Illinois Supreme and Appellate Court Case Summaries

By Laurence J. Dunford (LJD), Matthew Bertani (MB) and Timothy J. Joyce(TJJ)

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

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2015 IL App (5th) 120401

2 Appellate Cases Posted 8-23-16

1.  Criminal Law: Affirmed: In multiple Murder and Armed Robbery Case: 1) Trial Court did not err in granting  one day continuance of Trial where State disclosed revised DNA reports correcting errors in the initial report from 5 years earlier, yet reaching the same conclusion that Defendant could not be excluded. 2) Defense Counsel's failure move to exclude DNA evidence was not ineffective assistance of counsel where evidence only determined DNA did not exclude Defendant, counsel called own expert and effectively cross-examined the weakness and flaws in State's DNA evidence. 3) No Frye hearing required for testimony of State witness as to historical data re: cell tower's accessed by Defendants phone establishing the phone was in the vicinity of the crime scene at time of crime. Such evidence is not new or novel, but is widely accepted as reliable by numerous courts. 4) FBI expert properly testified that Defendant's phone moved from the general vicinity of his girlfriend's home to the general vicinity of the crime scene and back based on the cell phone tower historical data. 5) No reversible error in testimony of Detective that he compared the lottery number purchased by the assailant to the address using the Departments database of criminal histories where Court struck the reference to criminal histories following Counsel's objection. 5) State's Rebuttal argument that Defense theory was one of grand conspiracy of all of the State's witness, did not improperly shift burden, and was invited by Defense arguments attacking each State witness in turn.

No. 2016 IL App (1st) 131474 People v. Fountain  Filed 8-23-16 (MGB)

Following a jury trial, defendant Timothy Fountain was found guilty of two counts of murder and one count of armed robbery. The trial court sentenced defendant to a mandatory term of natural  life in prison for the two counts for murder concurrent with a 30-year sentence for armed robbery. Case was tried about 7 years after the date of the crime.  Dissent asserted the Trial Court should have granted a continuance of 3 weeks to allow meaningful opportunity to address new DNA Reports, particularly where Dissent felt the eyewitness and cell tower evidence much less compelling than did the Majority. It is of note that Defense Expert's Report noted the deficiencies in the original State DNA Report one year prior to trial, and that Defense Counsel only asked for a one day continuance.

2.  Premises Liability:  Affirmed:  Trial Court properly entered summary judgment for Defendant in slip and fall case where Plaintiff had no memory of how he fell and there were no other occurrence witnesses.  While Expert Affidavits identified alleged defective conditions, they merely speculated that those conditions caused Plaintiff to fall.

No. 2016 IL App (1st) 150397  Berke v. Manilow  Filed 8-23-16 (MGB)

Plaintiff Raymond Berke fell in the vestibule of an apartment building where he and his wife were staying with friends. A doorman heard but did not see Berke fall and there were no 1-15-0397 2 eyewitnesses. Raymond sustained spinal injuries rendering him quadriplegic. He has no memory of the incident. Absent any evidence of the cause of Raymond’s fall, there is no genuine issue of material fact for the trier of fact to determine.

4 Appellate Cases Posted 8-22-16

1.  Criminal Law: Reversed adn Remanded: When a charging instrument fails to state an offense, this constitutes a defect implicating due process concerns, and the defective charge may be attacked at any time.”  A defendant has a “fundamental due process right to notice of the charges brought against him” and “may not be convicted of an offense he has not been charged with committing.” This constitutional right to be adequately informed of the charged offense with sufficient specificity to form a defense “applies to the predicate felony in a count *** just as it does to a count charging the underlying felony alone.”  Cunningham, J.

No. 2016 IL App (1st) 131944  People v. Carey   Filed 8-22-16 (LJD)

Defendant,Robert Carey, was tried by a jury, found guilty of first degree felony murder while armed with a firearm, and sentenced to 25 years’ imprisonment for the murder and an additional 15 years for the firearm sentencing enhancement. Following our review of the supplemental briefing after both parties filed petitions for rehearing, we granted both parties’ petitions for rehearing and withdrew our original decision. This opinion now stands as our resolution of this matter. For the reasons that follow, we reverse defendant’s conviction and remand to the circuit court for further proceedings consistent with this opinion

2.  Criminal Law: Affirmed:  Under U.S.Supreme Court guidelines: if the legislature has clearly prescribed the temporal reach of the statute, the legislative intent must be given effect absent a constitutional prohibition. Where there is no express provision regarding the temporal reach, the court must determine whether applying the statute would have a ‘retroactive’ or ‘retrospective’ impact; that is, ‘whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.’  Where there would be no retroactive impact, as defined in Landgraf, the court may apply the statute to the parties. [Citation.] However, if applying the statute would have a retroactive impact, then the court must presume that the legislature did not intend that it be so applied.  The language of Public Act 99-69 demonstrated its temporal reach by stating, in relevant part, that “on or after the effective date,” when an individual “commits an offense” and was under the age of 18 at the time it was committed, the sentencing court must consider the additional mitigating factors listed and could decline to impose any otherwise applicable firearm sentencing enhancement.  Lampkin, J.

No. 2016 IL App (1st) 141500 People v. Wilson  Filed 8-22-16 (LJD)

Following a jury trial, defendant, Drashun Wilson, was found guilty of attempted first degree murder and aggravated battery with a firearm. The jury found that, during the attempted first degree murder, defendant personally discharged a firearm and proximately caused great bodily harm. Defendant was 17 years old at the time of the offense.

3.  Traffic Court: Affirmed in Part and Reversed in Part: Our courts have long recognized that a defendant's refusal to take a breathalyzer test is “relevant as circumstantial evidence of his consciousness of guilt.”  The admission of evidence is generally within the sound discretion of the circuit court, and we will not disturb a court’s evidentiary rulings, absent an abuse of discretion. However, to the extent that admissibility of evidence requires the interpretation of a statute and its intended scope, our review is de novo.  Evidence is considered relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  Mikva, J.

No. 2016 IL App (1st) 142360  People v. Romanowski   Filed 8-22-16 (LJD)

Following a jury trial, defendant, Weston Romanowski, was convicted of aggravated driving while under the influence of alcohol and sentenced to 18 months in prison and 1year of mandatory supervised release. In this direct appeal, Mr. Romanowski contends that his conviction should be reversed because the circuit court erroneously permitted the arresting officer to testify that Mr. Romanowski was told of the civil penalties that he would be subject to if he refused to submit to a blood-alcohol test. Mr. Romanowski also contends that the circuit court’s order requiring him to pay a public defender fee in the amount of $450 should be vacated, because no hearing was held concerning his ability to pay such a fee. For the reasons that follow, we affirm Mr. Romanowski’s conviction and sentence for aggravated driving while under the influence of alcohol and we vacate the $450 public defender fee.

4. Post Conviction Petition:   Affirmed:  Section 122-1(f) does not prohibit input from the State on a motion for leave to file a successive petition.   We have held that it was not error for the trial court to allow arguments from the State as well as the defendant in determining whether the defendant satisfied the cause and prejudice test for filing a successive petition. 

Holdridge, J., with dissent by McDade, J.

No. 2016 IL App (3rd) 140207  People v. Bailey Filed 8-22-16 (LJD)

The defendant, Dennis Bailey, appeals the trial court ’s denial of his motion for leave to file a successive postconviction petition. Because we find that (1) the trial court did not err in allowing the State to respond to the defendant’s motion for leave to file a successive postconviction petition and (2) the defendant’s motion for leave to file a successive petition failed to state a colorable claim of actual innocence, we affirm the trial court’s denial of the motion.

4 Appellate Cases Posted 8-19-16

1.  Administrative Review: Reversed:  Procedural due process claims question the constitutionality of the procedures used to deny a person of life, liberty, or property. While the core of due process is the right to notice and a meaningful opportunity to be heard, it is a flexible concept and requires those procedural protections demanded by fundamental principles of justice and the particular situation.  Laches is an equitable doctrine that precludes the assertion of a claim by a litigant whose unreasonable delay in raising that claim has prejudiced the opposing party. Two elements must exist for laches to apply: (1) lack of diligence by the party asserting the claim and (2) prejudice to the opposing party resulting from the delay.  As a general rule, the doctrine of laches is inapplicable to governmental entities absent extraordinary circumstances because laches could impair the functioning of the government, which, in turn, would adversely affect the public.  Hyman, J.

No. 2016 IL App (1st) 121709   Orsa v. Police Board of the City of Chicago   Filed 8-19-16 (LJD)

This case arises out of an assault by three off-duty Chicago police officers on a civilian. The incident, which happened over 10 years ago, took place inside a fast food restaurant and was captured on videotape. One of the officers pointed his service weapon at the head of the victim, Obed DeLeon, and shoved him against a wall. The two other officers, along with a friend, then punched and kicked DeLeon until Chicago police officers arrived and took DeLeon into custody. Because the video has no audio, what provoked the assault is in dispute. The officers contend DeLeon shouted gang slogans and threatened to kill a cop; eyewitnesses contend DeLeon made no threats. We reverse.

2.  Criminal Law: Reversed: Our review of the trial court’s ruling on defendant’s motion to quash arrest and suppress evidence presents questions of both fact and law.  The trial court’s factual findings are given great deference and will not be disturbed on review unless they are against the manifest weight of the evidence; however, the court’s ruling on the motion is a question of law which we review de novo.  At a hearing on a motion to quash and suppress evidence, the trial court is responsible for determining the credibility of the witnesses, weighing the evidence, and drawing reasonable inferences therefrom.  A person is “seized” when an officer has in some manner restrained the citizen’s liberty by physical force or show of authority.  A consensual encounter, on the other hand, does not involve coercion or detention, and, therefore, does not constitute a seizure.  Our supreme court adopted the following four factors identified as indicative of a seizure: (1) the threatening presence of several police officers, (2) an officer’s display of a weapon, (3) an officer’s physical touching of the person, and (4) the use of language or tone of voice which indicates that compliance with the officer’s request may be compelled.  Gordon, J.

No. 2016 IL App (1st) 132615   People v. Williams   Filed 8-19-16 (LJD)

Following a jury trial, defendant Ronnie Williams was convicted of possession of a controlled substance with intent to deliver and sentenced to three years’ probation. On appeal, defendant contends that the trial court erred when it denied his motion to quash arrest and suppress evidence because the police illegally seized him immediately when they arrived on the scene, despite a complete lack of reasonable suspicion that he was engaged in criminal activity. Defendant also contends that the State failed to prove him guilty beyond a reasonable doubt and that a portion of the police officer’s testimony at trial was improperly admitted.  We reverse the trial court’s ruling on that motion, thereby suppressing the recovered narcotics, and reverse defendant’s conviction.

3.  Medical Negligence: Answered Question: “The scope of review in an interlocutory appeal under Rule 308 is ordinarily limited to the question certified by the trial court, which is reviewed de novo."  Three elements must be met:“ ‘(1) the hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital; (2) where the acts of the agent create the appearance of authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence."  Burke, J.

No. 2016 IL App (1st) 141585  Yarbrough v. Northwestern Memorial Hospital  Filed 8-19-16 (LJD)

This interlocutory appeal arises from a medical negligence action that plaintiffs ChristinaYarbrough and David Goodpaster brought against Northwestern Memorial Hospital (NMH) and Northwestern Medical Faculty Foundation (NMFF), stemming from the premature birth of their daughter, Hayley Joe Goodpaster.  Following this court’s denial of NMH’s subsequent petition for leave to appeal, the Illinois Supreme Court directed us to consider the question certified by the trial court.   "Can a hospital be held vicariously liable under the doctrine of apparent agency set forth in Gilbert v. Sycamore Mun. Hosp., 156 Ill. 2d 511 (Ill. 1993), and its progeny for the acts of the employees of an unrelated, independent clinic that is not a party to the present litigation?" We answer the question in the Affirmative.

Conversion: Affirmed: A release “ ‘is the abandonment of a claim to the person against whom the claim exists. ’ ”  It is a contract and is therefore governed by contract law.  Where a contract is clear and explicit, a court must enforce it as written, and the meaning of the contract, as well as the intention of the parties, must be gathered from the document without the assistance of extrinsic aids.    Gordon, J.

No. 2016 IL App (1st) 142051 Miller v. Lawrence  Filed 8-19-16 (LJD)

The instant appeal arises from the dismissal of plaintiff James Miller’s complaint for conversion, which plaintiff filed against defendants Stanley and Shari Lawrence based on their actions after the death of defendants’ mother, for whom plaintiff had been a caregiver. The trial court dismissed the complaint with prejudice after (1) granting defendant Stanley Lawrence’s motion for summary judgment and (2) granting defendant Shari Lawrence’s combined motion to dismiss the complaint pursuant to sections 2-615 and 2-619(a)(6) of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619(a)(6) (West 2012)). Plaintiff appeals, arguing that (1) his lawsuit was not barred by the doctrine ofres judicata and (2) his lawsuit was not encompassed by a release plaintiff had previously executed. For the reasons that follow, we affirm the trial court’s judgment.


1 Supreme Court Case Posted 8-18-16

1. Domestic Relations: Appellate court judgment vacated in part and reversed in part, circuit court affirmed: In action seeking resolution of property rights claims stemming from end of unmarried same-sex cohabitants' relationship, as the court's decision in Hewitt v. Hewitt is still applicable, and prevents theories of relief predicated on implied contracts to achieve results prohibited by the abolition of common law marriage, the circuit court properly dismissed most of claimant's claims. Karmeier, J. (Theis, J., concurring in part and dissenting in part).

No. 2016 IL 118781  Blumenthal v. Brewer  Filed 8-18-16 (TJJ)

In this case we are called on to consider the continued viability and applicability of our decision in Hewitt v. Hewitt, 77 Ill. 2d 49 (1979), which held that Illinois public policy, as set forth in this State’s statutory prohibition against common-law marriage, precludes unmarried cohabitants from bringing claims against one another to enforce mutual property rights where the rights asserted are rooted in a marriage-like relationship between the parties.

1 Appellate Case Posted 8-18-16 

1. Criminal Law: Affirmed: Defendant properly proved guilty beyond a reasonable doubt of delivery of a controlled substance where evidence relating to three prior drug transactions, together with all the evidence, established that defendant was the person who utilized particular telephone to facilitate fourth transaction, even though communications in that transaction were by text message, whereas the earlier transactions were by defendant's recognized voice over typical telephone calls with undercover offiecer. Birkett, J.

No. 2016 IL App (2d) 140566  People v. Walker  Filed 8-17-16 (TJJ)

Following a jury trial in the circuit court of Kane County, defendant, Ladell Walker, was found guilty of two counts of unlawful delivery of a controlled substance within 1000 feet of a public park and two counts of unlawful delivery of a controlled  substance within 1000 feet of a school. He was sentenced to concurrent 12-year prison terms. The convictions stemmed from sales of cocaine to an undercover police officer that took place on October 9, October 12, October 23, and November 5, 2012. The  sole question raised on appeal is whether the State proved beyond a reasonable doubt that defendant was guilty of the November 5, 2012, offense. We affirm.

1 Appellate Case Posted 8-17-16

1. Criminal Law: Affirmed: Defendant properly found guilty of unlawful possession of a firearm by a felon, over claim that predicate felony of aggravated use of a weapon conviction was an improper predicate in light of Aguilar decision holding that offense unconstitutional, as recent Illinois Supreme Court decision in McFadden held that such a "conviction" was properly deemed a qualifying felony until such time, if ever, that the defendant's prior conviction was vacated. Scmidt, J.

No. 2016 IL App (3d) 120840  People v. Williams  Filed 8-17-16 (TJJ)

Defendant, Michael L. Williams, challenges his conviction for unlawful possession of a weapon by a felon (UPWF) (720 ILCS 5/24-1.1(a) (West 2010)). He argues that the State relied on a void conviction to prove the element of a prior felony conviction,  and therefore failed to prove defendant guilty beyond a reasonable doubt. We affirm.

3 Appellate Cases Posted 8-16-16

1. Domestic Relations: Affirmed: Trial court properly prohibited wife of seven months from making a claim for property and maintenance based on 13 years of pre-marital cohabitation that were allegedly "not unlike a marriage," where Illinois Supreme Court decision in Hewitt prohibits such. McBride, J.

No. 2016 IL App (1st) 151620  In re Marriage of Allen  Filed 8-16-16 (TJJ)

Keith M. Allen and Debra Durham Allen had been married for less than seven months when they cross-petitioned for dissolution of their marriage pursuant to the Illinois Marriage and Dissolution of Marriage Act. 750 ILCS 5/401 (West 2012). Shortly  before their property and maintenance dispute went to trial, Debra sought leave to amend her petition with common law claims based on 13 pre-marital years of cohabitation that were "not unlike a marriage." The trial court denied the motion and declined  the offer of proof Debra made during the trial, then dissolved the marriage and awarded property and maintenance on the basis of the brief marriage. Debra appeals the two adverse rulings. Affirmed.

2. Criminal Law: Affirmed: Trial court's comments at sentencing did not evince a mistaken belief that defendant was also eligible for an extended term sentence on second, less serious offense, nor did trial court improperly conclude that element of "great bodily harm" in aggravated battery case warranted a greater sentence where that fact was an element of the offense. Schmidt, J.

No. 2016 IL App (3d) 121014-B  People v. Arbuckle  Filed 8-16-16 (TJJ)

Defendant, Aaron M. Arbuckle, appeals his sentences for aggravated domestic battery and aggravated battery. He argues that the matter should be remanded for resentencing because the trial court committed plain error when it sentenced him while under  the misapprehension that defendant was eligible for an extended-term sentence on the aggravated battery conviction. Defendant further contends that counsel was ineffective for failing to raise that issue before the trial court. Finally, defendant argues that he  was subjected to an improper double enhancement in that the trial court considered the harm done to the victim despite the fact that “great bodily harm” was an element of the charged offense. We affirmed in a prior opinion. Subsequently, the supreme court issued a supervisory order directing us to vacate our judgment and reconsider in light of People v. Clark, 2016 IL 118845, to determine if a different result is warranted. And so we do. After reconsidering, we find that a different result is not warranted. We affirm.

3. Criminal Law: Affirmed: Police failure in residential burglary case to photograph evidence before its return to alleged owners would not have warranted trial court to bar testimony relating to the evidence, so failure of defendant's lawyer to seek to bar such testimony was not ineffective assistance of counsel. Holdridge, J.

No. 2016 IL App (3d) 150406  People v. Garman  Filed -16-16 (TJJ)

The defendant, John D. Garman, was convicted of residential burglary. He now appeals, arguing his counsel provided ineffective assistance in failing to object to testimony identifying the stolen property. The defendant believes the testimony is inadmissible  because police unlawfully returned the property to the victims. Affirmed.

5 Appellate Cases Posted 8-15-16

1. Criminal Law: Affirmed: In reviewing a sufficiency of the evidence claim, the relevant inquiry is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the defendant guilty of the essential elements of the crime beyond a reasonable doubt.  To sustain a conviction for possession of a stolen motor vehicle the State must prove beyond a reasonable doubt that (1) the defendant was in possession of a motor vehicle, (2) the vehicle was stolen, and (3) the defendant knew it was stolen. Illinois law defines, in relevant part, a motor vehicle as “[e]very vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overheard trolley wires, but not operated upon rails,except...."  Police officers may testify to information they received during the course of an investigation to explain why they arrested a defendant or took other action, and such testimony is not hearsay as it is offered to show the steps an officer took, rather than for the truth of the matterasserted.    Cunningham, J.

No. 2016 IL App (1st) 140911   People v. Frazier    Filed 8-15-16 (LJD)

Following a bench trial, defendant Terrell Frazier was convicted of possession of a stolen motor vehicle and sentenced, as a Class X offender, to 6½ years’ imprisonment. On appeal, defendant contests the sufficiency of the evidence supporting his conviction, arguing that the evidence failed to show that the motor scooter he possessed qualified as a motor vehicle, that it was stolen, and that he knew it was stolen. We affirm the judgment of the circuit court of Cook County.

2.  Domestic Violence: Affirmed: A constitutional challenge to a statute may be raised at any time and is subject to de novo review. Statutes carry a strong presumption of constitutionality and a party challenging the constitutionality of a statute has the burden of rebutting that presumption. To rebut the presumption, the challenging party must clearly establish a constitutional violation. We must construe a statute so as to uphold its constitutionality, if reasonably possible to do so.Thus, any doubt as to the construction of a statute will be resolved in favor of its validity.  It is well settled that as a common -law rule of evidence, evidence of other crimes is admissible if relevant for any purpose other than to show a defendant’s propensity to commit crimes. Such purposes include, but are not limited to show motive, intent, identity, and accident or absence of mistake.  Even if offered for a permissible purpose, such evidence will not be admitted if its prejudicial effect substantially outweighs its probative value.  We find the defendant’s argument to be without merit as it has already been squarelyrejected by our supreme court in Dabbs.  Cunningham, J.

No. 2016 IL App (1st) 143177   People v. Jenk  Filed 8-15-16 (LJD)

Following a bench trial, the circuit court of Cook County found defendant David Jenk guilty of misdemeanor domestic battery and sentenced him to one year of probation. On direct appeal, the defendant argues that: (1) the statute allowing for the admission of his prior offenses of domestic violence (725 ILCS 5/115-7.4 (West 2012)) was unconstitutional; (2) the trial court erred in admitting into evidence his prior acts of domestic violence against the victim; and (3) the trial court erred in finding the victim credible at trial. For the following reasons after allowing the defendant’s posttrial argument motion to cite additional authority and having included that authority in our analysis, we affirm.

3.  Labor Relations: Affirmed:  Standard of Review of Administrative Decisions set out and discussed.   Illinois courts have not hesitated to recognize the validity of the panel’s decision, so long as a quorum was maintained.  Birkett, J.

No. 2016 IL App (2nd) 150849   The Clerk of the Circuit Cout of Lake County v. The Illinois Labor Relations Board Filed 8-15-16 (LJD)

Petitioner, the Clerk of the Circuit Court of Lake County (Clerk), appeals the final decision and order of respondent the Illinois Labor Relations Board, State Panel (Board),certifying respondent theAmerican Federation of State, County and Municipal Employees, Council 31 (Union), as the exclusive representative of a bargaining unit composed of certain of the Clerk’s employees. On appeal, the Clerk challenges the propriety of the Board’s decision, contending that it was not properly adopted. The Clerk also argues that the Board misapprehended the pleading requirements to challenge a majority-interest petition and that the Clerk produced sufficient evidence of fraud or coercion to warrant an evidentiary hearing. We confirm the Board’s decision.

4.  Trusts: Reversed and Remanded: Our goal, in construing the Trust,  is to ascertain and effectuate the settlor’s intent, if not contrary to public policy.  We consider the entire document, giving words their plain and ordinary meaning to the extent possible.We note that our interpretation is consistent with the Restatement(Third) of Trusts § 50 cmt. d(2) (2003), which explains that provisions for using trust assets for the support and maintenance of a beneficiary do not authorize distributions in order to enlarge the beneficiary’s personal estate or to enable the making of extraordinary gifts.    Zenoff, J.

No. 2016 IL App (2nd) 150851 Gwinn v. Gwinn  Filed 8-15-16 (LJD)

Plaintiffs, Kenneth Gwinn, Jr., George Gwinn, and Robert Gwinn, filed a four-count complaint against Kenneth Gwinn, Sr. (defendant), and Maria May Fritz—their father and his wife. Plaintiffs’ action centered on distributions that defendant made as both the trustee and the primary beneficiary of the Betty M. Gwinn Trust, which his late wife (Betty) established. The trial court dismissed plaintiffs’ complaint for failure to state a claim upon which relief could be granted (735 ILCS 5/2- 615 (West 2014)). Plaintiffs appeal the dismissal only of the first two counts, directed against defendant but not Fritz. They contend that these counts stated causes of action for, respectively, breach of the trust and breach of fiduciary duty. We reverse and remand.

5.  Domestic Relations:  Affirmed: A procedural change in the law prescribes a method of enforcing rights or involves pleadings, evidence, and practice, whereas a substantive change in law establishes, creates, or defines rights. The new maintenance guidelines are substantive in nature because they alter the method for determining a maintenance award and address the rights underlying a dissolution proceeding. The new version creates a formula for calculating maintenance based on the gross income of theparties and the length of the marriage, after considering the factors of the old statute to determine whether maintenance is appropriate.     Cates, J.

No. 2016 IL App (5th) 150224    In re Marriage of Cole Filed 8-15-16 (LJD)

Donald D. Cole(Husband) sought to dissolve his marriage to Brenda J. Cole (Wife). The circuit court of Montgomery County entered judgment granting the dissolution of the parties’ marriage and awarded Wife maintenance. Husband appeals the award of maintenance. We affirm.

3 Appellate Cases Posted 8-12-16

1.  Legal Negligence: Affirmed:A motion to dismiss under section 2-619 of the Code “admits the legal sufficiency of the plaintiffs’ complaint, but asserts an affirmative defense or other matter that avoids or defeats the claim.”  When considering such a motion, a court must accept as true all well pled facts in the complaint and any reasonable inferences drawn therefrom.  The fundamental rule of statutory interpretation is to ascertain and give effect to the intent of the legislature. [Citation.] The most reliable indicator of that intent is the language of the statute itself. [Citation.] In determining the plain meaning of statutory language, a court will consider the statute in its entirety, the subject the statute addresses, and the apparent intent of the legislature in enacting the statute.  A legal malpractice action shall “be commenced within 2 years from the time the person bringing the action knew or reasonably should have known of the injury for which damages are sought.”  Second, the section includes a statute of repose providing that a legal malpractice action “ may not be commenced in any event more than 6 years after the date on which the act or omission occurred.”   Rochford, J.

No. 2016 IL App (1st 153285    Terra Foundation for American Art v. DLA Piper LLP   Filed 8-12-16 (LJD)

Plaintiffs-appellants, Terra Foundation for American Art, a not-for-profit organization, and Terra Michigan Avenue Property, LLC (collectively referred to as Terra), brought this action alleging malpractice against defendant-appellee, DLA Piper LLP (US) (DLA), a law firm, which Terra had retained in connection with the sale of real estate. The circuit court dismissed Terra’s complaint finding that it was barred as a matter of law by the applicable statute of repose. 735ILCS 5/13-214.3(c) (West 2014). We affirm the dismissal of Terra’s action.

2.. JuvenileCourt: Abuse and Neglect: Affirmed:  The admission of evidence by the trial court will not be reversed absent an abuse of discretion. A trial court abuses its discretion when its ruling is fanciful, unreasonable, or when no reasonable person would adopt the trial court’s view. In any hearing under this Act, the court may take judicial notice of prior sworn testimony or evidence admitted in prior proceedings involving the same minor if (a) the parties were either represented by counsel at such prior proceedings or the right to counsel was knowingly waived and (b) the taking of judicial notice would not result in admitting hearsay evidence at a hearing where it would otherwise be prohibited.”  Hall, J.

No. 2016 IL App (1st) 153662  In re Aniylah B.   Filed 8-12-16 (LJD)

The respondent, Latasha C. (Latasha), appeals from an order of the circuit court of Cook County finding Aniylah B.(Aniylah), a neglected minor based on an injurious environment. On appeal, Latasha contends (1) the trial court erred when it took judicial notice of the transcript and exhibits admitted at a prior proceeding for temporary custody in the adjudication proceedings and (2) the trial court’s finding that Aniylah was neglected based on an injurious environment was against the manifest weight of the evidence. Latasha does not challenge the trial court’s dispositional order in this appeal.

3.  Juvenile Justice: Affirmed: When reviewing a claim of insufficient evidence,the court must view the evidence in the light most favorable to the State and determine if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. The same standard applies in delinquency proceedings: the State must prove the essential elements of the offense alleged in the delinquency petition beyond a reasonable doubt.  We will not reverse a finding of guilt “unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. ” In a bench trial, it is the trial judge who resolves any credibility conflicts in the evidence.  A reviewing court does not retry the defendant or substitute its judgment for that of the trier of fact with regard to the credibility of witnesses or the weight to be given to each witness's testimony. The five factors set forth by the United States Supreme Court for assessing the reliability of an identification are (1) the witness’s opportunity to view the suspect during the offense, (2) the witness’s degree of attention, (3) the accuracy of any prior descriptions provided, (4) the witness’s level of certainty at the time of the identification procedure, and (5) the length of time between the crime and the identification.  Gordon, J.

No. 2016 IL App (1st) 160379  In re Aniylah B.   Filed 8-12-16 (LJD)

Following a bench trial, defendant J.J., a minor, was adjudicated delinquent of the aggravated robbery of Chitra Gulati and adjudged a ward of the court. The trial court considered the sentencing for both this offense and an unrelated armed robbery during the same sentencing hearing. After imposing five years of probation for the unrelated offense, the trial court found it unnecessary to impose an additional sentence in the case at bar.   On this direct appeal, defendant claims that the victim’s identification was too unreliable to prove his guilt beyond a reasonable doubt, where the incident lasted less than a minute, where it was dark outside, and where the victim had a gun pointed at her during the encounter. For the reasons set forth below, we affirm the trial court’s adjudication.

1 Appellate Case Posted 8-11-16

1.  Administrative Review: Affirmed:  Commission orders are deemed prima facie reasonable and the burden is on the party appealing the order to overcome that presumption. Commission orders are subject to reversal when the Commission’s findings are not supported by substantial evidence. 220 ILCS 5/10-201(e)(iv)(A) (West 2012). However, the Commission’s factual findings must be upheld unless they are contrary to the manifest weight of the evidence.  McBride, J.

No. 2016 IL App (1st 150425  Comonwealth Edison Company v. Illinois Commerce Commission  Filed 8-11-16 (LJD)

Competing definitions of the term “ formula rate structure.” Specifically, ComEd argued that the term should be defined to mean all of the schedules and appendices that it uses to calculate its revenue requirement, whereas the Commission staff argued that it should include only two specific schedules—Schedules FR A-1 and FR A-1 REC—which reflect the format and organization of major elements of ComEd’s revenue requirement. The Commission agreed with its staff, and ComEd appeals that decision, claiming that it is contrary to law, not supported by substantial evidence, contrary to the manifest weight of the evidence, and arbitrary, capricious, and unreasonable.

1 Appellate Case Posted 8-10-16

1.      Administrative Review: Reversed and Remanded: On appeal, a reviewing court must reverse the Commission’s decision if it finds that (1) the findings of the Commission are not supported by substantial evidence, (2) the Commission lacked jurisdiction to enter the order or decision, (3) the order or decision is in violation of the state or federal constitution or laws, or (4) the proceedings violated the appellant’s constitutional rights. The standard of review of the Commission’s findings of fact is deferential. Orders of the Commission are deemed prima facie reasonable, and the Commission’s findings of fact are deemed prima facie true. The Commission’s interpretation of statutory standards is also entitled to deference; however, reviewing courts are not bound by its interpretation of law. Under the Act, a public utility must obtain a certificate of public convenience and necessity from the Commission before transacting any business or constructing a high-voltage transmission line. The Commission derives its authority to supervise public utilities and issue certificates of publicconvenience and necessity solely from the statute creating it and may not, by its own interpretation, extend its jurisdiction. Definition of Public utility and Public Use Without Discrimination discussed.      Lytton, J.

No. 2016 IL App (3rd) 150099  Illinois Landowners Alliance, NFP v. Illinois Commerce Commission  Filed 8-10-16 (LJD)

Illinois Landowners Alliance (ILA), Illinois Agricultural Association also known as Illinois Farm Bureau (IAA), and Commonwealth Edison Company (Com Ed) petition this court for review of an order of the Illinois Commerce Commission (Commission) allowing Rock Island Clean Line, LLC (Rock Island) to operate as a public utility under the Public Utilities Act (Act) (220 ILCS 5/1-101et seq.(West 2012)) and granting the company a certificate of public convenience and necessity to construct, operate, and maintain a high voltage electric transmission line across several counties in Illinois. On appeal, petitioners argue that (1) the application should have been dismissed as a matter of law because Rock Island is not a public utility and (2) the Commission’s findings in favor of a certificate of public convenience and necessity (CPCN) were not supported by substantial evidence. We reverse the Commission’s order  granting the certificate and remand for further proceedings.

3 Appellate Cases Posted 8-9-16

1.  Administrative Review: Reversed:   Procedural due process claims question the constitutionality of the procedures used to deny a person of life, liberty, or property. While the core of due process is the right to notice and a meaningful opportunity to be heard, it is a flexible concept and requires those procedural protections demanded by fundamental principles of justice and the particular situation. Under well -established constitutional jurisprudence, every citizen has the right to pursue a trade, occupation, business, or profession.   Hyman, J.

No. 2016 IL App (1st) 121709  Orsa v. The Police Board of the City of Chicago  Filed 8-9-16 (LJD)

This case arises out of an assault by three off-duty Chicago police officers on a civilian. The incident, which happened over 10 years ago, took place inside a fast food restaurant and was captured on videotape.  After a hearing, the Chicago Police Board (Board) found two of the officers guilty and discharged them. The third was suspended for 18 months . On administrative review of the discharged officers’ cases, the circuit court held that the Board violated the officers’ due process rights and the charges were barred by laches, as the superintendent waited more than four years after the assault to bring the charges.  We reverse.

2.  Criminal Law" Affirmed: A defendant is entitled to a jury instruction on the provocation theory of second degree murder when the evidence supports it.  The evidentiary threshold is low—as long as the evidence provides some foundation ‘ “however tenuous,’ ” the instruction should be given. Hyman, J.

No. 2016 IL App (1st) 140604  People v. Camacho Filed 8-9-16 (LJD)

Defendant Jose Camacho was sentenced to 32 years in prison after a jury found him guilty of first degree murder. On appeal, he contends the trial court erred in refusing to provide the jury with an instruction on mitigation from first degree murder to second degree murder due to provocation. We disagree.

3.  Discovery: Affirmed: A petition under section 2-1401, which provides relief from final orders and judgments more than 30 days after their entry, must be supported by affidavit or other appropriate showing as to matters not of the record and can be filed no later than 2 years after the entry of the contested order or judgment. To obtain relief under section 2-1401, petitioner needs to set forth specific facts showing (1) the existence of a meritorious defense, (2) due diligence in presenting this defense or claim that would have precluded the judgment, and (3) due diligence in filing the section 2-1401 petition for relief. The allegations of a section 2-1401 petition must be established by a preponderance of the evidence. Hyman, J. 

No. 2016 IL App (1st) 143008  PKNM Holdings, Inc. v. James Filed 8-9-16 (LJD)

Intentionally ignoring or flouting numerous discovery orders can lead to the entry of severe sanctions, including a default judgment. Here, repeated failures to comply with discovery ultimately led the trial court to enter an order of default judgment against defendants in the amount of about $1.2 million. Not until nearly two years later did defendants seek to vacate the default judgment under section 2-1401 of the Code of Civil Procedure. That petition, however, was dismissed on the grounds defendants did not exercise due diligence in the underlying proceeding or in filing the section 2-1401 petition. We affirm.

3 Appellate Cases Posted 8-8-16

1. Securities Fraud: Affirmed: Trial court properly dismissed action by plaintiffs claiming fraud in the selling of securities where plaintiff buyers signed subscription agreement containing a "non-reliance" clause acknowledging that they relied only on written materials tendered and not on any oral representations by defendants. Harris, J.

No. 2016 IL App (1st) 150614-B  Kim v. Song  Filed 8-8-16 (TJJ)

Plaintiffs brought suit against defendants seeking to recover damages and to rescind certain stock purchase transactions, alleging that defendants made false oral representations about the stock and the corporation. The circuit court granted defendants' motion to dismiss the complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)). On April 25, 2016, this court filed an opinion affirming the trial court's judgment in part but reversing the dismissal of count  I of plaintiffs' complaint alleging common law fraud. Defendants filed a petition for rehearing, arguing that plaintiff's claim for common law fraud cannot stand in light of the nonreliance clause in the agreement. This court granted the petition and requested  supplemental briefing by the parties. In their supplemental answer, plaintiffs for the first time alleged that defendants were not in an employment or agency relationship with American Metro Bancorp, Inc. (AMB)1 A party cannot raise new issues  in a petition for rehearing. People v. McNeal, 405 Ill. App. 3d 647, 682 (2010), citing Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016). Therefore, we do not consider plaintiffs' new argument, or any material not contained in the record below, upon  rehearing. For the following reasons, we now affirm the trial court's dismissal of counts I, III and IV.

2. Arbitration/Dissolution of Dental Practice: Affirmed: Trial court properly refused to vacate arbitrator's award in matter where dentists disputed the financial implications of dissolving their agreement to practice dentistry together; one dentist's request for "return of stock" justified arbitrator's award requiring that dentist to pay the stock's value. Hoffman, J.

No. 2016 IL App (1st) 152446  Weiss v. Fischl  Filed 8-5-16 (TJJ)

Paul Fischl, D.D.S. and Fischl & Weiss Dental Associates P.C. (FWDA) appeal from an order of the circuit court confirming an arbitration award requiring them to, inter alia, pay Brad A. Weiss, D.D.S. the sum of $410,119 for his shares of stock in FWDA  and denying their application to vacate the arbitration award and from an order denying their motion for reconsideration. For the reasons which follow, we affirm.

3. Negligence/Dead-Man's Act: Affirmed: Trial court properly granted defendant's motion for summary judgment in personal injury case stemming from motor vehicle accident where defendant's death during pendency of case, in face of arguments proferred by plaintiff, Dead-Man's Act prohibited plaintiff from proferring testimony regarding what had happened and there was thus no issue of material fact and no proof of neglligence by deceased plaintiff. Jorgensen, J.

No. 2016 IL App (2d) 151043  Peacock v. Waldeck  Filed 8-8-16 (TJJ)

Plaintiff, Andice Peacock, filed a complaint in the circuit court of Du Page County against defendant, Kathleen Waldeck, seeking recovery for personal injuries that plaintiff allegedly suffered as a result of a rear-end motor vehicle collision. Defendant died  during the pendency of the lawsuit (her death was unrelated to the motor vehicle accident), and the trial court appointed Barton Waldeck to serve as her special representative. The special representative successfully moved for summary judgment,  contending that plaintiff could not establish defendant’s negligence without testimony that would be inadmissible under the Dead-Man’s Act (Act) (735 ILCS 5/8-201 (West 2014)) at trial. Plaintiff appeals from the summary judgment, arguing that the pleadings establish the existence of a question of material fact. We affirm.

2 Appellate Cases Posted 8-5-16

1. Criminal Law: Affirmed: Trial court properly permitted State to introduce statements by defendant to her husband, as marital privilege did not apply where statments related to wife's murder of child, and trial court properly prohibited proferred testimony offered as an excited utterance where person making the statement did not witness the event giving rise to the utterance. Delort, J.

No. 2016 IL App (1st) 141583  People v. Garner  Filed 8-5-16 (TJJ)

Defendant Patrice Garner was convicted of murdering her six-year-old daughter, Kierra Garner, and sentenced to 35 years’ imprisonment. In this appeal, defendant argues that she is entitled to a new trial because the trial court improperly (1) excluded  expert testimony regarding her psychological make-up, (2) permitted testimony regarding communications between her husband and her, in contravention of the Illinois spousal privilege statute, and (3) permitted another witness to testify about statements  made by her mother that incriminated her. We affirm.

2. Veterans' Assistance Commission: Affirmed in part, reversed in part, and remanded: Trial court erred in dismissing suit brought by superintendent of county Veterans' Assistance Commission based on claim that county officials had no basis to prohibit him from entering offices (and getting paid), as plaintiff had standing to maintain action, and defendants' actions were not discretionary, and trial court also erred in dismissing count seeking attorneys' fees. Cates, J.

No. 2016 IL App (5th) 150401 Lavite v. Dunstan  Filed 8-5-16 (TJJ)

This appeal is brought by Bradley A. Lavite, in his capacity as superintendent of the Veterans Assistance Commission of Madison County, Illinois, from an order dismissing his three-count complaint with prejudice. Lavite filed an action against the named  defendants for a writ of mandamus, claiming, in count I, that the defendants had no authority to keep him from entering his office located in the Madison County Administration building. In count II, Lavite requested that the Madison County Board issue  checks for his salary as superintendent of the Veterans Assistance Commission of Madison County, Illinois. Count III sought payment of the attorney fee invoices submitted for Lavite's legal representation.

3 Appellate Cases Posted 8-4-16

1.  Criminal Law: affirmed in part, vacated in part, and remanded  Plain error doctrine reviewed and discussed. Under the silent witness theory, a surveillance video may be admissible as substantive evidence in the absence of authentication by an eyewitness with personal knowledge of the content if there is adequate proof of the reliability of the process that produced the recording. Under this theory, it is not necessary for a witness to testify to the accuracy of the images depicted in the video so long as the accuracy of the process used to produce the evidence is established with an accurate foundation.A significant majority of jurisdictions that have addressed lay opinion testimony have held a lay witness may testify regarding the identity of a person depicted in a surveillance video if there is some basis for concluding the witness is more likely to correctly identify the defendant from the videotape than the jury.  Long iscussion of this issue and alos of the minority view.  Knecht, J.

No. 2016 IL App (4th) 130180-B  People v. Mister  Filed 8-4-16 (LJD)

In January 2015, we affirmed in part, vacated in part, and remanded with directions the jury's conviction and sentence. People v. Mister, 2015 IL App (4th) 130180, 27 N.E.3d 97. Defendant filed a petition for leave to appeal with the Supreme Court of Illinois. On March 30, 2016, the supreme court denied defendant ’s petition for leave to appeal but issued a supervisory order.

2.  Criminal Law: Affirmed: Voir dire questioning is essential to ensuring that the jury is impartial. A juror may be partial by harboring “ strong prejudice against street gangs.”  As a result, “when testimony regarding gang membership and gang-related activity is to be an integral part of the defendant’s trial, the defendant must be afforded an opportunity to question the prospective jurors, either directly or through questions submitted to the trial court, concerning gang bias.” "[L]imitation of voir direquestioning may constitute reversible error where such limitation denies a party a fair opportunity to probe an important area of potential bias or prejudice among prospective jurors.”   Other crimes and relevant evidence rules discussed and analyzed togethrer with ineffective assistance of counsel Steigman, J.

No. 2016 IL App (4th) 140131  People v. Daniels Filed 8-4-16 (LJD)

After a conviction by jury, Defendant appeals, raising the following issues: (1) the trial court abused its discretion by denying defendant’s motion that the court question potential jurors about their gang bias, (2) the court abused its discretion by admitting specific acts of violence that occurred between the two groups, (3) the court abused its discretion by admitting evidence that defendant was visited in jail by his codefendants, (4) counsel was ineffective for failing to move to sever the charge of unlawful possession of a weapon by a felon, and (5) the evidence was insufficient to prove that defendant personally discharged a firearm that caused great bodily harm or permanent disfigurement. We disagree and affirm.

3.  Traffic/Ineffective Counsel: Affirmed in part and Remanded: A defendant's claim of ineffective assistance of counsel is analyzed under a two-pronged test.  To prevail on such a claim, "a defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defendant."   To establish deficient performance, the defendant must show his attorney's performance fell below an objective standard of reasonableness. "A defendant establishes prejudice by showing that, but for counsel's unprofessional errors, there is a reasonable probability that the result of the proceeding would have been different."  This court recently articulated three different categories of cases in which a defendant sets forth a claim of ineffective assistance of counsel on direct appeal.  Category A cases involve direct appeals raising ineffective assistance of counsel that the appellate court should decline to address. Category B cases involve direct appeals raising ineffective assistance of counsel that the appellate court may address because they are clearly groundless.  Category C cases involve direct appeals raising ineffective assistance of counsel that an appellate court may address because trial counsel's errors were so egregious.  Turner, J.

No. 2016 IL App (4th) 140486  People v. FellersFiled 8-4-16 (LJD)

In February 2014, the trial court found defendant, Karl J. Fellers, guilty of four counts of driving under the influence (DUI) and one count of unlawful possession of cannabis.  In May 2014, the court sentenced him to 24 months' probation and 180 days in jail for the DUI convictions and 30 days in jail for the cannabis conviction.  On appeal, defendant argues he was deprived of the effective assistance of counsel at trial.We affirm in part and remand with directi

4 Appellate Cases Posted 8-3-16

1.  Criminal Law:Affirmed in part and vacated in part:The trier of fact has the responsibility to determine the credibility of witnesses and the weight given to their testimony, to resolve conflicts in the evidence, and to draw reasonable inferences from that evidence. Steigman, J.

No. 2016 IL App (4th) 140321  People v. Morger  Filed 8-3-16 (LJD)

 Following a February 2014 bench trial, the trial court convicted defendant,Conrad Allen Morger, of (1) aggravated criminal sexual abuse (720 ILCS 5/11-1.60(d) (West2010))and (2) criminal sexual abuse. The court later sentenced defendant to(1)180 days in jail, which the court stayed, and (2) probation for 48months.  Defendant appeals, arguing that the State failed to prove him guilty beyond a reasonable doubt of either charge. Alternatively, defendant argues that (1) the conditions of his probation were unreasonable, overly broad, and unrelated to his conviction or rehabilitation; and (2) the trial court erred by delegating its judicial discretion to the McLean County court services departmentto determine an appropriate sentence. For the following reasons, we affirm in part and vacate in part.

2.  Public Defender Fee:  Vacated: Before ordering a defendant to pay reimbursement for appointed counsel, the trial court must conduct a hearing into the defendant’s financial circumstances and ability to pay. Prior to the required hearing, the defendant must be given notice that he will have an opportunity to present evidence concerning his ability to pay and any other relevant circumstances.  Holder-White, J.

No. 2016 IL App (4th) 140455  People v. Aguirre-Alarcon  Filed 8-3-16 (LJD)

In August 2012, the State charged defendant, Cleofas Aguirre-Alarcon, by information with aggravated domestic battery(count I)(720ILCS 5/12-3.3(a-5) (West 2010)),domestic battery (count II) (720 ILCS 5/12-3.2(a)(2) (West 2010)), and interfering with the reporting of domestic violence(count III)(720 ILCS 5/12-3.5(a) (West 2010)). Following a grand jury indictment, a fourth count of unlawful restraint (720ILCS 5/10-3 (West 2010)) was added. In November 2013, following a bench trial, the trial court found defendant guilty of counts I through III but not guilty of count IV. In February 2014, the court sentenced defendant to 24 months probation with 180 days imprisonment. In its supplemental sentencing order, the court imposed a public-defender-reimbursement fee. Defendant appeals, arguing the trial court erred by imposing a public-defender-reimbursement fee without notice or a hearing on his ability to pay. We vacate the court’s order.

3.  Right of Posse3ssion of Decedent: Reversed and Remanded: A section 2-615 motion to dismiss [citation] challenges the legal sufficiency of a complaint based on defects apparent on its face.” On review, we consider “whether the allegations of the complaint, construed in the light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted.  Further, we must take as true all well-pleaded facts and all reasonable inferences that may be drawn from those facts. While the plaintiff is not required to set forth evidence in the complaint [citation], the plaintiff must allege facts sufficient to bring a claimwithin a legally recognized cause of action [citation], not simply conclusions.” A complaint should be dismissed under section 2- 615 only if it is clearly apparent from the pleadings that no set of facts can be proven that would entitle the plaintiff to recover.”  Harris, J.

No. 2016 IL App (4th) 150791  Cochran v. Securitas Security Services USA, Inc.  Filed 8-3-16 (LJD)

Plaintiff, Donna Cochran, brought a cause of action against defendant, Securitas Security Services USA, Inc., alleging interference with her right to possession of the remains of her deceased son, Walter Andrew Cochran (decedent). The trial court granted defendant’s motion to dismiss plaintiff’s complaint, and she appeals. We reverse and remand for further proceedings.

4.  Criminal Law: Reversed:Where the evidence “produces conflicting inferences, the trier of fact resolves the conflict.”   A question regarding the sufficiency of the evidence based on the factual findings of a jury, presents a question of fact and not law.   Knowledge and possession are factual issues, and the trier of fact’s findings on these questions will not be disturbed unless the evidence is so unbelievable, improbable, or palpably contrary to the verdict that it creates a reasonable doubt of the defendant’s guilt.”  The appropriate question is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” It is the reviewing court’s duty to examine the evidence while giving due consideration to the fact that the jury and trial court heard the witnesses.  A reviewing court will not reverse a conviction unless the evidence is so contrary to the verdict, or so unreasonable, improbable, or unsatisfactory that it justifies a reasonable doubt regarding defendant’s guilt. But if the court is of the opinion that the evidence is insufficient, reversal is required.  Mason, J.

No. 2016 IL App (1st) 140619 People v. Tates  Filed 8-3-16 (LJD)

On July 26, 2012, Terry Tates was arrested after approximately 10 officers executed asearch warrant at 505 West 62nd Street in Chicago, Illinois. Tates was jointly charged with Walter Tates(Walter),and Robert Green, who were also arrested during the execution of the warrant. At a joint jury trial with Green,Tates was convicted of possession with intent to deliver heroin, cocaine and cannabis and simple possession of less than five grams of methamphetamines. He was acquitted of an armed violence charge. The jury acquitted Green of all charges. On appeal, among other arguments, Tates contends that the State failed to meet its burden to prove guilt beyond a reasonable doubt because the evidence of Tates’ possession of the narcotics located at the premises was insufficient. We agree and, therefore, reverse.

12 Appellate Cases Posted 8-2-16

1.  Nunc Pro Tunc Orders:  Affirmed in art and Vacated in part:  The use of nunc pro tunc orders or judgments is limited to incorporating into the record something which was actually previously done by the court but inadvertently omitted by clerical error.  A nunc pro tunc order is an entry now for something previously done, made to make the record speak now for what was actually done then. Because a nunc pro tunc amendment may reflect only what the trial court actually did, it must be based on some note, memorandum, or other memorial in the court record. Pierce, J.

No. 2016 IL App (1st) 142582  People v. Jones Filed 8-2-16 (LJD)

Following a bench trial, defendant Kenneth Jones was found guilty of retail theft and sentenced to three years in prison. The only issue on appeal is whether an order exonerating defendant’ s bond nunc pro tunc was effective to credit  defendant with additional presentence custody credit pursuant to section 5-4.5-100(b) of the Unified Code of Corrections (730 ILCS5/5-4.5-100(b) (West 2012). 

2.  Human Rights Act: Affirmed and Remanded:  The word indicates defined. The plain language establishes the legislative intent—that the Act protects a person whose arrest is not an accurate signifier of their character or potential, who was arrested without probable cause or was simply in the wrong place at the wrong time.   Hyman, J.

No. 2016 IL App (1st) 143002 Murillo v. City of Chicago Filed 8-2-16 (LJD)

Plaintiff Arcadia Murillo, after about three years working as a janitor at a Chicago police station, was required to submit to a background check to keep her job. The background check revealed a 1999 arrest for a drug charge, which had  been dismissed for lack of probable cause. The City of Chicago (City), however, refused to give Murillo security clearance, and eventually she was fired. The trial court held the City violated the Act by using the fact of Murillo ’s
arrest to alter the terms of her employment. We affirm; the City did indeed use the fact of Murillo’s arrest in violation of the Act. Further, we remand to the trial court(i)to reexamine the reductions of time spent by Murillov’s attorneys on the case and give reasons for any reductions, (ii) to adjust the fee calculation in light of the attorneys’ hourly rates, and (iii) to determine additional fees (and costs) for defending this appeal and the City’s section 2-1401 (735 ILCS 5/2-1401 (West 2014)) petition.

3. Administrative Review: Reversed:This court reviews the decision of the agency, rather than that of the circuit court. Judicial review of an agency’s decision extends to all questions of law and fact presented by the record.  The standard applied on review of an agency’s decision depends upon whether the issue presented is one of fact or of law.. When reviewing purely factual findings, the agency’s findings and conclusions are deemed to be prima facie true and correct and, thus, are reviewed under a manifest weight of the evidence standard. An agency decision is clearly erroneous where the entire record leaves the reviewing court with the definite and firm conviction that a mistake has been made.  Simon, J.

No. 2016 IL App (1st) 150435  E-Z Movers, Inc. v. Rowell  Filed 8-2-16 (LJD)

Plaintiff, E-Z Movers, Inc., sought administrative review in the circuit court of Cook County of a decision by defendants, Illinois Department of Employment Security (IDES), and its Director, Jay Rowell (together, the Department). Pursuant to an audit and an administrative hearing, the Department determined that E-Z Movers failed to establish that the exemptions from“employment” contained in section 212 of the Unemployment Insurance Act (Act) (820 ILCS405/212 (West 2006) applied to the workers in question. The Department found that the workers were “employees” and not “independent contractors” and issued an assessment in the amount of $25,014.70 in unemployment insurance contributions against E-Z Movers. The Director upheld the Department’s decision. On administrative review, the circuit court reversed the Director’s decision and concluded that the drivers and helpers were “independent contractors ” and not “employees” under section 212 of the Act.  The Department appeals, contending the circuit court erred in reversing the Director’s decision. For the following reasons, we reverse the circuit court’s judgment and affirm the Director’s decision.

3.  Promissory Estoppel, Affirmed: Promissory estoppel is an affirmative cause of action in Illinois, possibly allowing recovery despite the absence of a contract. To establish a claim for promissory estoppel, the plaintiff must prove (1) defendant made an unambiguous promise to plaintiff, (2) plaintiff relied on such a promise, (3) plaintiff’s reliance was expected and foreseeable by defendant, and (4) plaintiff relied on the promise to its detriment. Hyman, J.

No. 2016 IL App (1st) 151081  Centro Medico Panamericano, Ltd v. Benefits Management Group, Inc.  Filed 8-2-16 (LJD)

Plaintiff Centro Medico Panamericano, Ltd., an Illinois corporation, owned an outpatient surgical facility( Fullerton Kimball Medical &Surgical Center) providing services for a patient referred by his physician. Centro Medico billed defendant Benefits Management Group, Inc., the third-party administrator for the patient ’s insurer, over $85,000, expecting 60% reimbursement under the patient’s insurance plan. Benefits Management paid out a little more than $6000 after reducing the total billed by“usual, customary, and reasonable” limits and deducting the patient’s copay amount.  The trial court ruled that the cause was not preempted and granted summary judgment to Benefits Management based on the promissory estoppel theory.

4.  Mandamus: Affirmed:To be deemed a “qualified retired law enforcement officer” under LEOSA, a person must meet these seven requirements.  The requirements are listed in the opinion.  For mandamus to issue, a plaintiff must establish material facts that demonstrate (1) an unequivocal right to the requested relief, (2) an unequivocal duty on the defendant to act, and (3) defendant’s unequivocal authority to comply with an order granting mandamus relief.  Mandamus cannot be used to direct a public official or body to reach a particular decision or to exercise its discretionin a particular manner, even if the judgment or discretion has been erroneously exercised.  Hyman, J.

No. 2016 IL App (1st) 151814  Foley v. Godinez Filed 8-2-16 (LJD)

The Director of the Illinois Department of Corrections refused to certify that three former Corrections officers satisfied a set of requirements necessary for them to obtain a concealed carry permit under federal law. The officers then filed a complaint for mandamus relief to compel the Director to certify. The trial court granted the Director’s summary judgment motion and denied plaintiffs’ cross motion.

5. Civil Procedure: Estoppel: Reversed and Remanded:The disclosure requirements of Rule 213 are mandatory and subject to strict compliance by the parties. To allow a party to ignore its plain language “defeats its purpose and encourages tactical gamesmanship.”  Enforcing the rule may even go so far as to reverse a jury verdict and remand for a new trial. Estoppel is a defensive action that will “prevent a party’s disavowal of previous conduct if such repudiation would not be responsive to the demands of justice and good conscience."More specifically, it “prevents the assertion of a contractual condition by a party who, through words or conduct, has fostered the impression that the condition will not be asserted as a legal defense" Hyman, J,. 

No. 2016 IL App (1st) 152036  Harwell v. Fireman's Fund Insurance Co. - Filed 8-2-16 (LJD)

Plaintiff Brian Harwell appeals from the trial court’s grant of summary judgment in favor of defendant Fireman’s Fund, Inc., which insured Kipling Development Corporation. A jury found Kipling, as general contractor, negligent in supervising the construction site where Harwell was injured. Fireman’s Fund refused to pay damages to Harwell, an employee of a subcontractor, claiming that Kipling had not complied with an endorsement to the insurance policy. Because equitable principles estop Fireman’s Fund from asserting that endorsement against Harwell, we hold that the trial court erred in granting summary judgment for Fireman’s Fund and should have granted summary judgment to Harwell.

6. Qui Tam Action: Affirmed: Trial court properly determined that defendant retailer did not knowingly avoid or conceal "use tax" owed to State of Illinois and denied qui tam relief sought by plaintiff law firm. Harris, J.

No. 2016 IL App (1st) 150526  State of Illinois ex rel. Schad, Diamond and Shedden, P.C. v. National Business Furniture, LLC  Filed 8-2-16 (TJJ)

This is a qui tam action brought on behalf of the State of Illinois by relator, the law firm Schad, Diamond & Shedden, P.C., against defendant National Business Furniture, LLC, a retailer of business  furniture and office supplies. Relator alleged that, from January 2006 through August 2014, defendant knowingly failed to collect and remit use tax on shipping charges for Internet and catalog sales it  made to Illinois residents, a so-called “reverse false claim” for which relator contended defendant was liable for treble damages and penalties under the Illinois False Claims Act (740 ILCS 175/1 et seq.  (West 2010)). Following a two-day bench trial, the circuit court entered judgment in defendant’s favor, finding relator failed to prove that defendant knowingly concealed or avoided an established duty to  pay to the State. For the reasons that follow, we affirm the judgment of the circuit court.

7. Criminal Law: Reversed: State failed to prove defendant guilty beyond a reasonable doubt of offense of reckless discharge of a firearm where evidence tended to show only that shot fired by defendant that pierced wall and travelled into neighbor's apartment was result of a negligent accident rather than a reckless act. Hyman, J.

No. 2016 IL App (1st) 152137  People v. Olivieri  Filed 8-2-16 (TJJ)

Defendant Michael Olivieri was convicted of reckless discharge of a firearm (720 ILCS 5/24-1.5(a) (West 2012)) and sentenced to 24 months’ probation. On appeal, Olivieri challenges the sufficiency of  the evidence to sustain his conviction. We reverse the conviction on the basis of insufficient evidence to support Olivieri’s guilt, beyond a reasonable doubt, of reckless discharge of a firearm.

8. Negligence/Motor Vehicle Accident: Affirmed: Trial court properly granted summary judgment to defendant truck driver in wrongful death action where evidence showed no negligence on truck driver's behalf in connection with events that led to decedent's death. Birkett, J.

No. 2016 IL App (2d) 151147  In re Estate of Case  Filed 8-2-16 (TJJ)

Plaintiff, Jamie M. Myers, as administrator of the estate and personal representative of the deceased, Barbara A. Case, appeals the judgment of the circuit court of Winnebago County granting summary  judgment in favor of defendants, Johnny Hanneman, Alan Gorzlancyk Enterprises, Inc. (Gorzlancyk), and JMB Express, LLC (JMB), on the ground that plaintiff had not presented any evidence of  Hanneman’s negligence in operating the semi-tractor and trailer combination that collided with Case’s vehicle. On appeal, plaintiff argues that there was a genuine issue of material fact as to whether  Hanneman was negligent. We affirm.

9. Mechanics' Liens/Attorneys' Fees: Affirmed in part, reversed in part, and remanded: Trial court properly determined that plaintiff subcontractors were entitled to awards in connection with mechanics' liens placed in connection with commercial construction project, but erred in determining that plaintiffs were not entitled to attorneys' fees simply because plaintiffs were not entitled to "extras" under applicable contracts. Lytton, J.

No. 2016 IL App (3d) 140946  Roy Zenere Trucking & Excavating, Inc. v. Build Tech, Inc.  Filed 8-2-16 (TJJ)

Defendant, Jefferson Reger, LLC, appeals the trial court’s finding in favor of plaintiffs, Oak Lawn Blacktop Paving Company, Inc. (Oak Lawn) and Alpine Concrete, Inc. (Alpine) for the balance of the  subcontracts underlying their mechanics liens and denying defendant’s counterclaims for constructive fraud and slander of title. Plaintiffs cross-appeal from the trial court’s denial of attorney fees. We  affirm in part, reverse in part, and remand for calculation and imposition of attorney fees.

10. Criminal Law: Affirmed: In felony case of driving on a revoked or suspended license, State was not required pursuant to Apprendi case to prove at trial the underlying reason for the revocation, and State established such at defendant's sentencing hearing so as to uphold felony conviction for driving while revoked or suspended, rather than misdemeanor. Pope, J. (Appleton, J., dissenting).

No. 2016 IL App (4th) 140090  People v. Owens  Filed 8-2-16 (TJJ)

In July 2013, a jury convicted defendant, Andre M. Owens, of driving while his driver’s license was revoked (625 ILCS 5/6-303(a) (West 2012)). In October 2013, the trial court, finding statutory  aggravating factors, sentenced defendant to 18 months’ imprisonment for a Class 4 felony (625 ILCS 5/6-303(d-2), (d-3) (West 2012)). Defendant appeals, arguing his felony conviction must be reduced to  a Class A misdemeanor because the State failed to prove the reason for his license revocation beyond a reasonable doubt at trial in violation of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). In the alternative, defendant argues the State failed to establish the reason his license was revoked at sentencing. We affirm.

11. Taxpayer Actions: Reversed and remanded: Trial court erred in dismissing action by taxpayers seeking to complain that state agency improperly promulgated a regulation allegedly granting tax credits for businesses greater than that allowed by statute, as plaintiffs had standing to maintain such action contrary to trial court conclusion. Appleton, J.

No. 2016 IL App (4th) 150522  Jenner v. The Illinois Department of Commerce and Economic Opportunity  Filed 8-2-16 (TJJ)

Plaintiffs are a group of Illinois taxpayers: Christopher Jenner, Laurel Jenner, Thomas Klingner, Adam Liebmann, Kelly Liebmann, Michelle Mathia, Kristina Rasmussen, Jeffrey Tucek, Mark  Weyermuller, and Judi Willard. They brought this action in Sangamon County circuit court for declaratory and injunctive relief against defendant, the Illinois Department of Commerce and Economic  Opportunity, alleging that defendant had promulgated a regulation allowing tax credits greater than those allowed by statute. Defendant moved for the dismissal of the complaint on the ground that  plaintiffs lacked standing (735 ILCS 5/2-619(a)(9) (West 2014)), and the trial court granted the motion, dismissing the complaint with prejudice. Plaintiffs appeal. We reverse the trial court’s judgment and  remand this case for further proceedings, because taxpayers have standing to seek an injunction against the use of public funds to administer an allegedly illegal tax regulation.

12. Libel/Tort Immunity: Reversed and remanded: Trial court erred in dismissing libel action by professor at state university against other university employees, as tort immunity statute did not bar suit, nor was plaintiff limited to bring a claim in state Court of Claims. Stewart, J.

No. 2016 IL App (5th) 150472  Carstens-Wickham v. Sedycias  Filed 8-2-16 (TJJ)

The plaintiff, Belinda Carstens-Wickham, a tenured professor at Southern Illinois University Edwardsville, brought this action in the circuit court of Madison County, seeking damages for alleged libel,  slander, and intentional infliction of emotional distress. The defendants, Joao Sedycias, a former department chair at SIUE, and Aldemaro Romero, a former dean at SIUE, moved to dismiss the plaintiff's  complaint pursuant to section 2-619 of the Code of Civil Procedure. The defendants claimed that they were State employees immune from suit in court pursuant to the State Lawsuit Immunity Act and argued that the Illinois Court of Claims had exclusive jurisdiction over the plaintiff's tort claims. The circuit court agreed and dismissed the plaintiff's complaint for lack of subject matter jurisdiction. The  plaintiff appeals. For the reasons that follow, we reverse and remand for further proceedings.

5 Appellate Cases Posted 8-1-16

1. Criminal Law: Affirmed and modified: Conviction for unlawful sale of a firearm to a felon affirmed over claim that defendant was not proved guilty beyond a reasonable doubt on State's theory of accountability in absence of proof that he knew prospective seller was a felon, in view of evidence that defendant had shared jail cell with seller previously and knew of seller's intent to plead guilty to a felony and go to prison, but extended term sentence for that offense vacated since defendant could only receive extended term sentence for most serious offense, and defendant received such for armed habitual criminal conviction. Spence, J.

No. 2016 IL App (2d) 140479  People v. White  Filed 8-1-16 (TJJ)

On appeal, defendant claims that he was not proved guilty beyond a reasonable doubt of unlawful sale of a firearm to a felon, because (a) no evidence established that he was accountable for Morales’s action of actually selling the gun, and, in the  alternative, (b) if he can be held accountable, he cannot be convicted of that offense in the absence of evidence establishing that Morales knew that Grano was a felon. Defendant also argues that, if his conviction of unlawful sale of a firearm to a felon is  proper, his eight-year sentence for that offense must be reduced, as the extended term was improper in light of the fact that he also was convicted of a Class X felony. For the reasons that follow, we determine that defendant was proved guilty beyond a  reasonable doubt of unlawful sale of a firearm to a felon, but we agree that defendant’s sentence for that offense must be reduced. Accordingly, we affirm as modified.

2. Criminal Law: Affirmed: Denial of post-conviction petition at first stage affirmed over claims by defendant, a youth minister convicted of having sex with persons under the age of 13 in the church's parsonage, that at sentencing the trial court erred in considering that the offenses took place in a "house of worship," and that the trial court's comments at sentencing evinced a "religious bias." Scmidt, J. (Wright, J., sp. concurring). Modified on denial of rehearing.

No. 2016 IL App (3d) 130881  People v. Rademacher  Filed 4-4-16 (TJJ)

Defendant, Timothy J. Rademacher, appeals the first-stage dismissal of his pro se postconviction petition. On appeal, defendant argues that his petition stated the gist of a constitutional claim. We affirm.

3. Trusts and Estates: Affirmed in part and reversed in part: Trial court properly dismissed claim by executor of estate that executor's sibling acted in violation of subsequent power of attorney, where by terms of operative powers of attorney grantor could "only" be deemed incompetent upon a judicial determination of such, or after declaration of such by a physician, but trial court erred in dismissing second claim relating to defendant's alleged breach of fiduciary duty. Holdridge, J. (Carter, J., concurring in part and dissenting in part) (Schgmidt, J., cincurring in part and dissenting in part).

No. 2016 IL App (3d) 140163  In re Estate of Shelton  Filed 8-1-16 (TJJ)

In these consolidated cases, Ruth Ann Alford, as the executor of the estates of her late parents, Thomas and Doris Shelton, sued her brother, Rodney Shelton, to recover real estate that she alleged Rodney had wrongly received from both estates and for damages resulting from Rodney's alleged violation of his legal duties as successor power of attorney for Doris. In case No. 3-14-0144, Ruth Ann, as executor of Thomas's estate, filed an amended estate citation seeking the return to Thomas's estate of a  farm that Thomas had conveyed to Rodney in December 2011. Ruth Ann alleged that the conveyance was presumptively fraudulent because it occurred while Rodney was named as the successor power of attorney under Thomas's Illinois Statutory Short  Form Power of Attorney for Property (POA), and while Doris, Thomas's primary power of attorney under the POA, was incompetent. Rodney moved to dismiss the complaint under sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735  ILCS 5/2-615, 2-619 (West 2010)). The trial court granted Rodney's motion to dismiss under section 2-619 because it found that Ruth Ann had failed to establish that Doris was incompetent at the time of the conveyance and that Rodney owed Thomas a  fiduciary duty at that time. In case No. 3-14-0685, Ruth Ann, as executor of Doris's estate, sued Rodney for damages allegedly caused by Rodney's breach of a duty to Doris as a successor power of attorney. The trial court granted Rodney's motion and found as a matter of law that, at the time of the transaction at issue, Rodney had no duty to Doris. This appeal followed. Affirmed in part and reversed in part.

4. Criminal Law: Affirmed: Trial court properly dismissed inmate's habeas corpus action claiming that guilty plea to first degree murder was based upon a defective indictment alleedly not sworn to by the grand jury, a claim made in three separate prior appeals, and rule issued against inmate to show cause why sanctions should not be imposed under SCR 375(b) for filing a frivolous appeal. Schmidt, J.

No. 2016 IL App (3d) 150824  Johnson v. Williams  Filed 8-1-16 (TJJ)

In December 1997, plaintiff, Patrick Johnson, pled guilty to first degree murder. The Kane County circuit court sentenced him to 78 years’ imprisonment. See People v. Johnson, 2015 IL App (2d) 140388-U, ¶ 2. Plaintiff challenged his conviction on direct  appeal and in multiple postconviction petitions. The Second District denied all of his claims. Plaintiff ultimately filed this habeas corpus action in the circuit court of Will County, alleging the Kane County circuit court lacked jurisdiction over him due to a  defective indictment—an issue he already argued before the Second District three times. The trial court dismissed plaintiff’s complaint. Plaintiff appeals. We affirm the trial court’s ruling and sanction the plaintiff.

5. Stalking No Contact Order Act: Affirmed: Trial court properly denied, after an evidentiary hearing, request by petitioner for no contact order based on allegations of stalking where petitioner failed to show two or more acts of stalking arising out of "bad blood" between parties stemming from actions by one in investigating claim of sexual assault of a minor. Cates, J.

No. 2016 IL App (5th) 140407  Henby v. White  Filed 8-1-16 (TJJ)

The petitioner, Kelly A. Henby, appeals the circuit court's decision to dismiss with prejudice his third amended verified petition for a stalking no contact order against the respondent, Richard White. For reasons that follow, we affirm.