Illinois Supreme and Appellate Court Case Summaries

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

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2 Appellate Cases Posted 11-14-14

1. Criminal Law: Reversed and remanded: Defendant's statement: "no, not really, no", in response to Miranda warnings constituted an invocation of his right to remain silent and subsequent statements by defendant should have been suppressed; but it was not error to admit MySpace photos as such related to the course of the police investigation and how that investigation led to defendant. McBride, J.

No. 2014 IL App (1st) 121786  People v. Flores  Filed 11-14-14 (TJJ)

Following a jury trial, defendant Oscar Flores was found guilty of the first degree murder of Victor Casillas and the attempted murder and aggravated battery with a firearm of Lionel Medina. Defendant was subsequently sentenced to a total of 80 years in  the Illinois Department of Corrections. Defendant appeals, arguing that: (1) the trial court erred in denying his motion to suppress his July statements, which were involuntary and were obtained in violation of his right to remain silent and his right to an  attorney; (2) the trial court violated his constitutional right to present a defense when it barred him from presenting evidence of his suppressed May statements to police; (3) defendant was denied a fair trial when the trial court admitted prejudicial photos  from MySpace without proper authentication and foundation; and (4) his trial counsel was ineffective for failing to object to testimony that defendant's photo was in a Chicago police database and he had previously been arrested. Reversed and remanded.

2. Workers' Compensation: Affirmed: Trial court properly confirmed Industrial Commission decision reversing arbitrator, and finding that employee did develop Neisseria meningitides during business trip on behalf of employer to Sao Paulo, Brazil, in light of extensive medical evidence presented by employee, which Commission was within its responsibilities to credit. Stewart, J.

No. 2014 IL App (1st) 130766WC  Omron Electronics v. The Illinois Workers' Compensation Commission  Filed 11-14-14 (TJJ)

This matter involves a claim under the Illinois Workers' Compensation Act (the Act) (820 ILCS 301/1 et seq. (West 2006)) and the Workers' Occupational Diseases Act (Occupational Diseases Act) (820 ILCS 310/1 et seq. (West 2006)) filed by E. Belinda  Bauer, wife and special administrator for Craig Bauer (employee), for benefits in connection with the death of the employee due to alleged exposure to Neisseria meningitides while on a business trip to Brazil for the employer, Omron Electronics. The
arbitrator denied compensation finding that the special administrator had not proven causation and exposure arising out of and in the course of the decedent's employment with the employer. The special administrator appealed to the Illinois Workers' Compensation Commission (Commission). The Commission unanimously reversed the arbitrator's decision and held that the special administrator had proven by a preponderance of the evidence that the employee had contracted Neisseria meningitides during his business trip to Brazil. The employer filed a timely petition for review in the circuit court of Cook County which confirmed the Commission's decision. The employer appeals. Affirmed.

2 Appellate Cases Posted 11-13-14

1. Criminal law: Affirmed, costs modified: Defendant's claim, made during allocution at sentencing, that counsel "should have brought it up, security was lying," in store retail theft case, was not a sufficiently stated claim of ineffective assistance of counsel so as to require trial court to conduct a Krankel hearing; $250 DNA fee vacated, as defendant had previously given DNA sample in connection with earlier felony conviction. Hyman, J.

No. 2014 IL App (1st) 123396  People v. Porter  Filed 11-12-14 (TJJ)

Following a bench trial, defendant, Dawn Porter, was found guilty of retail theft and sentenced to a four-year prison term. On appeal, Porter contends that the cause should be remanded for consideration of her pro se posttrial claims of ineffective assistance  of trial counsel under People v. Krankel, 102 Ill. 2d 181, 187-89 (1984). We find Porter's ineffective assistance of counsel claim insufficiently specific to support the duty to conduct further inquiry under Krankel. Porter also contends that the $250 DNA fee  imposed by the court must be vacated and we agree.

2. Civil Procedure: Affirmed: Trial court properly dismissed plaintiffs' re-filed complaint for personal injury, originally dismissed for forum non conveniens subject to certain conditions regarding defendants' acceptance of service of process in Texas, where Texas court subsequently dismissed action for failure to effectuate service; defendants did not fail to comply with initial order regarding requirement that they waive any statute of limitations objection where, as here, Texas cause was dismissed for unrelated reason stemming from failure to serve defendants in Texas matter. Epstein, J.

No. 2014 IL App (1st) 133710  Bjorkstam v. MPC Products Corporation  Filed 11-13-14 (TJJ)

This appeal addresses whether plaintiffs Ulrika Bjorkstam and Joseph Daniel Dray were entitled to reinstate their complaint against defendants MPC Products Corporation (MPC) and Woodward, Inc. (Woodward), in the circuit court of Cook County,  Illinois, after it had been dismissed for forum non conveniens. Plaintiffs filed their initial complaint in the circuit court of Cook County. The court dismissed plaintiffs' suit for forum non conveniens, finding that Harris County, Texas, was a more convenient  forum. Plaintiffs then filed suit in Texas. In Texas, Woodward moved to dismiss plaintiffs' complaint for want of prosecution, alleging that plaintiffs failed to exercise diligence in serving it with the lawsuit. The Texas district court granted Woodward's  motion and plaintiffs refiled their complaint against both defendants in Illinois. The Illinois circuit court granted defendants' motion to dismiss the complaint pursuant to section 2-619(a)(4) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(4) (West  2012)), finding that the Texas court's order dismissing plaintiffs' complaint precluded it from considering whether plaintiffs were entitled to refile their suit in Illinois. While we conclude that the trial court erred in finding that the Texas court's order barred  it from reaching that question, we also conclude that plaintiffs were not entitled to refile their complaint in Illinois. We thus affirm the trial court's dismissal of plaintiff's complaint.

3 Appellate Cases Posted 11-10-14

1. Criminal Law: Affirmed: Incorrect citation of a section of the Illinois Sex Offender Registration Act did not prejudice defendant or require his Class 2 sentence for failing to register as a sex offender to be vacated, where body of charging document clearly set out elements of section defendant was adjudicated guilty of; five-year sentence was not excessive for defendant's third violation of the Act, even in face of claim that defendant was "only" thirty days late in seeking to re-register; and sentence was not improper based upon any double enhancement stemming from defendant's prior convictions. Holdridge, J. (Schmidt, J., sp. concurring).

No. 2014 IL App (3d) 120910  People v. Cohn  Filed 11-10-14 (TJJ)

Defendant, James V. Cohn, a registered sex offender, failed to report to and register with a law enforcement agency within 90 days of his previous registration, in violation of section 6 of the Sex Offender Registration Act. He was charged by indictment for the violation of section 6, but the indictment mistakenly cited section 3 of the Act. Defendant was convicted after a bench trial, and the court sentenced him to five years' incarceration. Defendant appeals,  challenging the sufficiency of the evidence and the propriety of the sentencing hearing. We affirm.

2. Criminal Law: Affirmed in part, reversed in part, and remanded for resentencing: Where State did not specify in charging document that it was seeking a Class 2 sentence for offense of unlawful use or possession of a weapon by a felon, defendant could only be sentenced as a Class 3 offender, as conviction for Wisconsin drug offense was not one of the offenses specifically listed in Section 24-1.1(e) of Criminal Code, and Supreme Court decision in People v. Easley did not apply. Harris, J. (Modified on rehearing).

No. 2014 IL App (1st) 110959-B  People v. Whalum  Filed 11-10-14 (TJJ)

This cause comes before us on remand from our supreme court to determine whether a different result is warranted in our December 24, 2012, decision in People v. Whalum, 2012 IL App (1st) 110959, in light of its March 20, 2014, decision in People v. Easley, 2014 IL 115581. People v. Whalum, 2014 IL 115582. We held that the State failed to give defendant notice pursuant to section 111-3(c) of the Code of Criminal Procedure of 1963 of its intent to seek an increase in the classification of defendant's conviction for unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a), (e) (West 2010)) from a Class 3 offense to a Class 2 offense. The underlying felony, as put forth in the State's charging instrument, was defendant's felony conviction for "delivery of a controlled substance *** under the laws of the State of Wisconsin." After carefully considering Easley, we hold that under the unique facts of this case, a different result is not warranted. Section 24-1.1(e) of the Criminal Code of 1961 lists the classification and possible sentences for unlawful use of a weapon by a felon violations. Defendant's Wisconsin felony conviction for delivery of a controlled substance is not listed as an elevated classification under section 24-1.1(e). Therefore, the State needed to provide defendant here, unlike the defendant in Easley, with notice pursuant to section 111-3(c) of the Code of Criminal Procedure in order to enhance the classification of the offense by using another one of defendant's felony convictions not stated in the charging instrument. The State, however, failed to do so. Therefore, on remand, defendant's conviction should be classified as a Class 3 felony.

3. Uniform Commercial Code: Affirmed: Trial court properly dismissed complaint by bank account holder against bank for bank's payment on a $50,000 check, where customer's notation of "void after 90 days" had no legal effect in the face of specific agreement between bank and customer, and customer's failure to seek stop payment order or to contest bank's payment within time requirements set forth in agreement prohibited customer's claim. Delort, J.

No. 2014 IL App (1st) 133645  Aliaga Medical Center, S.C. v. Harris Bank N.A.  Filed 11-10-14 (TJJ)

This case concerns whether a bank properly honored a check bearing preprinted language stating it was “void after 90 days.” It illustrates that bank customers run tremendous risks if they do not reconcile their bank statements in a timely manner. In its first amended complaint, plaintiff Aliaga Medical Center (plaintiff or Aliaga) sought reimbursement of $50,000 that defendant Harris Bank N.A., a/k/a BMO Harris Bank, N.A. (Harris Bank), improperly debited from its checking account when it honored a check containing “void after 90 days” language. Harris Bank moved to dismiss Aliaga’s that complaint under section 2-619 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2012)), because the claim was barred by the terms of the parties’ written deposit account agreements and several provisions of the Uniform Commercial Code (UCC) (815 ILCS 5/1-101 et seq. (West 2012)). The circuit court dismissed Aliaga’s first amended complaint, and we affirm.

2 Appellate Cases Posted 11-7-14 

1. Civil Practice: Affirmed: Trial court did not err in ordering corporate defendant to trial on date it told court that it was terminating counsel's services, when that date was the date previously set for trial. McBride, J.

No. 2014 IL App (1st) 133688  K&K Iron Works, Inc. v. Marc Realty, LLC  Filed 11-7-14 (TJJ)

Defendant Marc Realty, LLC, appeals from the circuit court's denial of its request for a continuance after allowing defendant's attorney to withdraw on the day trial was set to begin, after approximately five years of litigation. On appeal, defendant contends  that circuit court abused its discretion when it allowed defense counsel to withdraw and subsequently denied defendant's motion for a continuance. We affirm.

2. Domestic Relations: Affirmed in part and reversed in part: In the face of trial court's finding (upheld on appeal) that husband's testimony on many points was not credible, trial court conclusion that wife had not established that $300,000 in account in husband's name was not non-marital property was in error, as husband had the burden of proving such by clear and convincing evidence, not the wife, and matter remanded for award of half the amount in the account at its "high point," not coincidentally shortly before the breakdown of the marriage. Carter, J.

No. 2014 IL App (3d) 130653  In re Marriage of Dhillon  Filed 11-7-14 (TJJ)

After a bench trial in a marital dissolution proceeding, the trial court entered an order dividing the parties' property. Both parties appeal from that order, asserting that the trial court erred in various aspects of its ruling. We agree with the parties that some of  the trial court's ruling was erroneous. We, therefore, affirm the trial court's property-division order in part, reverse in part, and remand with directions.

4 Appellate Cases Posted 11-6-14

1. Freedom of Information Act: Affirmed: Trial court properly denied plaintiff's request for "LEADS input identifier data," as such was properly exempted from State FOIA, despite plaintiff claim that it was entitled to know information which particular sheriff's employee was seeking to use LEADS system for. Zenoff, J.

No. 2014 IL App (2d) 140071  Better Government Ass'n v. Zaruba  Filed 11-6-14 (TJJ)

Plaintiff, Better Government Association (BGA), appeals from the dismissal of its complaint seeking production of certain records from defendant, John E. Zaruba, as sheriff of Du Page County (the sheriff), pursuant to the Freedom of Information Act. Specifically, BGA requested records disclosing the vehicles and persons who were the subjects of Law Enforcement Agencies Data System (LEADS) inquiries conducted by Patrick Zaruba, the sheriff’s teenage  son. The trial court concluded that this information was exempt from disclosure under section 7(1)(a) of the FOIA and that a FOIA response to BGA’s inquiries was not possible. For the reasons that follow, we affirm.

2. Real Estate Property Tax: Affirmed: Trial court properly denied purchaser's complaint to declare a sale in error, where purchaser purchased property in tax sales, but respondent county did not the total purchase amounts into taxes, special assessments, interest, and costs, as the Property Tax Code does not require such. Hutchinson, J.

No. 2014 IL App (2d) 140265  In re Application of the Kane County Collector  Filed 11-6-14 (TJJ)

Petitioner, SIPI, LLC, appeals the trial court’s order denying its motion requesting a declaration of a sale in error and a refund of petitioner’s tax sale purchases. Specifically, petitioner asked the court to declare a sale in error pursuant to section 21-310(a)(5) of the Illinois Property Tax Code, because respondents, the County of Kane and the Kane County treasurer and collector, issued petitioner tax sale certificates that listed a total purchase amount without specifically itemizing that amount into taxes, special  assessments, interest, and costs (allegedly in violation of section 21-250 of the Code. Alternatively, petitioner asked the court to declare a sale in error pursuant to section 22-50 of the Code on the basis that, despite bona fide efforts to comply, petitioner’s notices to the property owner did not specifically itemize the sale amount into taxes versus special assessments (allegedly in violation of section 22-5 of the Code). After oral argument, the trial court denied petitioner’s  motion. Petitioner appeals. For the following reasons, we affirm.

3. Class Actions: Affirmed in part and reversed in part: Trial court decision to certify a class action in matter involving allegedly unsolicited faxes to businesses upheld as to counts alleging conversion and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, but reversed as to claim under federal Telephone Consumer Protection Act, where tender to plaintiff by defendant of offer to settle claim on that count prohibited class certification under Barber v. American Airlines, 241 Ill.2d 450 (2011). Taylor, J.

No. 2014 IL App (1st) 121368  Ballard RN Center, Inc. v. Kohll's Pharmacy & Homecare, Inc.  Filed 11-6-14 (TJJ)

In this interlocutory appeal, defendant Kohll’s Pharmacy & Homecare, Inc. (Kohll’s), appeals the trial court’s decision to grant class certification to plaintiffs. On March 3, 2010, plaintiff Ballard RN Center, Inc. (Ballard), allegedly received an unsolicited  one-page fax from Kohll’s which advertised corporate flu shot services. Ballard filed suit against Kohll’s, seeking statutory damages under the Telephone Consumer Protection Act (47 U.S.C. § 227 (2006)) and the Illinois Consumer Fraud and Deceptive  Business Practices Act (815 ILCS 505/2 (West 2010)), and also damages for conversion of ink and paper. Ballard additionally filed a motion for class certification, requesting that the court certify a class of all parties who, on or about March 3, 2010, were  sent unsolicited advertising faxes by Kohll’s. Discovery showed that on March 3, 2010, Kohll’s sent the fax at issue to a total of 4,760 fax numbers and successfully transmitted it to 4,142 of them. The trial court granted Ballard’s motion and certified the class on April 15, 2013. Kohll’s appeals this certification order. For the reasons that follow, we affirm in part and reverse in part.

4. Criminal Law: Affirmed: Evidence proved defendant guilty beyond a reasonable doubt of first degree murder, under an accountability theory, where evidence showed that defendant was the driver of the car used in a drive-by shooting, and other evidence established that defendant's car was the vehicle used, and acquittal by separate jury of principal did not render verdict against defendant insupportable; defendant's gang membership properly admitted into evidence; and defense counsel did not render ineffective assistance of counsel. Schostok, J.

No. 2014 IL App (2d) 121368  People v. Jaimes  Filed 11-6-14 (TJJ)

Following a jury trial, the defendant, Ricardo Jaimes, was convicted of first degree murder and attempted first-degree murder. He was sentenced to a total of 70 years’  imprisonment. On appeal, the defendant argues that: (1) he was not convicted beyond a reasonable doubt; (2) the trial court erred in admitting gang-related evidence; and (3) he was deprived of the effective assistance of counsel. We affirm.

5 Appellate Case Posted 11-5-14

1.  Insurance Law: Affirmed: Clear and unambiguous policy terms will be given their plain and ordinary meaning, and the policy will be applied as written, unless it contravenes public policy.  If the terms are susceptible to more than one meaning, the policy is ambiguous and will be strictly construed against the insurer that drafted it.  n construing the drafter's language, we must interpret the policy as a whole, considering the type of insurance purchased, the nature of the risks involved and the contract's overall purpose. Provisions that limit or exclude coverage will be interpreted liberally in the insured's favor and against the insurer.   Lytton, J. special concurrence by Wright, J.

No. 2014 IL App (3rd) 130655   Bowers v. General Casualty Insurance Co.    Filed 11-5-14 (LJD)

Plaintiffs, Marilyn and Robert Bowers, filed a complaint against defendant, General Casualty Insurance Company, seeking a declaratory judgment that their underinsured motorist (UIM) coverage for three vehicles was not limited to one vehicle. The trial court granted summary judgment in plaintiffs’ favor, finding that the $250,000 UIM limit for each vehicle could be aggregated, or stacked, to arrive at a maximum coverage limit of $750,000. General Casualty appeals, claiming that the provisions of the policy are unambiguous and prohibit stacking of UIM coverage. We affirm.

2.  Criminal Law: Affirmed, Mittimus Corrected:  The standard of review on a challenge to the sufficiency of the evidence involves, first, viewing the evidence in the light most favorable to the prosecution, and then determining whether any rational fact finder could find the essential elements of the offense beyond a reasonable doubt.  To be legally accountable for the conduct of another, either before or during the commission of the offense, a person with the intent to promote or facilitate the commission of the offense must aid, abet, or attempt to aid another in planning or committing the offense.  To prove defendant had the requisite intent, the State has to show either defendant shared the criminal intent of the principal or the existence of a common criminal design. Words of agreement are not necessary to establish a common purpose to commit a crime, but rather, the common design may be inferred from the circumstances surrounding the perpetration of the unlawful conduct. Under the common design rule, where two or more persons engage in a common criminal design of agreement, any acts in furtherance committed by one party are considered to be the acts of all parties to the common design and all are equally responsible for the consequences.  Hyman, J.

No. 2014 IL App (1st) 120701   People v. Johnson    Filed 11-5-14 (LJD)

After a bench trial, the trial court convicted defendant Travell Johnson of two counts of attempted first degree murder, one count of aggravated discharge of a firearm, and one count of aggravated battery with a firearm, and sentenced him to concurrent, respective terms of 21, 21, 4, and 6 years' imprisonment. On appeal, Johnson challenges the sufficiency of the evidence to hold him accountable for the attempted first degree murder of Gary Riley and for aggravated discharge of a firearm. He further contends that his mittimus should be corrected to accurately reflect the offenses of which he was convicted and that all but his two convictions for attempted first degree murder must be vacated under the one-act, one-crime doctrine. We affirm Johnson's convictions—the State proved his guilt beyond a reasonable doubt on the basis of accountability under the common design rule. But, we vacate under the one-act, one-crime doctrine his convictions for aggravated discharge of a firearm and aggravated battery with a firearm and correct the mittimus to reflect two convictions for attempted first degree murder.

3.  Criminal Law: Affirmed, Mittimus Corrected:Jury instructions must plainly set out the applicable law, and not be misleading or confusing. When a jury does not receive proper guidance though instructions, it cannot perform its constitutional functions and thereby violates a defendant’s right to a fair trial. Reversal is required when an instructional error “creates a serious risk that the jurors incorrectly convicted the defendant because they did not understand the applicable law, so as to severely threaten the fairness of the trial.”  Where jury instructions are unclear or ambiguous, a reviewing court can look to the opening statements and closing arguments for clarification. Generally, we will not review jury instruction error when the defendant has neither objected to the instruction, nor offered "an alternative instruction at trial and does not raise the instruction issue in a posttrial motion."  Illinois Supreme Court Rule 451(c) provides a limited exception, which states that criminal jury instructions containing substantial defects “are not waived by failure to make timely objections thereto if the interests of justice require.”  A defendant is denied effective assistance of counsel when counsel’s performance falls below an objective standard of reasonableness and a reasonable probability exists that, but for counsel's performance, the trial would have turned out differently.  Hyman, J.

No. 2014 IL App (1st) 130076  People v. Valadovinos Filed 11-5-14 (LJD)

A jury convicted defendant, Ignacio Valadovinos, of attempted first degree murder while personally discharging a firearm (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2010)) in a shooting outside a bar at 25th Street and California Avenue. Valadovinos fired five gunshots toward Ernesto Fernandez and sped off, leading to a car chase and foot pursuit by Chicago police officers.  We affirm Valadovinos’s conviction and sentence, and instruct the circuit clerk to correct the mittimus.

4.  Garnishment: Affirmed: Section 2-1402 of the Code, (Citation to Discover Assets) provides judgment creditor. To that end, this statute provides a circuit court with broad powers to compel parties to satisfy a judgment with discovered assets.  The most reliable indicator of such intent is a statute's plain language.  As a result, we cannot add limitations, exceptions, or conditions under the guise of statutory construction. Subsection 2- 1402(j) provides that an asset which is exempt from levy is also exempt from delivery and sale, i.e. turnover.  The court extensively discussed whether a foreign corporation stock could be levied in Illinois and discussed the UCC and the Code of Civil Procedure.  Lavin, J.

No. 2014 IL App (1st) 133575  Wells Fargo Bank Minnesota, NA v. Envirobusiness, Inc. Filed 11-5-14 (LJD)

This interlocutory appeal arises from supplemental proceedings filed by Wells Fargo Bank Minnesota, N.A. (Wells Fargo), to enforce a monetary judgment against Craig Walker. In those proceedings, commenced pursuant to section 2-1402 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1402 (West 2012)), the circuit court ordered Walker to turn over certain stock to Wells Fargo. On appeal, Walker asserts that the circuit court erred by ordering him to turn over stock in non-Illinois corporations and by denying his request to stay the enforcement of the turnover order. We affirm.

5.  Eployment Law: Affirmed: In order to support a claim for retaliatory discharge under Illinois law, a plaintiff must demonstrate that (1) she was discharged from her job, (2) the discharge was in retaliation for her activities, and (3) the discharge violates a clearly mandated public policy of this state.  The term "clearly mandated public policy" has "no precise definition."  However, our supreme court has held that "public policy concerns what is right and just and what affects the citizens of the State collectively."   In addition, the court has held that what is "clearly mandated" as public policy "is to be found in the State's constitution and statutes and, when they are silent, in its judicial decisions." Claims of retaliatory discharge have been recognized in instances where an employee has been discharged in retaliation for filing a workers' compensation claim, reporting illegal or improper conduct, or refusing to work in conditions that are hazardous or violate federal safety standards.  Reporting illegal or improper conduct is protected regardless of whether the conduct is alleged to violate state or federal law. It is also protected regardless of whether the improper conduct is reported to authorities within the company or to outside authorities. Significant gaps in time between a plaintiff's activity and termination do not automatically defeat a claim that the termination was retaliatory. Chapman, J.

No. 2014 IL App (1st) 130319  Flick v. Southern Illinois Healthcare, NFP   Filed 11-5-14 (LJD)

The plaintiff, Cindy Flick, worked for the defendant, Southern Illinois Healthcare, NFP, as the director of its medical laboratories. Shortly after raising concerns about one laboratory's compliance with federal regulations, the plaintiff was presented with a severance agreement. She chose not to resign, and her supervisor did not terminate her employment at that time. Two years later, however, the plaintiff was again presented with a severance agreement. This time, she was terminated after refusing to accept the agreement. The plaintiff filed a suit alleging retaliatory discharge. The court granted the
defendant's motion for summary judgment, finding that the plaintiff failed to present any 1evidence to establish a causal connection between her raising concerns and her termination. The primary basis for the court's ruling was a gap of nearly two years between the time she raised those concerns and the time she was fired. The plaintiff appeals, arguing that genuine issues of material fact remained regarding the causation issue. We affirm.

4 Appellate Case Posted 11-4-14

1. Election Law/Referendum: Reversed in part and affirmed in part: In sum: (1) that the board had standing to file a brief as a nominal defendant; (2) that the three members of the board be replaced by public members for consideration of the referendum question since it is not "practicable" for them to rule on a question that is "in relation" to their own candidacy; and (3) that, even though consideration of the referendum question, the objectors' petition and the objections to the objectors' petition cannot be completed in time to place the question on the November 4, 2014, ballot, we may still consider the issue pursuant to the public interest exception to the mootness doctrine. Gordon, J.  

No. 2014 IL App (1st) 142618    Zurek v. Franklin Park Officers Electoral Board    Filed 11-4-14 (RJC)

Petitioner Ken Zurek and others collected over 700 signatures for the purpose of placing on the ballot the question of whether there should be term limits for Franklin Park village officials. Respondents Randall Petersen and Robert Godlewski filed objections, and the Franklin Park Electoral Board sustained their objections and refused to place the question on the ballot. The circuit court affirmed. Reversed and remanded.

2. DUI/Implied Consent: Affirmed: Defendant has failed to establish his constitutional rights were violated. Defendant withdrew his consent after his arrest. As a result, there was no warrantless, nonconsensual search. Thus, defendant's fourth-amendment rights could not have been violated. Also, a statute is only facially unconstitutional if the statute can never be constitutionally applied. Because the implied-consent statute allowed defendant to refuse the police officer's request to take the warrantless chemical breath test, we cannot find the statute
facially unconstitutional. Pope, J.  

No. 2014 IL App (4th) 130346    People v. Gaede    Filed 11-4-14 (RJC)

In January 2013, a jury found defendant, Christopher M. Gaede, guilty of driving under the influence (625 ILCS 5/11-501(a)(2) (West 2012)). In March 2013, the trial court sentenced defendant to 24 months' court supervision. Defendant appeals, arguing he is entitled to a new trial because the implied-consent statute (625 ILCS 5/11-501.1(a) (West 2012)) is facially unconstitutional and also unconstitutionally punishes individuals who assert their fourthamendment (U.S. Const., amend. IV) right to refuse to consent to chemical analysis. We affirm.

3. Illinois Medical Practice Act of 1987: Affirmed: The Director's factual findings are not against the manifest weight of the evidence. Accordingly, the determination regarding the legal effect of the facts, that based on his conduct plaintiff violated the Act, was not clearly erroneous. The purpose of the Act is to “protect the public health and welfare from those not qualified to practice medicine.” The Director in this case found that Parikh abused his position of trust as a physician and took advantage of his patient. In addition, the Director found that Parikh's actions served no  medical purpose. Clearly, this is the type of conduct subject to disciplinary regulation that the statute contemplates. Therefore, a one year mandatory suspension with an indefinite duration thereafter is not an unreasonable or arbitrary penalty, nor is it unrelated to the statute, where Parikh can petition to restore his license one year from the date of the Director's order. Pierce, J.  

No. 2014 IL App (1st) 123319    Parikh v. Division of Professional Regulation of the Department of Financial & Professional Regulation    Filed 11-4-14 (RJC)

Appellant, Mahesh Parikh, M.D., a neurologist, appeals an order of administrative proceeding where the Director of the Division of Professional Regulation (Director) ordered that his medical license be indefinitely suspended for a minimum of one year. Parikh argues: (1) the Director does not have the authority under the Illinois Medical Practice Act of 1987 (225 ILCS 60/1 et seq. (West 2010)) to make factual finding and credibility determinations contrary to those made by the Medical Disciplinary Board of the Department (Board); (2) the Director's findings were against the manifest weight of the evidence; (3) the Director's finding on the legal effect of the facts is clearly erroneous; and (4) the Director abused his discretion by indefinitely suspending Parikh's medical license for a least a year. For the following reasons, we affirm the decision of the Director acting on behalf of the Illinois Department of Financial and Professional Regulation (Department).

4.Releases/Stlmnt. Agrmnts./Appeals: Appeal dismissed: The contested issue raised in this appeal is moot since another identical order is binding on Souad in the probate action requiring the voluntary dismissal of the case at bar, with prejudice. The doctrine of release of errors now estops Souad from attempting to obtain a reversal of the order dismissing her chancery lawsuit, case No. 12-CH-95, since she has accepted the benefits of a similar order enforcing the very same global release and settlement agreement in the probate action.  Accordingly, since the doctrine of mootness and the doctrine of release of errors require a dismissal of this appeal, we find it unnecessary to address whether the additional principles of collateral estoppel, res judicata, and freedom of speech have any application in this matter. Wright, J.  

No. 2014 IL App (3d) 130792    Ghantous v. Ghantous    Filed 11-4-14 (RJC)

The controversy in the case at bar was one of five lawsuits simultaneously pending in the Peoria County circuit court involving disputes between plaintiff Souad Ghantous (Souad) and/or her children. Defendant Leo Ghantous (Leo) is a party in all five cases and Souad is either  named as a party plaintiff or beneficiary in two cases, namely, the instant chancery case, case No. 12-CH-95 and a pending probate case, case No. 10-P-100. Souad appeals the order denying her request to reconsider the entry of the order enforcing the global release and settlement agreement in case No. 12-CH-95, alone. The same order enforcing the global release and settlement agreement has not been challenged in the other four cases and remains binding on all parties to the agreement, including Souad. Consequently, we are unable to effectuate the relief requested by Souad and dismiss the appeal according to the doctrine of mootness and the doctrine of release of errors.

1 Appellate Case Posted 11-3-14

1. Insurance: Reversed in part and affirmed in part: The question is: when injured insureds are not wholly covered by a negligent driver's insurance policy limits, does the rental car company or the insureds' underinsured motorist coverage pay the shortfall? We conclude that it would contravene public policy to construe Safeway's policy to mean that a rental car company's liability pursuant to the financial responsibility statute applies before Safeway's obligations under the underinsured motorist provision.  Safeway's underinsurance motorist coverage is triggered, we need not address the Hadarys' second issue: whether Safeway waived any right to insist upon exhaustion of Hertz's policy.  Also, because Safeway's underinsured motorist provision applies before the financial responsibility liability of Hertz, Safeway is obligated to comply with the process for handling underinsured motorist claims set out in its policy: "the amount thereof, shall be made by agreement between the insured or such representative and the Company or, if they fail to agree, by arbitration."Connors, J.  

No. 2014 IL App (1st) 132554    Safeway Insurance Co. v. Hadary    Filed 11-3-14 (RJC)

Defendants Jeffrey Hadary and Stephanie Hadary (the Hadarys) appeal the granting of partial summary judgment in favor of plaintiff, Safeway Insurance Company (Safeway). Hertz Corporation (Hertz) is not a party to the appeal.