Illinois Supreme and Appellate Court Case Summaries

By  Robert Clifford( RJC) ,Timothy J. Joyce(TJJ) and Jean Cocozza(JC),

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8 Appellate Cases Posted 12-8-14

1. Civil Discovery/Protective Orders: Affirmed in part and vacated in part: Trial court order denying parties' request for protective order upheld in complicated environmental case that stemmed from sale of company to one party by others, and led to the purported revelation of one party's prior knowledge of toxic problems at the site sold not disclosed by the sellers and allegedly known by a law firm; numerous documents involving supposed attorney-client communications not subject to the privilege on basis that the privilege was waived and/or was not applicable in the face of some parties' obligation to cooperate in numerous aspects of litigation stemming from the sale and subsequent tort claims, but contempt order vacated, as "contemnors" acted in good faith in that their "violation" of the trial court's order only to secure an avenue by which to appeal the trial court decision. Cunningham, J.

No. 2014 IL App (1st) 131824  Borgwarner, Inc. v. Kuhlman Electric Corporation  Filed 12-8-14 (TJJ)


This appeal arises from the February 21, 2013 order entered by the circuit court of Cook County, which denied a motion for protective order filed by defendants Kuhlman Electric Corporation (KEC) and KEC Acquisition Corporation (KAC) to protect from disclosure certain allegedly privileged documents requested by plaintiffs BorgWarner, Inc. (BorgWarner), and Kuhlman Corporation (Kuhlman) and granted BorgWarner and Kuhlman's motion to compel KEC and KAC to produce these documents, in a dispute arising out of an indemnification agreement for toxic tort liability. This appeal also arises from the circuit court's May 2, 2013 order finding KEC and KAC in direct civil contempt for refusing to comply with the court's February 21, 2013 order to produce the documents. On appeal, KEC and KAC argue that the circuit court erred in denying their motion for a protective order and requiring them to provide BorgWarner and Kuhlman with the privileged documents. For the following reasons, we affirm in part and vacate in part the judgment of the circuit court of Cook County.

2. Mortgage Foreclosure: Affirmed: Legislative Act requiring a defendant in a residential foreclosure action to file a motion to quash service of process within 60 days after the defendant has filed an appearance or forfeit right to do so was properly applied retroactively in case where defendant waited two years after filing appearance to move to quash service. Connors, J.

No. 2014 IL App (1st) 132864  Greenpoint Mortgage Funding, Inc. v. Poniewozik  Filed 12-8-14 (TJJ)


Defendant Mariusz Poniewozik appeals from an order of the circuit court dismissing his petition brought pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2012)) that sought to quash service of process in a foreclosure proceeding. On appeal, defendant contends the circuit court improperly found that his claim was barred by section 15-1505.6 of the Illinois Mortgage Foreclosure Law (Mortgage Foreclosure Law) (735 ILCS 5/15-1505.6 (West 2012)), which became effective on August 12, 2011. Pub. Act 97-329 (eff. Aug. 12, 2011). That statute requires that a motion to quash service of process in a residential foreclosure action must be brought within 60 days of the date that the moving party files an appearance or participates in a hearing without filing an appearance, unless the court grants an extension for good cause. 735 ILCS 5/15-1505.6 (West 2012). For the following reasons, we affirm.

3. Criminal Law: Affirmed in part, vacated in part, and remanded for resentencing: Statute prohibiting one from being an organizer of a continuing financial crimes enterprise not unconstitutionally vague as to defendant in face of claim that all predicated transactions/crimes had to be interrelated amongst persons in the enterprise; loan documents in loan fraud case properly admitted where sufficient foundation laid that records were business records; defendant proved guilty beyond a reasonable doubt of most counts, but where parties agreed that some counts should be vacated, matter would be remanded for resentencing. Harris, J.

No. 2014 IL App (1st) 123332  People v. Zaibak  Filed 12-8-14 (TJJ)


The circuit court convicted defendant, Emad Zaibak, after a bench trial of three counts of organizing a continuing financial crimes enterprise. Those three counts, in turn, were based on defendant being convicted of the  following predicate convictions: three counts of theft by unauthorized control; three counts of theft by deception; and three counts of loan fraud. Defendant raises the following issues for our review: (1) whether the "organizer of a continuing financial  crimes enterprise" statute is unconstitutionally vague; (2) whether the circuit court abused its discretion when it admitted the contents of loan files from two banks, Washington Mutual and Harris Bank, as business records; (3) whether the State provided sufficient evidence to convict him of loan fraud; and (4) whether the State provided sufficient evidence to convict him of being an organizer of a continuing financial crimes enterprise. We hold defendant has not satisfied his burden of proving that the "organizer of a continuing financial crimes enterprise" statute is unconstitutionally vague as applied to him. Further, the circuit court did not abuse its  discretion when it admitted the contents of the respective loan files as business records, and the State presented sufficient evidence showing defendant committed loan fraud (720 ILCS 5/16H-30 (West 2006)) and two counts of being an organizer of a  continuing financial crimes enterprise. We agree with the parties that one of defendant's convictions for being an organizer of a continuing financial crimes enterprise, and the three predicate convictions of theft by  unauthorized control that the conviction is based on, must be vacated. Therefore, we vacate those convictions and remand the matter to the circuit court solely for resentencing.

4. Class Action/Consumer Fraud and Deceptive Business Practices Act: Affirmed: Trial court properly granted summary judgment to automobile manufacturers in class action stemming from unintended acceleration of cars; trial court did not improperly bar evidence relating to defects in cruise control where such claims were previously withdrawn by the plaintiffs; and properly refused several of plaintiffs' discovery requests. Cunningham, J.

No. 2014 IL App (1st) 130748  Perona v. Volkswagen of America, Inc.  Filed 12-8-14 (TJJ)


This appeal arises from the February 7, 2013 order entered by the circuit court of Cook County, which granted summary judgment in favor of defendants Volkswagen of America, Inc., Audi AG, and Volkswagen AG; denied a cross-motion for summary  judgment filed by plaintiffs Paul Perona, Robert Izenstark, and Donald Mawler; and granted defendants' motion to strike the affidavits of plaintiffs' two expert witnesses, in a class action brought under the Illinois Consumer Fraud and Deceptive Business  Practices Act (the Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2002)). On appeal, the plaintiffs argue that: (1) the circuit court erred in barring them from showing any defects implicating the cruise control system in the vehicles that were the  subject of the instant action, where they had previously "withdrawn" their allegation of a cruise control system defect during discovery; (2) the circuit court erred in denying them leave to file a seventh amended complaint; (3) the circuit court erred in granting summary judgment in favor of Volkswagen of America, Inc., Audi AG, and Volkswagen AG on the plaintiffs' Consumer Fraud Act claim; and (4) the circuit court erred in refusing to require Volkswagen of America, Inc., Audi AG, and Volkswagen  AG to respond to certain discovery requests by the plaintiffs. For the following reasons, we affirm the judgment of the circuit court of Cook County.

5. Criminal Law: Reversed: Defendant's conviction for violating Hunter and Fishermen Interference Act reversed where evidence showed that defendant was properly on adjacent property from where two hunters were seeking to hunt, and defendant's actions in making noise and "alerting" potential game to presence of the hunters were exempted from prosecution under the statute by virtue of his right to be on land where he was an authorized tenant. McDade, J.

No. 2014 IL App (3d) 130582  People v. Holm  Filed 12-8-14 (TJJ)


Defendant, Adam A. Holm, was charged with wilful obstruction or interference with the lawful taking of wild animals under section 2(a) of the Hunter and Fishermen Interference Prohibition Act (Act) (720 ILCS 125/2(a) (West 2010)). The charge  followed an incident that occurred on Adam's mother's property, where Adam resided. Adam defended pro se at a jury trial and was found guilty. The court imposed a sentence of probation and a suspended term of incarceration. Adam appeals, arguing that  the evidence was insufficient to prove that he violated the statute and therefore committed a crime. We reverse.

6. Criminal Law: Reversed and remanded: Trial court erred in denying defendant's motion to withdraw guilty plea where defendant plead guilty to "hunter harassment" one day after jury verdict against his father in similar case [N.B. noted immediately above], as defendant pled guilty to a "noncriminal" act. McDade, J.

No. 2014 IL App (3d) 130583  People v. Holm  Filed 12-8-14 (TJJ)


Defendant, Daniel Holm, was charged with wilful obstruction or interference with lawful taking of wild animals (hunter harassment) under section 2(a) of the Hunter and Fishermen Interference Prohibition Act (Act) (720 ILCS 125/2(a) (West 2010)).  Daniel, appearing pro se, entered a plea of guilty. After pleading guilty, Daniel hired private counsel, who filed a motion to withdraw the guilty plea. Counsel argued that Daniel was not guilty of hunter harassment and had pled guilty under duress. After  sentencing, counsel filed an amended motion to withdraw the guilty plea, raising additional arguments that section 2(a) of the Act was unconstitutional as a violation of procedural and substantive due process. The court denied the motion in a written order. Daniel appeals, arguing the trial court abused its discretion in denying his motion to withdraw his guilty plea. We reverse and remand.

1 Appellate Case Posted 12-5-14

1. Criminal Law: Affirmed: Defendant's motion for leave to file a successive postconviction petition properly denied by the trial court where the claim of actual innocence had actually been substantially presented to the trial court during trial, through that particular witness's testimony, and trial counsel did not offer ineffective assistance of counsel by counseling defendant to take a bench trial, or, allegedly, showing up to court on a pre-trail date intoxicated. Gordon, J.

No. 2014 IL App (1st) 130567  People v. Simon  Filed 12-5-14 (TJJ)


Following a bench trial, defendant Damon Simon was convicted of first degree murder for the shooting death of Robert Hill and sentenced to 50 years in the Illinois Department of Corrections. Defendant filed a direct appeal and, while the appeal was pending, filed a pro se petition for postconviction relief that was summarily dismissed at the first stage of the proceedings. We affirmed the trial court in both defendant’s direct appeal (People v. Simon, 2011 IL App (1st) 091197) and in his appeal from the dismissal of his postconviction petition (People v. Simon, No. 1-09-2199 (2011) (unpublished order under Supreme Court Rule 23)). Defendant subsequently filed another petition for postconviction relief, raising additional claims, including a claim of actual innocence. The trial court denied defendant leave to file the petition, finding that defendant had not demonstrated the cause and prejudice required for successive postconviction petitions. Defendant appeals, and we affirm.


3 Supreme Court Cases Posted 12-04-14

1. Criminal Law: Appellate court afffirmed: In this decision, the Illinois Supreme Court agreed with the appellate court and affirmed it. The supreme court pointed out that, in discussing the principles of accountability, the prosecution had acknowledged at closing that the petitioner had not been armed. The underlying claim thus has no merit, and counsel cannot be said to have been ineffective in failing to raise it. Prejudice has not been shown and the issue of cause need not be reached. Justice Kilbride delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2014 IL 115946   People v. Smith   Filed 12-04-14 (RJC)      


A 1998 shooting on the streets of the south side of Chicago resulted in the death of a 14-year-old for which this defendant was convicted by a Cook County jury of first degree murder and aggravated firearm discharge on an accountability theory. The defendant’s police-station statement indicated that he drove the vehicle from which the shooters, armed with guns, jumped out. On direct review, the appellate court affirmed.

Smith filed a pro se petition for postconviction relief, counsel was appointed, and the matter advanced to the second stage of postconviction proceedings, but the petition was ultimately dismissed for what the circuit court believed was a failure to show the required violation of any constitutional rights. The appellate court affirmed.  In 2011, Smith acted pro se in asking leave of court to file a successive postconviction petition. Leave of court is required by the statute which is under interpretation here. The legislature has specified that cause for failure to raise the new claim earlier and prejudice resulting from that failure must be shown, but it has not provided any further details for resolving a “cause and prejudice” determination. In this decision, the Illinois Supreme Court discussed the legal requirements for demonstrating cause and prejudice. The court said that this demonstration must take place prior to the first stage of the proceeding, i.e., on the pleadings. The standard is higher here than at the first stage of an original postconviction hearing. The petitioner must submit enough in the way of documentation to allow a circuit court to make a determination. Leave to file a successive petition should be denied where the claims fail as a matter of law or the supporting documentation is insufficient to justify further proceedings.

Here, the petitioner’s new claim consisted of his allegations that he was denied effective assistance of counsel by his attorneys’ failure to complain that prosecutorial opening argument had stated that evidence would be presented which in fact never was. This testimony would have indicated that the defendant was armed. The petitioner asserted that his mental retardation and low IQ prevented him from bringing this issue to the attention of counsel sooner. Leave to file a successive petition was denied by the circuit court and the appellate court affirmed. That is the decision under review here. The appellate court concluded that the misstatement at opening argument was not deliberate and that there was no prejudice because the jury was twice instructed by the court that an opening statement is not evidence.

2. Criminal Law/Krankel inquiry: Appellate court reversed: In this opinion, the supreme court did not agree with this finding of harmlessness and reversed, saying that the State should never be permitted to take an adversarial role against a pro se defendant at a preliminary Krankel inquiry. This was reversible error. Because a defendant is not appointed new counsel at a preliminary Krankel inquiry, it is critical that the State’s participation, if any, be de minimis. As a remedy here, the cause was remanded for a new preliminary Krankel inquiry. Justice Kilbride delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2014 IL 117142    People v. Jolly   Filed 12-04-14 (RJC)      


A McLean County jury convicted this defendant in 2010 for delivering cocaine in Bloomington, and he was sentenced to 16 years of imprisonment as a Class X offender based on his prior felony convictions. This is the offender’s second direct appeal. In his first direct appeal, the appellate court remanded to the circuit court for it to conduct a preliminary Krankel inquiry concerning Jolly’s pro se posttrial motion, which had claimed that defense counsel at trial had been ineffective. The appellate court said there that it had been error for the circuit court not to initially conduct such an inquiry. Krankel is a common law procedure which has developed since 1984 to facilitate full consideration of a defendant’s pro se posttrial claims of ineffective trial assistance. If the allegations show possible neglect, new counsel should be appointed, but the trial court need not do so, and may deny the pro se posttrial motion, if the claim lacks merit or pertains only to trial strategy. Krankel procedure calls for the circuit court to examine the factual basis of the ineffectiveness claim. This supreme court decision deals with the preliminary Krankel inquiry conducted pursuant to the appellate court’s first directive. At the hearing on remand, at which the defendant was pro se, the circuit court allowed the State to proceed in an adversarial manner, which the State now concedes was error. Although the court allowed the defendant to explain his claims, it did not allow him to argue them. The trial judge also improperly gave consideration to matters outside the record, i.e., his knowledge about the trial attorney’s performance in other cases, which the State also now concedes was error. The circuit court refused to appoint new counsel or proceed to a full evidentiary hearing, and the appellate court affirmed, stating that, although there was error, it was harmless.

3. Retalitory Discharge: Appellate court reversed: In this decision, the Illinois Supreme Court said that a retaliatory discharge cause of action is a narrow exception to the general rule that employees at will may be discharged for any reason or for no reason. The two exceptions are: pursuing a workers’ compensation claim, or whistle blowing, “i.e., reporting an employer’s illegal or improper conduct in violation of a clear mandate of public policy. Justice Burke delivered the judgment of the court, with opinion. The circuit court here used the language “causal nexus,” but this did not mean that the plaintiffs had proved their case. This was a reference to the plaintiffs’ initial showing. The proper standard of proof is that, if an employer chooses to come forward with a valid, nonpretextual basis for discharge and the trier of fact believes it, the causation element required to prove the tort of retaliatory discharge has not been met. The circuit court properly entered judgment for the defense. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Theis concurred in the judgment and opinion.

No. 2014 IL 117376   Michael v. Precision Alliance Group, LLC   Filed 12-04-14 (RJC)      


Precision Alliance Group, the defendant here, is an agricultural supply business dealing in soybean seeds, and, among its eight holding companies, has a facility in Nashville, where the events in this Washington County lawsuit occurred. The three plaintiffs here filed a claim for the tort of retaliatory discharge in the circuit court of Washington County. Another employee who is not a party to this lawsuit was terminated in January of 2003 for tampering with a forklift. The defendant employer successfully challenged his application for unemployment compensation, and, thereafter, he enlisted three then-current employees, the plaintiff here, to help report underweight seed bags. (Illinois law requires that every bag labeled as containing a certain weight of seed must actually weigh that amount.) The three plaintiffs relayed light-bag information to this ex-employee, who reported it to the Illinois Department of Agriculture.

In February of 2003, inspectors from the Department arrived at the facility to investigate a complaint of underweight bags, but the investigation ended without any penalties or fines. In March 2003, Alan Hohman, one of the three plaintiffs here, was terminated for horseplay with a forklift, and in that same month, the defendant’s corporate office decided to eliminate 22 positions across all of its facilities, four of which were to be at Nashville. Plaintiffs Wayne Michael and Craig Kluemke lost their positions as a result of this. This litigation was commenced in September of 2003.

The circuit court found that the plaintiffs had shown a prima facie case based on the discharges, which took place a short time after the underweight bags were reported, and the court used the language “causal nexus.” However, the circuit court further found, after a bench trial, that the employer had presented legitimate, nondiscriminatory reasons for the termination of the one employee based on horseplay and the other two based on reduction in force, with no proof by plaintiffs that these terminations were pretextual. The circuit court found that plaintiffs’ burden of proof had not been met and entered judgment for the defendant company. The appellate court, however, reversed, relying on the circuit court’s language referring to “causal nexus” to conclude that there was nothing more to do but determine damages.  The appellate court was reversed.        

           

3 Appellate Court Cases Posted 12-04-14

1. Probate/Illinois Mortage Foreclosure Law: Reversed and remanded: The executor’s request for leave to sell the property was subordinate to the bank’s foreclosure action. That priority does not, however, decide the matter, because the question of whether a sale under section 20-6 is necessary for the proper administration of the decedent’s estate remains paramount. Based on the executor’s summary of the in camera discussion and the quoted portions of the probate court’s oral holding, we conclude that the probate court did not engage in any exercise of discretion in deciding not to apply section 20-6 to the proceedings. Given that the probate court did not exercise its discretion here, the issue turns to the remedy for this failure.  Because we cannot say that the error here was harmless, we must remand the cause to allow the probate court to exercise its discretion under section 20-6, after considering whether the executor’s request is necessary for the proper administration of the decedent’s estate. Birkett, J.   

No. 2014 IL App (2d) 130945   In re Estate of LaPlume    Filed 12-04-14 (RJC)


Andrea McIntyre, the executor of the estate of decedent, Erika Anna LaPlume, challenges the judgment of the circuit court of Lake County dismissing her first and second petitions for approval to sell the subject property and granting Bank of America’s motion to dismiss her counterclaim to the bank’s complaint to foreclose the mortgage on the subject property. The executor contends that section 20-6 of the Illinois Probate Act of 1975 (Probate Act) (755 ILCS 5/20-6 (West 2012)) trumps the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1401.1(b), (c), 15-1107 (West 2012)) so that the probate court should have allowed the executor’s counterclaim and approved the sale of the subject property free and clear of any remaining liens and mortgages. Because we determine that the probate court did not exercise its discretion under section 20-6 of the Probate Act, we reverse and remand.

2. Juvenile/Parental Rights: Affirmed in part and vacated in part: In this case, the trial court did not have the authority to terminate respondent's parental rights because M.H. was never adjudicated abused, neglected or dependent, or made a ward of the court at the dispositional hearing. The trial court’s finding that respondent failed to make reasonable progress between September 2012 and June 2013 was not against the manifest weight of the evidence. The evidence supports the trial court's decision to terminate respondent's parent rights. The trial court's best interests finding was not against the manifest weight of the evidence. Lytton, J.   

No. 2014 IL App (3d) 140500    In re S.H.    Filed 12-04-14 (RJC)


In December 2013, the State filed a petition to terminate the parental rights of respondent, Angel H., as to her children, S.H., D.H., M.H., A.H., S.W. and S.B. The trial court found respondent unfit pursuant to sections 1(D)(m)(i), 1(D)(m)(ii), 1(D)(m)(iii), 1(D)(g), and 1(D)(b) of the Adoption Act (750 ILCS 50/1(D) (West 2012)). Following a best interests hearing, the court terminated respondent's parental rights. Respondent appeals, arguing that the trial court (1) lacked jurisdiction to terminate her parental rights as to M.H., (2) erred in finding her unfit and (3) erred in determining that it was in the children's best interests to terminate her parental rights. We vacate the trial court's decision to terminate respondent’s parental rights as to M.H. and otherwise affirm.

3. Criminal Law: Reversed and remanded: The trial court erred by denying defendant’s motion to quash his arrest and suppress evidence. In addition, based on plain error, the trial court violated defendant’s due process right to present a complete defense by curtailing defense counsel’s closing argument.  Both of  the defendant’s murder convictions are reversed, and, since defendant did not request this court to review the sufficiency of the State’s evidence, case is remanded for further proceedings. Wright, J. with Holdridge, J. dissenting.    

No. 2014 IL App (3d) 120239    People v. Jackson    Filed 12-04-14 (RJC)


A jury found defendant Daniel Jackson guilty of two counts of first-degree murder. The trial court imposed a 65-year term of imprisonment on one count of murder but did not impose a sentence on the second guilty verdict. On appeal, defendant contends the trial court erroneously denied his pretrial motion to quash his arrest and suppress evidence and improperly prevented defense counsel from emphasizing the involuntary nature of defendant’s confession during closing argument. Alternatively, defendant submits only one murder conviction can stand based on one-act, one-crime principles.

4 Appellate Court Cases Posted 12-03-14

1. 2-1401 Petitions: Affirmed: Walker failed to clearly set forth and support with facts what the newly discovered evidence is that would have prevented the trial court from entering the order in the underlying proceeding had it known those facts.  The purpose underlying a section 2-1401 petition is to allow the petitioner to raise in the trial court facts that are absent from the record, but, if the facts had been known, the trial court would not have entered the judgment that it did in the underlying proceedings. Walker has not established that enforcing the appointment of the limited guardian of her estate and person would be "unfair, unjust, or unconscionable." Consequently, Walker failed to meet the requirements for relief under section 2-1401 and the trial court did not err in denying her petition. Mason, J.   

No. 2014 IL App (1st) 1322565    In re Estate of Walker    Filed 12-03-14 (RJC)


Petitioner Mary Lou Walker appeals the trial court's order denying her petition for relief under section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)) seeking to vacate an order adjudicating her disabled and appointing a limited guardian of her estate and person. Walker claims the trial court's order must be vacated because she was denied effective assistance of counsel during the underlying proceedings where her court-appointed counsel also served as her guardian ad litem creating a per se conflict of interest. Walker also claims the lack of independent counsel and procedural deficiencies during the guardianship proceedings deprived her of due process. Finally, Walker claims her section 2-1401 petition should have been granted to prevent an "unfair, unjust, or unconscionable" result because she was not disabled after the order was entered. Finding no error in the denial of Walker's section 2-1401 petition, we affirm.

2. School Code/Mandamus: Affirmed in part and vacated in part; cause remanded: The trial court properly issued a writ of mandamus that did not reinstate the school boundaries to their original status prior to the implementation of the 2011 Plan. Because the reconfiguration was within defendant’s discretion, it would not have been proper to order mandamus relief to undo that part of the 2011 Plan.  The court properly distinguished between the School Code’s general, discretionary powers and the specific, mandatory requirements. Because the decision to reconfigure the schools was discretionary, the court did not err by leaving that part of the 2011 Plan intact when issuing the remedy in its writ of mandamus.  Because the remedy ordered by the court preceded the 2014 waiver,  the writ of mandamus is vacated and the case is  remanded with directions that the court reconsider the remedy in light of the 2014 waiver. Spence, J. with McLaren, J. dissenting.    

No. 2014 IL App (2d) 131016    Clarke v. Community Unit School District 303    Filed 12-03-14 (RJC)


Plaintiffs, J. Lyell Clarke and Steven Schultze, appeal the trial court’s issuance of a writ of mandamus with respect to the reorganization of two schools. Plaintiffs argue that the trial court erred by issuing a writ of mandamus that did not reinstate the boundaries of the two schools to their original status prior to the reorganization. In the alternative, plaintiffs argue that the trial court erred by issuing a writ of mandamus that did not order a major restructuring of the two schools. Defendant, Community Unit School District 303, cross-appeals, arguing that the trial court erred by ordering the relief it did in the writ of mandamus. Defendant also moves to vacate the trial court’s order and dismiss the appeal as moot based on a waiver of certain provisions in the No Child Left Behind Act of 2001 (NCLB) (20 U.S.C. § 6301 et seq. (Supp. I 2001)). We affirm in part, vacate in part, and remand the case with directions.

3. Criminal Law: Reversed and remanded: The notion that an accused places his peaceful character at issue by remaining silent is rejected.  The trial court misconstrued well-established case law when it determined defendant’s three prior misdemeanor convictions for violent offenses from 1996, 1997, and 2000, constituted admissible, substantive, rebuttal evidence under these circumstances. The State presented three prior convictions as rebuttal evidence with respect to the issue of self-defense. Yet, during defendant’s testimony he preemptively admitted three unrelated previous felony convictions for impeachment purposes. People’s instruction No. 22, based on the modified version of IPI Criminal 4th No. 3.12X, did not restrict the jury from considering all six convictions as substantive evidence of defendant’s violent character.  Finally, any determination made by the trial judge based upon his private investigation or based upon his private knowledge, untested by cross-examination, constitutes a denial of due process of law. On this basis, plain error occurred during the sentencing hearing. Although we reverse defendant’s convictions based on errors that occurred during his jury trial and remand the matter for a new trial, we would also reverse defendant’s sentence of 33 years’ imprisonment based on the court’s conduct which violated defendant’s right to due process and strongly discourage the trial court from conducting its own independent research in the future. Wright, J. with Holdridge, J. dissenting.    

No. 2014 IL App (3d) 120745    People v. Cervantes    Filed 12-03-14 (RJC)


Following a jury trial, defendant, Justin Cervantes, was convicted of first-degree murder. On appeal, defendant first contends the trial court erred when it allowed the State to introduce evidence of defendant’s prior convictions for a purpose unrelated to impeachment. Second, defendant argues the trial court erred when it instructed the jury it could consider defendant’s previous convictions for violent offenses when deciding whether defendant used justifiable deadly force against the victim in self-defense. Finally, defendant contends the trial court committed error by imposing a sentence “tantamount” to a life sentence based on the court’s personal review of life expectancy tables. We reverse and remand for a new trial.

4. Criminal Law: Reversed and remanded: "The language of Rule 401(b) is clear and unambiguous: it mandates that, when the defendant waives the right to counsel, the proceedings must be recorded verbatim." Rule 401(b)'s verbatim requirement "is for the benefit of the defendant as well as the trial court" and may be accomplished via court reporter, audiotape, or videotape. Here, the record indicates that before accepting the defendant's waiver of counsel, the trial court determined that he understood and knowingly waived his right to an appointed attorney and wished to proceed pro se. It is undisputed, however, that the proceedings were not transcribed or otherwise recorded verbatim. The State rightfully concedes that the trial court thus failed to comply with Rule 401(b). Under the circumstances, the defendant's waiver of counsel was ineffective, and his conviction must be reversed. Schwarm, J.     

No. 2014 IL App (5th) 130150   People v. Jamison    Filed 12-03-14 (RJC)


The defendant, James Jamison, appeals from his conviction for obstructing a peace officer. We reverse and remand for further proceedings.

5 Appellate Court Cases Posted 12-02-14

1. Uniform Fraudulent Transfer Act: Affirmed: The evidence clearly supports the judgment of the trial court that Adam fraudulently transferred proceeds of the BlackRock settlement in contravention of the Act. Also, the trial court properly applied the Act and the trial court's judgment was not against the manifest weight of the evidence. Pierce, J.   

No. 2014 IL App (1st) 133008    Northwestern Memorial Hospital v. Sharif    Filed 12-02-14 (RJC)


Defendant, Farouk Adam Sharif, appeals the judgment of the circuit court of Cook County finding he violated the Uniform Fraudulent Transfer Act (Act) (740 ILCS 160/1 et seq. (West 2008)) for fraudulently conveying to himself assets of his company to avoid payment to the plaintiff creditor. Appellant argues: (1) that the trial court erred by failing to consider all 11 factors of fraud listed in the Act; and (2) the trial court's judgment was against the manifest weight of the evidence. We affirm the judgment of the trial court.

2. Appeals: Dismissed: A party may request at any time that the trial court enter a Rule 304(a) finding as to a final order. Here, instead of requesting that the trial court enter a Rule 304(a) finding as to its dismissal order, DVBC sought to correct the order nunc pro tunc, despite the record being devoid of any indication that the absence of a Rule 304(a) finding in that order resulted from a clerical error. Thus, there was no proper Rule 304(a) finding and no timely notice of appeal, and we conclude that we lack jurisdiction. Hutchinson, J. with Zenoff, J. specially concurring.    

No. 2014 IL App (2nd) 131065   Harreld v. Butler   Filed 12-02-14 (RJC)


On September 16, 2013, the trial court entered an order granting the motion of third-party defendant the City of Elgin (the city) to dismiss the complaint of third-party plaintiff, DVBC, Inc. (DVBC). The order did not contain a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). On October 10, 2013, while other claims remained pending, DVBC filed a notice of appeal. On November 21, 2013, the trial court entered an “agreed order correcting the court’s order of September 16, 2013, nunc pro tunc.” The agreed order provided that the September 16, 2013, order “nunc pro tunc, is a final and appealable order and there is no just reason to delay either enforcement or appeal, or both.” DVBC did not file an amended notice of appeal. Dismissed for lack of jurisdiction.

3. DUI/Sentencing: Affirmed: The trial court did not apply the previous convictions in aggravation and instead properly discussed them in relation to the nature and circumstances of the offense, defendant’s likelihood to reoffend, protection of the public, and deterrence. Instead of using the prior convictions as a factor in aggravation, the court specifically stated that it was “assessing risk” and it tailored its comments as a response to defendant’s attempts to discount his recidivism as a series of “mistakes.” Burke, J.

No. 2014 IL App (2nd) 130718    People v. Morrow   Filed 12-02-14 (RJC)


Defendant, Timothy J. Morrow, appeals his sentence of 13 years’ incarceration for aggravated driving under the influence (DUI) (625 ILCS 5/11-501(d)(2)(E) (West 2010)), a Class X felony based on at least five prior DUI convictions. He contends that the trial court wrongly applied his previous convictions in aggravation during sentencing when they had already elevated the offense to a Class X felony. We determine that the trial court did not apply the previous convictions in aggravation and instead properly discussed them in relation to the nature and circumstances of the offense, defendant’s likelihood to reoffend, protection of the public, and deterrence. Affirmed.

4. Domestc Relations: Vacated and remanded with directions: The trial court’s November 18, 2010, order provided for review of maintenance in 18 months. The court gave only the following guidance as to what would be its concern at the next review: “The Court directs [petitioner] to remain fully employed and to seek out promotions and better job opportunities so as to increase her income.” Petitioner could reasonably interpret this as the sole criterion by which the trial court, at the next review, would judge her efforts toward self-sufficiency.The trial court failed to recognize the limited scope intended for the second review.  The decision to modify or terminate maintenance is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. The trial court abused its discretion when, inter alia, it applied an improper legal standard.  Here, the court failed to recognize the limited scope of review authorized in the November 18, 2010, order. Birkett, J.

No. 2014 IL App (2nd) 130937    In re Marriage of Heasley   Filed 12-02-14 (RJC)

In this divorce proceeding, petitioner, Diana L. Heasley, appeals the trial court’s judgment terminating the obligation of respondent, Kevin L. Heasley, to pay her maintenance. The trial court entered the termination order at the second review of maintenance following the divorce decree. Accordingly, we vacate the judgment terminating maintenance and remand for further proceedings.

5. Unemployment Insurance Act/Admin review: Affirmed: At issue in this appeal is whether the Board of Review properly concluded that the plaintiff's conduct amounted to "misconduct" within the meaning of the Unemployment Insurance Act. The plaintiff did not violate the Housing Authority's policy as written,The policy at issue prohibits employees from using or possessing drugs or alcohol or being under the influence on the job or on Housing Authority property. It is obvious that such requirements are related to the performance of employees' job duties and, as such, are reasonable.  The plaintiff is not in a safety-sensitive position. Thus, the nexus between his off-duty use of marijuana and the performance of his job duties is not as strong as the nexus between the off-duty use of cocaine by a bus driver and the safety of his passengers. Moreover, critically, the drug test administered to the plaintiff here was negative. Chapman, J.

No. 2014 IL App (5th) 130209   Eastham v. The Housing Authority of Jefferson County   Filed 12-02-14 (RJC)

The plaintiff, William F. Eastham III, was required to submit to a random drug test by his employer, the Housing Authority of Jefferson County. The plaintiff informed his supervisor that he believed he would fail the drug test because he had smoked marijuana during a recent vacation. His employment was terminated before the results of the drug test were available. The test subsequently came back negative. The plaintiff's claim for unemployment insurance benefits was denied. The basis for this decision was a policy of the employer which provided that employees may not use or be under the influence of  alcohol or any controlled substance "while in the course of employment." The plaintiff filed a petition for administrative review. The circuit court reversed the administrative decision, finding that (1) the phrase "while in the course of employment" includes only
the times during which an employee is performing work duties; and (2) the policy is unreasonable to the extent it can be interpreted to regulate an employee's conduct outside of work. The defendants, the Housing Authority of Jefferson County and the Board of Review of the Department of Employment Security, appeal. They argue the circuit court erred in reaching both of these conclusions. We affirm.

3 Appellate Court Cases Posted 12-01-14

1. Negligence/Releases: Affirmed: The circuit court did not err when it dismissed plaintiff's complaint pursuant to section 2-619(a)(6) of the Code (735 ILCS 5/2-619(a)(6) (West 2012)) because the clear and unambiguous terms of the release bar the cause of action plaintiff raises in his complaint. Harris, J.   

No. 2014 IL App (1st) 133004    Badette v. Rodriguez    Filed 12-01-14 (RJC)


Plaintiff, Gerson Badette, filed a complaint sounding in negligence against defendants, Albertano Rodriguez and Quality Building Supply Company, seeking recovery for damages sustained to his car after an October 12, 2011, car accident. The circuit court granted defendants' motion to dismiss pursuant to section 2-619(a)(6) of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(6) (West 2012)) based on a release signed by plaintiff in connection with a 2012 suit plaintiff filed against defendants stemming from the same accident. At issue is whether the circuit court erred when it dismissed plaintiff's complaint pursuant to section 2-619(a)(6) of the Code (735 ILCS 5/2-619(a)(6) (West 2012)) based on the release signed by plaintiff.

2. Sexually Violent Persons Commitment Act: Reversed: While the trial court is generally entrusted to resolve contradictions in the evidence, here the only evidence was that presently respondent had improved. From an evidentiary standpoint, respondent's improved behavior and lack of arousal necessarily defeated Dr. Smith's concerns, which were seemingly based on past conduct, regarding respondent's threat to the safety of others. This case does not present the quantum of evidence required to clearly and convincingly demonstrate that respondent was at that time a threat to the safety of others. The State must meet its burden in providing a strong evidentiary basis for revoking the release when liberty interests are clearly at stake. Harris, J.   

No. 2014 IL App (1st) 123090    In re Commitment of Rendon    Filed 12-01-14 (RJC)


Respondent Enrique Rendon was civilly committed as a "sexually violent person" under the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 et seq. (West 2010)) and subsequently institutionalized in a secure facility. The trial court later conditionally released respondent only to thereafter revoke the release on the State's petition, concluding that the "safety of others," a standard identified in the statute (725 ILCS 207/40(b)(4) (West 2010)), required such revocation. On appeal from the revocation order, respondent contends this undefined statutory standard is unconstitutionally vague. He alternatively contends the State failed to prove by clear and convincing evidence that his conditional release should be revoked. Finally, he contends the trial court improperly relied on his clinical psychologist's reexamination report at the revocation hearing, thus requiring reversal.

3. DUI/Reckless Hoimcide/Sentencing: Sentence reduced; cause remanded with directions: The record in this case shows little to indicate the trial court considered "the nature and circumstance of the offense," "the history, character and condition of the offender," or defendant's rehabilitative potential in fashioning its sentence as is required by statute. Instead, the record shows the court considered the nature and circumstances of an offense to which defendant did not plead guilty.Pope, J.   

No. 2014 IL App (4th) 140624   People v. Daly    Filed 12-01-14 (RJC)


In March 2014, defendant, Katheryn J. Daly, entered an open plea of guilty to one count of reckless homicide (720 ILCS 5/9-3(a) (West 2012)). In May 2014, the trial court sentenced defendant to 3 1/2 years in prison. Defendant appeals, arguing the court abused its discretion in rejecting probation, which was requested by defendant and recommended by the State, and sentencing defendant to 3 1/2 years' imprisonment. On appeal, the State concedes the court abused its discretion. We reduce defendant's sentence and remand with directions.