants breached that duty, and that they suffered damages as a proximate result of the breach. The issue of proximate cause in an appellate legal malpractice action is a question of law for the court, not a question of fact.  Discussion of when an Appellate Court reverses a matter based on improper admission of evidence and what standards of review are used to over turn a jury verdict.  Hoffman, J.

No. 2016 IL. App.(1st) 152549 Logan v. U.S. Bank  Filed 11-04-16 (LJD)


The  adult plaintiffs and the minors appeal from an order of the circuit court which granted summary judgment in favor of the defendants, F. JohnCushing III, Michael J. Kralovec, Daniel C. Meehen, Jr. and Kralovec Meehan, P.C. (collectively referred to as the attorney defendants) and denied the plaintiffs’ motion for partial summary judgment n their third amended complaint for professional malpractice and breach of fiduciary duty. For the reasons which follow, we affirm the judgment of the circuit court.

2.  Juvenile Court:Abuse and Neglect: Affirmed: The State must establish that the allegations of neglect [or abuse] are more probably true than not.  With respect to the admission of evidence, we must determine whether the juvenile court abused its discretion in admitting the video into evidence, and we will not reverse the juvenile court’s admission of evidence absent an abuse of its discretion.  “ ‘Under this standard, an abuse occurs when the [juvenile] court’s ruling is fanciful, unreasonable or when no reasonable person would adopt the [juvenile] court’s view.   Gordon, J.

No. 2016 IL. App.(1st) 160680  In re D.Q. Filed 11-04-16 (LJD)

The instant appeal arises from the juvenile court’s entry of an adjudication order finding three-year-old D.Q. and one-year-old J.C. abused and neglected due to (1) an injurious environment and (2) substantial risk of physical injury, and making them wards of the court. Respondent Sabrina V., the children’s mother, argues that the primary evidence against her consisted of a video in which she is shown repeatedly striking D.Q. with a stick, which was improperly admitted into evidence and, accordingly, there was no evidence to support the juvenile court’s findings. For the reasons that follow, we affirm.

3.  Juvenile Court/Abuse & Neglect:  Affirmed in part and reversed in part and remanded: Although a parent may be unfit to have custody of his child, it does not necessarily follow that it is in the child’s best interest that his parental rights be terminated. After a finding of unfitness, the circuit court must still give full and serious consideration as to whether it is in the child’s best interest to terminate parental rights, as the termination of parental rights permanently and completely severs the parent-child relationship.  A circuit court’s finding that the termination of parental rights is in the best interest of the child will not be disturbed on appeal unless it is contrary to the manifest weight of the evidence.  Hoffman, J.

No. 2016 IL. App.(1st) 161589   In re H.S.   Filed 11-04-16 (LJD)


The respondent-appellant, Soleil S. (S.S.) appeals from the orders of the circuit court terminating her parental rights as to the minors, H.S. and E.S. (No. 1-16-1589), arguing that the record does not demonstrate compliance with the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901et seq. (2012)) and, as a consequence, the orders affecting H.S. and E.S. must be reversed. The respondent-appellant, Julio R. (J.R.) filed a separate appeal (No. 1-16-1727) from the order of the circuit court terminating his parental rights as to the minor, H.S., arguing that the factual findings supporting the circuit court’s order of parental unfitness and the best interest of H.S.are against the manifest weight of the evidence. This court consolidated the appeals. For the reasons which follow, we (1) find that the court’s determination of J.R.’s parental unfitness as to H.S. and its finding that it is in her best interest to terminate his parental rights are not against the manifest weight of the evidence, (2) vacate the circuit court’s order terminating the parental rights of S.S. and J.R. as to H.S., (3)vacate the circuit court’s order terminating the parental rights of S.S.as to E.S., and (4) remand the matter back to the circuit court with directions to make a factual determination as to whether H.S. and E.S. are, or are not, Indian children within the meaning of the ICWA and, after the determination is made, for further proceedings consistent with this opinion.

 6 Appellate Cases Posted 11-3-16

1. Probate: Standing to Contest Will: Reversed:  Legatees under prior Will have standing to contest the subsequent Will under the Probate Act. 755 ILCS 5/8-1(a). In Re Estate of Schlenker, 209 Ill. 2d 456 (2004) does not stand for the proposition that a Will revoking all prior Wills divests legatees under a prior Will of standing.  Steigmann, J.

No. 2016 IL App (4th) 150844  In re Estate of John Schumann  Filed 11-3-16 (MGB)


John O. Schumann (Pete) died in July 2013. In March 2014, Mary Ann Herren Pete’s caretaker and holder of his power of attorney during the later years of his life—petitioned to probate a will Pete executed in October 2007, which appointed Herren as executrix and devised Pete’s entire estate to be administered pursuant to a trust agreement. Hanna and Nathan Struever—the children of Pete’s late wife, Alice— petitioned to contest the 2007 will. The Struevers claimed that Pete lacked the capacity to execute the 2007 will and that Herren exerted undue influence over Pete in creating it. The Struevers further asserted that Pete executed a valid will and trust in 2002, which would benefit the Struevers. Herren moved to dismiss the Struevers’ will contest, arguing that under the supreme court’s decision in In re Estate of Schlenker, 209 Ill. 2d 456, 808 N.E.2d 995 (2004), Struevers lacked standing. The trial court agreed and dismissed the Struevers’ petition. The Struevers appeal, and we reverse. The “fundamental” holding of Schlenker was that under the Probate Act, an heir unconditionally has standing to contest a will. The Schlenker court’s presumption that the prior wills were void was based on the applicable burden of proof, instead of a broader statement about the power of a probated will to revoke prior wills.

2. Dissolution of Marriage: Name Change of Minors:  Affirmed: Petitioner must demonstrate, by clear and convincing evidence, that a change in name is necessary serve the best interests of each child. 735 ILCS 5/21-101. Order enjoining a parent from changing a child's name must be narrowly tailored to preclude use of another name  “in any legal proceeding or using any other name in official records or membership applications or records.” Appellate Court had jurisdiction for the interlocutory  review of the  grant of injunctive relief in pending divorce case  under Rule 307(a), and thus could further consider the denial of the Petition for Name Change. Hutchinson, J.

No. 2016 IL App (2nd) 160594  In re Marriage of Piegari  Filed 11-3-16 (MGB)


In June 2016, Karyn filed a petition seeking a court order to change the children’s surnames by adding her maiden name via hyphenation. Alexander filed a response in which he asserted that it was not in the children’s best interests to hyphenate their surnames. In addition, Alexander noted that Karyn, rather than waiting for the court to rule on her name-change petition, had “already taken it upon herself to unilaterally hyphenate the children’s surnames in public documents.”  Because a change in the name of a child is a serious matter with far-reaching effects,” section 21-101 permits such a change only in compelling circumstances. Despite this high burden, however, Karyn presented no evidence to the court and submitted no offers of proof at the hearing (though Karyn’s attorney did reiterate Karyn’s “strong desire” to see the children’s names hyphenated). The question is whether she presented clear and convincing evidence that the name change she did request was necessary to serve the best interest of each child.  And, since Karyn presented no evidence or offers of proof to the trial court on that point, our review— under the highly deferential manifest-weight-of-the-evidence standard (In re Tate Oliver B., 2016 IL App (2d) 151136, is made that much easier. The trial court’s decision denying Karyn’s name-change petition was not against the manifest weight of the evidence.

3. Administrative Review: Permit for Skilled Nursing Facility:  Trial Court Reversed, Board Denial of Permit Affirmed:  Illinois Health Facilities and Services Review Board's decision to permit or not a skilled nursing facility presents a mixed issue of law and fact to be reviewed under the "clearly erroneous" standard and will not be reversed unless the entire record leaves us “ ‘with the definite and firm conviction that a mistake has been committed.’ ”  Furthermore, an administrative decision may be overturned where it is arbitrary and capricious. The “arbitrary and capricious” standard of review is the least demanding standard, the equivalent of the “abuse of discretion” standard.  Zenoff, J.

No. 2016 IL App (2nd) 151214  ManorCare Health Services, LLC v. Illinois Health Facilities and Services Review Board  Filed 11-3-16 (MGB)


ManorCare  filed an application with defendant the Illinois Health Facilities and Services Review Board (the Board) for a certificate of need to construct a new nursing-home facility in Crystal Lake, Illinois. Three local nursing homes opposed the application: defendants The Springs at Crystal Lake (The Springs), Fair Oaks Health Care Center (Fair Oaks), and Crystal Pines Rehabilitation and Health Care Center (Crystal Pines). The Board denied the application, and ManorCare filed a complaint for administrative review in the circuit court of McHenry County, naming as additional defendants the Board’s members and the Department of Public Health. The circuit court reversed the Board’s decision and instructed the Board to issue a certificate of need. The Board and its members appeal, as do The Springs and Fair Oaks. For the reasons that follow, we reverse the circuit court’s judgment and affirm the decision of the Board. Among other things, ManorCare complains about the ALJ’s statement that the application “does not meet all of the review criteria considered by the Board.” ManorCare notes that the regulations indicate that “[t]he failure of a project to meet one or more review criteria *** shall not prohibit the issuance of a permit.” 77 Ill. Adm. Code 1130.660(a), amended at 30 Ill. Reg. 14852, 14936 (eff. Sept. 1, 2006). We find no error in the ALJ’s statement. As explained above, the Board’s finding that ManorCare did not meet three of the review criteria was not clearly erroneous. Moreover, it is clear that the ALJ understood that the Board had discretion to approve the project despite noncompliance with all of the criteria. Indeed, the ALJ specifically acknowledged that “[t]he Board had discretion to approve Respondent’s application, despite non-compliance with all review criteria, but the Board did not determine that Respondent’s factors outweighed noncompliance with the Board’s criteria.”

4. Election Law: Referendum on Term Limits:  Trial Court Affirmed, Electoral Board Reversed:  A proposed referendum question must be able to stand on its own terms and offer the voters a coherent scheme for altering the election of their officials. If the referendum is not self-executing and has gaps, then it is vague and ambiguous.  Notary Public Act did not bar the proponent of a referendum from serving as a Notary in connection with the referendum.  Gordon, J., Lamkin, J. dissenting with opinion.

No. 2016 IL App (5th) 162770  Johnson v. Ames  Filed 11-3-16 (MGB)


Petitioner Maxine Johnson filed a "Petition for Referendum–Term Limits on Mayor's Office" with the Clerk of the Village of Broadview. The petition sought to place a term limits question on the ballot for the November 8, 2016, general election. If passed by the voters on November 8, 2016, the referendum question would govern the eligibility of candidates seeking to run in the April 4, 2017, municipal election for village president, as well as in subsequent elections. The Village of Broadview electoral board issued a decision on October 3, 2016, finding that the term limits question was vague and ambiguous because the question was unclear as to whether the limits applied prospectively or retroactively. On October 19, 2016, the trial court reversed the decision of the electoral board, finding that the question was not vague or ambiguous. For the following reasons, we conclude that the referendum question is not vague or ambiguous. The question applies only to "those persons elected to the office *** in the April 4, 2017 consolidated election" and in all elections "thereafter." Eligibility to "seek" office is generally measured at the time the nominating petitions are due and filed for each election.2 At that time, no person may "seek" the office if "that person has been previously elected" to the office "for two (2) consecutive full four (4) year terms." (Emphasis added.) If "that person" has already—previously—been elected for two consecutive full fouryear terms, he or she is not eligible. In addition, no person who has been "elected to the office *** in the April 4, 2017 consolidated election" or in any election "thereafter" may "hold" the office if "that person has been previously elected for two (2) consecutive full four (4) year terms." Thus, we must conclude that the question is not vague or ambiguous.

5. Criminal Law: Sentencing: Proportionate Penalties:  Affirmed:   A statute may be deemed unconstitutional under the proportionate penalties clause of the Illinois Constitution if (1) the punishment for the offense is cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the community; (2) similar offenses are compared and the conduct that creates a less serious threat to the public health and safety is punished more harshly; or (3) identical offenses are given different sentences.”  A proposed referendum question must be able to stand on its own terms and offer the voters a coherent scheme for altering the election of their officials. If the referendum is not self-executing and has gaps, then it is vague and ambiguous.  Notary Public Act did not bar the proponent of a referendum from serving as a Notary in connection with the referendum.  Where the  20 year old defendant murdered  13, 15 and 17 year old young men who were chased down and shot with a semi-automatic rifle while being  peppered with racial expletives, the imposition of a mandatory natural life sentence does not shock the moral sense of the community and does not violate the disproportionate penalties clause.  McBride, J.

No. 2016 IL App (1st) 142407  People v. Ybarra   Filed 11-3-16 (MGB)


Defendant raises a single issue on appeal, arguing that his mandatory natural life sentence violates the proportionate penalties clause of the Illinois constitution. Specifically, defendant contends that the mandatory natural life sentence is unconstitutional as applied to him under the proportionate penalties clause of the Illinois constitution because it precluded any opportunity for defendant to be returned to useful citizenship and it prevented the trial court from considering the mitigating evidence presented. While the Statute precluded the consideration of mitigation evidence, we point out that the trial court did review the mitigating evidence at the request of defense counsel in imposing the sentence, concluding that the Court would still impose a mandatory life sentence.

6. Criminal Law: Surveillance Location Privilege:  Reversed:   Whether disclosure  of a surveillance location is required is determined on a case-by-case basis.  A trial court must balance the public interest in keeping the location secret against the defendant’s interest in preparing a defense. Id. The more important a State’s witness is to the State’s case, the more important the defendant’s right to cross-examination concerning the surveillance location becomes. Id. at 1128. Where the State’s case depends almost exclusively on one police officer’s testimony, disclosure must “almost always” be required. Id. In contrast, where there is no question about the surveillance officer’s ability to observe, or where evidence appears on a contemporaneous video recording, disclosure would not be required. The State bears the initial burden of proof in demonstrating that the surveillance privilege should apply in a given case. See case for a discussion of the initial burden of going forward on the State, which is done in camera, on the record,but in the absence of defendant, and the shifting of the burden to defendant should the State meet its burden.

No. 2016 IL App (1st) 142359  People v. Flournoy  Filed 11-3-16 (MGB)



After State indicated the absence of electronic surveillance of defendant or premises, defendant filed a motion to compel disclosure of surveillance locations. In the motion, defendant asserted that because the State’s case against him would rest on the ability of the police officers involved to observe alleged narcotics transactions, disclosure of the surveillance location was required in order for him to investigate the officers’ ability to observe and to effectively exercise his constitutional right to confrontation. Even assuming the trial court was correct that the State met its initial burden at the in camera hearing, the trial court did not proceed from that point to determine whether defendant had overcome the privilege. The trial court   sustained the State’s claim of privilege without determining whether the defense had overcome that claim. When the surveillance location privilege is invoked, a trial court must balance the public interest in keeping the location secret against the defendant’s interest in preparing a defense. Defendant argues that disclosure was warranted here because Officer Doherty’s testimony concerning what he saw from his surveillance location was the linchpin of the State’s case. We agree with this assessment, as the State did not present any additional occurrence witnesses, inculpatory statements, or contemporaneous video recordings

2 Appellate Cases Posted 11-2-16

1. Retailer Occupation Tax: Affirmed in part, and appeal dismissed in part: Companies offering credit to retailers in connection with credit and installment contracts were not "retailers," but had standing under Retail Occupation Tax Act to seek refunds from state Department of Revenue for retailer taxes paid to Department when installment and credit contracts with consumers became uncollectable, but one company's appeal dismissed for lack of jurisdiction where notice of appeal was filed late. Pucinski, J.

No. 2016 IL App (1st) 133650  CitiBank N.A. v. The Illinois Department of Revenue  Filed 11-2-16 (TJJ)


These consolidated appeals involve the review of the determinations of the Department of Revenue (Department) on claims by plaintiffs Citibank, N.A. (Citibank) and Chrysler Financial Services America, LLC, n/k/a TD Auto Finance, LLC (Chrysler), for  refunds of taxes under section 6 of the Retailers’ Occupation Tax Act (ROTA) (35 ILCS 120/6 (West 2012)). Citibank and Chrysler sought refunds of ROTA taxes associated with uncollectible debt on credit and installment contracts financed by Citibank  and Chrysler for the purchase of goods. The Department denied both Citibank’s and Chrysler’s claims for refunds. The circuit court reversed the Department’s determination on Citibank’s claim, which the Department now appeals (Appeal No. 1-13-3650).  In contrast, the circuit court affirmed the Department’s determination on Chrysler’s claim, in response to which Chrysler instituted the other appeal at issue in this matter (Appeal No. 1-15-0812). For the reasons that follow, we affirm the judgment of the  circuit court on Citibank’s claim. Although involving very similar facts relevant to the issue of standing, Chrysler’s appeal must be dismissed for lack of jurisdiction.

2. Administrative Review/Medicaid Eligibility: Reversed and remanded: In case where plaintiff sought administrative review of agency determination that she was not entitiled to certain Medicaid services, even though trial court determined that plaintiff had not named proper parties in her complaint for administrative review, trial court erred in not granting plaintiff additional time within which to name such necessary parties. Cobbs, J.

No. 2016 IL App (1st) 152402  Grady v. Illinois Department of Healthcare and Family Services  Filed 11-2-16 (TJJ)


Plaintiff Lauretta Grady appeals from the dismissal with prejudice of her complaint seeking judicial review of an administrative decision nominally rendered by the Illinois Department of Human Services (DHS) regarding her eligibility for a Medicaid  program. In her complaint, plaintiff named the Illinois Department of Healthcare and Family Services (DHFS) and its director, Julie Hamos, as defendants but not DHS or that agency’s head. On appeal, plaintiff contends that the trial court erred in  dismissing her complaint for failure to name required parties, arguing that DHFS has the statutory authority to determine questions of Medicaid eligibility and consequently was the proper defendant. Alternatively, she contends that if she failed to name the  proper parties she was entitled to amend her complaint to correct the error, pursuant to subsection 3-107(a) of the Administrative Review Law (735 ILCS 5/3-107(a) (West 2014)). For the reasons that follow, we find plaintiff failed to name the proper  defendant in her complaint but was entitled to amend her complaint. We reverse and remand.

7 Appellate Cases Posted 11-1-16

1. Criminal Law: Conviction affirmed, sentences vacated, and remanded: 15-year-old defendant found guilty of aggravated criminal sexual assault and sentenced as an adult entitled to discretionary transfer hearing in juvenile court, as amendments to Juvenile Court Act changing "automatic transfer" age from 15 to 16 years of age were to be applied retroactively. (Modified upon denial of rehearing). Neville, J.

No. 2016 IL App (1st) 101573-B  People v. Patterson  Filed 11-1-16 (TJJ)


A jury found Ronald Patterson guilty of aggravated criminal sexual assault, an offense committed when he was 15 years old. The trial court sentenced Patterson, under statutes for the sentencing of adult offenders, to 36 years in prison. Our supreme court  has affirmed the conviction and remanded the case to this court for consideration of sentencing issues. We now vacate the sentence and remand the case to juvenile court for further proceedings.

2. Insurance Coverage/Statute of Limitations: Reversed and remanded: In case where defendant child care agency was sued in connection with death of 2-year-old child in its care and assignment by agency of consent judgment to plaintiff public guardian, action by guardian against insurance company and insurance agent was not barred by statute of limitations, where action arose once defendant insured learned that coverage was denied, not when policy was procured, and trial court order dismissing action against third party defendants was error. Hyman, J.

No. 2016 IL App (1st) 141845  Scottsdale Insurance Company v. Lakeside Community Committee  Filed 11-1-16 (TJJ)


Tragically, two-year old Angel Hill was killed while in the care of her mother, Angel Green, and her boyfriend, Anthony Prater. At the time of Angel’s death, she and her siblings were wards of the court with the Illinois Department of Children and Family  Services acting as the children’s guardian due to findings of abuse. DCFS retained Lakeside Community Committee to monitor the children’s visits to Green’s home. During one visit, Green informed a Lakeside caseworker of bruises on Angel’s stomach.  The caseworker took no action. A few days later, Angel was dead; Green and Prater were charged with her murder. On behalf of Angel’s estate, the Cook County Public Guardian sued Lakeside for wrongful death. Lakeside agreed to a consent judgment in  the amount of $3.5 million and assigned its claims against its insurer, Scottsdale Insurance Company, and its insurance broker, W.A. George Insurance Agency, to the Public Guardian. Scottsdale denied coverage and filed a declaratory judgment action. The  Public Guardian then filed a third party complaint against W.A. George, alleging fraud, negligence, breach of contract, and breach of fiduciary duty in procuring the insurance policy. The trial court dismissed the third party complaint on statute of  limitations grounds, finding Lakeside knew or should have known that W.A. George obtained the wrong type of insurance policy when the policy was procured, more than two years before the third party complaint was filed. We disagree and reverse.

3. Attorney Malpractice/Statute of Limitations: Affirmed: Trial court properly dismissed action for legal malpractice by plaintiff who had been represented by defendant law firm in negotiating an employment agreement, as alleged malpractice was "plainly obvious" at time employment agreement was entered into, and arose at that time, rather than after plaintiff lost court case against employer for wrongful termination. Hyman, J.

No. 2016 IL App (1st) 160571  Nelson v. Padgitt  Filed 11-1-16 (TJJ)


After losing a breach of contract lawsuit against his former employer, plaintiff Dwight Nelson sued his lawyers for malpractice. Nelson alleged that his lawyer and his law firm had negligently represented him when negotiating an employment agreement  when he took a position with the employer. Because the trial court did not err in holding that Nelson’s suit was filed outside the two-year statute of limitations, we affirm. Nelson’s claim of malpractice against his lawyer is “inseparable” from his claims  against his employer, and his legal malpractice claim accrued at least by the time he filed his suit against the employer because by then it was “plainly obvious” that he had been injured as a result of legal malpractice.

4. Appellate Practice: Affirmed: Motion of Public Defender to withdraw as counsel on appeal in case where mother had originally sought appellate review of orders entered in Juvenile Court regarding her parental rights is properly brought and analyzed under stricter procedure outlined in Anders v. California, which applies to direct appeals, rather than less stringent analysis under Pennsylvania v. Finley, which applies only to collateral remedies, and in direct appeals of parental rights cases, Anders is applicable. Hyman, J.

No. 2016 IL App (1st) 161518  In re J.P.  Filed 10-31-16 (TJJ)


Respondent Tanisha C. is the biological mother of the minor, J.P. The Public Defender of Cook County, Tanisha's attorney, has moved for leave to withdraw under Pennsylvania v. Finley, 481 U.S. 551 (1987), based on the conclusion that there are no  meritorious issues raised in this appeal. Although the motion cites Finley, counsel has filed a brief referring to matters that might arguably support an appeal, complying with the stricter standard for withdrawal established in Anders v. California, 386 U.S.  738 (1967). Copies of the motion and brief were sent to respondent advising her to submit any points in support of the appeal. She has not responded. Affirmed.

5. Rule 137 Sanctions/Attorneys' Fees: Appeal dismissed: Award of attorneys' fees as sanction against party in matter still pending in circuit court was not a "final and appealable" order, and filing of notice of appeal was thus premature and appeal dismissed. Hyman, J.

No. 2016 IL App (1st) 162686  Phoenix Capital LLC v. Tabiti  Filed 10-31-16 (TJJ)


Plaintiff argues that until the trial court determines the amount of the attorney's fees to award it as sanctions under Illinois Supreme Court Rule 137, defendant's notice of appeal is premature and we lack jurisdiction. We agree, and must dismiss the appeal  because, absent language stating otherwise, the issue of the amount of the Rule 137 sanctions is part of the underlying action and as long as it remains pending, we lack a final, appealable order to review.

6. Parental Rights: Affirmed: Trial court order finding mother unfit and requiring her to perform certain tasks (mostly relating to drug counseling and urine drops) was proper notwthstanding lack of statutorily required "service plan," as statutory requirement was directory rather than mandatory. Carter, J.

No. 2016 IL App (3d) 150083  In re L.O. v. Kristyn S.  Filed 11-1-16 (TJJ)


The Department of Children and Family Services (DCFS) filed a juvenile petition alleging that the minor child, L.O., was neglected and seeking to make the child a ward of the court. After hearings, the trial court found that the child was neglected and that  the child’s mother, respondent Kristyn S., remained dispositionally unfit. The trial court made the child a ward of the court, named DCFS as the child’s guardian, and ordered respondent to complete certain tasks. Respondent appeals the dispositional order,  arguing that the trial court had no authority to order her to complete the tasks assigned because a service plan had not yet been filed by the caseworker as required by statute. We affirm the trial court’s judgment.

7. Tax Deeds: Affirmed: In case where origianl property owners failed to maintain mortgage and real estate tax payments, and their bank was taken over by Federal Deposit Insurance Corporation, subsequent tax deed issued to third party was not void, but only voidable, and 2-1401 petition by FDIC to set aside issuance of tax deed was properly denied where, under unique facts of this case, FDIC did not act with due diligence. Carter, J. (McDade, J., dissenting).

No. 2016 IL App (3d) 150712  In re Application of the County Collector  Filed 11-1-16 (TJJ)


Petitioner, Stolat Financial, LLC (Stolat), filed a petition pursuant to section 2-1401(f) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401(f) (West 2014)) to set aside a tax deed that had been issued on certain real property in Peotone, Will County,  Illinois. The current owners of the property and other interested parties filed motions to dismiss the petition pursuant to sections 2-615 and 2-619(a)(9) of the Code (735 ILCS 5/2-615, 2-619(a)(9) (West 2014)). After a hearing, the trial court granted the motions to dismiss. Stolat appeals. We affirm the trial court’s judgment.

4 Appellate Cases Posted  10-31-16

1. Workers Occupational Disease Act: Timeliness of Request for Review of Commission Decision in Trial Court: Mailbox Rule: Judgment Vacated, Appeal Dismissed:     In order to perfect jurisdiction for review in the circuit court, Section 19(f)(1) requires that party seeking review must file a request for summons within 20 days of receipt of the Commission's decision.  Under Supreme Court Rule 373, when the request is received by the circuit clerk after the due date, the date of filing shall be the date of mailing provided proof of mailing comporting with Rule 12(b)(3) is submitted with the request. A dated cover letter does not comply with Rule 12(b)(3).  Hudson, J.


No. 2016 IL App (4th) 150564WC   Springfield Coal Company, LLC v. Illinois Workers' Compensation Comm'n   Filed 10-13-16 (MGB)



The circuit court lacked jurisdiction to review the Commission’s decision where claimant’s written request for summons was file-stamped after the 20-day filing period set forth in section 19(f)(1) of the Act and he failed to file proof of mailing the written request for summons in the circuit court within 20 days after he received the Commission’s decision. Accordingly, we vacate the judgment of the circuit of Sangamon County as having been entered in the absence of subject-matter jurisdiction, thereby reinstating the Commission’s decision, and dismiss the instant appeal.

2. Criminal Law: Home Invasion: Affirmed:  The infliction of a psychological injury is sufficient to establish the element of "any injury" under the home invasion statute, even in the absence of any physical contact.  A person acts “knowingly when he is consciously aware that his conduct is practically certain to cause the result”—here, Trisha’s psychological injury.  Intent can rarely be proved by direct evidence because it is a mental state.  Instead, it may be proven by circumstantial evidence, in that it may be inferred from surrounding circumstances and the character of the defendant’s acts  “The defendant is presumed to intend the natural and probable consequences of his acts ***.”    Appleton, J.


No. 2016 IL App (4th) 140734 People v. Dorsey  Filed 10-31-16 (MGB)


Defendant violently broke into victim's dwelling while trying to evade arrest on a warrant. They evidence indicated victim was rendered hysterical and emotionally upset. The legislature’s used the broad term “any injury” when establishing the elements of criminal liability under the home-invasion statute. Ehrich, 165 Ill. App. 3d at 1072. That is, the statute sets forth guilt if a defendant “[i]ntentionally causes any injury *** to any person or persons within the dwelling place.” Defendant claims in each case previously relied upon found psychological injury sufficient to support a conviction, there existed some form of physical contact. We acknowledge this distinction but conclude this is a distinction without a difference. Thus, “any injury” within the meaning of the home-invasion statute means just that—any physical, emotional, psychological, or traumatic injury intentionally caused by the defendant to a person inside the dwelling is sufficient to satisfy this required element, with or without physical contact. Although defendant’s state of mind may not have been to cause Trisha psychological injury, her injury was a natural and probable consequence of defendant’s conduct.

3. Tort Immunity: Third Party Beneficiary to Contract:  Affirmed in Part: Sections 2-103, 2-104, 2-202, and 3-105 of the Tort Immunity Act do not provide immunity for village's active conduct in making improvements to a drainage pond, and in constructing a public building in violation of ordinances governing storm water management and drainage.    A contract is entered into for the direct benefit of a third person, the third person may sue for a breach of the contract in his or her own name, even though the third person is a stranger to the contract and the consideration.’ ” In contract interpretation, however, there is a strong presumption that the contracting parties did not intend to confer benefits on noncontracting parties.  Illinois law recognizes two types of third-party beneficiaries: intended and incidental.  Only an intended third-party beneficiary may enforce rights under a contract.  It is not enough that a third party will reap incidental benefits from the contract; the benefit must instead be intended.  McClaren J.


No. 2016 IL App (2nd) 150249   Salvi v. The Village of Lake Zurich   Filed 10-31-16 (MGB)


Plaintiff’s amended complaint alleged that the Village’s renovation of a detention 2 pond  near an office building  on property  owned by plaintiff caused the Pond to overflow during a heavy rain, flooding the bottom floor of the Building. The trial court dismissed the claims as barred by the Local Governmental and Governmental Employees Tort Immunity Act. Failure to enforce local laws or ordinances was not the only kind of passivity that the common law generally insulated from liability. A municipality has no duty under the common law to make public improvements.  However, “[o]nce a municipality decides to perform a public work, the municipality must perform the public work with reasonable care and in a nonnegligent manner.”  This general duty of care encompasses the more specific duty “not to increase the natural flow of surface water onto the property of an adjacent landowner.” Van Meter, 207 Ill. 2d at 369. The duty of care also includes the duty to comply with relevant statutes and ordinances that are designed to protect human life or property (as is, apparently, the Watershed Ordinance). Plaintiff does not allege merely that the Village failed to stop other parties from violating the Watershed Ordinance and causing water to spill onto the Property. Instead, plaintiff alleges that the Village itself failed to follow the Watershed Ordinance and was therefore liable for the damage to the Property when the Pond overflowed its banks. These allegations have nothing to do with failing to enforce the law; they have everything to do with failing to follow the law. Thus, section 2-103 provides no immunity to the Village.  The trial court erred in dismissing those Counts.  With regard to being a Third Party Beneficiary to a stromwater agreement,  plaintiff cites the contiguity of the Property to the Pond Parcel, but it is not enough under the law that plaintiff would reap an incidental benefit from the Agreement. Indeed, the very  contiguity of the Property to the Pond Parcel supports the inference that the failure to mention the Property was deliberate. At the very least, plaintiff, who has the burden on this issue, has not established that the inference is unreasonable. Consequently, since the Agreement contains nothing that is “ ‘practically an express declaration’ ” (Barba, 2015 IL App (2d) 140337, ¶ 22 (quoting F.H. Paschen/S.N. Nielsen, Inc., 372 Ill. App. 3d at 96)) of an intent to confer a benefit on plaintiff, we hold that she has failed to plead her status as a third-party beneficiary. Therefore, the dismissal of count VI was not in error.  We affirm the dismissal of count VI, but we vacate the court’s determination that the dismissal is with prejudice. Mandamus Count seeking remedial improvements was properly dismissed with prejudice because, inter alia,  plaintiff has adequate tort remedies.


4. Automobile Negligence:  Photographs of Property Damage: Invited Error: Insufficiency of Record:   Affirmed:  Defense did not violate Motion in Limine of Trial Court which allowed use of photographs to reference point of impact, only, reserving the issue of admissibility.  A party may not complain about an error he or she invited. Where issue on appeal relates to the conduct of a hearing, the issue is not subject to review absent a report or record thereof, and absent such record, it is presumed the trial court acted in conformance with the law and had a sufficient factual basis.     Simon, J.


No. 2016 IL App (1st) 152209   Larkin v. George  Filed 10-31-16 (MGB)


Admitted liability in which defendant's vehicle rear-ended a second vehicle which in turn struck the rear of plaintiff's vehicle.  No physical complaints at scene. Plaintiff sought treatment at urgent care facility the next day, eventually undergoing two surgeries to his ankle. Jury verdict in favor of defendant.  When determining the scope of the motion in limine at issue, the trial court explained that certain photographs could be used to reference the point of impact and that if these photographs were to be used for this purpose, the court would rule on their admissibility at that time. This is exactly what happened at trial. Defense counsel attempted to show the photographs to defendant to discuss the point of impact. Plaintiff objected. The trial court evaluated the photographs and the arguments presented and did not allow any photographs to be viewed by the jury. Plaintiff's counsel question to plaintiff on direct that he describe the damage to a vehicle invited comment from defense counsel regarding existence of photographs. Where plaintiff failed to present record of his medical expert's testimony, appellate court could not concluded jury findings were not against manifest weight of evidence.



7 Appellate Case Posted  10-28-16

TCF National Bank v. Richards

1. Criminal: Affirmed:  A well-recognized purpose of the rape shield statute is to prevent the admission of evidence which is not relevant to the issue at hand, namely, whether or not the defendant, at the specific date and time alleged, committed the offense of sexual assault.  Accordingly, the statute seeks to prevent the nullification of a victim’s testimony, or a disregard of the victim, based on her prior conduct, which may or may not be germane to the guilt or innocence determination of the defendant and therefore the rape shield applies equally when the victim of a sexual assault is deceased.  No evidence is admissible under rape shield unless it includes reasonably specific date, time and place of the past sexual conduct between the victim and the defendant. Defendant failed to make an adequate offer of proof regarding date, time, and place of any sexual encounter between the victim and the defendant.  Reviewing comments made during closing arguments, this court asks whether or not the comments engender substantial prejudice against a defendant such that it is impossible to say whether or not a verdict of guilt resulted from them.  Burke, J.


No. 2016 IL App (1st) 133397 People v. Sandifer Filed 10-28-16 (ATH)


A jury convicted defendant, Henry Sandifer, of the murder of the victim, L.M, but acquitted him of the charges of sexual assault of the victim. Following a sentencing hearing, the trial court sentenced defendant to 60 years in the Illinois Department of Corrections.  The defendant appeals claiming various trial errors.  Appellate court affirmed the trial court on all matters.

 

2. Criminal Sentencing: Affirmed in part, vacated in part: The evidence presented at trial was insufficient to support an instruction on compulsion because the evidence did not establish that defendant entered the car under threat of great bodily harm or death.  The fact that multiple victims were present during the hijacking of a single vehicle does not convert a single criminal act into multiple criminal acts; if only one vehicle is hijacked, only one crime is committed, regardless of the number of victims present during that act.  One of defendant’s convictions for aggravated vehicular hijacking must be vacated.  At the time defendant committed his offenses the firearm-sentencing enhancement for aggravated vehicular hijacking and armed robbery had been declared unconstitutional and as such his enhanced sentences are unconstitutional.  Ellis, J.

No. 2016 IL App (1st) 133823 People v. Jackson Filed 10-28-16 (ATH)

After a jury trial, the defendant was found guilty of two counts of aggravated vehicular hijacking, two counts of attempted armed robbery, one count of unlawful use of a weapon by a felon, and one count of aggravated assault.  The appellate court affirmed the trial court’s denial of a jury instruction on compulsion, vacated one of the defendant’s conviction based on the one-act, one-crime doctrine, and found the trial court improperly applied an unconstitutional sentence to his sentence. 

 

3. Marital Distribution: Affirmed: The survivorship benefit, unlike many other questions regarding marital property, is very much an all-or-nothing proposition.  The court decided that the most equitable result was to deny Kellie the survivor benefit but to order Jason to name her and their child as beneficiaries of a life insurance policy, first and foremost to ensure that Kellie received some compensation for the loss of survivor benefits and to ensure the financial well-being of their child at least during his childhood. We cannot say that the court’s judgment was arbitrary or fanciful or that no reasonable person would adopt the view of the trial judge. We affirm the trial court’s ruling in all respects.  Ellis, J.


No. 2016 IL App (1st) 141652 In re Marriage of Coviello Filed 10-28-16 (ATH)


Petitioner, Kellie S. Coviello (Kellie), appeals from the trial court’s judgment for dissolution of her marriage to respondent, Jason R. Coviello (Jason). The issue before this court is whether the trial court abused its discretion in not awarding Kellie the survivor benefit of Jason’s military retirement plan.  The appellate court affirmed the lower court and found there was no abuse of discretion.

TCF National Bank v. Richards


TCF National Bank v. Richards

4. Governmental Immunity: Affirmed:  The language in a student handbook does not include any specific promise to prevent or eliminate bullying.  Moreover, handbooks do not create an offer sufficient to support a valid contract between the parties.  School attendance can hardly be a legal detriment or disadvantage to a student, and therefore cannot be consideration to support the existence of a valid contract.   Therefore, plaintiffs failed to demonstrate the existence of a valid contract based on the exchange of an offer, acceptance, and consideration.  An anti-bullying policy and its implementation, is discretionary in nature and therefore the immunity provision applies to bar the claims.  Delort, J.


No. 2016 IL App (1st) 151615 Mulvey v. Carl Sandburg High School Filed 10-28-16 (ATH)

Joseph Mulvey and Ellen Hogan-Mulvey sued on behalf of themselves and their daughter for injuries allegedly sustained as the result of school bullying. Kathleen’s older sister, Meghan, brought similar claims. They sued Carl Sandburg High School (Sandburg), Consolidated High School District 230 (District 230), and various district officials and coaches. Appellate court affirmed the circuit court’s ruling in favor of the defendants on all claims. 

 

5. Mortgage Foreclosure: Affirmed:  A party defending notice by publication must demonstrate strict compliance with every requirement of the statute, including due diligence and due inquiry. Accordingly, before a plaintiff can conduct service by publication, the plaintiff must present an affidavit stating a defendant cannot be located based on a diligent inquiry in ascertaining the defendant’s residence and a due inquiry in ascertaining the defendant’s whereabouts.  Defendant here has failed to present a significant issue with respect to the truthfulness of plaintiff’s affidavits and, thus, the circuit court did not err in declining to conduct an evidentiary hearing.  Reyes, J.

 

No. 2016 IL App (1st) 152083 TCF National Bank v. Richards Filed 10-28-16 (ATH)

 

In this mortgage foreclosure action, plaintiff, TCF National Bank, served process on defendant, Christine Richards, by publication. When the defendant did not appear or answer, the circuit court entered a default judgment and ordered a judicial sale of defendant’s property. The day before the sale was to occur, defendant filed an emergency motion to stay the sale, which the circuit court granted. One week later, defendant filed a motion to quash the service of process by publication. The circuit court denied the motion to quash and ultimately entered an order approving the sale.

 

6. Governmental Immunity: Reversed:  Whether the Park District’s actions amounted to willful and wanton misconduct is a question of fact. It is for the trier of fact to consider the efforts the Park District made to repair the defect and evaluate whether those efforts demonstrated utter indifference to or conscious disregard for patrons’ safety in light of the evidence that the Park District failed to warn patrons of the defect, barricade the defect, or expedite the repair process, despite the defect having been recognized as dangerous and in need of emergency repair. Accordingly, the trial court improperly granted summary judgment.  Burke, J.

 

No. 2016 IL App (1st) 152889 Cohen v. Chicago Park District Filed 10-28-16 (ATH)

Plaintiff, Isaac Cohen, injured his shoulder after riding over a defect in the Lakefront Trail and falling off of his bike. He filed suit against defendant, the Chicago Park District, claiming it engaged in willful and wanton conduct by failing to repair the defect. The trial court granted summary judgment in favor of the Park District, finding it was immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act (Act) and that the Park District’s conduct was not willful and wanton.  We conclude the trial court erred by finding section 3-107(a) of the Act applied and by finding no genuine issue of fact existed as to whether the Park District’s conduct was not willful and wanton.

 

7. Criminal Fines: Affirmed: The imposition of a fine is a judicial act.  The clerk of the court has no power to impose sentences or levy fines.  A fine imposed without authority by the circuit clerk is void from its inception.  The circuit clerk may levy fees against a defendant, but only the trial court may impose fines.  Since a fine is part of a criminal sentence Castleberry bars remanding this case to the trial court with instructions to impose the required fines.  To do so would impermissibly increase defendant’s sentence on appeal.  Schmidt, J.

 

No. 2016 IL App (3d) 140766 People v. Walker Filed 10-28-16 (ATH)

Defendant, Michael Walker, appeals from the dismissal of his second-stage postconviction petition. Defendant’s sole argument on appeal is that his Violent Crime Victims Assistance Fund fine (VCVA) and drug court fee were fines improperly imposed by the circuit clerk and must be vacated. We vacate, as void, the fines imposed by the circuit clerk.

1 Appellate Case Posted  10-27-16

1. Ordinance Code Violations: Affirmed in part, vacated in part:  The fact that a judgment of default is entered against a defendant does not give the plaintiff a right or claim to the assessment of damages unrelated to the liability.  A plaintiff must prove up its damages before they can be assessed.  While defendant was properly defaulted with regard to liability, the fines imposed as a result of that default were entered in the absence of any evidentiary foundation.  O'Brien, J.

 

No. 2016 IL App (3d) 150092 City of Joliet v. Szayna Filed 10-27-16 (ATH)

Defendant, Malgorzata Szayna, appeals from a judgment finding her guilty of failure to abate violations of the City of Joliet’s ordinance code and unlawful occupancy of a rental unit.  The judgment of the circuit court of Will County is affirmed as to the issue of the default judgment which entered on the issue of liability of the violations but vacated at the issuance of the fines on these violations.  Remanded for further proceedings consistent with this opinion.

4 Appellate Cases Posted  10-26-16

1. Civil Forfeiture: DUI:  Reversed:  To establish "probable cause that the property may be subject to forfeiture" (720 ILCS 5/36-1.5(a) (West 2014)), the State is only required to show that there is probable cause that the property may have been "used in the commission of an offense described in Section 36-1. To pass preliminary review, the State is not required to allege or prove facts tending to disprove an affirmative defense that an owner might subsequently raise.   Schwarm, J.


No. 2016 IL App (5th) 150338   People ex rel. Kelly v. One 2008 Chevrolet Trailblazer   Filed 10-26-16 (MGB)


Defendant arrested on offenses of DUI and DWLR, while operating his girlfriend's vehicle. Defendant stated he had regular use of the vehicle, which was titled in girlfriend's name because his license was revoked. Trial Court found a lack of probable cause at the preliminary hearing phase required by 36-1.5, on an affidavit which established the operation during the commission of a listed offense, but which was devoid of references to the owner of the vehicle and Defendant's statements. The circuit court  erred in determining that pursuant to section 36-1.5, the State had to show probable cause that Dukes had used the Trailblazer with the girlfriend's  knowledge and consent.


2. Civil:  Implied Warranty of Habitability:  Standing of  Debtor in Bankruptcy: Reversed:  Owner of real estate may proceed against general contractor/builder on claim for Implied Warranty of Habitability irregardless of whether or not the developer-vendor (which is in privity with owner) is insolvent.   Although standing is typically determined from the allegations of the complaint on the date that suit is commenced, if a party to a lawsuit files for bankruptcy, that party is divested of standing to pursue the claim, even if suit has already been filed. This is because once a bankruptcy action is instituted, all unliquidated lawsuits become part of the bankruptcy estate and only the bankruptcy trustee has standing to pursue them.  If, however, the bankruptcy trustee abandons or assigns property, then the property reverts back to the debtor in the same condition as if a bankruptcy trustee had never been appointed.  Puchinski, J.


No. 2016 IL App (1st) 143849   Board of Managers of the 1120 Club Condominium Association v. 1120 Club, LLC.    Filed 10-26-16 (MGB)


Condominium Board's suit against developer-vendor and general contractor-builder.  Stay lifted with regard to suit against developer-vendor to the extent it had insurance coverage. We conclude that the trial court erred in dismissing counts VI and VII of the Board’s second amended complaint because the holding in Pratt I permits a plaintiff to bring a claim for breach of implied warranty of habitability against a builder absent a showing that the developervendor is insolvent. We also conclude that the trial court erred in dismissing the LLC’s amended third-party complaint, because the bankruptcy trustee’s assignment of any claims against Trapani cured any lack of standing that might have resulted from the LLC’s filing of bankruptcy.  


3. Criminal Law: Burglary: Conviction Confirmed:  36 foot, 2 car racing trailer, parked in an open parking lot was a "building"  within the meaning of the burglary statute.   Cobbs, J.


No. 2016 IL App (1st) 142136   People v. McCann   Filed 10-26-16 (MGB)


Following a joint bench trial, defendant Eric McCann and codefendant Eugene Harris1 were convicted of burglary. The trial court sentenced defendant to seven years’ imprisonment as a Class X offender based upon his criminal history. On appeal, defendant solely contends that the State failed to prove him guilty beyond a reasonable doubt because the trailer that was entered did not constitute a “building” under the burglary statute. We affirm. In this case, similar to the trailers in Ruiz and Denton, Matos’s trailer was used to store and shelter property, specifically, thousands of dollars worth of tools and automobile racing equipment. The 36-foot trailer was parked in an open parking lot, and photographs of the trailer show that it was not connected to any type of truck or tractor. Thus, the trailer was immobile at the time defendant and codefendant entered it.

4.    Criminal Law: Burglary: Conviction Confirmed:  36 foot, 2 car racing trailer, parked in an open parking lot was a "building"  within the meaning of the burglary statute.   Cobbs, J.


No. 2016 IL App (1st) 141746   People v. Harris  Filed 10-26-16 (MGB)


This is, indeed, the same case noted in Number 3, concluding the same with regard to the codefendant.


1 Appellate Case Posted  10-25-16

1. Criminal Law: Methamphetamine Precursor: Criminal Knowledge:   Affirmed:  Section 120(a) of the Methamphetamine Control and Community Protection Act, which prohibits  persons previously convicted under the Act from “knowingly purchas[ing], receiv[ing], own[ing], or otherwise possess[ing] any substance or product containing a methamphetamine precursor,”   does not require that defendant had criminal knowledge. Knowledge, as a criminal mens rea, means  conscious awareness of facts making a person’s conduct unlawful.  We note the meaning assigned does not require awareness one’s conduct is unlawful; the meaning requires only awareness of the facts.   Knecht, J.


No. 2016 IL App (4th) 140995   People v. Laws   Filed 10-25-16 (MGB)


Defendant, Todd L. Laws, had a 2010 conviction for unlawful possession of methamphetamine. He now appeals his November 2014 conviction for unlawful possession of methamphetamine precursors in violation of section 120(a) of the Methamphetamine Control and Community Protection Act (Act) (720 ILCS 646/120(a) (West 2012)). On appeal, defendant argues the State failed to prove he knowingly purchased, owned, or otherwise possessed a product he knew to contain a methamphetamine precursor on November 18, 2013. The State argues it met its burden of proof because the statute requires the State to prove only knowledge of possession and not knowledge the substance contains a methamphetamine precursor. We affirm.An individual who purchases medication containing a methamphetamine precursor is on notice the medication contains the precursor because the ingredients are listed on the box or bottle containing the medication. The argument an individual is unaware a particular substance is a methamphetamine precursor is a mistake of law claim, which is no defense. Even if we interpreted the statute to require knowledge a methamphetamine precursor is contained in  the substance possessed, defendant’s argument he was unaware Sudafed contained pseudoephedrine or unaware pseudoephedrine was a methamphetamine precursor would necessarily fail. The stipulated facts at trial establish that  defendant purchased 12-hour Sudafed, a product containing the methamphetamine precursor pseudoephedrine. By physically purchasing the Sudafed and taking it with him from the drugstore, we can infer defendant was consciously aware he was in possession of the Sudafed.


2 Appellate Cases Posted 10-21-16

1. Post-Conviction: Affirmed:  We believe that declining to call an alibi witness whose testimony could be contradicted by the defendant's own postarrest statements as to his whereabouts falls within the realm of reasonable trial strategy, even if the known alibi witness had never been interviewed.  As such, the defendant suffered no prejudice by reason of his postconviction counsel's failure to call Weiss as a witness, and therefore, his claim of unreasonable assistance fails.  Hoffman, J.

 

No. 2016 IL App (1st) 142323 People v. Meyers Filed 10-21-2016 (ATH)

Defendant appeals from the trial court’s denial of his post-conviction petition. 

2. Workers Compensation: Reversed in part, vacated in part:  Defendant failed to meet his burden of showing by a preponderance of the evidence that he suffered a disabling injury which arose out of and in the course of his employment. If the injury for a workers compensation claim results from a hazard to which the employee would have been equally exposed apart from the employment, or a risk personal to the employee, it is not compensable.  The risk of falling from a chair while reaching to the floor is not required by claimant's job duties and one which claimant would have been equally exposed to apart from his work for the employer. Thus, it presents a neutral risk and is compensable only when claimant establishes he was quantitatively or qualitatively exposed to the risk to a greater degree than the general public. 


No. 2016 IL App (1st) 152300WC Noonan v. Illinois Workers' Compensation Comm'n Filed 10-21-16 (ATH)


Claimant appeals arguing the Commission's finding that he failed to prove he sustained an injury arising out of his employment and its denial of benefits was against the manifest weight of the evidence.  The appellate court found no error in the Commission's finding that claimant failed to establish an injury arising out of his employment. Its decision was not against the manifest weight of the evidence.  We reverse in part, vacate in part, and reinstate the Commission's original decision.


3 Supreme Court Opinions Posted 10-20-16

1.  Appellate Procedure/ Negligence: Appellate Court Reversed/Trial COurt Affirmed: Under Rule 315, whether a petition for leave to appeal will be granted “is a matter of sound judicial discretion.” Where, as here, the plaintiff seeks recovery based on the defendant’s alleged negligence, the plaintiff must plead and prove the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and injury proximately resulting from the breach.  In the absence of a showing from which the court could infer the existence of a duty, no recovery by the plaintiff is possible as a matter of law and summary judgment in favor of the defendant is proper.’”  The duty inquiry focuses on “whether defendant and plaintiff stood in such a relationship to one another that the law imposed upon defendant an obligation of reasonable conduct for the benefit of plaintiff.” The term “relationship” is a shorthand description for the sum of the following factors: “(1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing that burden on the defendant.”     Theis, J., dissent by Kilbride, J.

No. 2016 IL 118984 Carney v. Union Pacific R.R. Co.   Filed 10-20-16 (LJD)


Plaintiff, Patrick Joseph Carney, filed a negligence action in the Circuit Court of Cook County against defendant, Union Pacific Railroad Company, after he suffered severe personal injuries during the removal of an abandoned railroad bridge in Chicago. The circuit court granted defendant summary judgment. The appellate court held that fact issues precluded summary judgment and reversed the circuit court’s judgment and remanded for further proceedings. 2014 IL App (1st)130105-U. For the reasons that follow, we reverse the judgment of the appellate court and affirm the judgment of the circuit court.

2.  Criminal Law/ Sentencing:  Appellate and Trial Court Affirmed:  Plain Error Doctrine discussed and analyzed.  We conclude that a prior juvenile adjudication of delinquency falls within Apprendi’s prior-conviction exception and the exception in section 111-3(c-5) of the Criminal Code. The Supreme Court made clear in McKeiver that due process does not require the right to a jury trial in juvenile proceedings, reasoning that a jury trial “would not strengthen greatly, if at all, the factfinding function.”  Freeman, J., dissent by Burke, J. joined by Garman, J., and Kilbride, J.

No. 2016 IL 119391  People v. Jones  Filed 10-20-16 (LJD)


Defendant Derrick Jones was convicted of aggravated robbery in the circuit court of Will County and sentenced to an extended-term sentence of 24 years’ imprisonment based on a prior juvenile adjudication of delinquency referenced in his presentence investigative report. Defendant appealed his sentence, contending that the use of his prior juvenile adjudication to enhance his sentence violated the rulings in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Shepard v. United States, 544 U.S. 13 (2005). The appellate court affirmed. 2015 IL App (3d) 130053.We allowed defendant’s petition for leave to appeal pursuant to Illinois Supreme Court Rules 315 and 612 (Ill. S. Ct. R. 315 (eff. July 1, 2013); R. 612 (eff. Feb. 6,2013)). For the following reasons, we affirm the judgment of the appellate court.

3.  Sex Offender Registration Act: Reversed: Generally, a party may not raise, and a court will not consider, a constitutional challenge to a statutory provision that does not affect that party.   Thus, a court will not consider a constitutional challenge to a criminal statutory provision under which a defendant has not been charged.    This traditional rule reflects two cardinal principles: the personal nature of constitutional rights and prudential limitations on constitutional adjudication.  However, in the first amendment context, courts permit attacks on overly broad statutes without requiring that the person making the attack show that his or her specific conduct was actually protected.  A person must present more than subjective allegations of asubjective “chill.” “There must be a ‘claim of specific present objective harm or a threat of specific future harm.’ "  The circuit court specifically found that the Internet disclosure provision was unconstitutional both on its face and as applied to defendant. An “as applied” challenge requires the challenging party to show that a statute is unconstitutional as it applies to him or her.   Without an evidentiary record, any finding that a statute is unconstitutional “as applied” is premature, and the constitutional challenge must be facial.  All statutes are presumed to be constitutional. The party challenging the constitutionality of a statute has the burden of clearly establishing its invalidity. A court must construe a statute so as to uphold its constitutionality, if reasonably possible.  The first amendment right to freedom of speech includes the right to publish and distribute writings while remaining anonymous.   “Anonymity is a shield from the tyranny of the majority.  Extensive discussion of the considerations the court must consider in these types of cases.    Freeman, J.

No. 2016 IL 119563 People v. Minnis   Filed 10-20-16 (LJD)


Section 3(a) of the Sex Offender Registration Act (Registration Act or Act) requires sex offenders to disclose and periodically update information regarding their Internet identities and websites. 730 ILCS 150/3(a) (West 2014). This information is subject to public inspection as provided by the Sex Offender Community Notification Law (Notification Law or Law) (730 ILCS 152/101 et seq.(West 2014)). The circuit court of McLean County entered an order finding that this Internet disclosure provision was overbroad in violation of the first amendment to the United States Constitution. U.S. Const., amend. I. The Stateappeals directly to this court. Ill. S. Ct. R. 603 (eff. Oct. 1, 2010). We now reverse the order of the circuit court and remand the cause to the circuit court for further proceedings.


3 Appellate Cases Posted 10-19-16

1.  Traffic Court: Affirmed:  The DUI statute  provides that a person commits aggravated DUI where “the person in committing a violation of subsection (a) was involved in a motor vehicle accident that resulted in great bodily harm or permanent disability or disfigurement to another, when the violation was a proximate cause of the injuries. A defect in a charging instrument is formal in nature where that defect “is not material or does not alter the nature and elements of the offense charged.”  A defect is considered substantive where it materially alters the charge in such a way that it cannot be determined whether the grand jury intended such an alteration.  In other words, “once an indictment has been returned by the grand jury, it may not be broadened through amendment except by the grand jury itself.”  It is equally well-settled that where an indictment is challenged for the first time on appeal, a defendant must show prejudice in the preparation of his defense. In that context, an indictment will be deemed “sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct.”  Lytton, J.

No. 2016 IL App (3rd) 140604  People v. Swift Filed 10-19-16 (LJD)


Defendant, Loren Swift, appeals from his conviction for aggravated driving under the influence (DUI). He argues first that the trial court should have dismissed the case where the indictment was deficient. Further, defendant contends that the State failed to prove the element of proximate cause beyond a reasonable doubt. We affirm.

2.  Domestic Relations/Civil Procedure: Affirmed: The plaintiff has the burden to show a valid basis for jurisdiction over a nonresident defendant. In meeting this burden, there need only be a prima facie showing that jurisdiction exists. A court has personal jurisdiction over a nonresident defendant where two conditions are satisfied: (1) the requirements of the long- arm statute have been met and (2) the exercise of jurisdiction over the defendant comports with due process under the Illinois and United States Constiutions.  The Illinois long-arm statute, provides in pertinent part: “Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person *** to the jurisdiction of the courts of this State as to any cause ofaction arising from the doing of any of such acts:* * * (10) The acquisition of ownership, possession or control of any asset or thing of value present within this State when ownership, possession or control was acquired[.]  Where the defendant makes trips to Illinois, obtainsproperty, including money, from Illinois residents, and remains in continual communication with Illinois residents, the minimum contacts requirement is satisfied.   “Illinois has a ‘manifest interest’ in providing its residents*** with a convenient forum for redressing injuries allegedly inflicted by out-of-state actors.”  Lyttom, J.

No. 2016 IL App (3rd) 160037 In re Marriage of Difiglio  Filed 10-19-16 (LJD)


Petitioner Stanislawa DiFiglio filed a petition for dissolution of marriage against respondent James DiFiglio. In the dissolution action, Stanislawa filed a third-party complaint against David Malmstedt, James’s brother-in-law and attorney-in-fact, alleging that he owed money to the marital estate. Malmstedt filed a motion to dismiss the complaint for lack of personal jurisdiction.The trial court denied Malmstedt’s motion. Malmstedt filed a petition for leave to appeal the trial court’s denial of his motion to dismiss. We granted Malmstedt’s petition for leave to appeal and affirm the trial court’s order.

3.3. Bankruptcy/Contracts: Affirmed: "A confirmed plan of reorganization is in effect a contract between the parties and the terms of the plan describe their rights and obligations." A bankruptcy plan "operates as an absolute settlement, and the failure to pay unpaid obligations created by the plan will not revive the old debts."   "There is nothing in the [Bankruptcy] Act to suggest that the debtor's failure to achieve promises made in a confirmed plan reinstates an original obligation."  Schwarm, J.

No. 2016 IL App (5th) 150404 Holmon v. The Village of Alorton  Filed 10-19-16 (LJD)


Larkin Holmon, administrator of the estate of Taymond Freeman, appeals from the circuit court's order denying Holmon's motion for partial summary judgment and grantinga motion for judgment on the pleadings filed by the Village of Alorton, the appellee. The appellant seeks to rescind an agreed-upon bankruptcy plan under which the appellee was to make payments to Freeman's estate. We affirm the circuit court's decision denying the appellant's motion for partial summary judgment and granting the appellee's motion for judgment on the pleadings as it relates solely to the issue of rescission. We remand for further proceedings allowing the appellant to enforce the bankruptcy plan payment provisions.

4 Appellate Cases Posted 10-18-16

1.  Criminal Law: Conviction Affirmed but Remanded for Resentencing: A defendant is entitled to a self-defense or defense of others instruction so long as there is slight evidence adduced at trial to support his theory.  Abuse of discretion is the appropriate standard of review. Abuse of discretion is the most deferential standard of review, second only to no review at all. An abuse of discretion occurs when the trial court's decision is "fanciful, arbitrary, or unreasonable to the degree that no reasonable person would agree with it."  Stated differently, we will reverse a trial court's decision for an abuse of discretion only where the decision is "'clearly against logic,' 'without employing conscientious judgment.'"  The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' "  Mason, J.

No. 2016 IL App (1st) 141251  People v. Taylor  Filed 10-18-16 (LJD)


Following a 2014 jury trial, defendant Romaro Taylor was convicted of attempted murder and aggravated battery with a firearm and sentenced as a Class X offender to 36 years of imprisonment. On appeal, he argues that (1) the trial court erred in refusing to instruct the jury on defense of others, (2) trial counsel was ineffective for failing to request a jury instruction that Taylor could not be found guilty of attempted first degree murder if he unreasonably believed he needed to use force in defense of others, (3) the trial court erroneously refused to sentence Taylor as a Class 1 offender on his attempted murder conviction, and (4) the trial court improperly imposed certain fines and fees. For the reasons that follow, we affirm Taylor's conviction, vacate the $2 Public Defender Automation Fee, and remand for resentencing.

2.  Administrative Review: Affirmed in part, Reversed ,in part and remanded: Laches is “ ‘the neglect or omission to assert a right which, taken in conjunction with a lapse of time and circumstances causing prejudice to the opposite party, will operate as a bar to a suit.’ ”  A successful laches defense requires a showing that plaintiff’s delay in bringing suit was unreasonable and that the delay prejudiced the defendant. In civil service cases, an unexplained delay longer than six months is per se unreasonable.  The Administrative Review Law defines “administrative decision” as “any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency.”  A n agency lacks the authority to question the validity or constitutionality of a statute"  Mason, J.

No. 2016 IL App (1st) 153106 Hofrichter v. The City of Chicago Heights  Filed 10-18-16 (LJD)


Plaintiff-appellant Benjamin Hofrichter filed suit against his employer, defendant-appellee City of Chicago Heights, as well as defendants-appellees City of Chicago HeightsPolice and Fire Board and Charles Guiliani (collectively, defendants), on November 13, 2014, after he was passed over for a promotion one year earlier on November 13, 2013. Defendants moved to dismiss the suit on the basis that it was barred by laches or, alternatively, that Hofrichter’s sole cause of action was administrative review. The circuit court granted the motion and dismissed the complaint in its entirety. Hofrichter appeals. For the reasons that follow, we affirm in part and reverse in part and remand for further proceedings.

3.  Post Conviction Petition/Ineffective Counsel; Affirmed:  A conviction of an “aggravated felony” makes an alien deportable.  An“aggravated felony” includes “a crime of violence (as defined [in another section] for which the term of imprisonment at [sic] least one year.” From the cited section, we learn that a “crime of violence” includes “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”   Birkett, J., concurrence by Hutchinson, J.

No. 2016 IL App (2nd) 150872  People v. Dominguez  Filed 10-18-16 (LJD)


Defendant, Jose A. Dominguez, appeals from the denial of his petition for postconviction relief. He asserted that, prior to his guilty pleas in two cases, counsel had failed to adequately discuss the possible adverse immigration consequences of the pleas and that as a result, under, counsel was ineffective. Defendant does not challenge the court’s ruling that his petition was too late as to the earlier of the two cases. We affirm the petition’s denial, holding that, under the branch of the Padilla standard that applies when “the law [was] not succinct and straightforward,” counsel here needed do no more than advise defendant that the pleas might “ carry a risk of adverse immigration consequences.” We conclude that the record shows that defendant was adequately alerted to the possibility of adverse immigration consequences.

4.  Attorney's Fees: Affirmed:  The appellee may urge any point in support of the judgment on appeal, even though not directly ruled on by the trial court, so long as the factual basis for such point was before the trial court’.  Whether the statutory authority on which plaintiffs sought attorney fees and costs is applicable is a question of law, which we review de novo.  “Illinois follows the ‘American Rule,’ which provides that absent statutory authority or a contractual agreement, each party must bear its own attorney fees and costs.”    Knecht, J.

No. 2016 IL App (4th) 150936  Thomann v. The Department of State Police  Filed 10-18-16 (LJD)


Plaintiffs, Illinois Carry, an organization supporting the concealed carrying of firearms, and three individuals, Matthew Thomann, Samuel Finnigan, Jr., and Deanna Knoll, appeal from the circuit court’s order dismissing their petition for attorney fees and costs against defendants, the Illinois Department of State Police (Department), the Department’s then director, the Concealed Carry Licensing Board (Board), and the Board’s then members. The sole issue on appeal is whether the circuit court’s dismissal was in error. We affirm.


No. 2016 IL App (4th) 150936  Thomann v. The Department of State Police  Filed 10-18-16 (LJD)

3 Appellate Cases Posted 10-17-16

1. Criminal Law: Sentence vacated and remanded: Sentence of 60 years' imprisonment for first degree murder for 15-year-old defendant vacated, as sentence was "effectively" a sentence of natural life without parole in violation of Miller v. Alabama; additionally, subsequent amendment of Juvenile Court Act changing automatic transfer age for first degree murder from 15 to 16 years of age was to be applied retroactively, and defendant was entitiled to discretionary transfer hearing in juvenile court to determine whether he should be sentenced as an adult. Harris, J.

No. 2016 IL App (1st) 133294  People v. Ortiz  Filed 10-17-16 (TJJ)


Defendant Erick Ortiz was sentenced to 60 years’ imprisonment for first degree murder. Defendant was 15 years old when the crime occurred. On appeal, defendant contends that his sentence must be vacated and the matter remanded for resentencing  because (1) his sentence resulted from a statutory scheme that violates the eighth amendment of the United States Constitution and the proportionate penalties clause of the Illinois Constitution and (2) the trial court abused its discretion in sentencing him to  a de facto life sentence that is 25 years above the required minimum. Defendant also contends that two of his three murder convictions should be vacated under the one-act, one-crime rule. For the following reasons, we vacate defendant’s sentence and remand for resentencing.

2. Illinois False Claims Act: Affirmed in part and reversed in part: Trial court properly found that defendant was not liable for non-payment of state sales tax in connection with internet sales of goods by defendant, but erred in ruling that defendant should have collected sales tax in connection with "catalog" sales; further, plaintiffs not entitled to award of attorneys' fees and costs. Harris, J.

No. 2016 IL App (1st) 151580  People ex rel. Beeler, Schad and Diamond, P.C.  Filed 10-17-16 (TJJ)


Plaintiff, Beeler, Schad & Diamond, P.C. (relator), filed a claim against defendant, Relax the Back, Corp. (RTB), for damages and civil penalties pursuant to the Illinois False Claims Act (740 ILCS 175/1 et seq. (West 2014)), for failure to collect and remit  use tax on RTB’s Internet and catalog sales to Illinois customers. After a bench trial, the trial court found in favor of relator regarding catalog sales, but in favor of RTB on Internet sales. RTB appealed and relator filed a cross-appeal. On appeal, RTB  contends that the trial court erred in (1) finding liability under the False Claims Act for failing to collect Illinois use tax where it found that RTB made a good faith effort to conduct an investigation into its tax obligations and at all times RTB truthfully  stated that it collected no Illinois use tax and (2) awarding approximately $110,000 in attorney fees based on a purported tax liability of $5181. On cross-appeal, relator contends that the trial court erred in finding that RTB had a substantial nexus to Illinois only for catalog sales, when its finding should have also applied to Internet sales. For the following reasons, we affirm the trial court’s determination of no liability regarding RTB’s Internet sales and reverse its finding of liability on RTB’s catalog sales. We  also reverse the judgment awarding relator attorney fees and costs.

3. Domestic Relations: Affirmed: Trial court did not err in granting emergency petition for dissolution of marriage based on petitioner husband's desire to marry another in face of his impending death. Harris, J.

No. 2016 IL App (1st) 152404  In re Marriage of Breashears  Filed 10-17-16 (TJJ)


On July 27, 2015, a hearing was held on petitioner’s emergency petition requesting a bifurcated dissolution of marriage. At the hearing, petitioner testified that the reason he wished to obtain a bifurcated divorce was so he could marry his paramour and  dispose of his assets while he was still alive. After hearing testimony concerning the investment properties and the condition of petitioner’s health, the trial court granted the emergency petition for bifurcation and dissolved petitioner and respondent’s  marriage. On July 30, 2015, petitioner married his paramour. On August 21, petitioner died. Respondent timely filed her notice of appeal. On appeal, the respondent argues the trial court abused its discretion in granting the petition for bifurcation because  appropriate circumstances did not exist for granting it. We review the trial court’s decision under an abuse of discretion standard. The trial court heard testimony from the parties and was aware of the potential entanglements concerning the marital estate. Based on the record before the trial court and prior case law, we affirm the decision of the trial court finding that appropriate circumstances existed for granting a bifurcated judgment of dissolution.

1 Appellate Case Posted 10-14-16

1. Medical Malpractice: Affirmed: Trial court did not err in refusing to permit plaintiff's expert in med-mal action to testify regarding his opinoin that a mass in the decedent's lung had not changed over a course of time, where that opinion was not disclosed in Rule 213 disclosures, and was not a corollary to opinions already disclosed in Rule 213 materials; and trial court properly sustained objections to plaintiff's closing argument where the argument misstated the law relating to what a reasonable person would have done, rather than the decedent, in granting consent to treatment. Reyes, J.

No. 2016 IL App (1st) 143605  Morrisroe v. Pantano  Filed 10-14-16 (TJJ)


Following a jury trial, William Morrisroe (plaintiff), the special administrator of the estate of Viola Morrisroe (Viola), deceased, appeals the order of the circuit court of Cook County entering judgment on the verdict in favor of Dr. John Pantano (Dr. Pantano) and Suburban Lung Associates, S.C. (collectively defendants). This medical malpractice action stems from the death of Viola after a bronchoscopy during which biopsies were performed by Dr. Pantano. On appeal, plaintiff asserts that the trial court erred in: (1) barring his retained expert from utilizing two CT scans during his testimony to demonstrate that the size of a mass in Viola's lung had not increased in size; and (2) sustaining defense counsel’s objections to certain statements in closing argument relating to his informed consent claim. For the following reasons, we affirm.

3 Appellate Cases Posted  10-13-16

1. Tort Immunity: Premises Liability: Constructive Notice:  Summary Judgement Affirmed:  Although constructive notice is generally a question of fact to be resolved by the jury, it may be resolved by the trial court as a matter of law when the facts are not in dispute and only one reasonable inference can be drawn from the undisputed facts.  For the purpose of section 3-102(a) of the Tort Immunity  Act, constructive notice is established when a condition has existed for such a length of time or was so conspicuous that public authorities, by exercising reasonable care and diligence, might have known of the condition. Burke, 227 Ill. App. 3d at 18. Some of the factors a court considers in determining whether constructive notice exists are the length of time the condition existed and the conspicuity of that condition.  Lapse of time, in and of itself, may be sufficient reason to impute constructive notice to a public entity under certain circumstances. However,  Plaintiff failed to demonstrate constructive notice on the facts presented.    Carter, J.


No. 2016 IL App (3rd) 150014   Barr v. Frausto   Filed 10-13-16 (MGB)


Plaintiff injured ankle when his foot entered a hole located in the grass parkway owned by the City. Plaintiff's expert opined the defect existed for at least 3 years, was conspicuous, and likely the result of the decomposition of a tree previously removed from the premises. Plaintiff's deposition indicated he had regularly walked on the sidewalk adjacent to the parkway and had never noticed the defect. Although plaintiff’s expert witness stated in his affidavit that the hole in the parkway was conspicuous and that it had existed for at least three years prior to the incident, the value of that testimony was completely undercut by the plaintiff’s own testimony when plaintiff stated that he had traveled that same route on his walk or bike ride once a week for the past several years and that he had never noticed the hole in that parkway. See Finley v. Mercer County, 172 Ill. App. 3d 30, 33-34 (1988) (the plaintiffs could not establish for the purpose of avoiding summary judgment that the defect existed for a sufficient time to charge the county with constructive notice of the defect because the plaintiffs’ testimony undercut the basic theory of their case). Under the circumstances of the present case, we find that plaintiff failed to establish a genuine issue of material fact as to the issue of constructive notice.

2. Child Support: Modification of Contributions to Uninsured Medical Expenses: In a proceeding to modify child support, where  the parties stipulate to a   support figure is consistent with statutory guideline support and support is modified retroactive to the date obligee filed a Petition to Modify Support, obligee is not also entitled to a portion (statutory guideline percentage) of obligor's income tax refund.   Former spouse had the burden to demonstrate a disparity of income between her income after taxes and the receipt of child support,  and that of her former husband, and may not simply rely on  their relative gross income and former Husband's increase in gross,  to justify modification of their original judgement in which they agreed to be equally responsible for  uninsured medical  expenses.    Schmidt, J., Carter, J. specially  concurring with written opinion.


No. 2016 IL App (3rd) 150710  In re Marriage of Eastburg   Filed 10-13-16 (MGB)


At a hearing in May 2015, the parties stipulated that Aaron’s child support payments would be $721 bimonthly, applied retroactively to the date Alicia filed her petition. Alicia’s counsel next claimed Alicia was entitled to precisely $3,986.92—28% of Aaron’s 2014 federal income tax refund—and a reduction in her obligation for the minors’ uninsured medical expenses. The trial court denied both requests. Aaron intentionally withheld income from his paycheck, paying every pay period more than he would eventually owe in taxes. This is no different than placing the same amount of money in a savings account that earns no interest or burying it in his backyard. In the absence of fraud, Alicia is not entitled to any percentage of Aaron’s federal income tax return. On the medical expense issue, the trial court reasoned that the parties still had the same employment they had when they originally agreed to equally share the cost of uninsured medical expenses, and the current disparity in their respective incomes was not so great that equity demanded amending their agreement. In claiming there is a substantial disparity in their incomes, Alicia compared the parties’ gross incomes and emphasized the increase in Aaron’s income since the time of their original agreement. Nowhere in her argument on this point, however, does Alicia disclose a straightforward account of her own income, which includes child support payments she receives from Aaron. Comparing the parties’ gross incomes without factoring in tax rates, child support, and other expenses does not establish that the trial court abused its discretion. It was Alicia’s burden to show an abuse of discretion by the trial court. She failed to do so.

3. Termination of Parental Rights: Matter of First Impression:  Affirmed:  The grounds of "extreme or repeated cruelty to the child"  to support a finding of an "unfit person" under Section 1D(e) of the Adoption Act does not require actual physical cruelty to the child in question.  The murder of the childrens' in the presence of one child and repeated abuse of mother in the presence of the children was sufficient to satisfy a finding of extreme or repeated cruelty to the child.   Carter, J.


No. 2016 IL App (3rd) 160265   In re Mi.S.   Filed 10-13-16 (MGB)


The respondent father was criminally charged with the December 19, 2012, murder of his wife, who was the mother of their four minor children. The State filed a petition to terminate the father’s parental rights.  In the petition, the State alleged that the minors’ mother was deceased and the father was an unfit parent in that (a) he failed to maintain a reasonable degree of interest, concern or responsibility to the minors’ welfare  and (b) exposed the minors to extreme or repeated cruelty. The trial court found, by clear and convincing evidence, that the father was unfit based upon the allegations by the State with respect to extreme or repeated cruelty. The trial court found that it was in the best interest of Mi.S., P.S. and Ma.S. to terminate the parental rights of the father and grant DCFS the authority to consent to the adoption of the minors. We acknowledge that “extreme or repeated cruelty” has generally been applied to torturous or other extreme forms of physical abuse. In reviewing the plain language of the statute, we note that 10 the statute does not limit “extreme cruelty” to physical cruelty. If the legislature intended for the statute to include only physical cruelty, the legislature would have so specified.

1 Appellate Case Posted  10-12-16

1. Criminal Law: Motion to Quash and Suppress: Reversed:   Voluntary consent to search is an exception to the fourth amendment's warrant requirementTo be effective, however, the consent must be voluntary, meaning that it was given "absent any coercion, express or implied," and was not "the result of official coercion, intimidation, or deception."  The voluntariness of the consent depends on the totality of the circumstances, and the State bears the burden of demonstrating consent was given voluntarily. Initial refusal to consent to search is an important factor in assessing whether later consent is voluntary.  The fact that a written consent form was signed is not dispositive in determining whether consent to search was voluntary when circumstances show the signature was obtained through coercion.  Voluntariness is a question of fact, and the trial court's finding that consent to search was voluntary will be reversed if it is against the manifest weight of the evidence. People v. Martin, 102 Ill. 2d 412, 426, 466 N.E.2d 228, 234 (1984).  A police officer's giving false or misleading information can vitiate the voluntariness of the consent. Cardenas, 2 An officer making a groundless threat and presenting the occupant of the home with the choice of either consenting or suffering the consequences of the threatened course of conduct can also vitiate consent.    Goldenhersh, J.


No. 2016 IL App (5th) 1140596   People v. Wall   Filed 10-12-16 (MGB)


After a stipulated bench trial in the circuit court of Williamson County, defendant, Robert Wall, was found guilty of production of cannabis sativa plants  and sentenced to 24 months' intensive probation Defendant contends his consent was involuntary since Officer Gill led him to believe his only choice was to consent or be hauled off to jail. The State replies the trial court's finding that defendant voluntarily consented to the search of his home was not against the manifest weight of the evidence. After careful consideration, we agree with defendant that the ends did not justify the means and here the police officer's actions resulted in an unlawful search and seizure. Evidence demonstrated Defendant was called from work to his home by the false representation that his home had been burglarized. He arrived to find approximately 6 armed officers in his yard, after which he was allegedly coerced to consent to the search of his home.


2 Appellate Cases Posted 10-11-16

Babbitt Municipalities, Inc. v. Health Care Service Corp., 2016 IL App (1st) 152662

1. Breach of Contract: Affirmed: Illinois is a fact-pleading jurisdiction; “a plaintiff must allege facts,” not merely conclusions, “that are sufficient to bring his claim within the scope of a legally recognized cause of action.” If the contract terms are too uncertain or indefinite to enforce, allegations of a breach of those terms will not provide a basis for a breach of contract claim. Mikva, J.

No. 2016 IL App (1st) 152662 Babbitt Municipalities, Inc. v. Health Care Service Corp.  Filed 10-11-16 (ATH)

 

Plaintiff Babbitt Municipalities, Inc. (Babbitt) appeals form the circuit court’s dismissal of its claims for breach of contract against defendant, Health Care Service Corporation (HCSC).  The court dismissed Babbitt’s second amended complaint with prejudice for failing to cure the defects identified in its prior pleadings. 

2. Opening Statements: Reversed and Remanded: While the State has wide latitude in making opening statements, comments only to arouse the prejudice and passion of the jury are improper.  The characterization of the defendant as a criminal had no basis in fact, given that prior to this case; the defendant had never been convicted of a crime. Thus, we can discern no basis for the State’s references to Jones as a criminal other than to inflame the passions of the jury. The State’s derisive characterization was particularly likely to bias the jury against Jones.  Mason, J.

No. 2016 IL App (1st) 141008  People v. Jones Filed 10-11-16 (ATH)

 

Following a jury trial, the defendant was convicted of three counts of attempted murder and three counts of aggravated battery with a firearm and sentenced to 23 years of imprisonment.  The defendant appeals arguing, among other things, the State’s repeated references to the defendant as a criminal in its opening statement were inaccurate and prejudicial,   Appellate court found the comments made by the State in its opening statement had no basis other than to inflame the passions of the jury and as such, the defendant is entitled to a new trial. 

2 Appellate Cases Posted 10-7-16

1. Search and Seizure: Reversed and remanded: The fourth amendment requires more than some minimal level of objective justification for making a Terry stop.  However, independent corroboration of significant aspects of an informant’s predictions can impart a degree of reliability on the informant’s other allegations sufficient to support an investigative stop.  Fourth amendment guarantees are not implicated when police conduct a search pursuant to a voluntary consent.  An individual who does not have a possessory interest in a vehicle cannot challenge the search of either the exterior or the interior of the car. 


No. 2016 IL App (1st) 152678 People v. Duran Filed 10-7-16 (ATH)


The defendant was charged with one count of possession with intent to deliver 900 grams or more of methamphetamine.  The defendant filed a motion to quash arrest his arrest and suppress evidence arguing the search of the car in which he was riding as well as his bag where the methamphetamine was found was done without consent, articulable factual justification or probable cause.  The trial court granted defendant’s motion after a hearing finding defendant was arrested without probable cause and therefore the seizure of the methamphetamine was unlawful.  The appellate court reversed the trial court’s order granting the motion to quash arrest and suppress evidence.

2. Batson Challenge: Reversed and remanded: Once the court concluded respondent had established a prima facie showing that the prosecutor had exercised peremptory challenges on the basis of race, it required the State to proffer race-neutral reasons for striking black members of the venire.  The trial court’s failure to elicit any race-neutral reason from the State for the exercise of a peremptory requires remand. But no matter what reason is offered by the prosecution for the exercise of a peremptory, it is the trial court’s responsibility at the third stage to evaluate that reason in light of the nature of the case, the exercising attorney’s demeanor and the jury selection process as a whole.  Mason, J.

 

No. 2016 IL App (1st) 161259 In re A.S. Filed 10-7-16 (ATH)

After a jury trial, minor respondent A.S. was adjudicated delinquent of the offense of residential burglary and sentenced to the Juvenile Department of Corrections.  Respondent seeks a new trial arguing, among other reasons, that the State’s failure to provide any reason for its peremptory challenge to one black member of the venire and the trial court’s failure to inquire into the reason for the challenge as well as other irregularities in the proceedings require remand for a new Batson hearing.  Appellate court reversed, remanded for further Batson proceedings.

2 Appellate Cases Posted 10-6-16

1. Employment Contracts/Duty to Mitigate: Affirmed: In employment action by employee-trader against employer trading company, trial court properly ruled that actions of parties did not modify noncompete provisions of written employment contract, and by its terms agreement eliminated employee's duty to mitigate damages, so that trial court award of $1,000,000 was upheld, as agreement required employer to pay that amount upon employee's resignation. Reyes, J.

No. 2016 IL App (1st) 151801  Reed v. Getco, LLC  Filed 9-30-16 (TJJ)


Defendant Getco, LLC, a proprietary trading and financial services firm, appeals an order of the circuit court of Cook County granting summary judgment in favor of and awarding $1 million to plaintiff Zachariah Reed, a former employee. On appeal,  defendant argues the circuit court erred in: (1) finding defendant did not properly waive the noncompete provision in defendant’s employment agreement with plaintiff; (2) interpreting the language of the employment agreement which granted defendant the  sole and absolute discretion to modify plaintiff’s noncompete restrictions; and (3) finding plaintiff did not have a duty to mitigate damages. For the following reasons, we affirm.

2. Medical Malpractice: Reversed and remanded: In the face of potential juror bias not previously disclosed in voir dire leading to seemingly deadlocked deliberations, trial court erred in replacing juror with alternate, as proper remedy was to order jurors to continue deliberating or declare a mistrial. Lytton, J.

No. 2016 IL App (3d) 150445  Bosman v. Riverside Health System  Filed 10-6-16 (TJJ)


Plaintiff, August Bosman, as special administrator of the estate of Joan Bosman, appeals from the denial of his motion for a new trial. Plaintiff argues that the court erred in replacing a holdout juror with an alternate juror. We reverse and remand.

1 Appellate Case Posted 10-4-16

1.Public Employee Benefits: Affirmed: Trial court properly denied request for injunction sought by City of Chicago retirees seeking to enjoin City from phasing out City's subsidy for retirees' health care. Simon, J.

No. 2016 IL App (1st) 153613  Underwood v. City of Chicago  Filed 9-21-16 (TJJ)


This appeal is taken from the denial of a motion for a preliminary injunction. The case stems from the City of Chicago's plan to phase out the healthcare benefits it offers to its employees. The trial court held that one category of plaintiffs did not have a  clearly ascertainable right in need of protection. The court then ruled that the other category of plaintiffs had some rights given by statute, but that the medical care plan offered by the City for 2016 was not a diminution in their benefits. We affirm.

6 Appellate Cases Posted 10-03-16

1.  FOIA: Correctional Facilities: Affirmed:  Section 7(1)(e-5) of the FOIA provides that records requested by  persons committed to the Department of Corrections "shall be exempt from inspection and copying" if those materials are available in the library of the correctional facility where the requestor is confined and the librarian  and the Department are under no duty to provide copies of such documents.    Pope, J.

No. 2016 IL App (4th) 151024  Cebertowicz v. The Illinois Department of Corrections   Filed 10-3-16 (MGB)


Our research has not disclosed any case specifically interpreting section 7(1)(e-5) of FOIA (5 ILCS 140/7(1)(e-5) (West 2014)) as it relates to the issue raised in this appeal. However, in October 2014, the Illinois Attorney General (AG), in a binding opinion, considered the same claim from an inmate at Lawrence, i.e., that denying him copies of materials available for inspection at Lawrence’s library did not comply with the requirements of section 7(1)(e-5) of FOIA. 2014 Ill. Att’y Gen. Pub. Access Op. No. 14-013 (AG’s Opinion). Since plaintiff can go to his facility’s library and access and/or obtain the materials, they are exempt. Nothing about the word “available” connotes a duty upon the custodian/librarian to copy the items requested. Plaintiff can read them and hand copy them if he so desires. The documents are available to him. Therefore, we find DOC did not violate the requirements of FOIA when it denied plaintiff’s request for copies of the materials, and we affirm the trial court’s order granting DOC’s motion to dismiss.

2.  Animal Control Act: Certified Question Answered, Court Declines to Answer Three Questions:  Does a dog lying in the middle of the road constitute an ‘overt action’ toward the Plaintiff for purposes of the [Act]?  It does not and there is no liability.     Harris, J.

No. 2016 IL App (4th) 150841  Coe v. Lewsader   Filed 10-3-16 (MGB)


For purposes of this appeal, the parties stipulated to the following facts. At 2 a.m. on September 26, 2009, Ryan was intoxicated and operating a motorcycle on a public highway at a speed of 90 miles per hour when his motorcycle collided with defendants’ dog, which was “passively lying in the road.” In sum, based on our review of the Act and relevant case law, we find that a dog’s act of lying passively in the middle of a road does not constitute an overt action that will subject its owner to liability under section 16 of the Act. Thus, the Act does not apply based on the stipulated facts before us. It is well settled that for liability to attach under the Act, “some overt act of the dog toward the plaintiff is required.” King v. Ohren, 198 Ill. App. 3d 1098, 1101-02, 556 N.E.2d 756, 758 (1990). Simply being “an inert or passive force so far as it concerns the injuries of the plaintiff” is not sufficient. Bailey v. Bly, 87 Ill. App. 2d 259, 262, 231 N.E.2d 8, 9 (1967). Rather, the dog must engage in affirmative “behavior or activity *** which cause[s] the injury to the plaintiff.” Id. at 262, 231 N.E.2d at 10.

3.  Criminal Law: Retroactive Application of Castleberry's abolishing of "Void-Sentence Rule: Affirmed:  Under the void-sentence rule, defendants could, at any time, challenge their sentences as void because they were not authorized by statute, thereby bypassing the normal rules of forfeiture. Castleberry, which abolished the void-sentence rule, applies retroactively to  post conviction (collateral) proceedings when Defendant is a attacking a sentence imposed in an underlying case concluded prior to Castleberry.     Disagreeing with People v. Smith,  2016 IL App (1st) 140887.  Steigmann, J.

No. 2016 IL App (4th) 140759  People v. Cashaw   Filed 10-3-16 (MGB)


A jury convicted defendant, James E. Cashaw, of criminal sexual assault, after which the trial court imposed a 12-year prison sentence and a $200 domesticviolence fine. Defendant did not challenge the fine on direct review. In the years that followed, defendant initiated multiple collateral attacks on his conviction, none of which challenged the domestic-violence fine until the Petition under review in this case.  Castleberry applies, the domestic-violence fine is not void, and defendant has forfeited his claim that the fine was unauthorized by statute. We therefore affirm the imposition of the domestic-violence fine.

4.  Criminal Law:   Post-Conviction Petition Dismissed: Void Sentence Rule: Affirmed But Remanded With Directions To Clerk Re Credit for Fines, Costs and Fees: Supreme Court Rule 615(b)(1) allows the Appellate Court to "reverse, affirm or modify  the judgment or order from which the appeal is taken."  Defendant may not raise,  for the first time on appeal from the dismissal of a post-conviction proceeding,  the  claim that he was entitled to credit for one additional day of time served on his sentence.  Pope, J.,   Harris, J.,  Specially Concurring.

No. 2016 IL App (4th) 140712  People v. Morrison   Filed 10-3-16 (MGB)


Defendant, Jose R. Morrison, appeals the first-stage dismissal of his postconviction petition under the Post-Conviction Hearing Act. In his petition, defendant claimed he received ineffective assistance of trial counsel when counsel (1) misinformed him the home invasion conviction would be served at 50% instead of 85% and (2) encouraged him to just say “okay” during the plea admonishments even though counsel knew defendant could not understand the admonishments because he was mentally handicapped. The petition made no reference to any sentencing-credit errors. On July 24, 2014, the trial court summarily dismissed the petition as frivolous and patently without merit.    On appeal, defendant  abandoned the claims in his postconviction petition and instead contends (1) the trial court failed to credit him properly for time he spent in custody awaiting trial, arguing he is entitled to one additional day of credit under the provisions of section 5-4.5-100(b) of the Unified Code of Corrections (Corrections Code) (730 ILCS 5/5-4.5- 100(b), and (2) he is entitled to a $5-per-day credit for time spent in presentence custody. - We adhere to our precedent in Nelson and find we cannot grant defendant the relief he seeks for the reasons stated above, as well as for the reasons discussed in Justice Harris’s special concurrence. However, as we stated in Nelson, defendant may petition the trial court to correct the simple error in arithmetic, as trial courts retain jurisdiction to correct nonsubstantial matters of inadvertence or mistake. In discussing the void-sentence rule, the Court reached same conclusion it did in the Cashaw  case (summarized immediately above). The State concedes defendant is entitled to presentence incarceration credit against the $50 court-finance assessment, the $10 child-advocacy assessment, and the $5 drug- - 10 - court assessment. We accept the State’s concession and hold these three assessments are fines against which defendant can receive a $5-per-day credit for the time he spent in presentence custody. Accordingly, we order the clerk of the circuit court to correct the fines, fees, and costs order to reflect this credit.

5.  Criminal Law:   Double Jeopardy: Empaneled and Sworn Jury:  Other Crimes Evidence: Extended Term for Lesser of Offenses: Ineffective Assistance of Counsel:  Affirmed in Part, Reversed in Part, Remand for Sentencing:   1) Jeopardy does not attach where only 8 of 12 jurors were sworn prior to Trial Court declaring a mistrial.   2) Other-crimes evidence is inadmissible to show a defendant’s propensity to commit crime.  However, “ ‘[i]t is well settled under the common law that evidence of other crimes is admissible if relevant for any other purpose than to show a defendant’s propensity to commit crimes.’ ” such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”  The admissibility of evidence rests within the sound discretion of the trial court, and the court’s decision will not be disturbed absent an abuse of that discretion. 3) A Defendant convicted of multiple offenses of differing classes may be sentenced to an extended-term sentence pursuant to section 5-8-2(a) of the Unified Code of Corrections (730 ILCS 5/5-8-2(a) (West 2012)) only on those offenses within the most serious class.  An exception allowing the imposition of extended-term sentences on differing class offenses exists if the offenses arise from unrelated courses of conduct in which there was a substantial change in the nature of the defendant’s criminal objective. 4) For Krankel purposes, a pro se defendant is not required to do any more than bring his ineffective-assistance claim to the trial court’s attention so that the Court may engage in the required analysis to appoint counsel or not.   Pope, J.,   Harris, J., Concurring,  Holder White, J., Dissenting with opinion.

No. 2016 IL App (4th) 140228  People v. Palen   Filed 10-3-16 (MGB)


Defendant convicted of  Attempted Residential Burglary and Possession of Burglary Tools and concurrently sentenced to 10 and 6 years, respectively.  Trial Court declared mistrial in first trial when lead prosecutor's father died after 8 jurors were sworn. 1) We note the dissent fails to cite a single case to support its theory swearing some but not all of the jurors constitutes empanelment of a jury. In fact, every case uncovered dealing with this issue holds the opposite. While we recognize the importance of a defendant having his case tried by a particular jury, there was no “particular jury” yet chosen in this case. The dissent promotes the idea a bright line is needed. However, the bright line already exists. It occurs once the entire jury is empaneled and sworn. 2) In this case, the State presented a single prior residential burglary conviction for the limited purpose of showing knowledge and intent. The trial court specifically stated during the proceedings the prior conviction was received on the issue of defendant’s intent and knowledge and may be considered by the jury only for that limited purpose. In addition, the State’s argument was limited to telling the jury the prior conviction showed defendant’s intent to commit a theft in Morgan’s apartment. Finally, the jury was properly instructed to limit its consideration of the prior conviction to the issue of knowledge and intent.3) In this case, the State did not argue and the trial court did not find the charges arose from unrelated conduct. Indeed, the record indicates both charges originated from a single course of conduct. Thus, the trial court should not have sentenced defendant to an extended, sixyear term for the Class 4 offense of possession of burglary tools as that offense was not the most serious conviction. We vacate the sentence and remand for sentencing. 4) Pro se letter addressed to and filed by the Clerk raising issue of ineffective assistance was not presented to the Court, the State or Defense counsel, nor did the Defendant raise the issue during two personal appearances before the Court. While a pro se defendant is not required to do any more than bring his claim to the trial court’s attention, in this case defendant failed to do so. Accordingly, we find defendant has forfeited his pro se ineffective-assistance-of-counsel claim.


6.  Juvenile:   Section 710(b)(1) Prohibition of Commitment to Department of Juvenile Justice:  Affirmed, but modify Mittimus re: credit for time served:  Juvenile Offender who was originally sentenced prior to the effective date of 705 ILCS 405/5-701(b)(1), which prohibits the commitment of Juveniles to DJJ misdemeanor offenses, could be sentenced to the DJJ  Section 720(4) of the Act  provides that where the court finds the minor has violated a term of probation the court may “impose any other sentence that was available under section 710 at the time of the initial sentence.”   Pierce, J.,   Hyman, J., Dissenting with opinion.

No. 2016 IL App (4th) 140228  People v. Palen   Filed 10-3-16 (MGB)


Respondent, who was initially sentenced to Court Supervision for the what would be a misdemeanor offense of Criminal Trespass to Motor Vehicle was re-sentenced to Probation following repeated violations of the terms of his supervision. The re-sentencing occurred prior to the amendment of Section 710(b)(1) which previously allowed commitment for misdemeanor offenses, but which amendment allowed commitment only for offenses that would be felonies. Respondent violated the terms of his probation and was committed to the DJJ. Thus, in our view, the question is not what the straightforward language of amended section 710 means, but to which cases it should apply. In order to resolve this appeal, we must construe another provision of the Act. In addition to section 710, we must also consider section 720(4) of the Act, which governs probation violations. 705 ILCS 405/5–720(4) (West 2014). Section 720(4) provides that where the court finds the minor has violated a term of probation the court may “impose any other sentence that was available under section 710 at the time of the initial sentence.” 705 ILCS 405/5–720(4). Given that the amendment took effect before respondent was sentenced on his probation violation, section 4 of the Statute on Statutes would ordinarily permit him to elect to be sentenced under it. See People v. Calhoun, 377 Ill. App. 3d 662, 664 (2007) ("Where any punishment is mitigated by the provisions of a new law, defendant can consent to the application of the new provision if it became effective prior to his sentencing.") (quoting People v. Land, 178 Ill. App. 3d 251, 260 (1988)). But this does not end our inquiry, as we must consider this section in concert with section 720(4) of the Act, which requires the court, upon a finding that the minor has violated a term of probation, to impose a sentence "that was available under Section 5-710 at the time of the initial sentence." Section 720(4) is certainly more specific than section 4 of the Statute on Statutes: the former prescribes the sentence for juvenile probation revocation (405 ILCS 5/720(4) (West 2014)), while the latter generally addresses penalties and punishments for all crimes (5 ILCS 70/4 (West 2014)). Moreover, section 720(4) of the Act, with an effective date of January 1, 1999, is more recent than section 4 of the Statute on Statutes, which has an effective date of July 1, 1874. Thus, we construe section 720(4) as an exception to section 4 and conclude that pursuant to section 720(4), respondent was not entitled to be sentenced under amended section 710.