No. 2015 IL App (1st) 133128 BAC
Home Loans Servicing, LP v. Pieczonka
Filed 1-14-15 (RJC)
No. 2015 IL App (1st) 132228 Cipolla
v. The Village of Oak Lawn Filed
No. 2015 IL App (1st) 132905
v. Universal AM-CAN, Ltd. Filed
No. 2015 IL App (1st)
Tool Works Inc. v. Travelers Casualty and Surety Company
Filed 1-13-15 (RJC)
No. 2015 IL App (3d) 130091 People
v. Haynes Filed 1-13-15 (RJC)
No. 2015 IL App (3d)
re A.T. Filed 1-13-15 (RJC)
No. 2015 IL App (1st)
re Estate of Rodden Filed 1-12-15
In his waning years, Angus Rodden, age 93, granted his friend and caretaker, Audrey Newton, a power of attorney over his health care and personal estate. Robert Harris, the public guardian of Cook County, apparently believing Newton was not being cared for in an optimal manner, filed a petition for guardianship over Rodden in the circuit court of Cook County. The court granted that petition. Newton appeared at the hearing on the guardianship and resigned as Rodden’s agent under the power of attorney. These resignations were in writing and filed with the court below. After acquiring guardianship, the public guardian investigated Rodden’s situation and discovered that Newton had written checks from Rodden’s account to herself totaling $17,000. The public guardian then filed a two-count pleading entitled “Petition for Accounting under Power of Attorney for Property.” The petition is largely based on several interrelated provisions of the Illinois Power of Attorney Act. 755 ILCS 45/1-1 et seq. (West 2012). Newton twice failed to appear in court to respond to the petition, the court entered an order finding that Newton had breached her fiduciary
duty to Rodden and imposed a judgment against her for $17,000.
No. 2015 IL App (5th)
v. The Department of Employment Security
Filed 1-12-15 (RJC)
The plaintiff, Clara E. Wise, was discharged from her employment with Casino Queen for insubordination. The Department of Employment Security denied the plaintiff's claim for unemployment insurance benefits. On a petition for administrative review, the circuit court reversed the final administrative decision, finding that there was no harm to the employer. The defendants, Casino Queen, Inc., the Department of Employment Security and its director, the Board of Review of the Department of Employment Security (Board of Review or Board), and members of the Board of
Review, appeal. They argue that the circuit court incorrectly concluded that the decision of the Board of Review was clearly erroneous. We reverse the decision of the circuit court and reinstate the decision of the Board of Review.
No. 2015 IL App (1st)
v. Velcich Filed 1-12-15 (RJC)
Plaintiff, BankUnited brought this mortgage
foreclosure action against defendant, Dino Velcich, who, along
with codefendant Maria Nascimento,1 executed a promissory note
with plaintiff secured by a mortgage on property commonly
known as 2707 West Medill Avenue, in Chicago, Illinois. The
circuit court entered an order of default and a judgment of
foreclosure and sale. After the sale of the property, the
circuit court entered an order confirming the sale. Within 30
days of the entry of the order of the confirmation of the
sale, defendant appeared and filed an emergency motion to
quash service, which the circuit court denied. Defendant
raises two issues for our review: (1) whether the affidavits
plaintiff relied upon to effectuate service of process upon
him were based on the affiant's personal knowledge and
sufficiently set forth the particular actions taken to serve
him to satisfy section 2-206 of the Illinois Code of Civil
Procedure (Code) (735 ILCS 5/2-206 (West 2010)) and local rule
7.3 (Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996)); and (2) whether
plaintiff's affidavit of service by publication speaks the
truth and complies with section 2-206 of the Code (735 ILCS
5/2-206 (West 2010))2 where plaintiff stated defendant's
residence was unknown despite a diligent inquiry.
No. 2015 IL App (1st)
re Shermaine S. Filed 1-9-15 (RJC)
Respondent contends the habitual offender provision of the Juvenile Court Act of 1987 (705 ILCS 405/5-815 (West 2012)) is unconstitutional under the eighth amendment of the United States Constitution (U.S. Const., amend. VIII) and the proportional penalties clause of the Illinois Constitution. (Ill. Const. 1970, art I., § 11). The gist of his argument is that (i) the mandatory sentencing provision violates the eighth amendment by precluding the sentencing court from taking into consideration individualized factors about the minor, including the offender's youth and attendant characteristics as delineated by the United States Supreme Court in Miller v. Alabama, 567 U.S. ___, ___, 132 S. Ct. 2455, 2468 (2012), and (ii) taking away the sentencing court's discretion violates the proportionate penalties clause of the Illinois Constitution, which mandates a court consider rehabilitation in imposing a sentence. We are compelled to affirm.
No. 2015 IL App (1st) 133899 Osler
Institute, Inc. v. Miller Filed 1-9-15
Plaintiff Osler Institute, Inc., appeals from the circuit court's granting of defendant Richard Miller's motion to dismiss Osler's complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2012)) and the circuit court's denial of Osler's motion to strike an affidavit. On appeal, Osler argues that: (1) the circuit court erred by granting Miller's section 2-619(a)(9) motion to dismiss on the basis of laches; and (2) the circuit court erred by denying Osler's motion to strike Miller's affidavit in support of his section 2-619(a)(9) motion to dismiss. We affirm.
No. 2015 IL App (2d)
v. DiCosola Filed 1-9-15 (RJC)
On December 9, 2011, the Attorney General filed a complaint against the defendant, Michele DiCosola, for his failure to comply with an investigative subpoena that the Attorney General issued to him pursuant to sections 3 and 4 of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/3, 4 (West 2010)). The complaint sought injunctive relief. The trial court granted summary judgment in the Attorney General’s favor on the complaint. The defendant appeals from that order. We affirm.
No. 2015 IL App (2d)
v. Axelson Filed 1-9-15 (RJC)
The State confesses error and agrees that the cause must be remanded. The parties disagree, however, on the proper procedure on remand. Defendant contends that, because he entered a nonnegotiated plea, Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001) applies. The State contends that defendant’s plea was negotiated, so that Illinois Supreme Court Rule 605(c) (eff. Oct. 1, 2001) applies. We agree with the State and remand the cause with directions.
No. 2015 IL App (1st)
Construction Services v. The Illinois Workers' Compensation
Commission Filed 1-9-15 (RJC)
On June 12, 2009, claimant, Alfredo Martinez, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2008)), seeking benefits from the employer, RG Construction Services, for alleged work-related injuries to both knees. Following a hearing, the arbitrator determined claimant sustained injuries arising out of and in the course of his employment on December 15, 2008, to only his right knee and awarded him (1) 107-4/7 weeks' temporary total disability (TTD) benefits and (2) medical ex-penses associated with claimant's right knee/leg condition. Additionally, the arbitrator rejected the employer's contention that its fourteenth amendment (U.S. Const., amend. XIV) due process rights were violated by the admission of medical records that contained the medical opinions of two of claimant's treating physicians. On review, the Illinois Workers' Compensation Commission (Commission) modi-fied the arbitrator's award, finding claimant injured both knees at work on December 15, 2008, and the current condition of ill-being in claimant's left knee was also causally connected to his work accident. On judicial review, the circuit court of Cook County confirmed the Commission's decision. Affirmed and remanded.
After a stipulated bench trial, defendant, Norman E. Thomas, was convicted of possession of a controlled substance and resisting a peace officer. The trial court sentenced defendant to 30 months' conditional discharge. Defendant appealed, and this court remanded for further proceedings. People v. Thomas, 2011 IL App (3d) 090886-U. Following remand, defendant filed motions for a new trial and to reconsider his amended motion to suppress evidence. Both motions were denied. On appeal, defendant argues that: (1) he could only be found guilty of misdemeanor resisting a peace officer; (2) the State failed to prove actual or constructive possession of cocaine; (3) he received ineffective assistance of trial counsel; (4) he was unlawfully seized as a result of the officer's request to roll up the car windows and turn the heat on; and (5) the officer's request regarding the windows and heat constituted an unlawful search. We affirm in part, modify in part, and remand for further proceedings.
No. 2015 IL App (3d) 130672 People
v. Cannon Filed 1-7-15 (TJJ)
Defendant, Travis Cannon, was charged with unlawful consumption of alcohol by a minor. Prior to trial, he filed a motion to suppress evidence, arguing that the police violated his fourth amendment rights by entering the back deck of his home without a warrant or consent. The trial court conducted a hearing and denied the motion. Following a bench trial, the court found defendant guilty and sentenced him to 24 months' probation. On appeal, defendant contends that (1) the trial court erred in denying his motion to suppress, and (2) the State did not prove him guilt y beyond a reasonable doubt. We reverse.
No. 2015 IL App (4th) 131045 People
v. Coleman Filed 1-6-15 (TJJ)
Defendant, Cassian T. Coleman, is serving 25 years' imprisonment for unlawfully delivering 900 grams or more of a substance containing cocaine, an offense he committed while having a prior conviction of unlawful delivery of a controlled substance. He appeals from the third-stage dismissal of his petition for postconviction relief. We find ineffective assistance of counsel, a finding that makes it unnecessary for us to address the Brady claim. There is no reasonable probability that defendant would have been completely acquitted but for this ineffective assistance. Instead, the injury he suffered was being convicted of possessing "900 grams or more of any substance containing cocaine" (720 ILCS 570/401(a)(2)(D) (West 2006)) rather than being convicted of possessing "15 grams or more but less than 100 grams of a substance containing cocaine" (720 ILCS 570/401(a)(2)(A) (West 2006)). Therefore, we reverse the trial court's judgment, and we remand this case with directions to resentence defendant for a violation of section 401(a)(2)(A) of the Illinois Controlled Substances Act (720 ILCS 570/401(a)(2)(A) (West 2006) ("15 grams or more but less than 100 grams").
No. 2015 IL App (1st) 142306 In
re C.C. Filed 1-6-15 (TJJ)
Respondent C.C. was convicted of first-degree murder for the shooting death of 17-year-old Dejuan Jackson. Respondent was 14 years old at the time of the shooting. He was sentenced to imprisonment in the Department of Juvenile Justice until his twenty-first birthday and also given a mandatory minimum 45-year adult criminal sentence. Under the extended jurisdiction juvenile (EJJ) statute, the adult portion of his sentence is stayed, and if respondent completes his juvenile sentence without committing a new offense or violating the conditions of his juvenile sentence, that adult sentence will be vacated on completion of that juvenile sentence. Respondent appeals, arguing that his 45-year mandatory minimum adult-stayed sentence violates both the eighth amendment of the United States Constitution and the proportional penalties clause of the Illinois Constitution. We hold that, because the stay on respondent's adult criminal sentence has not been revoked, the State has not sought its revocation, and the sentence may never be imposed, respondent lacks standing to challenge the severity of his sentence at this time. We therefore affirm the judgment below.
No. 2015 IL App (1st) 131207 People
v. Morales Filed 1-6-15 (TJJ)
The State appeals the trial court's rescission of the summary suspension of defendant Christian Morales' driver's license following his arrest for driving under the influence of alcohol. We reverse.
No. 2015 IL App (1st) 122285 People
v. Kliner Filed 1-6-15 (TJJ)
Defendant Ronald Kliner appeals the circuit court's dismissal of his 2011 petition for relief from judgment filed pursuant to section 2-1401(f) of the Code of Civil Procedure (735 ILCS 5/2-1401(f) (West 2010)). On appeal, defendant asserts, as he did in the petition, that his 1996 convictions for first degree murder and conspiracy to commit murder are void because the trial record does not affirmatively show the grand jury that entered his indictments was lawfully impaneled. We affirm.
No. 2015 IL App (1st) 113259 People
v. Flowers Filed 1-6-15 (TJJ)
Defendant Jimmy Flowers filed a pro se postconviction petition for relief from judgment under the Post-Conviction Hearing Act relating to his convictions of first degree murder and aggravated battery with a firearm. The trial court appointed postconviction counsel to represent defendant. Thereafter, defense counsel filed a supplemental postconviction petition on defendant's behalf. The State filed a motion to dismiss the petition After a hearing, the trial court granted the State's motion to dismiss, and dismissed defendant's postconviction petition. Defendant appeals, contending that the trial court erred in dismissing the petition where: (1) new evidence shows he was actually innocent of the crime; and (2) he was denied the effective assistance of trial counsel where counsel failed to investigate and call potential occurrence witness Karen Peterson. For the following reasons, we affirm.
No. 2015 IL App 121307 People
v. Getter Filed 1-6-15 (TJJ)
During an altercation on February 2, 2010, defendant Quincy Getter shot and killed Eric Stephens and wounded Stephens' cousin, Ronald Funches. Teneshia Hooper, Stephens' mother, was present when defendant shot Stephens and Funches. The State charged defendant with first-degree murder with respect to Stephens, attempted murder and aggravated battery with a firearm with respect to Funches, and aggravated discharge of a firearm with respect to Hooper. At trial, defendant never denied firing the weapon and relied exclusively on a self-defense theory. In the issues instructions for three of the four offenses charged—first-degree murder, attempted murder, and aggravated battery—the jury was instructed that the State was required to prove beyond a reasonable doubt that defendant was not justified in using force to defend himself. In the fourth issues instruction, for aggravated discharge of a firearm, the jury received no such nstruction. The jury acquitted defendant on the three charges for which it received a self-defense instruction and convicted him on the one count for which it did not receive that instruction.This appeal revolves around this missing self-defense instruction on the aggravated discharge count, couched both as an evidentiary error and as an ineffective-assistance-of-counsel argument, because defense counsel below failed to tender that instruction or object to its absence. We hold both that the failure to provide the jury with a self-defense instruction on the aggravated discharge count was plain error and that counsel was ineffective for acquiescing to the erroneous instructions. We reverse defendant’s conviction for aggravated discharge of a firearm.
No. 2015 IL App (5th) 130410 People
v. Roe Filed 1-6-15 (TJJ)
The defendant, Brian Roe, was charged by amended information with failure to register as a sex offender in accordance with the Sex Offender Registration Act. The defendant was found guilty at a stipulated bench trial. On appeal, the defendant argues that the State failed to present any evidence that he "failed to register within three days of his conviction as charged in the information," yet he was convicted for failing to register within three days of his release from the Department of Corrections. The defendant asserts that the "conviction for a charge not made" is a violation of his constitutional right to due process. For the following reasons, we affirm.
No. 2015 IL App (2d) 140589 Westlake
Financial Group, Inc. v. CDH-Delnor Health System
Filed 1-6-15 (TJJ)
Plaintiff, Westlake Financial Group, Inc. (Westlake), appeals from the trial court’s dismissal of its amended breach-of-contract complaint against defendant, CDH-Delnor Health System, f/k/a Delnor Community Health System (Delnor). Westlake argues that the trial court erred in ruling that: (1) a termination clause in a separate contract allowed Delnor to terminate the agreement at issue without cause; and (2) all of Westlake’s damages were barred under a limitation-of-liability clause. We conclude that, while the contracts should be construed together, their termination clauses do not equally apply to both contracts, which cover different subject matter. We also conclude that the limitation of liability clause bars only consequential damages from lost profits and not direct damages from lost profits. We therefore reverse and remand.
No. 2014 IL App (1st) 122459 People
v. Johnson Filed 12-31-14 (TJJ)
Defendant Anthony Johnson was 17 years old on October 1, 2003, when he allegedly drove away from the scene of a shooting with the shooter in his motor vehicle. The shooter was acquitted, but defendant was convicted on October 10, 2007, by a separate jury in a simultaneous trial of first-degree murder on a theory of accountability and sentenced to 30 years in the Illinois Department of Corrections (IDOC). On direct appeal (People v. Johnson, No. 1-08-0233 (2010) (unpublished order under Supreme Court Rule 23)), we found that the trial court erred by failing to clarify the accountability statute's use of the word "during" after the jury requested clarification, and we remanded for a new trial. Defendant was convicted on retrial and sentenced to 47 years. People v. Johnson, 2013 IL App (1st) 122459. Now, we cannot find the State proved defendant accountable for murder beyond a reasonable doubt. For these reasons, we conclude that the State failed to prove beyond a reasonable doubt that defendant was accountable for Sims' murder of Baity, and we reverse defendant's conviction and sentence. The Illinois Supreme Court subsequently entered a supervisory order directing us to vacate our judgment and reconsider in light of People v. Fernandez, 2014 IL 115527, to determine whether a different result was warranted. People v. Johnson, No. 117292 (Ill. 2014). After considering our supreme court's decision in Fernandez, we determine that, although Fernandez reversed People v. Phillips, 2012 IL App (1st) 101923, a case that we previously relied upon, a different result is not warranted.
No. 2014 IL App (1st) 132389 Chisem
v. McCarthy Filed 12-23-14 (TJJ)
Plaintiff Jamie Chisem appeals from an order of the circuit court of Cook County affirming his five-year suspension from the Chicago police department (CPD) imposed by defendant the Police Board of the City of Chicago (Board). On appeal, plaintiff contends that defendant Garry M. McCarthy, the superintendent of the CPD, and the Independent Police Review Authority (IPRA) filed untimely charges in violation of plaintiff's right to due process, the City of Chicago's municipal code (City's Code), Chicago Police Department General Order 93-03 (eff. Apr. 15, 2011), and the doctrine of laches. In addition, plaintiff contends that his five-year suspension was against the manifest weight of the evidence. We affirm.
No. 2015 IL App (5th) 140021 Wright
v. Moss Filed 1-5-15 (TJJ)
The plaintiff, Sharon Wright, lost her husband, Dale, to natural causes. The plaintiff claims that an autopsy of her husband by the defendant, Clinton County coroner Phillip Moss, was entirely unnecessary and willful and wanton misconduct. She brought suit, claiming damages for this misconduct. The circuit court granted summary judgment to the defendant, and the plaintiff now appeals. For the following reasons, we affirm the circuit court's judgment.
No. 2014 IL App (4th) 130318 People
v. Mischke Filed 12-29-14 (TJJ)
Defendant, Donald J. Mischke, Jr., appeals from the judgment of the circuit court of Lake County sentencing him to concurrent terms of 26 years in prison for first-degree murder (720 ILCS 5/9-1(a)(3) (West 2010)) and 7 years in prison for aggravated driving while under the influence (DUI) (625 ILCS 5/11-501(a)(6), (d)(1)(A) (West 2010)). Because consecutive sentences were required, we vacate both sentences and remand for resentencing.