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  Illinois Supreme and Appellate Court Case Summaries
    

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No. By Laurence J. Dunford (LJD), Matthew Bertani (MB), Anne Therieau Hayes 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 5-17-17 

1. Criminal Law: Affirmed: Prior conviction for aggravated unlawful use of weapon, otherwise void under Aguilar decision but never vacated by defendant, properly used as a predicate offense for unlawful use or possession of a firearm charge and conviction for such affirmed. Pucinski, J. (Hyman, J., sp. concurring).

No. 2017 IL App (1st) 123563  People v. Spivey  Filed 5-17-17 (TJJ)


Following a bench trial, defendant Donald Spivey was found guilty of two counts of unlawful use of a weapon by a felon (UUWF) and two counts of aggravated unlawful use of a weapon (AUUW). The trial court merged the convictions and sentenced  defendant to four years’ imprisonment, followed by two years of mandatory supervised release (MSR), for his conviction on count two for UUWF. Initially on appeal, we vacated defendant’s UUWF conviction under count two “because ‘the State did not  prove an essential element of the offense where it alleged in the charging instrument and proved at trial a predicate offense that has been declared unconstitutional and void ab initio.’ ” People v. Spivey, 2015 IL App (1st) 123563-U, ¶¶ 21, 25
(quoting People v. McFadden, 2014 IL App (1st) 102939, ¶ 43, aff’d and rev’d in part, 2016 IL 117424). On September 28, 2016, the supreme court denied the State’s petition for leave to appeal but entered a supervisory order directing us to vacate our  judgment and to reconsider the matter in light of People v. McFadden, 2016 IL 117424, to determine if a different result is warranted. People v. Spivey, No. 119492 (Ill. Sept. 28, 2016). For the reasons that follow, we conclude that a different result is warranted.

2. Criminal Law: Affirmed, fines and fees modified: Offense of armed habitual criminal was not unconstitutional, and predicate felony of attempt armed robbery qualified as a "forcible felony" so as to operate as a proper predicate felony for offense of armed habitual criminal. Pucinski, J.

No. 2017 IL App (1st) 150146  People v. Brown  Filed 5-17-17 (TJJ)


Following a bench trial, defendant Dewayne Brown was convicted of the offense of armed habitual criminal. He was sentenced to 8 years’ imprisonment and was assessed various fines, fees, and costs. Defendant appeals his conviction, arguing that (1) he  was not proved guilty of the offense of armed habitual criminal beyond a reasonable doubt; (2) the armed habitual criminal statute (720 ILCS 5/24-1.7 (West 2012)) is facially unconstitutional because it has the potential to criminalize wholly innocent  conduct; and (3) the fines, fees, and costs order must be corrected to apply his presentence incarceration credit toward several fines. For the reasons set forth herein, we affirm defendant’s conviction. We do, however, correct the fines, fees, and costs
order.

5 Appellate Cases Posted 5-16-17

1. Real Estate Tax Deeds: Reversed and remanded: Trial court erred in refusing to hold evidentiary hearing on petition to intervene filed by persons who alleged that they lived in the building which purchaser of tax deed was seeking possession of. Neville, J.

No. 2017 IL App (1st) 152951  In re Application of the County Treasurer  Filed 5-16-17 (TJJ)


After the circuit court entered an order directing the county clerk to issue a tax deed to Alliance Partners, Ltd., two occupants of the property subject to the deed filed a petition to intervene, alleging that they received no notice of the proceedings for a tax  deed and asking the court to vacate the order for a tax deed. We hold that the trial court abused its discretion when it dismissed the petition to intervene without holding an evidentiary hearing and the court erred by dismissing the petition to vacate the order  for a tax deed without an evidentiary hearing. We reverse and remand for further proceedings in accord with this order.

2. Election Law: Affirmed: Trial court properly reversed election board decision striking nominees from ballot, as fact that candidates' statements of economic interest were undated and did not list the particular municipality did not authorize removal from ballot. Mason, J.

No. 2017 IL App (1st) 170486  Guerrero v. Municipal Officers Electoral Board of the Village of Franklin Park  Filed 5-16-17 (TJJ)


The Municipal Officer Electoral Board of Franklin Park (Board), its members and objector Robert J. Godlewski (collectively, respondents) appeal from an order of the circuit court of Cook County reversing the Board's final decision, which determined that  petitioners, candidates for various offices in the Village of Franklin Park, were ineligible to appear on the ballot for the April 4, 2017 municipal election. The circuit court ruled that certain defects common to petitioners' respective statements of economic  interests did not invalidate their candidacies and directed that petitioners' names appear on the ballot. We affirm.

3. Criminal Law: Reversed: Evidence was insufficient to find unfit defendant "not not guilty" of aggravated criminal sexual abuse, where defendant had 48 IQ and the executive function capacity of a three-year-old, thus, under the evidence presented, prohibiting proof beyond a reasonable doubt that defendant acted for the purpose of sexual gratification or arousal in grabbing another's penis, a necessary element of the offense. Hutchinson, J.

No. 2017 IL App (2d) 150390  People v. Mayo  Filed 5-16-17 (TJJ)


Defendant, Eduardo Mayo, appeals from the judgment of the circuit court of Kane County finding him “not not guilty” of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(d) (West 2012)) and battery (720 ILCS 5/12-3(a)(2) (West 2012)). Because the evidence was insufficient to support the trial court’s finding as to either offense, we reverse.

4. Criminal Law/Forfeiture: Vacated and remanded: Where out-of-state defendant was arrested and charged with narcotics offenses, and posted bond under circumstances that gave State notice of address defendant would be staying at in this State during pendency of case, notice sent to defendant at out-of-state address regarding sought for forfeiture of defendant's vehicle was insufficient and forfeiture order vacated. Zenoff, J.

No. 2017 IL App (2d) 151203  People v. Pena  Filed 5-16-17 (TJJ)


Defendant, Isidro Pena, appeals the trial court’s order that denied his “Motion for Return of Property.” Defendant sought to vacate the administrative forfeiture of certain property, arguing that he did not receive notice of the forfeiture. The court held that the  State’s notice was sufficient and denied the motion. Defendant contends that the State’s effort to notify him of the proceedings did not meet constitutional standards. We vacate and remand.

5. Criminal Law: Affirmed: Where jury in first degree murder case signed "not guilty" verdict form for first degree murder, "guilty" of second degree murder, and "not guilty" of aggravated discharge of a firearm, entry of verdict of guilty of second degree murder was not plain error in face of defense counsel's failure to object. O'Brien, J. (McDade, J., dissenting).

No. 2017 IL App (3d) 140514  People v. Brown  Filed 5-16-17 (TJJ)


The defendant argues that his conviction of second degree murder must be vacated because a finding of not guilty verdict of first degree murder precluded a finding that he was guilty of second degree murder. The State argues that the jury mistakenly filled  out extra verdict forms. Also, the State argues that the defendant forfeited this issue on appeal because he failed to make a timely objection or include the issue in his posttrial motion and did not argue plain error.

3 Appellate Cases Posted 5-15-17

1. Criminal Law:  Affirmed in part, Vacated in part: Defendant’s statements fall short of a clear claim of ineffective assistance of counsel that would trigger the trial court’s duty to conduct a preliminary Krankel inquiry. “Mere awareness by a trial court that defendant has complained of counsel’s representation imposes no duty on the trial court to sua sponte investigate defendant’s complaint.” The simultaneous convictions of home invasion and residential burglary do not violate the one-act, one-crime rule, because (1) the criminal conduct that was the basis of those offenses consisted of multiple physical acts instead of precisely the same physical act; and (2) under the abstract-elements approach, residential burglary is not a lesser included offense of home invasion.  The State concedes that defendant’s conviction for aggravated unlawful restraint must be vacated pursuant to the one-act, one-crime rule because defendant’s action of unlawfully restraining the victim was inherent in the aggravated battery. We therefore vacate defendant’s conviction for aggravated unlawful restraint.  Gordon, J.


No. 2017 IL App (1st) 142297 People v. King Filed 5-15-2017 (ATH)


Following a bench trial, defendant Lavona King was found guilty of home invasion, residential burglary, aggravated battery, and aggravated unlawful restraint. On appeal, defendant contends that the trial court failed to conduct an inquiry pursuant to People v. Krankel into her claims that trial counsel “ignored” one witness and failed to impeach another. Defendant further contends that certain convictions must be vacated pursuant to the one-act, one-crime rule.

2. Administrative Review:  Affirmed:  Since there was no need to fill an unexpired term in order for the business of the Merit Board to continue, the authority of the sheriff to appoint an individual to an unexpired term cannot be implied as necessary to the Merit Board to perform its duties. Section 3-7002 of the Code did not authorize Sheriff Dart to appoint Mr. Rosales to less than a six-year term. His participation in the hearing and the decision of the Merit Board in this case requires that the Merit Board’s decision be vacated and remanded for a hearing before a legally constituted Merit Board as the circuit court ordered. The sheriff has no powers conferred by the Illinois Constitution, and there are no provisions in section 3-7002 of the Code for the making of interim appointments. In the absence of any constitutional, statutory, or inherent power, the Cook County board had no home rule authority to approve Sheriff Dart’s interim appointment of Mr. Rosales to the Merit Board.  Hall, J.

No. 2017 IL App (1st) 143684-B Taylor v. Dart Filed 5-15-2017 (ATH)

 

Answers to the following certified questions: “Is a Cook County Sheriff’s Merit Board member that was appointed on June 2, 2011 to serve a term which expired on March 19, 2012, a lawfully appointed member of the Merit Board when he presided over Percy Taylor’s Merit Board Hearing on February 27, 2013? If the Merit Board member was not lawfully appointed to the Merit Board, does the decision of October 30, 2013 remain valid or is it rendered void?”

3. Underinsured Motorist Coverage: Affirmed:  Where the terms of an insurance policy are clear and unambiguous, they must be enforced as written unless doing so would violate public policy.  We conclude the box truck plaintiff was driving at the time of the accident was not a “private passenger automobile” within the meaning of section 143.13a of the Code. The policy at issue in this case is a commercial automobile liability policy covering vehicles of a company. Accordingly, because the statutory prohibition does not apply to this policy, we conclude the step-down limits do not contravene Illinois law or public policy. Goldenhersh, J.


No. 2017 IL App (5th) 160110 Worley v. Fender Filed 5-15-2017 (ATH)


Plaintiff argues on appeal the alleged selection of lower step-down underinsured motorist limits ($500,000 for directors, partners, officers, or owners of Davis & Sons or a family member who qualified as an insured, and $40,000 for any other person who qualified as an insured) is void because
the limits are based solely on status.

3 Appellate Cases Posted 5-12-17

1. Criminal Law:  Reversed in part, affirmed in part:  To prove that a defendant had the intent to promote or facilitate the crime, the State must present evidence that establishes, beyond a reasonable doubt, "that (1) defendant shared the criminal intent of the principal or (2) there was a common criminal design." State advanced its case on the theory that there was a "common criminal design" by which defendant showed the intent to promote or facilitate the killing. The common design rule holds that "where two or more persons engage in a common criminal design or agreement, any acts in the furtherance of that common design committed by one party are considered to be the acts of all parties to the design or agreement and all are equally responsible for the consequences of the further acts." Absent other circumstances indicating a common design, presence at the scene and flight therefrom do not constitute prima facie evidence of accountability. The State failed to establish that there existed a common criminal design between defendant and the multitude of armed partygoers who participated in the shooting melee that resulted in the victim’s death. Where there are multiple shooters at a party, the State must show that the victim’s unidentified shooter shared in defendant's alleged criminal design thereby establishing the "common" link between them.  It is undisputed that, at the time of the defendant's AHC conviction, he had two prior convictions for qualifying predicate offenses. As those convictions had not been vacated at the time of the defendant's November 2011 arrest, they could properly serve as predicate convictions for his AHC conviction. Cunningham, J.


No. 2017 IL App (1st) 113085 People v. Cowart Filed 5-12-2017 (ATH)

 

Following a jury trial, the defendant was convicted of first-degree murder under a theory of accountability. Following a simultaneous bench trial, defendant was also convicted of being an armed habitual criminal (AHC). On appeal, this court reversed both the first-degree murder conviction and the AHC conviction. Our supreme court then issued a supervisory order directing us to reconsider that judgment in light of its decision in People v. McFadden.  We now affirm the defendant's AHC conviction, reverse the defendant's first-degree murder conviction, and remand for resentencing. 

2. Criminal Law:  Affirmed:  Under McFadden, a prior AUUW felony conviction, although subject to vacatur under Aguilar, may still serve as a predicate felony for UUWF, until that prior felony has been vacated. There is no dispute that, at the time of the defendant's arrest and conviction in this case, his prior felony conviction for AUUW had not been vacated. Thus, his felon status remained, and the prior AUUW felony could support his UUWF conviction.  We further conclude that the pat-down search was justified under the Terry standard, where (1) the police officers encountered two individuals at night in a vehicle that matched the description of a recently stolen car and (2) the defendant's movements in the car supported a reasonable suspicion that he was armed or had access to a weapon in the vehicle.  Cunningham, J.


No. 2017 IL App (1st) 130203-B People v. Richardson Filed 5-12-2017 (ATH)


Following a bench trial the defendant was convicted of unlawful use of a weapon by a felon (UUWF). On appeal, the defendant argues that: his prior conviction for aggravated unlawful use of a weapon (AUUW), premised on a statutory provision held unconstitutional by our supreme court, could not serve as a predicate felony to support his UUWF conviction; the State's indictment for the charge of UUWF "failed to state a cause of action" because the defendant's predicate AUUW felony was based on an unconstitutional statute; and the arresting police officer's pat-down  search of the defendant was unconstitutional.  Affirmed.

3. Criminal Law:  Reversed and Remanded:  The defendant contends that the final two-thirds of the video recording of his interview should have been redacted because it was irrelevant and more prejudicial than probative. The statements in the final two-thirds of the interview were not relevant, as the defendant did not change his statement or admit to the offenses, and were more prejudicial than probative. As a result, this portion of the video served only to paint the defendant as a “cold-blooded” murderer, bolster the State’s case, and disparage the defendant. We, therefore, find that defense counsel was ineffective in failing to move to redact or otherwise exclude the final two-thirds of the video. Holdridge, J.

No. 2017 IL App (2d) 141251 People v. Hardimon Filed 5-12-2017 (ATH)


The defendant appeals from his convictions for first degree murder and unlawful possession of a weapon by a felon (UPWF). On appeal, the defendant argues that he received ineffective assistance of trial counsel and his UPWF conviction must be reversed.

4 Appellate Cases Posted 5-11-17

1. Estates:  Affirmed:  It is clear from the evidence presented that Selfreliance entered into the contract in good faith, without taking advantage of its position and in ignorance of Anna’s mental incapacity.  Selfreliance was entitled to rely upon the legal presumption that every person is sane until the contrary is proven.  The trial court correctly found that there was no question of material fact regarding Anna’s competency on the date she opened the account at Selfreliance.  The trial court also correctly held that the account agreement should be not be rescinded where there was no evidence in the record to show that respondent knew or should have known of Anna’s incompetency.  We find no support for petitioner’s contention that respondent’s knowledge of Anna’s incompetency is irrelevant or that Selfreliance should return the wrongfully converted funds.  Burke, J.

No. 2017 IL App (1st) 160641  Epstein v. Bochko Filed 5-11-12017 (ATH)

Two caregivers of the decedent obtained power of attorney and opened a joint bank account with the decedent, Anna Polachanin (Anna), as the primary account holder at Selfreliance Ukrainian American Federal Credit Union (Selfreliance).  Over the next few months, the two caregivers deposited much of Anna’s life savings into this joint account from her other bank accounts. The money was then wired from the joint account at Selfreliance to bank accounts in Ukraine. In October 2008, a licensed psychiatrist evaluated Anna and concluded that she had dementia and that her dementia had been present for several years. The public guardian petitioned the Cook County circuit court for a citation to recover assets from the two caregivers, Selfreliance, and others. Shortly thereafter, Anna died, and the Cook County public administrator (petitioner) was appointed to supervise her estate and continued to pursue the petition. The court granted Selfreliance’s motion for summary judgment finding that there was no evidence respondent knew or should have known of Anna’s mental incapacity at the time she opened the joint bank account.

2. Civil Law:  Reversed and Remanded:  When an insured alleges tortious conduct by its agent, although the cause of action accrues at the time of the breach, the statute of limitations is subject to tolling by application of the discovery rule. Accordingly, commencement of the statute of limitations is delayed until the plaintiff knows or reasonably should know of his injury and that it was wrongfully caused. Therefore, the counterclaim and complaint were not time-barred as the cause of action accrued upon denial of coverage.  Cobbs, J.

No. 2017 IL App (1st) 161071 American Family Mutual Insurance Company v. Krop Filed 5-11-2017 (ATH)

 

Plaintiff American Family Mutual Insurance Company brought a complaint for declaratory judgment against Walter Krop and Lisa Krop (collectively, the Krops) seeking a declaration that the Krops were not entitled to coverage or protection under its home insurance policy procured in 2012.  The Krops then brought a counterclaim against American Family and a third-party complaint against American Family’s agent, Andy Vargas.  Both American Family and Vargas moved to dismiss the counterclaim and third-party complaint pursuant to 2-615 and 2-619. The trial court granted the motion with respect to 2-619 and made no rulings as to 2-615. 

3. Criminal Law:  Affirmed:  Grounds for finding parental unfitness under section 1(D) of the Adoption Act stand independently of each other. Accordingly, when a trial court makes a finding of unfitness under one of its grounds, we may affirm that finding of unfitness regardless of the court’s findings with respect to any other ground asserted in the petition at issue. Taking into account respondent’s personal circumstances, her refusal to participate in and complete her services, her lack of interaction with her service providers, her continued (and elevated) drug use, and her failure to maintain regular visitation with Nathan and Nicholas more than sufficiently demonstrate that she has not maintained a reasonable degree of responsibility toward their welfare. Therefore, we find that the trial court’s determination that she was unfit under section 1(D)(b) was not against the manifest weight of the evidence. Fitzgerald Smith, J.

No. 2017 IL App (1st) 162101 In re Nicholas C. Filed 5-11-2017 (ATH)

 

Mother/respondent-appellant appeals from the Cook County circuit court’s order in the instant cause finding her to be unfit under section 50/1(D)(b) of the Adoption Act and ordering the termination of her parental rights over Nicholas C. and Nathan W., her minor children.

4. Civil Law:  Reversed:  We hold that the Board erroneously determined that Dean was required to indicate his independent status on his nominating petitions. Neither section 10-3 nor section 10-4 of the Election Code (Code) contains such a requirement. As appellees have identified no other alleged deficiencies in Dean’s nominating papers, we find that the Board erroneously struck his name from the ballot. Cobbs, J.

No. 2017 IL App (1st) 170404 Dean v. Smith Filed 5-11-2017 (ATH)

 

Petitioner Deyon L. Dean, a candidate for Riverdale village president in the April 4, 2017, election, appeals from an order of the circuit court, confirming a decision of the Municipal Officers Electoral Board of the Village of Riverdale (Board), which sustained objections to his nomination papers. Dean contends that the Board erroneously concluded that section 10-3 of the Code, in conjunction with section 10-4 of the Code, requires an independent candidate to indicate his or her independent status on nominating petitions. In light of the impending election date, we issued an order on March 30, 2017, reversing the circuit court, directing that Dean’s name be included on the ballot, and indicating that an opinion would follow.


1 Appellate Case Posted 5-10-17

1.     Criminal Law: Attempt: Jury Instructions:  Affirmed:   Failure to ask for Instruction at trial and to raise the issue in a postrial motion results in forfeiture of the issue. However, where instructional errors are so grave that they affect the requirements of a fair and impartial trial, the plain error doctrine set forth in Supreme Court Rule 451(c) provides an exception to the forfeiture rule. That rule states that substantial defects in criminal jury instruction “are not waived by failure to make 8 timely objections thereto if the interests of justice require.”  Goldenhersch, J.

No. 2017 IL App (5th) 120079-B   People v. Thompson   Filed 05-10-17 (MGB)



Defendant was convicted of attempt to procure anhydrous ammonia with the intent to manufacture methamphetamine  and tampering with anhydrous ammonia equipment. Defendant was sentenced as a Class X offender pursuant to section 5-4.5-95(b) of the Unified Code of Corrections to 18 years in the Department of Corrections to be followed by 3 years of mandatory supervised release. In the first Appeal, State conceded the tampering conviction could not stand under the one-act, one-crime rule. Following that appeal, the Supreme Court found the admission of lay identification of defendant in a video was harmless error, reinstated the conviction and remanded to the Appellate Court to consider the issue of whether trial court erred in failing to instruct jury on "substantial step" as an essential element of attempt. The erroneous omission of a jury instruction only rises to the level of plain error when its omission creates a serious risk that the jury incorrectly convicted the defendant  because the jurors did not understand the applicable law, so as to severely threaten the fairness of the trial. This standard is a difficult one to meet. Analysis of the issue begins with two preliminary questions: (1) what would a correct instruction have told the jury, and (2) what was the essential disputed issue in the case? Obviously, the correct instruction would have told the jury that a person commits the offense of attempt when he, with the intent to commit the underlying offense, performs any act which constitutes a substantial step toward the commission of the offense. Unlike Bell, where the disputed issue was whether the defendant was accountable for the actions of another in the planning or commission of attempted possession of anhydrous ammonia , the essential disputed issue here is the identity of the suspect and not a "substantial step." The error caused by not giving a “substantial step” instruction is simply not so great nor is the case so factually close that the fundamental fairness of the trial is in question. There is no reasonable probability that the result would be different given the surveillance video, admission by defendant, subsequent recantation by defendant, and presentation of an alibi defense at trial. Because defendant has failed to show prejudice, we will not correct the forfeited error. Where central issue was whether it was defendant depicted in video of theft of anhydrous, we can not say it was unsound trial strategy for counsel to forego "substantial step" instruction and thus was not ineffective. 


6 Appellate Cases Posted 5-09-17

1.     Criminal Law: Mandatory Natural Life Sentence: Unconstitutional as Applied:  Affirmed:   An as-applied challenge requires a showing that the statute violates the constitution as it applies to the facts and circumstances of the challenging party. Cruel and unusual punishments include those that are “disproportionate to the crime.”  The proportionate penalties clause of the Illinois Constitution is coextensive with the federal Constitution’s eighth amendment and states that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.”One of the forms of proportionality review that exists in Illinois states that “[a] statute may be deemed unconstitutionally disproportionate if *** the punishment for the offense is cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the community.” McDade, J.

No. 2017 IL App (3rd) 140881   People v. McKee  Filed 05-09-17 (MGB)



Defendant, who was 18 at the time of offense, was  sentenced to natural life in prison for her complicity in the murder of two men (The Hickory Street Murders) pursuant to statute requiring that mandates a natural life sentence for first degree murder involving more than one victim. 730 ILCS 5/5-8-1(a)(1)(c)(ii). She appeals asserting that her mandatory natural life sentence both constitutes cruel and unusual punishment under the eighth amendment to the United States Constitution (U.S. Const., amend VIII) and violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. 1, § 11).  We appreciate the trial court’s frustration at being forced to impose what it believed, given all of the circumstances, to be an unjustifiably harsh sentence. The legislature has, however, evidenced its intent to bar consideration of those factors by withholding all discretion from the courts to impose any sentence more lenient than natural life upon conviction of more than one first-degree murder. Where, as here, the wrongdoer is legally an adult, played a critical role in developing the criminal plan, and was actively complicit in the execution of the robbery that resulted in the deaths of two men, we do not see that McKee has met her burden of establishing that her natural life sentence would shock the moral conscience of the community and was, therefore, unconstitutional as applied. Nor, given the facts of this case, do we see ourselves as authorized to reduce on appeal a sentence the circuit court was statutorily compelled to impose.

2.     Family Law: Modification of Parenting Time: 2-615 Motion to Dismiss Absent Substantial Change in Circumstances: Affirmed: Father's Motion to Modify Parenting time from every other Tuesday evening and every other which sought to  Wednesday evening through Friday morning to every Wednesday evening through Friday morning,  was not  a minor modification that could proceed absent allegations of a substantial change in circumstances. Trial Court Properly granted 2-615 Motion to Dismiss.    Steigmann, J.

No. 2017 IL App (4th) 170091   In re Marriage of O'Hare   Filed 05-09-17 (MGB)


Change in parenting time was approximately 6%, and would have resulted in roughly 50/50 parenting. Section 610.5(e) of the Dissolution Act states that a trial court may modify parenting time in cases where (1) the modification is in the best interests of the child and (2) the modification is minor. Stradt contends that the trial court did not properly apply the rules of statutory construction when interpreting what Stradt characterizes as the “ambiguous” term “minor modification.” We disagree. Without having to resort to any authorities beyond the plain language of the statute, it is commonly known that the term minor is synonymous with “small” or “inconsequential.” Stradt’s request would change the parenting plan from one parent serving as the primary custodial parent to both parents having - 8 ­ equal parenting time. We decline to interpret such a change as constituting a minor modification within the meaning of section 610.5(e) of the Dissolution Act. Affirmed.

3.     Support of Non-Minor Child with Disability:  Support Award Vacated and Remanded for Hearing Pursuant to Proper Statute:  Probate Court had subject matter jurisdiction and could award support adult disabled child under 750 ILCS 5/513.5 of the Marriage and Dissolution of Marriage Act, rather than by the inherent power granted under the Probate Act.   Steigmann, J.

No. 2017 IL App (4th) 160502   In re Guardianship of Sanders    Filed 05-09-17 (MGB)

Trial Court awarded former Wife support from former Husband for benefit of now adult disabled child, concluding it  could order support pursuant to its “inherent powers” under the Probate Act, so long as the court found that ordering support was in Denise’s best interests. The court then struggled to decide what criteria should be used to determine the amount of support Susan should receive. The court determined that the child support standards of the Dissolution Act did not apply to the current proceedings. Husband appeals, arguing  that (1) the trial court lacked subject-matter jurisdiction to enter the order awarding Susan support and, alternatively, (2) the court failed to properly consider the factors provided by section 513.5(b) of the Dissolution Act. We conclude that section 513.5 of the Dissolution Act (750 ILCS 5/513.5 (West Supp. 2015)) authorizes awards of support from a former spouse to support the former spouse’s adult disabled children. The trial court case number did not limit the trial court’s authority in this respect. However, in this case, we vacate the trial court’s particular award and remand for a new determination of support. We impose that relief to ensure that the court’s decision is made in accordance with section 513.5 of the Dissolution Act.

4.    School Law: Employment of Education Support Personnell: Grant of Summary Judgment Affirmed: Section 10-23.5  of the School Code does not preclude a School District from honorably discharging Educational Support Personnel from full time employment, then offering them part time employment in similar positions.  Holdridge,  J.

No. 2017 IL App (3d) 150643  Haag v. The Board of Education of Streator Elementary School District 44   Filed 05-09-17 (MGB)


The plaintiffs, educational support personnel (ESP) employed by the Board of Education of Streator Elementary School District 44 (Board), brought a declaratory judgment action against the Board, seeking reinstatement to full-time positions along with corresponding payment of back-pay and benefits. The plaintiffs maintained that the Board’s action in issuing each plaintiff an honorable discharge from full-time employment and offering to re-hire each as a part-time employee violated their rights under section 10-23.5 of the School Code (Code). 105 ILCS 5/10­ 23.5 (West 2012). Following cross-motions for summary judgment, the circuit court of La Salle County granted the Board’s motion for summary judgment and denied the plaintiffs’ motion for summary judgment. The plaintiffs appealed. The plaintiffs’ reading of section 10-23.5 would put ESPs on an equal footing with certified teachers when it comes to expectations of continued employment and protections from employment termination or reduction of hours. This concept has been specifically rejected by our courts. Spear, 291 Ill. App. 3d at 120 (“Teachers subject to tenure, a status known as ‘contractual continued service,’ are in a readily distinguishable class of school employees and are provided special statutory procedural safeguards *** which we believe do not apply to [ESPs].”); Buckellew, 215 Ill. App. 3d at 512 (contractual continued service protections do not apply to those employees covered by section 10-23.5 of the Code). Relevant case law clearly establishes a legislative intent under the Code to distinguish between certified teachers and ESPs and to provide greater protections from lay-offs or reduction of hours to teachers. The plaintiffs’ position is contrary to that precedent. The plaintiffs next argue that the Board violated section 10-23.5 of the Code by not recalling them to full-time positions, and instead hiring additional part-time employees so as to obviate the need for the recalling of full-time employees. We disagree. The statutory recall rights provided to ESPs under section 10-23.5 are limited to employees “removed or dismissed” from a specific category of position and requires a school district to recall effected employees to “that category or any other category of position, so far as they are qualified to hold such positions.” 105 ILCS 5/10-23.5 (West 2012). The plaintiffs’ argument, therefore, fails in two regards. First, recall rights under section 10-23.5 of the Code are triggered when employees are “removed or dismissed,” not when their hours of employment have been reduced. See Buckellew, 215 Ill. App. 3d at 509. Second, the plaintiffs point to no authority, either in the School Code or 8 elsewhere, to support their proposition that a school board cannot reduce the hours of employment of employees other than certified teachers.


5.    Freedom of Information Act: Affirmed:  Where College of DuPage contracted with College of DuPage Foundation to perform a governmental function on its behalf, and where Federal Grand Jury Subpoena served upon the Foundation related directly to a governmental function, the Subpoena  is a public record which must be disclosed pursuant to the Freedom of Information Act., 5 ILCS 140/7(2). Summary Judgement in favor of Plaintiff newspaper Affirmed.    Spence, J.

No. 2017 IL App (2d) 160274    The Chicago Tribune v. The College of DuPage    Filed 05-09-17 (MGB)

Plaintiff, the Chicago Tribune (Tribune), brought suit against defendants, the College of Du Page (College) and the College of Du Page Foundation (Foundation), pursuant to the Illinois Freedom of Information Act , seeking disclosure of a federal grand jury subpoena that was served on the Foundation on or about April 13, 2015. The Tribune and defendants filed cross-motions for summary judgment. On March 17, 2016, the circuit court granted the Tribune’s motion as to both defendants and denied defendants’ motions, holding that the subpoena was subject to disclosure under section 7(2) of FOIA. The language and purpose of section 7(2) make clear that a record that is possessed by a party under contract with a public body to perform a governmental function, and that directly relates to that governmental function, “shall be considered a public record of the public body,” so long as it is not exempt. In essence, where each of the elements of section 7(2) is satisfied, certain third-party records are recast as public records of the public body for purposes of FOIA.  Here, we agree with the Tribune that the Foundation is performing a governmental function on behalf of the College by way of the MOU. Defendants take great pains to describe the Foundation’s activities as merely engaging in private fundraising to benefit a charitable cause. While we agree that the Foundation supports the College and is active in raising money for its benefit, it is apparent to us that the Foundation’s activities on behalf of the College encompass far more than just charitable fundraising. When an individual contacts the College seeking to make a donation, the College directs the individual to make the donation to the Foundation; the College will not accept it. All private donations are therefore routed through the Foundation, regardless of origin. The Foundation and the College also closely coordinate fundraising priorities, donor targets, and other affairs that usually would be handled by a public college’s development office. The Foundation’s strategic private-fundraising efforts are then integrated and coordinated with the College’s goals and objectives.

6.    Personal Injury: Mesothelioma Proofs: Choice of Law: Defense Directed Verdict Reversed and Remanded for a new trial:  Where plaintiff seeks to recover damages from a manufacturer because a worker has contracted an asbestos-related disease, the plaintiff must show that  the worker (1) regularly worked in an area where the defendant’s asbestos was frequently used and (2)  did, in fact, work sufficiently close to this area so as to come into contact with the defendant’s product, which is   called the “frequency, regularity and proximity” test.  Where Plaintiff sued in Illinois seeking damages only for injuries inflicted upon him for his exposure to asbestos in 1965, Illinois Law will apply rather than that of Alabama, notwithstanding the fact that plaintiff lived in Alabama and spent most of his working life there.   Neville, J.

No. 2017 IL App (1st) 160274    Startley v. Welco Manufacturing Company      Filed 05-09-17 (MGB)

The estate of Ronnie Startley filed a complaint against Welco Manufacturing Company (Welco), claiming that asbestos from Welco’s products caused Ronnie to contract mesothelioma. The trial court directed a verdict in favor of Welco, because no witness could specify how often Ronnie used Welco’s products in his work. We find the evidence sufficient to create an issue of material fact as to whether use of Welco’s products caused Ronnie to develop mesothelioma. We also hold that Illinois law applies to this case, the estate presented sufficient evidence to show that Welco had a duty to warn users of the dangers of asbestos dust, and the estate presented sufficient evidence to show that the specific kinds of asbestos fiber found in Welco’s products caused Ronnie to develop mesothelioma. Here, Ronnie developed mesothelioma after repeated exposure to asbestos. Although Walter could not say how frequently he and Ronnie used Wel-Cote for their work in Illinois, he testified that they used it for some of their jobs; in the deleted portion of the evidence deposition, he testified that they used Bestwall and Wel-Cote more than other brands, while in the deposition shown at trial, he said only he “imagine[d]” they used Bestwall and WelCote more. Because the estate’s experts testified that relatively low levels of exposure contribute to causing mesothelioma, here, as in Tragarz, a jury could find the exposures to Wel-Cote in Illinois constituted a substantial factor in causing the injury. Accordingly, we reverse the judgment entered in favor of Welco and remand for a new trial.

3 Appellate Cases Posted 5-08-17

1. Criminal Law: Motions To Suppress: Ballistics Testimony Not Subject To Frye Hearing: Retroactivity of Sentencing Amendments to Youthful Offenders: Conviction Affirmed, Sentence Vacated and remanded to Juvenile Court:  While probable cause to arrest does not always equate to probable cause to search the arrestee’s home, it is reasonable to infer, absent evidence to the contrary, that a person will generally keep possessions, including possessions that link that person to the crime, in his or her home.  Toolmark and firearm identification evidence is not new or novel, and the law allowing admission of such evidence is not unsettled so as to require a Frye  hearing.  Amendment that raised the age of automatic transfer from juvenile court to adult court from 15 to 16 years of age should be applied retroactively to "pending" cases, including those pending in the Appellate Courts.  Mikva, J.

No. 2017 IL App (1st) 141379   People v. Rodriguez  Filed 05-08-17 (MGB)



Fifteen-year-old Sebastian Rodriguez was charged with first degree murder in connection with the shooting of a thirteen-year-old. At the time of the offense, 15-year-olds charged with first degree murder were automatically excluded from juvenile court jurisdiction. Sebastian was accordingly tried, convicted, and sentenced as an adult. Following his jury trial, the circuit court sentenced Sebastian to 50 years in prison: 25 years for the murder and 25 additional years pursuant to a mandatory firearm enhancement. Shortly after Sebastian filed his notice of appeal, the Illinois legislature raised the age of automatic transfer from juvenile court to criminal court for an individual charged with first degree murder from 15 to 16 years of age and adopted additional sentencing guidelines for defendants who were under the age of 18 at the time of their offenses, including making firearm enhancements discretionary, rather than mandatory, for such individuals.  Sebastian does not argue that the police lacked probable cause to arrest him for Sameere’s murder, but that having this did not necessarily mean they also had probable cause to search his home for specific evidence. According to Sebastian, the complaint submitted by Detective Bean in support of the search warrant was defective because it failed to establish a sufficient nexus between Sameere’s shooting and the items sought from Sebastian’s home 10 days later. We are satisfied that Detective Bean’s complaint established probable cause to search Sebastian’s home. The police sought, not only the murder weapon and a list of intended victims, but a specific article of clothing—a dark-colored or gray hooded sweatshirt—identified by three eyewitnesses as something Sebastian was wearing at the time of the shooting. Toolmark and firearm identification evidence is not new or novel, either pursuant to the plain meaning of those words or in accordance with the analysis employed by our supreme court in McKown. Far from being unsettled, the law in Illinois is consistent in its admission of such evidence, and any studies related to the reliability of such testing goes to weight rather than admissibility.   Because we hold that the amendment to section 5-130 increasing the minimum age for mandatory transfer of a defendant charged with first degree murder from 15 to 16 applies retroactively, we vacate Sebastian’s sentence and remand his case to the juvenile court, where the State may elect to seek a discretionary transfer.

2. Sexually Dangerous Persons Act: Affirmed: Requiring Defendant to undergo two evaluations under the SDPA where the initial Petition did not meet the criteria required for pleadings under the SDPA,  where the State filed a complying Petition after the evaluations were complete, did not implicate  Defendant's right not to incriminate himself or violate due process where findings were used only in SDPA proceeding and State did not pursue criminal prosecution. .   Mikva, J.

No. 2017 IL App (1st) 130882   People v. White     Filed 05-08-17 (MGB)


Corbitt White was found to be a sexually dangerous person and, pursuant to the Sexually Dangerous Persons Act (SDPA), was committed to the custody of the Illinois Department of Corrections until a court finds him no longer dangerous. On appeal, Mr. White argues that his rights to due process, to confrontation, and against self-incrimination under the United States and Illinois constitutions were violated because he was required by court order to participate in the mental health evaluations required by the SDPA, based on a petition that did not meet the requirements of the SDPA and before the State had elected to proceed solely under the SDPA. There is no privilege against self-incrimination in SPDA proceedings. It is apparent that an SDPA petition serves two key functions: to provide notice to the defendant that the State is electing to proceed under the SDPA and to set forth the allegations to be proved at the SDPA hearing.  Even if the February 2010 petition did not satisfy all the requirements to fully constitute a SDPA petition, it certainly provided notice to Mr. White that the evaluations the State sought for Mr. White, which he ultimately underwent, were for the purpose of evaluating him as a sexually dangerous person pursuant to the SDPA. And, following the evaluations, the State’s September 2010 petition fully - 23 ­ No. 1-13-0882 complied with the SDPA petition requirements to serve as the basis for the SDPA hearing, providing Mr. White with full notice of the allegations against him and ample time prior to the hearing to prepare. Affirmed.

3. Civil Law: Resulting Trusts:  Sua Sponte consideration of Personal Jurisiction:   Affirmed:  A resulting trust generally arises where one person purchases property with his own funds and allows title to be taken in the name of another. The burden of proof is upon the party seeking to establish a resulting trust, and the evidence must be clear, convincing and unmistakable. In order to establish a resulting trust, however, the intent of the parties must be alleged and established because a court cannot impose a trust where the intent of the parties is unclear. While it is true a gift may exist where the grantor takes title to the property in the name of herself and another person jointly, “if the purchase price was paid by only one of such grantees, this indicates an intent that the grantee is the only one beneficially interested in the property. It is not improper for a Trial Court to raise the issue of whether personal jurisdction has attached in an action where it is asked to  Harris, J.

No. 2017 IL App (1st) 162142    Dore v. Quezada    Filed 05-08-17 (MGB)

Plaintiff-appellant, John N. Dore d/b/a John N. Dore and Associates, obtained a judgment in Cook County circuit court against Carlos Quezada, Jr., (Quezada) and Tapas Quezada, Inc. (Tapas Quezada) (collectively, defendants).  Plaintiff initiated supplemental proceedings pursuant to section 2-1402 of the Code of Civil Procedure with the filing of third-party citations against Baongoc Aggen and Broadview Cooperative Apartments, Inc. (Broadview) (collectively, respondents). Plaintiff served a citation upon Quezada by substitute service  by leaving a copy with Aggen at the Broadview apartment. Pursuant to the citation  proceeding against Broadview and Aggen, plaintiff identified Aggen’s ownership of the Broadview apartment, arguing that it was also owned by Quezada and therefore subject to turnover. After conducting an evidentiary hearing, the trial court found the Broadview apartment was exclusively Aggen’s property. Accordingly, the trial court denied the motions for judgments against respondents and terminated the proceedings. The trial court quashed Quezada’s citation served via substitute service Even accepting plaintiff’s argument that the stock (held in joint tenancy with Quezada) shows an intent to provide a gift, plaintiff cannot overcome the fact that Aggen provided the funds for the entire transaction. The evidence before the trial court showed Aggen, not Quezada, provided the entire purchase price of the Broadview apartment. Moreover, Aggen is the sole party to the proprietary lease, the sale agreement, the bill of sale, and the closing statement. The record also shows that Aggen’s parents emigrated to the United States on October 1, 2015. The impending arrival of her parents supports the explanation regarding the stock transfer only weeks before, on September 19, 2015. This documentary evidence showing Aggen as the sole purchaser is enough to support the trial court’s finding of a resulting trust in Aggen’s favor.  We conclude the trial court’s finding that the Broadview apartment was held in a resulting trust for the benefit of Aggen was not against the manifest weight of the evidence. Accordingly, Quezada had no interest in the Broadview apartment that could be used to satisfy the judgment against him.  After disposing of the proceedings against the third-party respondents, the only matter left pending before the trial court was the citation served on Quezada. The citation had called for him to appear on October 19, 2015. Quezada failed to appear on that date and  the trial court issued a rule to show cause as to why he should not be held in contempt. Accordingly, the next step would be for the trial court to hold Quezada in contempt. However, any such contempt order would be void if the trial court lacked personal jurisdiction over Quezada.  Given this procedural posture and the fact this was a supplemental proceeding under Rule 277, we find no error in the trial court’s sua sponte inquiry regarding its personal jurisdiction over Quezada. 


2 Appellate Cases Posted 5-5-17

1. Administrative Review: Affirmed: The law is well settled that when a police pension board awards a line-of-duty pension to an applicant, such applicant becomes eligible to pursue Benefits Act health insurance benefits. Pension Board’s acknowledgement that the Village’s potential liability under the Benefits Act would impact the Village directly contradicts the Pension Board’s conclusion that Villages interests would not be adversely affected by the proceedings. We cannot conclude that the Village’s interests would not have been adversely impacted absent its participation in the Pension Board proceedings. Accordingly, the Pension Board’s denial of their petition to intervene was an abuse of discretion and must be reversed. Next, we turn to the question of whether the issue decided in the workers’ compensation proceeding was identical to the one presented to the Pension Board. The discreet question of whether Portincaso had been injured during the 2010 arrest had already been previously answered and fully litigated in front of the Commission. Therefore, Portincaso was collaterally estopped from relitigating the same issue in front of the Pension Board. Hall, J.

No. 2017 IL App (1st) 153167 Village of Alsip v. Portincaso Filed 5-5-17 (AMT)


This is an appeal from the final judgment entered by the circuit court of Cook County, which reversed the Board of Trustees of the Alsip Police Pension Fund’s award of a line-of-duty disability pension to plaintiff James Portincaso. On appeal, the parties raise several issues for review; however, we only address the dispositive issues of (1) whether the Board of Trustees of the Alsip Police Pension Fund (Pension Board) abused its discretion in denying the Village of Alsip’s (Village’s) petition to intervene, and (2) whether the decision in the Illinois Workers’ Compensation Commission (Commission) litigation precluded the redetermination of whether James Portincaso was injured on December 11, 2010. Affirmed.

2. Civil Law:  Affirmed: This court most recently recognized that the General Assembly intended the amendment in question to the Illinois Wage Payment and Collection Act (Act) to not have effect until January 2011. As a result we agree with the circuit court that the amendment should be applied prospectively only. Because plaintiff’s last date of payment was sometime before the effective date of the amendment, plaintiff’s action for damages accrued prior to the amendment. Accordingly, in order to award plaintiff the statutory damages established by the amendment, the amendment would require retroactive application. The law in Illinois is clear that a plaintiff is not entitled to double recovery. In this case, plaintiff filed his claim for outstanding wages as a breach of contract action in Iowa and Cook County. We recognize that the Illinois action was filed prior to the jury verdict in the Iowa case; however, it is undisputed that the Illinois action was based on the same outstanding wages sought in the Iowa case, which ultimately were awarded by the Iowa jury. Accordingly, plaintiff has received all that he is entitled to recover in outstanding wages. The circuit court properly dismissed plaintiff’s claim for attorney fees for the Iowa action on the basis of collateral estoppel. Lampkin, J.

No. 2017 IL App (1st) 160530 Sommese v. American Bank & Trust Co., N.A. Filed 5-5-17 (AMT)

 

Plaintiff appeals the order of the circuit court dismissing his claim against defendant, American Bank & Trust Company, N.A., to recover statutory damages and attorney’s fees pursuant to the Act. Plaintiff contends his damages claim should not have been barred because it was filed after the effective date of the 2011 amendments to the Act and, therefore, did not require retroactive application thereof. Plaintiff additionally contends the circuit court erred in rejecting his claim for attorney’s fees pursuant to the doctrine of collateral estoppel.  Affirmed. 

3 Appellate Cases Posted 5-4-17

1. Personal Injury: Affirmed: Trial court properly granted summary judgment to defendants in case where plaintiff moved drywall at a construction site he was working at, as evidence proved that it was unreasonable for plaintiff to have moved drywall, and affidavits of plaintiff's expert properly stricken as conclusory and without basis in expressed fact. McBride, J.

No. 2017 IL App (1st) 151226  Snow v. Power Construction Company, LLC  Filed 5-4-17 (TJJ)


Plaintiff John T. Snow filed a negligence action against defendants Power Construction Company, LLC (PCC), Power Engineering and Contracting Corporation (PCEC) (collectively Power), and Thorne Associates, Inc. (Thorne), after he was injured when several sheets of drywall fell on him while at a construction site. Plaintiff was employed by third-party defendant, Professionals Associated Construction Layout & Survey Co., Ltd. (Professionals), as a surveyor and was on the site in his professional capacity. The trial court granted summary judgment in favor of PCC, PCEC, and Thorne. Plaintiff appeals, arguing that the trial court erred in (1) granting summary judgment because there was a material question of fact regarding the stacking of the drywall and the responsibility for safety of persons on the jobsite, (2) ruling that reliance on an alleged custom and practice could make an injury unforeseeable as a matter of law; (3) striking portions of the affidavits of plaintiff and Richard Hislop tendered in response to the motions for summary judgment, and (4) quashing the notice of deposition for John Karp, president of PCC. Affirmed.

2. Long-Arm Jurisdiction: Reversed: Trial court erred in denying defendant university motion to dismiss for lack of personal jurisdiction in defamation case where plaintiff alleged that unpaid doctor on university's staff, as university did not have sufficient contacts with this State to invoke "lon-arm" jurisdiction, and plaintiff could not successfully plead that defendant doctor was agent of university. Wright, J.

No. 2017 IL App (3d) 160382  Wesly v. The National Hemophilia Foundation  Filed 5-4-17 (TJJ)


On September 18, 2015, the plaintiff, Osvaldo H. Wesly, M.D., filed a defamation action against Craig M. Kessler, M.D., and Georgetown University, together with various other defendants, including the National Hemophilia Foundation, Michael  Tarantino,  M.D., Kollet Koulianos, the Bleeding and Clotting Disorders Institute, an Illinois not-for-profit corporation, Bob Robinson, Bleeding Disorders Alliance Illinois, an Illinois not-for-profit corporation, Danielle Baxter, Great Lakes Hemophilia  Foundation, Inc., a Wisconsin corporation, and Kathryn Reese-Kossow. On December 8, 2015, Georgetown University filed a motion to dismiss for lack of personal jurisdiction pursuant to section 2-301 of the Illinois Code of Civil Procedure (Code) (735  ILCS 5/2-301 (West 2014)). On June 9, 2016, the trial court issued an order denying Georgetown University’s motion to dismiss based on lack of personal jurisdiction. Georgetown University appeals this ruling. Reversed.

3. Criminal Law: Conviction reduced and remanded for resentencing: Failure of State to prove that church within 1,000 feet of defendant's methamphetamine manufacturing was functioning priamrily as a place of worship on date in question, required that aggravated meth manufacturing  conviction be reduced to simple manufacturing and remanded for resentencing. Moore, J. (Welch, J., concurring in part and dissenting in part).

No. 2017 IL App (5th) 140300  People v. Fickes  Filed 5-4-17 (TJJ)


The defendant, Michael Fickes, appeals his conviction, following a trial by jury in the circuit court of Fayette County, for the offense of aggravated participation in methamphetamine manufacturing. For the following reasons, we affirm in part, reduce the  defendant’s aggravated participation in methamphetamine manufacturing conviction to simple participation in methamphetamine manufacturing, and remand for a new sentencing hearing on that conviction.

2 Appellate Cases Posted 5-3-17 

1. Criminal Law: Affirmed: Petition for certificate of good conduct properly denied by trial court, as defendant was still incarcerated at time of petition, since purpose of certificate is to enable eligible persons to seek gainful employment by absolving prospective employers from liability from hiring them. As defendant was not entitled to be hired in view of his custody status, petition properly denied. Knecht, J.

No. 2017 IL App (4th) 160256  People v. James  Filed 5-31-7 (TJJ)


Defendant, Thomas R. James, appeals from the trial court’s dismissal of his petition for issuance of a certificate of good conduct under section 5-5.5-30 of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-5.5-30 (West Supp. 2015)). We affirm.

2. Parental Rights/Appellate Jurisdiction: Appeal dismissed: Failure of parent to file notice of appeal within 30 days of order terminating parental rights required dismissal of appeal, notwithstanding seeming failure of trial court to give parent appeal rights. Cates, J.

No. 2017 IL App (5th) 160482  In re Lu. S.  Filed 5-3-17 (TJJ)


D.S. (Mother) appeals the termination of her parental rights. Because we lack jurisdiction to review this cause, we must dismiss her appeal.

5 Apellate Cases Posted 5-2-17

1. Criminal Law: Sentences vacated, remanded: Non-minimum aggregate sentences totalling 100 years for 16-year-old defendant for first degree murder and attempt first degree murder consituted a de facto life sentence in violation of Miller v. Alabama. Pierce, J. (modified on denial of rehearing).

No. 2017 IL App (1st) 141117  People v. Morris  Filed 3-28-17 (TJJ)


Defendant, Pharoah Morris, who was 16 years old at the time of the offense, was convicted of first degree murder, attempted murder, and aggravated battery with a firearm following a jury trial. He was sentenced to an aggregate sentence of 100 years in prison. Defendant appeals, arguing that (1) he received a de facto life sentence without meaningful consideration of mitigating circumstances, (2) the applicable sentencing statutes that mandate firearm enhancements are facially unconstitutional under the Federal and Illinois Constitutions, and under the Illinois Constitution as applied to him, (3) section 5-130(1) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/5-130(1) (West Supp. 2015)), which automatically transfers 16-year-olds charged with murder and attempted murder to adult court, therefore subjecting them to mandatory adult sentencing, violates the Federal and Illinois Constitutions and due process, and (4) he is entitled to a new sentencing hearing under the newly enacted section 5-4.5-105 of the Unified Code of Corrections (Code) (730 ILCS 5/5-4.5-105(a), (b) (West Supp. 2015)), which requires trial courts to consider certain factors before sentencing and gives trial courts discretion to impose firearm enhancements for individuals under 18. For the reasons that follow, we remand for resentencing.

2. Foreign Judgments/Citqtion to Discover Assets: Affirmed in part and reversed in part: Trial court properly denied motion by plaintiff for "turnover" of insurance policy amounts in connection with settlement of class action in junk fax case, where Canadian court had previously determined that policy did not cover the settlement; but trial court erred in not enforcing citation proceedings in connection with insurer's efforts to discover assets against plaintiff to satisfy Canadian judgment for costs and other expenses. Pierce, J.

No. 2017 IL App (1st) 143000  CE Design Ltd v. Healthcraft Products, Inc.  Filed 5-2-17 (TJJ)


Plaintiff CE Design Ltd. (CE Design), individually and on behalf of the certified class, appeals from an order of the circuit court in a collection case denying CE Design’s motion for turnover and its citation to discover assets. CE Design argues the court erred in recognizing the judgment of a Canadian court finding it had jurisdiction over CE Design and that ING Insurance Company of Ontario (ING) had no duty to defend or indemnify against a judgment held by CE Design against its insured, HealthCraft Products, Inc. (HealthCraft). ING obtained a judgment against CE Design in the Canadian proceeding for fees and costs. The circuit court denied enforcement of the Canadian judgment against CE Design finding it unenforceable because it did not comport with Illinois and United States standards of due process. ING cross-appeals. For the following reasons, we affirm the circuit court’s dismissal of CE Design’s motion for turnover and citation to discover assets against ING and we reverse the circuit court’s dismissal of ING’s citation to discover assets against CE Design.

3. Criminal Law: Affirmed: Testimony that police were responding to a call of "shots fired"" in gun case was admissible to show why police responded to scene in manner in which they did, and was not an abuse of discretion, and failure to give any limiting instruction was not reversible error; use of "mug shot" was not error where evidence clearly showed that photo was in connection with defendant's arrest that day, not on any previous occasion. Mason, J. (Hyman, J., dissenting).

No. 2017 IL App (1st) 150054  People v. Irwin  Filed 5-2-17 (TJJ)


On March 4, 2012, around 7:30 p.m., police officers in Maywood responded to a radio call of “shots fired.” On their way to the location specified in the call, the officers saw a vehicle traveling at high speed run through a red light and head past them in the opposite direction. The officers pursued the car with lights and siren activated, but the car did not stop until blocked by another responding police vehicle. After all four occupants exited the car, one of the officers discovered a handgun on the floor in the front passenger seat where defendant Kristopher Irwin had been sitting. Irwin was tried and convicted of aggravated unlawful use of a weapon (AUUW) based on his failure to possess a valid Firearm Owner’s Identification (FOID) card. Irwin was sentenced to three years’ imprisonment. Irwin raises several issues on appeal relating to the admission of evidence during his trial. Finding no error warranting a new trial, we affirm.

4. Criminal Law: Affirmed: Trial court properly denied motion to suppress evidence; oficer's actions in ordering passengers out of car during traffic stop and subsequent pat-down search resulting in recovery of weapon did not violate fourth amendment. Mason, J.

No. 2017 IL App (1st) 150500  People v. Veal  Filed 5-2-17 (TJJ)


Following a 2014 bench trial, defendant Israel Veal1 was convicted of several counts arising out of his possession of a handgun, all of which merged into his armed habitual criminal conviction, for which he was sentenced to nine years’ imprisonment. Veal’s sole argument on appeal is that the trial court erroneously denied his pretrial motion to quash arrest and suppress evidence of the gun. Finding no error, we affirm.

5. Criminal Law: Affirmed: Trial court properly dismissed counterfeiting charge agasint defendant, as prosecution was aware of facts giving rise to the charge at time it earlier charged defendant only with possession of marijuana. Neville, J.

No. 2017 IL App (1st) 161231  People v. Smith  Filed 5-2-17 (TJJ)


When police searched Jerome Smith’s home, they found marijuana and counterfeit currency. Smith admitted that he used equipment police found in his home to make the counterfeit currency. The State accused Smith of marijuana possession, and he pled guilty to the charge. More than a year later, prosecutors persuaded a grand jury to indict Smith for manufacturing counterfeit currency, where the grand jury based the new charge on evidence the State obtained in connection with the search that led to the charge of marijuana possession. The circuit court granted Smith’s motion to dismiss the counterfeiting charge, as the circuit court found that the compulsory joinder statute required the State to charge Smith with counterfeiting when it prosecuted Smith for marijuana possession. We find that under the reasoning of People v. Hunter, 2013 IL 114100, the new charge violates the compulsory joinder statute. Accordingly, we affirm the trial court’s judgment.

3 Appellate Cases Posted 4-28-17

1. Firearm Concealed Carry Act: Affirmed: Trial court properly upheld State police decision to deny conceal carry license for firearm to applicant with numerous arrests for offenses, and Concealed Carry License Review Board could properly consider hearsay contained in prior police arrest reports. Ellis, J.

No. 2017 IL App (1st) 160706  Jankovich v. The Illinois State Police  Filed 4-27-17 (TJJ)


Plaintiff Michael Jankovich appeals from the rejection of his application for a concealed-carry license under the Firearm Concealed Carry Act (Act) (430 ILCS 66/1 et seq. (West 2014)) by defendants the Illinois State Police (ISP) and the Concealed Carry Licensing Review Board (Board) (collectively, defendants). The Chicago police department and Cook County sheriff’s office filed objections to plaintiff’s application, which the Board affirmed. Plaintiff then filed a petition for review of the Board’s decision in the circuit court of Cook County, which the circuit court denied.

2. Attorneys' Liens: Affirmed: Documents submitted by attorney who represented client in family law matters unrelated to client's personal injury suit did not have a lien on proceeds of that personal injury action, where documents established only a promise to pay and not a lien on the injury action, and trial court properly dismissed lawyer's claim that he was entitled to share of the proceeds of the personal injury settlement. Hoffman, J.

No. 2017 IL App (1st) 161609  Mordkovich v. Tishman Speyer Properties  Filed 4-28-17 (TJJ)


Douglas B. Warlick & Associates (Warlick) appeals from an order of the circuit court dismissing its motion to intervene and for an adjudication of its alleged lien on the sums paid in settlement of this personal injury action. Based upon the following  analysis, we affirm the judgment of the circuit court.

3. Parentage Act/Attorneys' Fees: Reversed and remanded: Notwithstanding lack of written attorney agreement, mother and mother's attorney were still entitled to a hearing on request for interim attorneys' fees in connection with child support and custody issues under Marriage Act, and trial court failure to provide such hearing based on lack of written agreemtn was error. McLaren, J.

No. 2017 IL App (2d) 160554  In re Parentage of J.W.  Filed 4-28-17 (TJJ)


During the proceedings in this parentage action, originally filed under the Illinois Parentage Act of 1984 (Parentage Act of 1984) (750 ILCS 45/1 et seq. (West 2008)), attorney Jerry Kinnan filed three motions for “Interim Attorney Fees” on behalf of his client, petitioner Carol M., seeking fees from respondent Larry W. The trial court dismissed Carol’s third motion for interim attorney fees on the grounds that she was actually seeking contribution for final attorney fees and that Carol and Kinnan did not have a written engagement agreement. Carol appeals the trial court’s dismissal of her third motion for interim attorney fees. Carol argues that the trial court erred by (1) failing to expeditiously schedule a hearing on her first two motions for interim attorney fees, and (2) determining that a written engagement agreement was required. We reverse and remand for further proceedings consistent with this opinion.

5 Appellate Cases Posted 4-27-17

1. Loan Agreements: Affirmed as modified: In agreement between "senior" lender and "junior" lender that provided that junior lender would not sue borrower until senior lender had been paid proceeds of its loan, junior lender was prohibited from suing borrower, even though senior lender violated agreement by lending borrower additional funds, but senior lender's lien only extended to the initial loan amount, not the later loaned funds. Schostok, J.

No. 2017 IL App (2d) 160656   Bowling Greene Sports Center, Inc. v. G.A.G. LLC  Filed 4-27-17 (TJJ)


The instant controversy is a dispute between a senior lender and a junior lender. The senior lender, Gold Coast Bank, loaned over $3.4 million to the defendants, G.A.G. LLC, James P. Gochis, and Peter Gochis. The junior lender, Bowling Green Sports  Center Inc. (Bowling Green), loaned $405,000 to the defendants. Gold Coast Bank and Bowling Green executed an intercreditor agreement that provided that Bowling Green would not sue to recover any money from the defendants until the defendants had  repaid Gold Coast Bank in full. The intercreditor agreement also provided that Gold Coast Bank agreed not to increase its loan to the defendants without first receiving Bowling Green’s consent. Despite that provision, Gold Coast Bank subsequently increased its loan to the defendants by $51,000, without Bowling Green’s knowledge or consent. After the defendants failed to timely repay Bowling Green, Bowling Green filed a breach-of-contract claim against the defendants. Gold Coast Bank intervened in the proceedings and sought to have Bowling Green’s complaint dismissed on the basis of the intercreditor agreement. The circuit court of Du Page County found that, although Gold Coast Bank had breached the intercreditor agreement, the agreement still required that Bowling Green’s complaint be dismissed. Bowling Green appeals from that order. For the reasons that follow, we affirm as modified.

2. Criminal Law: Affirmed: In case where trial court ruled that prosecution violated Batson by engaging in racial discrimination in use of peremptory challenges, trial court action in disimissing entire venire and beginning anew was not an abuse of discretion, over claim by defense that trial court should have had single juror improperly challenged seated, where that request was not made until day after initial venire had been excused; aggregate sentences totalling 86 years in connection with murder and armed robbery by defendant of his mother not improper. Schostok, J.

No. 2017 IL App (2d) 140715  People v. Byrd  Filed 4-27-17 (TJJ)


Defendant, Franklin T. Byrd, appeals from the judgment of the circuit court of Winnebago County sentencing him to an aggregate prison term of 86 years on his convictions of intentional first-degree murder (720 ILCS 5/9-1(a)(1) (West 2008)) and armed robbery (720 ILCS 5/18-2(a)(4) (West 2008)). He contends that the trial court abused its discretion in refusing to seat a potential juror as a remedy for a violation of Batson v. Kentucky, 476 U.S. 79 (1986), and in imposing the sentence. Because the court did not abuse its discretion in refusing to seat the juror or in imposing the sentence, we affirm.

3. Domestic Relations: Reversed and remanded: In dissolution of marriage proceedings, wife's counsel's statment that wife was not objecting to dissolution was not the same as consenting to dissolution, so that trial court entry of bifurcated judgment of dissolution prior to the expiration of statutory six-month period was error. Holdridge, J.

No. 2017 IL App (3d) 160323  In re Marriage of Faletti  Filed 4-27-17 (TJJ)


The respondents, Thomas Kasher, guardian of the estate of Virginia Faletti, and Teresa Convery, guardian of the person of Virginia Faletti, appeal from the circuit court’s denial of their motion to vacate the bifurcated judgment of dissolution of marriage.  The respondents argue the circuit court abused its discretion when it entered the bifurcated judgment of dissolution of marriage without jurisdiction, consent, or notice. Reversed and remanded.

4. Sexually Violent Persons: Reversed and remanded: Trial court erred in denying sexually violent person's request for discharge hearing under Sexually Violent Persons Commitment Act. Lavin, J.

No. 2017 IL App (1st) 153201  In re Commitment of Rendon  Filed 4-27-17 (TJJ)


This appeal is brought by the fourth person ever committed as a sexually violent person (“SVP”) under the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 et seq. (West 2014)) in Cook County. Respondent, Enrique Rendon, voluntarily stipulated to being an SVP and was civilly committed in 2002, then underwent sex offender treatment designed to reduce his risk of recidivism. After being recommended for release in 2010, respondent entered conditional release, where he remained in the community while scrupulously supervised by Department of Human Services (the Department) mental health professionals. The State then successfully moved to revoke his conditional release in 2012, claiming that he was a danger to the safety of others in the community and that he had violated several conditions of his release, including his alleged failure to honestly answer questions about his sexual behavior and fantasies in polygraph examinations. This court reversed that judgment, and once the mandate issued, respondent was returned to conditional release, over the State’s specific objection. In re Commitment of Rendon, 2014 IL App (1st) 123090, ¶ 41. This particular appeal stems from the trial court’s determination, following review of respondent’s 2015 annual mental health report, that there was no probable cause to find respondent had made sufficient progress in treatment such that he was no longer an SVP. This probable cause decision came despite some noted progress in treatment and even though he obtained the lowest possible score in standard testing designed to gauge the risk of sexual offender recidivism. The trial court therefore denied respondent a full evidentiary hearing in the matter. Had respondent succeeded in obtaining a full hearing, it would have been his first chance to argue whether he had reached such a low risk of recidivism as to warrant discharge. We reverse and remand with instructions for the trial court to conduct such an evidentiary hearing.

5. Municipal Taxation/Internet Sales: Reversed and remanded: "Prengotiation fees" charged by online travel companies in connection with hotel booking were not subject to City of Chicago municipal hotel accomodation tax, and summary judgment in favor of City was error. Lavin, J.

No. 2017 IL App (1st) 153405  City of Chicago v. Expedia, Inc  Filed 4-27-17 (TJJ)


This appeal arises from the Cook County circuit court’s order granting summary judgment in favor of the city of Chicago (the City) and against certain online travel companies (OTCs), namely Expedia, Inc., and its subsidiaries, Hotels.com, L.P., and Hotwire, Inc. (defendants).1 Specifically, the court granted the City judgment on its claim that defendants had failed to collect, and remit to the City, the correct amount of the Chicago Hotel Accommodations Tax (CHAT) (Chicago Municipal Code § 3-24-010 et seq. (1990)). Defendants now appeal. Reversed and remanded.

4 Appellate Cases Posted 4-25-17

1. Criminal Law: Affirmed: Prima facie case that prosecutors engaged in racial discrimination not shown where prosecution had selected three African-Americans as jurors at time defense counsel claimed that striking two others was "pattern" of discrimination; instruction proferred by defense as to definition of "firearm" properly refused; and defendant proved guilty beyond a reasonable doubt over claim that identifications of defendant not sufficient to convict and that alleged weapon was not proved to be a firearm. Hyman, J.

No. 2017 IL App (1st) 142737  People v. Austin  Filed 4-25-17 (TJJ)


Defendant Marcus Austin was convicted by a jury of armed robbery, aggravated vehicular hijacking, and aggravated assault. He argues on appeal that (i) after a Batson challenge, the trial court improperly collapsed the three-step procedure; (ii) the trial court erred by refusing to instruct the jury on exclusions to the definition of “firearm”; (iii) the prosecutor’s closing argument improperly commented on Austin’s silence at the time of his arrest; and (iv) the evidence to sustain his conviction for armed robbery was insufficient. Affirmed.

2. Criminal Law: Affirmed: Evidence sufficient to prove beyond a reasonable doubt that defendant was guilty of child endangerment for leaving 6-month-old child in a car unattended, where evidence established that child had been in car for at least 10 minutes and perhaps "upward" of an hour; trial court properly denied request to conduct motion to suppress statements sought to be done during trial; and trial court properly denied motion for new trial based on "newly discovered evidence." Hyman, J.

No. 2017 IL App (1st) 152772  People v. Rudell  Filed 4-25-17 (TJJ)


Sara Rudell challenges her conviction for child endangerment after leaving her six-month-old baby alone in a car. On appeal, she argues (i) the insufficiency of the evidence undermines her conviction, (ii) her trial counsel should have been allowed to move to suppress her statements to police after trial testimony had begun, (iii) the trial court should have granted her a new trial based on newly discovered evidence, and (iv) cumulative error requires reversal. We reject each of these claims and affirm.

3. Medical Malpractice: Affirmed: Trial court ruling permitting two "related" defendants to be represented by separate counsel, but limiting the attorneys' participation at particular points of medical malpractice trial, not an abuse of discretion; trial court properly permitted plaintiff to supplement Rule 213 disclosures; plaintiff's experts did not testify improperly, or beyond their expertise; and evidence was sufficient to support verdict for plaintiff. O'Brien, J. (Carter, J., sp. concurring).

No. 2017 IL App (3d) 150502  Gapinski v. Gujrati  Filed 4-24-17 (TJJ)


Plaintiff Rebecca Gapinski, individually and as the administrator of the Estate of Daniel Gapinski, deceased, sought to recover for medical malpractice she alleged was committed by defendant Meena Gujrati, M.D., an employee of defendant Central Illinois  Pathology, S.C. (CIP), and resulted in Daniel’s death from renal cell cancer. The jury found in favor of Rebecca, and the trial court entered a judgment against Gujrati and CIP in the amount of $1,727,409.50, jointly and severally. Gujrati and CIP  appealed. We affirm.

4. Prospective Nuisance: Reversed and remanded: Trial court improperly dismissed for failure to state a cause of action complaint by nearby landowners that proposed silica sand mine in village would cause damage to their land and be a nuisance. Lytton, J. (McDade, J., concurring in part and dissenting in part).

No. 2017 IL App (3d) 150547  Whipple v. The Village of North Utica  Filed 4-25-17 (TJJ)


Plaintiffs, 13 owners and possessors of land in La Salle County, filed a three-count complaint against defendants, the Village of North Utica and Aramoni LLC, seeking to invalidate several village ordinances that allowed Aramoni to operate a silica sand  mine in Waltham Township and requesting an injunction based on prospective nuisance. The trial court granted defendants’ motion to dismiss plaintiffs’ second amended complaint under section 2-615 of the Code of Civil Procedure, and plaintiffs’ appeal. We reverse the dismissal of counts I and III and remand for further proceedings.

1 Appellate Case Posted 4-24-17

1. Statute of Limitations: Affirmed: Court of Claims properly dismissed State employee claim for attorneys' fees incurred in connection with State ethics investigation, as claim was governed by two-year statue of limitations, not five-year statute as argued by employee, and claim was thus filed too late. Harris, J.

No. 2017 IL App (1st) 162068  Krozel v. The Illinois Court of Claims  Filed 4-24-17 (TJJ)


Plaintiff, Lainie Krozel, appeals the order of the circuit court granting defendants' motion to dismiss her complaint for writ of certiorari, which sought review of the Court of Claims' dismissal of her indemnity claim. On appeal, plaintiff contends her complaint should be reinstated because (1) the Court of Claims erroneously applied the two-year general statute of limitations contained in section 22(h) of the Court of Claims Act (705 ILCS 505/22 (West 2014)) instead of the five-year statute of limitations in section 22(a) for claims arising out of a contract; and (2) her due process rights were violated where the Court of Claims did not consider her complaint on the merits. For the following reasons, we affirm.-

1 Appellate Case Posted 4-21-17

1. Civil Law:  Affirmed:  There are two bases on which a hearing officer may stay a dismissal hearing for good cause: (1) "the illness" or (2) "otherwise unavoidable emergency of the teacher, district representative, their legal representatives, the hearing officer, or an essential witness.”  The record does not reflect that any parties, attorneys, witnesses, or the hearing officer reported being ill and the grievance proceeding was not an unavoidable emergency for purposes of the statute.  As the hearing officer's discretion was limited to granting a stay for good cause, she lacked authority to grant the stay where good cause was lacking.  Hoffman, J.


No. 2017 IL App (1st) 161147 Board of Education of the City of Chicago v. Illinois State Board of Education Filed 4-21-17 (AMT)


The defendant appeals from an order of the circuit court denying her motion for summary judgment and granting summary judgment in favor of the plaintiff, the Board of Education of the City of Chicago (Board), on the Board's complaint for declaratory judgment, which asked the circuit court to declare that a hearing officer's stay of the defendant's dismissal hearing was void because good cause to stay the hearing did not exist.  Hall is a tenured teacher employed by the Board.  The Board approved dismissal charges of Hall after she failed to complete a remediation plan which was ordered after her teaching performance was deemed unsatisfactory.  Over the Board’s objection, the hearing officer granted the defendant’s motion to stay the dismissal hearing pending a final arbitration decision regarding her grievance from July 2012 challenging the remediation plan.  Affirmed. 

3 Appellate Cases Posted 4-20-17

1. Civil Law:  Reversed and Remanded:  The primary considerations in determining whether demonstrative evidence is admissible or may be used at trial are relevancy and fairness. Demonstrative evidence may not be used substantively to show the basis of a medical expert’s opinion or to support his conclusions. To lay a proper foundation for demonstrative evidence, "a person with knowledge of the object" must testify that the object is "an accurate portrayal of what it purports to show."  In this case, the skulls were not used merely as a visual aid to explain or to illustrate his testimony. Rather, the skulls were used to undermine the plaintiff’s theory of the case and to provide substantive support for his own expert opinions. The defendants did not disclose the skulls as a basis for the medical opinions prior to trial. Nor did they lay a proper foundation for the use of the skulls.  Because the defense provided no such foundation and failed to disclose the skulls prior to trial, the use of the skulls as real evidence should have been barred, and the trial court abused its discretion by allowing it. The improper use of the skulls substantially prejudiced the plaintiff by misleading the jury to believe that the skulls accurately represented the bone density levels and structure of the plaintiff’s maxilla.  Holdridge, J.

No. 2017 IL App (3d) 140926 Yanello v. Park Family Dental Filed 4-20-17 (AMT)

The plaintiff sued the defendants, Dr. Jae S. Roh and Park Family Dental, for professional negligence after certain dental implants surgically placed by Dr. Roh failed. Following a jury trial, judgment was entered in favor of the defendants on all counts. Plaintiff appeals the trial court’s judgment arguing that the trial court abused its discretion by allowing the defense to show the jury an actual human skull and a model skull and to use the skulls to establish that Dr. Roh did not violate the standard of care.  The plaintiff claims the defendant failed to lay the proper foundation for the skulls and failed to disclose skulls prior to trial pursuant to Supreme Court Rule 213.

2. Criminal Law:  Affirmed:  The odor of alcohol on a defendant’s breath and his inadequate performance of a field sobriety test do not constitute reasonable grounds to believe that the defendant was driving under the influence.  Speeding and being involved in an accident are insufficient bases upon which to support a DUI probable cause determination.  The odor of an alcoholic beverage, admission to drinking, and glassy and bloodshot eyes are insufficient to create probable cause for a DUI without evidence of other factors to support impairment, such as poor driving, stumbling, falling, or an inability to communicate. The trial court did not err in giving little to no weight to the officer’s determination that defendant failed the HGN test because the State failed to show that the officer possessed the expertise to properly understand the results of HGN testing. Because trial court determined that the officer lacked probable cause to believe that the defendant was under the influence of alcohol, the defendant’s refusal to submit to chemical testing was not admissible. The State’s appeal did not require the court to stay the rescission hearing until after the criminal appeal was decided because defendant’s criminal DUI prosecution and summary suspension hearing are separate and distinct proceedings. Lytton, J.

No. 2017 IL App (3d) 160154 People v. Motzko Filed 4-20-17 (AMT)

 

Defendant was charged with driving under the influence of alcohol and filed a motion to quash arrest and suppress evidence, as well as a petition to rescind his statutory summary suspension. The trial court granted defendant’s motion to suppress. The State filed motions to reconsider, which the trial court denied. The State then appealed the trial court’s order, granting defendant’s motion to suppress. Thereafter, the court granted defendant’s petition to rescind.  The state appeals arguing the court erred in granting the motion to suppress, erred in denying its motion to reconsider, and lacked jurisdiction to grant the defendant’s petition to rescind.


3. Civil Law:  Affirmed:  Pursuant to section 6(f) of the Illinois Workers' Compensation Act (the Act), the claimant's condition is rebuttably presumed to arise out of and in the course of the claimant's firefighting, and to be causally connected to the hazards or exposures of firefighting. As such, the issue becomes whether the Commission properly applied the presumption. After a detailed analysis of the legislative history of section 6(f) of the Act, this Court determined that "the legislature intended an ordinary rebuttable presumption to apply, simply requiring the employer to produce some evidence that something other than [the] claimant's occupation as a firefighter caused his condition." Once the employer introduces some evidence of another potential cause of the claimant's condition, the presumption ceases to exist and the Commission is free to determine the factual question of whether the occupational exposure was a cause of the claimant's condition based on the evidence before it but without the benefit of the presumption to the claimant. Sufficient evidence of another cause of the claimant's heart disease was presented and therefore the presumption ceased to operate. As such, the Commission was free to determine the factual question of whether the occupational exposure was a cause of the claimant's condition based on the evidence before it but without the benefit to the claimant of the presumption. Commission's determination that the claimant's employment as a firefighter for the City was not a cause of the claimant's heart attack and underlying heart disease was apparent given medical testimony indicating that that the claimant's risk factors, including his gender, obesity, age, poor diet, and high cholesterol were the causes of the claimant's condition. Moore, J.


No. 2017 IL App (3d) 160024WC Simpson v. Illinois Workers' Compensation Comm'n Filed 4-20-17 (AMT)

The claimant, Curtis Simpson, appeals the judgment of the circuit court of Peoria County, which confirmed the decision of the Workers' Compensation Commission (Commission) to deny him benefits under the Act which he sought against his employer, the City of Peoria (City). The claimant, a firefighter with the City, alleged a work-related permanent injury to his heart by virtue of a heart attack. The arbitrator issued a decision awarding the claimant benefits.  The Commission found that the City had successfully rebutted the presumption that the claimant's cardiovascular disease was causally related to his employment as a firefighter. The Commission further found that the claimant failed to meet his burden because at the time of his heart attack, he was at home, had just physically exerted himself, and was not performing any activity connected to his duties as a firefighter or Assistant Fire Chief. The circuit court confirmed the decision of the Commission. Affirmed.

3 Appellate Cases Posted 4-19-17


1. Criminal Law: Section 2-1401 Petitions: Withdrawal of Appellate Defender: 2-1401 Petitions and Motions for Substitution as of Right: Affirmed: 2-1401 Petition for relief  from judgment must be filed within the 2 year limitation provided by statute unless it seeks to declare the judgment void for lack of personal or subject matter jurisdiction. 2-1401 proceedings of the form in a criminal case in which to correct errors of fact occurring in the prosecution of a cause, unknown to the petitioner in court at the time the judgment I was entered, which, if the unknown, would have been prevented its rendition. It is not appropriate for a general review of trial errors nor to substitute a direct appeal.    A 2-1401 Petition is not a "new proceeding" which would allow petitioner the ability to exercise a substitution of Judge as of right under 2-1001(a)(2) of the Code of Civil Procedure.  Knecht, J.

No. 2017 IL App (4th) 150170 People v. Crenshaw   Filed 04-19-17 (MGB)



This case comes to us on the motion of the office of the State Appellate Defender (OSAD) to withdraw as counsel on appeal on the ground no meritorious issues can be raised in this case. For the reasons that follow, we grant OSAD’s motion and affirm the trial court’s judgment. After successive Post Conviction proceedings, Defendant filed a  pro se 2-1401 Petition arguing his judgment of conviction for aggravated criminal sexual assault was void because (1) the trial court committed a miscarriage of justice and plain error by dismissing the rape kit and “negative findings” by the Illinois State Police; (2) trial counsel was ineffective for failing to preserve the rape kit and 3 failing to call a medical expert to testify; (3) Judge Lagoski was biased, thereby violating due process; (4) the trial court did not find defendant guilty beyond a reasonable doubt; (5) defendant never confessed to the crime, and if there was a confession, it was coerced; and (6) defendant was prejudiced by the trial court playing a cellular phone recording multiple times prior to a trial hearing. Trial Court denied the Petition finding the court had jurisdiction over the case and that the remaining arguments of defendant were not the proper subject of a 2-1401 Petition. Defendant appealed, listing the Appellate Defender as counsel. The Appellate Defender sought leave to withdraw. Notwithstanding the fact defendant filed his section 2-1401 petition well outside the two-year limitations period, defendant has not presented any facts unknown to the trial court at the time of the original judgment. Rather, defendant seeks a general review of his case, alleging ineffective assistance of trial and appellate counsel, judicial bias, and various evidentiary issues—all matters that should have been, and some of which were, presented on direct appeal or in a postconviction petition. Section 2-1401 is not the proper forum for such a  review. We thus conclude OSAD has provided an adequate explanation why defendant’s section 2-1401 petition is meritless.

2. Criminal Law: Prior Inconsistent Statement: Closing Argument:  Affirmed, but remanded to correct presentence credit to fine: 

the fundamental rule of impeachment by a prior inconsistent statement is that the extrinsic evidence of the statement having been made—with which the declarant was confronted on the witness stand—must be the same statement with which the witness was confronted.  The use of an open ended question to the impeaching witness which invites a narrative of hearsay evidence  is improper.  only leading questions should be used to elicit the extrinsic evidence that completes or perfect the impeachment.  State's argument that the evidence demonstrated witness was credible without motive to fabricate and thus should be believed is proper, and does not run afoul of the rule precluding  the prosecutor from expressing personal beliefs or invokes the State's Attorney's Office's integrity to vouch for a witness's credibility.  Steigmann, J.

No. 2017 IL App (4th) 150124   People v. Lewis   Filed 04-19-17 (MGB)


Jury found Defendant  guilty of aggravated battery. The trial court  sentenced him to five years in prison. Defendant appeals, arguing that he was denied a fair trial because (1) the trial court erroneously allowed the jury to consider an improperly admitted prior inconsistent statement as substantive evidence in violation of section 115-10.1 of the Code of Criminal Procedure ) and (2) the State impermissibly vouched for a witness’s credibility during its closing argument. To sum up, the State’s open-ended questioning of Prosser, the impeaching witness, had two bad results: (1) the State never properly completed Rachel’s impeachment because Prosser never testified that Rachel made the statement to him that was allegedly inconsistent with her trial testimony, about which she was questioned on cross-examination, and (2) the jury heard Prosser say that Rachel told him “defendant got in Byndum’s face and began yelling at her and calling her names.” Regarding that last point, we note that Byndum herself never testified that defendant so behaved, and even Rachel testified only that defendant and Byndum were arguing and yelling at each other. Defendant argues that he was denied a fair trial because the State impermissibly vouched for a witness’ credibility during its closing argument. We disagree. In this case, the portions of the State’s closing argument and rebuttal closing argument about which defendant complains occurred in the context of arguing to the jury that the evidence presented showed that Byndum was a responsible young lady who had no motive to fabricate a tale about defendant’s choking her because to do so would result in her losing her long-established friendship with Rachel, as well as others. In other words, the State was arguing that Byndum was a credible witness that the jury should believe, which was an entirely appropriate argument. 

3. Criminal Law: Post-Conviction Proceedings:   Affirmed:  Under the Post-Conviction Hearing Act, an imprisoned defendant may assert the trial court proceedings resulted in a substantial denial of his constitutional rights. 725 ILCS 5/122-1(a)(1) . Once a defendant files a petition for postconviction relief, the trial court may, during this first stage of proceedings, enter a dismissal order within 90 days if it finds the petition is frivolous or patently without merit.  A trial court must take all well plead allegations as true, unless the allegations are positively rebutted thy the record. A claim completely contradicted by the record is an example of an indisputably meritless legal theory” appropriately dismissed at the first stage of postconviction proceedings.  Holder White, J.

No. 2017 IL App (4th) 150020    People v. Palmer  Filed 04-19-17 (MGB)


In November 2014, defendant, Marcus Darnell Palmer, filed a pro se postconviction petition, arguing, in relevant part, that he received ineffective assistance of counsel when defense counsel denied him his constitutional right to testify at trial. The following month, the trial court summarily dismissed the petition as frivolous and patently without merit. Defendant appeals, asserting his postconviction petition stated the gist of a constitutional claim sufficient to overcome a first-stage dismissal. Finding defendant’s claims are positively rebutted by the record, we affirm. After the first day of trial, the trial court (1) admonished defendant regarding his right to testify, (2) encouraged defendant to speak with defense counsel for advice, and (3) specifically told defendant, “ultimately, it’s your decision to make as to whether you testify or not.” The next day, after the State rested and it was time for defendant to present his evidence, the court admonished defendant at length regarding his right to testify. The court again reminded defendant that the decision to testify belonged solely to him. 7 The court stated, “Do you understand it’s your decision to make as to whether you testify or you don’t?” Defendant responded, “Yes.” Throughout the admonishments, the record demonstrates no equivocation or misunderstanding on defendant’s part as he waived his right to testify, nor did defendant bring his concerns to the attention of the trial court at any time during the proceedings.

1 Appellate Case Posted 4-17-17 

1. Mortgage Foreclosure: 2-1401 Motion to Vacate Deficiency Judgment: Affirmed:  Section 15-1509(c) of the Foreclosure Law, which states that after vesting of title by deed, "shall be an entire bar of ... all claims of parties to a foreclosure," bars 2-1401 Petitions for Relief. There exists only two exceptions to this bar: 1) where the judgment is challenged as void due to lack or personal jurisdiction; and 2) the exception provided in 15-1509(c) itself, allowing parties to seek relief in the form of claiming an interest in the proceeds of the sale.  Connors, J.

No. 2017 IL App (1st) 161159 BMO Harris Bank National Association v. LaRosa   Filed 04-17-17 (MGB)


Defendants appeal an order of the circuit court that struck and dismissed their petition for relief pursuant to section 2-1401 of the Code of Civil Procedure.  Defendants had sought to vacate the personal deficiency judgment that was entered against them as part of a foreclosure. On appeal, defendants contend that their section 2-1401 petition was not barred by section 15-1509(c) of the Illinois Mortgage Foreclosure Law. We Affirm. 


3 Appellate Cases Posted 4-14-17

Johnston v. Illinois Workers' Compensation Comm'n

1. Criminal Law: Reversed: Constructive possession exists where there is no personal dominion over the contraband, but the defendant has control over the area where the contraband was found. Stated differently, the State must prove beyond a reasonable doubt that the defendant had knowledge of the presence of the contraband and exercised “immediate and exclusive” control over the area where the contraband was discovered. In this case, there was no contraband or paraphernalia discovered on the defendant’s person, in his pickup truck, or in plain view inside the Apartment; all of the contraband was discovered hidden in the ceiling trap of a hallway closet. There was also no evidence the defendant inhabited the Apartment.  The hidden location of the contraband and the State’s failure to prove that Terrell ever entered the home creates a reasonable doubt as to Terrell’s knowledge of the contraband in the hallway closet trap. Hall, J.

No. 2017 IL App (1st) 142726 People v. Terrell Filed 4-14-2017 (AMT)


Defendant appeals following his bench trial where he was convicted of possession of a controlled substance and sentenced to 15 years of imprisonment.  The defendant contends the evidence was insufficient to establish he constructively possessed the drugs and weapons recovered.

2. Civil Law:  Affirmed:  Section 2105-117 of the Civil Administrative Code of Illinois only exempts the complaint and exhibits requested by plaintiffs from present or future disclosure, and does not otherwise impair plaintiffs’ rights with respect to any completed transactions made in reliance on any prior law, its application has no impermissible retroactive effect. Rochford, J.

No. 2017 IL App (1st) 161780 Perry v. Department of Financial & Professional Regulation Filed 4-14-2017 (AMT)

 

Plaintiffs-appellants, Christopher J. Perry and Perry & Associates, LLC (collectively referred to as plaintiffs), filed an action in the circuit court under the Freedom of Information Act (FOIA) against defendant-appellee, the Department of Financial and Professional Regulation, seeking the disclosure of a complaint filed with defendant against Mr. Perry’s structural engineer’s license, as well as reasonable attorney fees, and a finding for civil penalties on the basis that defendant had acted in bad faith by failing to disclose the complaint. Plaintiffs moved for summary judgment. The circuit court granted plaintiffs’ motion in part and denied it in part. The court ruled that the complaint was not disclosable, but it ordered the release of certain exhibits attached to the complaint. Both parties moved for reconsideration. The circuit court granted defendant’s motion for reconsideration and dismissed plaintiffs’ action, ruling that a new statute under the Civil Administrative Code of Illinois precluded the release of either the complaint or its exhibits to plaintiffs.

3. Civil Law:  Vacated and Remanded:  The Illinois Workers’ Compensation Commission lacks jurisdiction to enforce a final award and that the proper venue for a claimant to seek enforcement of a final award of the Commission is in the circuit court. Moreover, although the Commission is authorized to assess penalties and attorney fees under the Act against a party who fails to comply with the terms of a final settlement contract approved by the Commission, we conclude that claimant abandoned his request for the imposition of penalties and attorney fees in this case.  Hudson, J.

No. 2017 IL App (1st) 161027WC Millennium Knickerbocker Hotel v. Illinois Workers' Compensation Comm'n Filed 4-14-2017 (AMT)

 

Claimant, Rudy Guzman, Jr., sought benefits pursuant to the Workers’ Compensation Act (Act) for an injury he allegedly sustained while working for respondent, Millennium Knickerbocker Hotel. The parties executed a lump-sum settlement contract, which provided, in part, that respondent had paid all of claimant’s medical bills. Almost 2½ years after the Illinois Workers’ Compensation Commission (Commission) approved the settlement contract, claimant filed a “Motion to Enforce Contract and Penalties.” The claimant alleged that some of his medical bills remain unpaid and requested respondent pay the outstanding medical bills as well as penalties and attorney fees for respondent’s failure to pay the outstanding charges. The Commission entered an order granting claimant’s motion and directing respondent to pay claimant medical expenses as well as the requested penalties and attorney fees. The circuit court of Cook County confirmed the Commission’s order. Respondent then initiated the present appeal.

5 Appellate Cases Posted 4-13-17

Johnston v. Illinois Workers' Compensation Comm'n

1. Civil Law:  Reversed and Remanded:   Plaintiff’s allegations here fall within the officer-suit exception and, therefore, sovereign immunity is not implicated.  The trial court erred in dismissing the action on the grounds of sovereign immunity. Birkett, J.

No. 2017 IL App (2d) 160286 Parmar v. Madigan Filed 4-13-2017 (AMT)

 

Plaintiff appeals the dismissal of his lawsuit seeking a declaratory judgment concerning an amendment to the Illinois Estate and Generation-Skipping Transfer Tax Act (Estate Tax Act) Parmar’s estate was not subject to Illinois estate tax at the time of her death. Public Act 96-1496 became effective on January 13, 2011, reviving the Illinois estate tax by amending section 2(b) of the Estate Tax Act. By its terms, the amended section applied retroactively to the estates of persons dying after December 31, 2010. This included Parmar’s estate.

2. Civil Law:  Affirmed:  The settlement of a dispute by arbitration is encouraged and, accordingly, judicial review of an arbitration award is far more restricted than appellate review of a trial court’s decision.  The court shall vacate the award only if: (1) the award was “procured by corruption, fraud or other undue means”; (2) there was evident bias on the part of the arbitrator; (3) the arbitrator exceeded his or her authority; (4) the arbitrator failed to consider relevant evidence or refused to allow a reasonable request for a continuance; or (5) there was no agreement to arbitrate.  The court shall modify or correct the award only if: (1) there is an evident miscalculation of figures or an evident mistake in the description of any person or thing referred to in the award; (2) the arbitrator made a decision on a matter not submitted to him or her and the award can be corrected without affecting the merits of the decision on the matters submitted; or (3) the award is imperfect in a matter of form, not affecting the merits of the controversy. Respondent fails to assert any valid grounds under section 12 or 13 of the Arbitration Act to vacate or modify the arbitration award that was confirmed.

No. 2017 IL App (2d) 160799 In re Marriage of Haleas Filed 4-13-2017 (AMT)

 

Petitioner, Peter J. Haleas, filed a petition for dissolution of his marriage to respondent, Fanee Haleas. Ultimately, the parties agreed to resolve their property and maintenance issues through binding arbitration. The trial court confirmed the arbitration award and entered a final judgment for dissolution of the marriage, incorporating the award. Respondent appeals, arguing that the arbitrator erred in finding that certain business interests were petitioner’s nonmarital property and in determining the amount and duration of maintenance. Affirmed.

3. Criminal Law:  Reversed and Remanded:  The record contains no hearing transcript in which defendant waived a jury trial, nor do the court’s docket entries reflect any such waiver. Accordingly, we accept the State’s concession that the defendant did not knowingly and understandingly waive his right to a jury trial and remand for a new trial.  We find the evidence sufficient to convict defendant of armed robbery. The fact that the victim could not identify the recovered handgun as the one pointed at him is of no moment. Accordingly, there will be no double jeopardy concerns surrounding defendant’s retrial. Schmidt, J.

No. 2017 IL App (3d) 140530 People v. Fletcher Filed 4-13-2017 (AMT)

 

Following a bench trial, the trial court found defendant guilty of armed robbery and sentenced defendant to 21 years’ imprisonment.  On appeal, defendant argues (1) his conviction should be vacated because the record does not show that he knowingly and understandingly waived his right to a jury trial, and (2) the State failed to prove him guilty beyond a reasonable doubt of armed robbery with a firearm. Reversed and remanded.

4. Criminal Law: Affirmed: When a trial court accepts an admission of unfitness, due process requires that the trial court ensure the State’s allegations are based in fact. In determining whether a factual basis exists, a court need not rely on the State’s factual basis provided at the unfitness hearing, but it could sua sponte rely on evidence heard during earlier proceedings. In this case, the State provided a sufficient factual basis at the August 2016 fitness hearing. At the best-interest stage of parental-termination proceedings, the State bears the burden of proving by a preponderance of the evidence that termination of respondent’s parental rights is in the child’s best interest. A best-interest determination is against the manifest weight of the evidence only if the facts clearly demonstrate it should have reached the opposite result. We decline defendant’s request to reweigh the best-interest factors in her favor.  Steigmann, J.

No. 2017 IL App (4th) 160893 In re Dal D. Filed 4-13-2017 (AMT)


The state filed a petition to terminate the parental rights of respondent mother as to her two sons, Dal. D. and Day. D. Following a fitness hearing, the trial court found respondent unfit. After a best-interest hearing, the court terminated respondent’s parental rights.  Respondent appeals, arguing that (1) the factual basis to which she stipulated at her fitness hearing was insufficient to prove she was an unfit parent, (2) the court made no findings of fact to support its determination she was unfit, (3) her admission of unfitness was not knowing and voluntary, and (4) the court’s finding that Dal. D.’s and Day. D.’s best interest required termination of her parental rights was against the manifest weight of the evidence. We affirm.

 

5. Civil Law: Affirmed in part, Vacated in part:  Section 6(f) of the Illinois Workers’ Compensation Act (Act) does not involve a strong rebuttable presumption, requiring clear and convincing evidence. Rather, we conclude that the legislature intended an ordinary rebuttable presumption to apply, simply requiring the employer to offer some evidence sufficient to support a finding that something other than claimant’s occupation as a firefighter caused his condition. The determinative issue here is whether the employer successfully rebutted the presumption that claimant’s coronary artery disease arose out of and in the course of his employment. We find the presumption was rebutted when there was medical evidence that the claimant would still have experienced life-threatening coronary disease if he had been doing another job.  A claimant bears the burden of showing, by a preponderance of the evidence, that he has suffered a disabling injury which arose out of and in the course of his employment.” An injury occurs “in the course of employment” when it “occur[s] within the time and space boundaries of the employment.” An injury “arises out of” employment when “the injury had its origin in some risk connected with, or incidental to, the employment so as to create a causal connection between the employment and the accidental injury.” Whether an injury arose out of and in the course of one’s employment is generally a question of fact and the Commission’s determination on this issue will not be disturbed unless it is against the manifest weight of the evidence. Based on our review of the record, we cannot say the Commission’s finding that claimant was not removing snow at the time of his heart attack was error. Harris, J.

No. 2017 IL App (2d) 160010WC Johnston v. Illinois Workers' Compensation Comm'n Filed 4-13-2017 (AMT)

Claimant filed an application for adjustment of claim pursuant to the Act seeking benefits from The East Dundee Fire Protection District (employer). He alleged he suffered injuries to his person “while shoveling snow in [the] fire department parking lot.” Following a hearing, the arbitrator denied benefits under the Act, finding the employer had successfully rebutted the presumption under section 6(f) of the Act that claimant’s heart or vascular disease or condition arose out of his employment as a firefighter and further, that claimant did not suffer accidental injuries which arose out of his employment nor was his current condition of ill-being causally related to the alleged accident. On review, the Illinois Workers’ Compensation Commission (Commission) affirmed and adopted the arbitrator’s decision. On judicial review, the circuit court of Kane County confirmed the Commission’s decision.

8 Appellate Cases Posted 4-11-17

1. Criminal Law: Affirmed: Defendant conviction for burglary affirmed where defendant, an employee of the complaining witness university, was found in restricted areas early on a weekend morning trying to open interior doors, over claim that State did not prove intent to commit a theft. Mason, J. (Hyman, J., concurring in part and dissenting in part). (Modified on denial of rehearing)

No. 2017 IL App (1st) 142092  People v. Murphy  Filed 3-14-17 (TJJ)


Following a bench trial, defendant, Darnell Murphy, was found guilty of burglary. He was sentenced, because of his criminal background, to a Class X sentence of eight years in prison. On appeal, Murphy contends that he was not proven guilty beyond a reasonable doubt because the State failed to establish that he did not have permission to be inside the building or that he intended to commit a theft. He also contests the imposition of certain fines and fees. We affirm and correct the fines and fees order.

2. Municipalities: Affirmed: Trial court properly dismissed action by village president to have village ordinace, properly enacted by village trustees and which established who village's outside counsel would be, declared invalid. Simon, J.

No.  2017 IL App (1st) 152852  Jones v. Brown-Marino  Filed 4-10-17 (TJJ)


Following an election, plaintiff’s party lost majority control of the board of trustees. The new majority party began to take actions adverse to plaintiff’s interests, and plaintiff is trying to stop them. The board of trustees passed an ordinance allowing trustees to hire outside counsel to assist with drafting legislation and other legislative services. Plaintiff filed this case seeking a declaration that the ordinance was legally invalid. Plaintiff also moved the court to disqualify the law firm that defendants had hired to provide legislative services. The trial court denied plaintiff’s motion to disqualify counsel and subsequently dismissed the case. The trial court committed no error, and we affirm.

3. Municipal Pensions: Affirmed: Trial court had authority to order city to pay "back property tax provision" for prior years going back to 2006 to enforce pension payments owed to pension fund; amount owed properly calculated pursuant to valid settlement agreement previously reached between parties; and award of attorneys' fees to pension fund upheld. Harris, J.

No. 2017 IL App (1st) 153095  Board of Trusteees of the Harvey Police Pension Fund v. City of Harvey  Filed 4-10-17 (TJJ)


The City of Harvey appeals from a circuit court order enforcing the terms of a settlement agreement entered into between the City of Harvey and the Board of Trustees of the Harvey Police Pension Fund. In 2006, the Board of Trustees of the Harvey Police Pension Fund filed suit against the City of Harvey for various violations of the Illinois Pension Code. In February 2008, the parties entered into a settlement agreement by which the City of Harvey agreed to pay the Harvey Police Pension Fund $551,079.83 in back property taxes the City of Harvey had collected but failed to remit. The City of Harvey also agreed, commencing with the 2006-2007 fiscal year, to annually levy a tax upon all taxable property as required in section 3-125 of the Illinois Pension Code. The parties agreed that the circuit court would retain jurisdiction to enforce the agreement until the back property taxes were repaid. On appeal, the City of Harvey challenges the circuit court’s authority to enforce the back property tax provision, which resulted in the majority of the money damages entered against it. It also challenges how the circuit court calculated those damages. Finally, it challenges the award of attorney fees in favor of the Harvey Police Pension Fund. For the reasons set forth more fully below, we reject the City’s arguments and affirm the judgment of the circuit court entered in favor of the Board of Trustees of the Harvey Police Pension Fund.

4. Mortgage Foreclosure: Affirmed: Trial court properly granted judgment to bank in case where complicated assignations of initial mortgage provided successor bank with an equitable right of subrogation that afforded it standing to maintain foreclosure action against persons who resided in home. Neville, J.

No. 2017 IL App (1st) 160305  Deutsche Bank National Trust Company v. Payton  Filed 4-11-17 (TJJ)


When Carla and Marvin Watkins, the defendants, did not pay their mortgages, they became concerned that Citimortgage, Inc. (Citimortgage), and Countrywide Home Loans (Countrywide) would commence foreclosure proceedings against them. On November 11, 2005, a warranty deed containing the Watkinses’ signatures conveyed the subject property to Gary Leigh Payton and Tammy Marie Payton. We find that once Long Beach, Deutsche Bank’s assignor, paid off the Watkinses’ mortgages with Citimortgage and Countrywide, Long Beach was subrogated, by operation of law, and Long Beach stepped into the shoes of Citimortgage and Countrywide. Therefore, Long Beach acquired Citimortgage's and Countrywide’s priority interest in the subject property. We also find that the circuit court correctly granted Deutsche Bank’s motion for summary judgment, predicated on the doctrine of equitable subrogation, in order to avoid an unjust result and to prevent the Watkinses from being unjustly enriched when they invoked their forged deed defense. Therefore, we hold that the circuit court did not err when it granted Deutsche Bank’s motion for summary judgment predicated on the doctrine of equitable subrogation.

5. Public Employment/Discharge Notice: Affirmed: School board notice to school principal that it was seeking to discharge her for alleged falsification of attendance records, and attendant circumstances relating to communications between her attorney and school board officials, did not permit principal to claim that board was estopped from proceeding to dismiss her, where she never requested a hearing within the necessary time limits set forth in the board's initial notice. Mason, J.

No. 2017 IL App (1st) 161764  Weaver v. The Board of Education of the City of Chicago  Filed 4-11-17 (TJJ)


We do not believe Weaver’s case presents extraordinary or compelling circumstances, but even assuming that the doctrine of promissory estoppel is applicable, Weaver’s claim nevertheless fails. There is no evidence that the Board unambiguously promised that a dismissal hearing would be held in the absence of a formal request by Weaver within the appropriate time frame, nor is there evidence that the Board could have reasonably foreseen Weaver’s reliance on that alleged promise. Affirmed.

6. Criminal Law: Affirmed: Trial court properly denied motion to vacate guilty plea over claim that different judge had promised defendant a sentence of between 8 and 12 years in the penitentiary, where the admonitions in open court with defendant made it clear that there was no such agreemnet or representation made. Birkett, J.

No. 2017 IL App (2d) 160240  People v. Ferral-Mujica  Filed 3-24-17 (TJJ)


Defendant, Armando Ferral-Mujica, appeals from an order of the circuit court of McHenry County denying his motions to withdraw his guilty plea and reconsider his sentence. Defendant argues that the trial court erred in denying his motions, where he pleaded guilty in reliance on his counsel’s representation that the trial court expressly stated during an Illinois Supreme Court Rule 402 (eff. July 1, 2012) conference that it would sentence defendant to a prison term between 8 and 12 years. For the reasons that follow, we affirm.

7. Medicaid: Affirmed: Purchase by Medicaid recipient of $15,000 life insurance policy, purchased for $15,000 and purchased while insured was living in an assisted care facility paid for by the State's Medicaid program, constituted a nonallowable transfer of assets. Holder White, J.

No. 2017 IL App (4th) 160414  Moore v. The State of Illinois  Filed 4-11-17 (TJJ)


In October 2011, Elda Buckley, now deceased, purchased an insurance policy that contained a rider payable to Christine P. Moore, the executrix of Buckley’s estate, upon Buckley’s death. The same day, Buckley applied for Medicaid benefits under the Illinois Public Aid Code (Code) (305 ILCS 5/1-1 to 15-11 (West 2010)), which contains a provision prohibiting the transfer of certain assets for less than fair market value. Following a hearing, defendant, the State of Illinois, acting through the Department of Human Services (Human Services) and its secretary, Michelle R.B. Saddler, and the Department of Healthcare and Family Services and its director, Julie Hamos (collectively, Departments), found Buckley’s insurance policy was purchased for less than fair market value and therefore constituted a nonallowable transfer of assets subject to penalty. In April 2015, the circuit court affirmed the Departments’ findings. The Public Administrator appeals, asserting the Departments erred in finding the purchase of the insurance policy was a nonallowable transfer subject to penalty under the Code. We affirm.

8. Juvenile Delinquency: Vacated: Trial court order sending juvenile to juvenile department of corrections in burglary case, where juvenile continually failed to abide by conditions of juvenile probation, vacated for trial court failure to comply with statutory section requiring investigation into juvenile's educational background, and whether he had a learning disability, and whether there had been any disciplinary instances at school. Appleton, J.

No. 2017 IL App (4th) 160855  In re Ronald J.  Filed 4-11-17 (TJJ)


After adjudicating respondent, Ronald J., to be a delinquent minor and making him a ward of the court, the trial court committed him to the Department of Juvenile Justice (Department). Respondent appeals on two grounds: (1) the court erred by finding commitment to be in his best interest and in the best interest of the public, and (2) the court failed to review statutorily required evidence before ordering his commitment. We agree with the second argument and thus do not reach the first argument.

1 Appellate Case Posted 4-10-17

1. Utilities/Condemnation: Affirmed: In condemnation actions relating to liquid petroleum gas pipeline, landowners did not present any evidence, let alone sufficient evidence, to rebut presumption of necessity and public purpose, and trial court therefore properly denied landowners' traverse motion; discovery sanctions against landowners for failure to comply with discovery not an abuse of discretion; trial court was not biased against landowners; and directed verdict in favor of utility not erroneous in face of landowners' failure to present evidence regarding valuation of land. Carter, J.

No. 2017 IL App (3d) 150765  Enbridge Energy v. Fry  Filed 4-6-17 (TJJ)


Plaintiff, Enbridge Energy, Limited Partnership (Enbridge), filed a condemnation suit to obtain easement rights over certain farmland in Kankakee County so that it could build and operate a new underground pipeline. The landowner defendants opposed the suit for condemnation and filed a traverse and motion to dismiss (traverse motion), which the trial court denied. A jury trial was later held on the condemnation complaint, and a directed verdict was entered for Enbridge as to the amount of just compensation it was required to pay to the landowners. The landowners appeal, raising numerous issues. We affirm the trial court’s judgment.

2 Appellate Cases Posted 4-6-17

Enbridge Energy v. Fry

1. Civil Law:  Affirmed:  where a TRO is issued after both notice and a hearing, it is the functional equivalent of a preliminary injunction. Defendants argue that the order was deficient because it did not particularly describe the conduct enjoined. “[A]n injunction order cannot support a finding of contempt unless it sets forth with certainty, clarity and conciseness precisely what actions are enjoined.” Defendants are correct that the acts enjoined are not described in the November 2014 memorandum and are at best inferable from the documents referenced in the memorandum. A trial court’s oral and written pronouncements together constitute the “order granting an injunction” for purposes of section 11-101. Due to defendants’ omission of not attaching the record from the November 13 court date, we do not know the “oral rulings” that the trial court made at the November 13 hearing and, further, whether they satisfied the specificity requirement of section 11-101. Birkett, J.

No. 2017 IL App (2d) 160184 The County of Boone v. Plote Construction, Inc. Filed 4-6-2017 (ATH)

 

Defendants, Plote Construction, Inc., Belvidere Materials, LLC, and Chicago Land Title and Trust Company, appeal an order of the circuit court of Boone County holding them in indirect civil contempt for violating an injunctive order entered in favor of plaintiff, the County of Boone. Defendants argue that the injunctive order expired prior to the conduct that was the basis for the contempt finding and, alternatively, that plaintiff failed to prove that defendants’ conduct violated the terms of the injunction. Affirmed.

2. Criminal Law:  Reversed and remanded:  Facts giving rise to reasonable suspicion need not be based on personal observations by an officer. Rather, facts supporting reasonable suspicion may be based on information that the public provides. Where a citizen informant reports criminal activity to the police, the information need possess only some indicia of reliability to justify an investigatory stop. Although a citizen informant is no longer afforded a presumption of reliability, the citizen informant has greater reliability than the typical criminal informant. There are many factors that must be considered when determining the reliability of information provided by a citizen. Those factors include whether the citizen informant identified himself, offered to sign a complaint, or witnessed the alleged crime, and whether the information was independently corroborated. Factors that weigh against reliability include whether the informant was paid, did not witness the alleged offense, or failed to identify himself. Thus, where an unverified tip by a known informant might not be reliable enough to establish probable cause, it nonetheless might be sufficiently reliable to justify an investigatory stop which would be based on reasonable suspicion. The citizen did not need to explain how he was familiar with the smell of burnt cannabis before the Officer could rely on his report to formulate a reasonable suspicion to effect a stop. Based on the totality of the circumstances, the information provided by the citizen informant via 911 was sufficiently reliable to support a reasonable suspicion to stop defendant’s vehicle.  Jorgensen, J.

No. 2017 IL App (2d) 160119 People v. Topor Filed 4-6-2017 (ATH)

 

The State appeals from the judgment of the circuit court of Boone County granting defendant’s motion to quash his arrest and suppress evidence. Because an identified citizen informant reported, via 911, the smell of burnt cannabis coming from defendant’s vehicle, the police had reasonable suspicion to stop defendant’s vehicle. In appeal, the defendant maintains that the citizen informant was unreliable as he did not indicate how he knew of smell of burnt cannabis.  Thus, we reverse and remand.


4 Appellate Cases Posted 4-5-17 

1. Criminal Law: Invocation of Right to Counsel: Ineffective Assistance of Counsel: Reversed: The term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.   When determining whether police words or actions are reasonably likely to elicit an incriminating response, we focus “primarily upon the perceptions of the suspect, rather than the intent of the police.”Interrogating Officer's statements, after clear invocation of right to counsel, that he would proceed that defendant's girlfriend was going to be arrested "as part of this" was reasonably likely to elicit an incriminating response. Counsel was ineffective in not filing a motion to quash statements. Steigmann, J.

No. 2017 IL App (4th) 160410  People v. Peck  Filed 04-05-17 (MGB)


A jury found defendant guilty of (1) possession of a controlled substance with intent to deliver  (ecstasy) and (2) possession of a controlled substance (cocaine) with intent to deliver   premised on drugs found in a search of defendant’s residence. In February 2013, the trial court sentenced defendant to concurrent prison terms of 20 years and 10 years, respectively. Defendant filed a motion for new trial asserting, inter alia, that his trial counsel was ineffective in failing to file a motion to suppress his statements.  The Trial Court found during Krankel  hearing that counsel's performance did not fall below an objective standard of reasonableness, and denied the motion.  We conclude that trial counsel could not reasonably have determined that defendant reinitiated the conversation with Hockaday. After viewing the interrogation video, counsel should have concluded that defendant invoked his right to counsel and Hockaday, by not stopping his interrogation, violated defendant’s constitutional rights. Counsel’s failure to file this motion was not the result of a tactical decision, but of a fundamental misjudgment. The record demonstrates that defendant’s confession had an immense impact on the outcome of his case, and its admission negatively impacted defendant’s ability to provide alternative theories and request jury instructions on lesser-included offenses. Additionally, defendant’s confession was the State’s strongest piece of evidence to establish his intent to deliver. As mentioned by the State in its closing argument, the jury did not have to speculate as - 13 ­ to defendant’s intent, as he said exactly what he intended to do with the drugs. Accordingly, we conclude defendant was prejudiced by trial counsel’s deficient performance.

2. Criminal Law: Reckless Homicide:  Reversed: Trial Court abused discretion in allowing State to present evidence that truck driver violated statute limiting number of driving hours on the day prior  to the fatal accident in question where driver slept 10 1/2 hours after the alleged violation before resuming driving.  Introduction of evidence by State's Expert that driver violated Scott's Law by failing to change lanes for emergency vehicles was of little probative value, but also has minimal prejudicial value. State failed to prove Defendant truck driver committed the offense of reckless homicide beyond a reasonable doubt.  Steigmann, J.

No. 2017 IL App (1st) 140578  People v. Shakirov   Filed 04-05-17 (MGB)


Truck Driver struck emergency vehicles at scene of prior accident, resulting in death of a firefighter. Defendant primarily argues that the State failed to prove him guilty beyond a reasonable doubt. Defendant alternatively argues that the trial court erred by denying his motion in limine. As to his alternative argument, defendant contends that the court abused its discretion when it permitted the jury to consider alleged violations of (1) the 14-hour rule and (2) Scott’s Law because that evidence lacked probative value, was irrelevant, and was prejudicial. Because we agree with defendant’s first argument and certain aspects of defendant’s alternative assertions, we reverse defendant’s conviction and sentence. We conclude that the State’s case - 21 ­ was utterly bereft of any evidence showing a conscious disregard of anything. We conclude the trial court erred by denying the motion for a directed verdict and, later, the motion for a judgment n.o.v.. Evidence that defendant's speed was not more than 50 miles per hour did not demonstrate recklessness where it was within the speed traveled by emergency responders shortly before the accident leading to the charges. The best that can be said of the State’s case is that defendant may have been  ­ inattentive for a few seconds (perhaps adjusting his radio or engaging in some similar activity) and then failed to realize the left lane was blocked as he unsuccessfully attempted to brake his huge semi at night on an icy highway in blowing snow. Such brief inattention (if it even occurred) falls far short of the conscious disregard of a substantial and unjustifiable risk that establishes a gross deviation from the standard of care that the State needed to prove beyond a reasonable doubt. This evidence does not come close to meeting that standard. Conviction and Sentence Reversed.

3. Civil Law: Contracts: Corporate Veil Heard by Jury: Electronic Business Records:  Common Law Fraud: Consumer Fraud:  Affirmed in part and reversed in part: Trial Court does have the discretion to have Equitable Claim of Piercing the Corporate Veil properly heard by a jury pursuant to 7356 ILCS 5/2-1111.  For computer-generated records, a party must establish “ ‘the equipment which produced the record is recognized as standard, the entries were made in the regular course of business at or reasonably near the happening of the event recorded and the sources of information, method and time of preparation were such as to indicate their trustworthiness and to justify their admission. Evidence supported verdict for consumer fraud. Trial Court erred in dismissing Consumer Fraud Counts. Amendment of Consumer Fraud Act in sentence governing cases against new or used vehicle sellers which required proof of public injury, did not require such proof for other activities governed by the Act, including real estate sales.    McDade, J.

No. 2017 IL App (3d) 160162  Benzakry v. Patel  Filed 04-05-17 (MGB))


Plaintiff Emil Benzakry, through his company Emil & Son, LLC, entered into a purchase agreement with defendants Paresh and Kalpita Patel, through their company KAP Family Investments, LLC, to purchase a gas station in Rock Falls, Illinois. The gas station closed, and Benzakry sued for damages. A judgment was entered in favor of Benzakry. Defendants appealed, arguing (1) a claim for veil piercing cannot be tried before a jury, (2) the trial court abused its discretion by allowing the introduction of bank statements without proper foundation, (3) plaintiffs cannot prove fraud because Paresh did not proximately cause Benzakry’s damages, (4) plaintiffs cannot prove fraud because Benzakry did not justifiably rely on Paresh’s alleged misrepresentations, and (5) the corporate veil judgment against Kalpita was against the manifest weight of the evidence. Benzakry cross-appealed, arguing (1) the trial court’s grant of defendant’s motion for a directed verdict was error because plaintiffs are allowed to sue under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act or Act) (815 ILCS 505/1 et seq. (West 2006)) and (2) the trial court’s denial of plaintiffs’ motion to amend a complaint to conform the pleadings to the proofs was error because there was evidence of a principal-agent relationship. We affirm in part and reverse in part, and the cause is remanded for further proceedings. . The business record exception requires evidence related to the document’s creation. There is no evidence in the record of the instant case that shows the bank statements were made in the regular course of business. Specifically, there is no evidence, through testimony or affidavit, of the bank statement’s creation. Furthermore, there is no evidence in the record, through testimony or affidavit, that shows it was regular practice for Paresh to keep KAP’s bank statements. Therefore, plaintiffs did not meet the business records exception requirements. Plaintiffs established proximate cause sufficiently to constitute fraud. Benzakry testified that his purpose for purchasing the gas station was to pursue a triple net lease, which allows a purchaser to collect rent from a tenant. Paresh made representations regarding the tenant’s reliability and trustworthiness when he made statements to Benzakry regarding his relationship with the tenant in an e-mail. Plaintiffs established justifiable reliance sufficiently to constitute fraud. Benzakry testified that his purpose for purchasing the gas station was to pursue a triple net lease, which allowed a purchaser to collect rent from a tenant. Paresh made representations regarding the tenant’s financial reliability and trustworthiness when he made statements regarding his relationship with the tenant to Benzakry in an e-mail. Appellate Court found trial court erred in granting directed finding in favor of seller on Consumer Fraud Counts, entered judgment on those counts in favor of buyer, and remand for determination of attorney's fees. 

4. Criminal Law: Sentencing: Affirmed:  A sentence will be deemed an abuse of discretion where the sentence is ‘greatly at variance with the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense. The reviewing Court presumes that, in imposing these sentences, the trial  court considered the relevant factors in mitigation. This presumption is only overcome by affirmative evidence showing the court failed to consider the mitigating factors.   Wright, J.

No. 2017 IL App (3d) 150165  People v. Wilson  Filed 04-05-17 (MGB)

Defendant, Daejohn Wilson, appeals from his convictions for aggravated battery (X) and unlawful possession of a firearm. Defendant argues that (1) his sentence is excessive and (2) he is subject to an unauthorized crimestopper’s fine. Defendant argues his sentence is excessive because the court failed to adequately consider in mitigation his youth, mental health issues, and potential for rehabilitation. Because defendant points to no evidence refuting the court’s consideration of these factors and the sentences were within the statutory ranges, we conclude defendant’s sentences were not the result of an abuse of discretion. We find defendant did not raise the Crimestoppers fine issue in the circuit court, and therefore, it is forfeited. PMoreover, the crimestopper’s fine was imposed by the circuit court who had jurisdiction to impose fines, and therefore, it is merely voidable and not void. While we find plain error occurred in the imposition of a fine that could only be assessed on a sentence of probation, we find no reversible error in that the issue is moot where credit properly awarded  at $5.00 per day of incarceration more than satisfied the improperly imposed fine. We affirm.


1 Appellate Case Posted 4-4-17

1. Involuntary Civil Commitment: Reversed: Failure of State to present trial court with written predisposition report outlining altenative treatments and why they were insufficient, or a social investigation of respondent, meant that State failed to meet its statutory burden of proof, and civil commitment order reversed. Holdridge, J. (Scmidt, J., dissenting).

No. 2017 IL App (3d) 150164  In re Amanda H.  Filed 4-4-17 (TJJ)


The respondent, Amanda H., appeals orders of the circuit court of Kankakee County, committing her involuntarily to a hospital for inpatient medical treatment and ordering the involuntary administration of psychotropic medication. Although those orders have expired, the respondent claims that the issues raised by this appeal fall within various exceptions to the mootness doctrine. Reversed.


5 Appellate Cases Posted 4-3-17 

1. Criminal Law: Affirmed: Conviction for armed habitual criminal, previously reversed by Appellate Court, affirmed after reconsideration, as predicate conviction for aggravated unlawful use of weapon was proper, notwithstanding potential applicability of Aguilar case, as defendant still possessed weapon at issue here after being convicted of aggravated unlawful use of weapon. Pierce, J.

No. 2017 IL App (1st) 110311-B  People v. Fields  Filed 3-31-17 (TJJ)


Following a jury trial in the circuit court of Cook County, defendant Anthony Fields was convicted of armed robbery and being an armed habitual criminal. The trial court imposed a 21-year sentence for armed robbery, which included a 15-year enhancement for the use of a firearm and a concurrent 10-year sentence on the conviction of being an AHC. Defendant appealed, arguing (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt of either charge, (2) the 15-year  enhancement of his sentence for armed robbery is unconstitutional, and (3) he received ineffective assistance of counsel. On February 11, 2014, we issued an opinion modified upon denial of rehearing, affirming his armed robbery conviction but reversing  the AHC conviction. People v. Fields, 2014 IL App (1st) 110311. In September 2016, our supreme court issued a supervisory order directing us to reconsider that judgment in light of its decision in People v. McFadden, 2016 IL 117424. We now affirm defendant’s conviction for AHC as well as armed robbery.

2. Criminal Law: Reversed: Arrest by police of defendant and recovery of handgun suppressed where police did not first ascertain that defendant did not have FOID card or conceal-carry license. Hyman, J. (Pierce, J., dissenting).

No. 2017 IL App (1st) 142019  People v. Horton  Filed 3-31-17 (TJJ)


Chicago police officers, in their mission to “serve and protect,” must remove from the city’s streets illegal guns, which claim hundreds of lives each year and imperil the public’s safety and security. Presumably acting on that laudable desire, an officer had a hunch, based on seeing “a metallic object” in Markell Horton’s waistband, that Horton might have a handgun and pursued him. Eventually, police found a handgun hidden under a mattress in a bedroom where they found Horton, and he was charged with possession. But changes in Illinois law (in part mandated by United States Supreme Court rulings protecting the right to keep and bear arms). We hold that the trial court improperly denied Horton’s motion to quash arrest and suppress evidence. Reversed.

3. Criminal Law: Affirmed in part and vacated in part: Defendant properly proved guilty of aggravvated battery beyond a reasonable doubt where State's evidence proved (and trial court could properly conclude) that defendant's belief that it was necessary to defend herself from a sexual assault by the complaining witness was unreasonable under the facts of the case; one of two convictions vacated per the one act, one crime rule. Schmidt, J.

No. 2017 IL App (3d) 140841  People v. Williams  Filed 4-3-17 (TJJ)


Defendant, Kimberly J. Williams, appeals from her two convictions for aggravated battery. Defendant argues (1) the State failed to prove beyond a reasonable doubt that defendant’s use of force was not justified, (2) defendant was deprived of her due process right to a fair trial, and (3) one of defendant’s convictions must be vacated under the one-act, one-crime rule. We affirm in part and vacate in part.

4. Criminal Law/Mandatory Supervised Release: Affirmed: Trial court properly dismissed mandamus action by prisoner seeking a new revocation hearing for his mandatory supervised release, where defendant waited 10 years to claim that original revocation hearing had been conducted improperly, and defendant's claim was thus barred by the doctrine of laches. Carter, J.

No. 2017 IL App (3d) 150055  Walker v. Monreal  Filed 4-3-17 (TJJ)

Plaintiff, David Walker, an inmate in the Illinois Department of Corrections (IDOC), filed a complaint for mandamus relief against Adam Monreal, Chairman of the Prisoner Review Board. In his complaint, Walker requested that the trial court compel Monreal to conduct a new revocation hearing regarding the revocation of his mandatory supervised release (MSR). The trial court granted Monreal’s motion to dismiss the mandamus complaint with prejudice. Walker appealed. We affirm.

5. Criminal Law: Affirmed: Defendant proved guilty of armed habitual criminal beyond a reasonable doubt where evidence showed a "stack" of evidence emanating from bag in car with defendant's health insurance card on "top," ammunition box with defendant's fingerprint on "bottom," and gun at issue in the middle. Holdridge, J.

No. 2017 IL App (3d) 150156  People v. Bogan  Filed 4-3-17 (TJJ)


The defendant, Antonio M. Bogan, appeals from his conviction for being an armed habitual criminal. He argues that the State failed to present evidence sufficient to prove that he possessed a firearm. Affirmed.

19 of 19 Appellate Cases Posted 3-31-17

1. Sexually Violent Persons Act: Appeal dismissed: Appeal to contest finding that respondent was a sexually violent person dismissed for failure to file notice of appeal within 30 days; even if colloquy at time of finding could be viewed as a court "ruling" extending time beyond 30 days to file post-trial motions, there was no proof with respect to when post-trial motion was filed so as to permit conclusion that 30-day period in Civil Practice Act was complied with. Connors, J.

No. 2017 IL App (1st) 150918  People v. Hall  Filed 3-31-17 (TJJ)


Following a trial, a jury determined that defendant, Adam Hall, was a sexually violent person as defined by the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2012)), and he was subsequently committed to the custody and care of the Department of Human Services. On appeal, defendant contends that he was denied his right to a fair trial and that the evidence was insufficient to prove that he was a sexually violent person. In a motion to dismiss that was taken with the case, the State asserts that this court does not have jurisdiction over this appeal. We agree with the State for reasons discussed below.

2. Public Employee Bargaining: Affirmed in part and reversed in part: Order entered by Cook County Sheriff relating to "gang association" by deputy sheriffs was properly a subject of mandatory bargaining and labor relations board contrary ruling erroneous; rules relating to social media use by deputy sheriffs were not overbroad. Connors, J. (Modified on denial of rehearing).

No. 2017 IL App (1st) 152993  International Brotherhood of Teamsters v. The Illinois Labor Relations Board  Filed 3-31-17 (TJJ)


Petitioner, the International Brotherhood of Teamsters, Local 700 (Union), appeals from a decision and order of the Illinois Labor Relations Board, Local Panel, that upheld two general orders issued by respondents, the County of Cook and the Sheriff of Cook County. In relevant part, the first general order—known as the Gang Order—prohibits employees from associating with anyone the employee knew or should have known is or was in a gang and requires employees to complete a disclosure form about gang affiliations. The second general order— known as the Rules of Conduct Order—provides in part that the rules for on- and off-duty conduct extend to social media and networking sites. On appeal, the Union contends that the Gang Order was a subject of mandatory bargaining and the social media policy in the Rules of Conduct Order is overbroad under section 10(a)(1) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/10(a)(1) (West 2012)). We reverse the Board’s decision as to the Gang Order and affirm the Board’s decision as to the Rules of Conduct Order.

3. Eminent Domain/Utilities: Affirmed: Parties agreed to certain specifications regarding work to be done in connection with electric company need to service underground wires; even though work ultimately done involved a deviation from that previously agreed upon, where defendant property owners could not prove that they were harmed as a result of the deviation, trial court properly granted an "order of satisfaction" to electric company. Simon, J.

No. 2017 IL App (1st) 153228  Commonwealth Edison Co. v. Elston Avenue Properties, LLC  Filed 3-31-17 (TJJ)


This appeal follows drawn-out negotiations and proceedings precipitated by eminent domain. Commonwealth Edison needed to dig on private property to run underground wires. The parties reached an agreement on compensation and on the specifications  for digging and restoring the property. ComEd did not specifically follow the agreed-upon specifications for refilling the dig sites, resulting in nonconforming work. Nonetheless, ComEd asked the court to approve its performance and rule that its  obligations had been satisfied. After the parties presented evidence, the trial court issued an order of satisfaction from which the property owner now appeals. We affirm.

4. Condominiums/Attorneys' Fees: Affirmed in part and reversed in part: Trial court properly ruled that condominium assocaiation was entitled to expel defendants from condominium unit for failure to pay assessments; evidence properly admitted, including association's business records; but award of attorneys' fees to association reduced by those fees attributable to defense of third party claims. Pierce, J.

No. 2017 IL App (1st) 160870  North Spaulding Condominium Assoc v. Cavanaugh  Filed 3-31-17 (TJJ)


Plaintiff North Spaulding Condominium Association (North Spaulding) initiated a forcible entry and detainer action against the defendant unit owners Michael and Tiffany Cavanaugh (collectively, the Cavanaughs) for unpaid assessments, seeking possession of the unit and a money judgment. In North Spaulding Condominium Ass’n v. Cavanaugh, 2017 IL App (1st) 153387-U (North Spaulding I), we affirmed the trial court’s dismissal of the Cavanaughs’ counterclaim against North Spaulding and the Cavanaughs’ third-party complaint against Westward Management (Westward). While North Spaulding I was on appeal, the forcible case proceeded to a bench trial. After the close of the condominium association’s case in chief, the Cavanaughs moved for judgment in their favor pursuant to section 2-1110 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1110 (West 2014)). The trial court denied the motion. The Cavanaughs rested without presenting any witnesses or introducing any evidence. The trial court entered judgment in favor of North Spaulding. The Cavanaughs filed a combined motion for a new trial and to reconsider the denial of their motion for judgment in their favor, which the trial court denied. The trial court then granted North Spaulding’s petition for attorney fees. The Cavanaughs timely appeal. For the following reasons, we affirm in part, vacate in part, and remand.

5. Criminal Law: Reversed and remanded: State explanation in face of Batson second-stage inquiry that it excused black venireperson allegedly because State believed she lied about not having previously been arrested deemed pretextual and a violation of Batson. Mason, J. (Neville, J., sp. concurring).

No. 2017 IL App (1st) 161259-B  In re A.S.  Filed 3-31-17 (TJJ)


This matter is before us following remand to the circuit court of Cook County to conduct a further hearing pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), to address respondent’s claim that the State improperly used peremptory challenges to strike prospective black jurors during jury selection in his delinquency proceedings. In our earlier opinion in this case, we found that the trial court had improperly collapsed the second and third stages of the Batson hearing and, further, had not elicited any race-neutral reason from the State for its use of a peremptory against one prospective black juror, and therefore, we remanded for a resumed hearing. In re A.S., 2016 IL App (1st) 161259, ¶¶ 40, 47. We retained jurisdiction to further consider respondent’s Batson challenge, if necessary. Following the hearing on remand, the trial court concluded that the State had proffered race-neutral reasons for exercising peremptory challenges against all four black members of the venire. Because we conclude that respondent sustained his burden to show, as to one juror, that the State’s proffered race-neutral reason was pretextual, we reverse and remand for a new trial.

6. Criminal Law: Affirmed: Trial court properly dismissed post-conviction petition at first stage under Post-Conviction Hearing Act, and defendant had no right to "reasonable assistance of counsel" at first stage. Knecht, J.

No. 2017 IL App (4th) 160449  People v. Johnson  Filed 3-31-17 (TJJ)


In April 2014, defendant, Granville S. Johnson, filed a petition for postconviction relief under the Post-Conviction Hearing Act with the assistance of private counsel. In June 2014, the trial court dismissed defendant’s petition at the first stage of postconviction proceedings. In July 2014, defendant’s counsel withdrew his representation, and defendant filed a timely pro se motion to reconsider, which he later supplemented. Defendant’s motion to reconsider and its supplement alleged postconviction counsel provided “ineffective” assistance by failing to raise certain previously requested claims in his postconviction petition. In May 2016, the trial court denied defendant’s motion to reconsider and found any new claims raised in his motion to reconsider and its supplement were forfeited as they were not raised in the original petition. Defendant appeals, arguing the trial court erred by (1) not considering whether postconviction counsel’s representation was “unreasonable” for failing to include the additional claims in his postconviction petition and (2) summarily dismissing his petition because at least one of the claims he would have raised states the gist of a meritorious claim. We affirm.

7. Criminal Law/Media Access/Public Records: Reversed and remanded: In connection with pre-trial proceedings in murder case, trial court incorrectly ruled that the "presumption of access" did not apply to pre-trial motions in limine filed by the defendant; matter remanded for hearing as to whether the materials ought to be unsealed and made available to the public and the media. Turner, J.

No. 2017 IL App (4th) 170055  People v. Zimmerman  Filed 3-31-17 (TJJ)


Pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2016), intervenors—the Pantagraph, WGLT FM, and the Illinois Press Association—appeal the McLean County circuit court’s January 3, 2017, order denying the intervenors’ request to open for public inspection the fourth and fifth motions in limine filed under seal by criminal defendant, Kirk P. Zimmerman. On appeal, the intervenors contend the circuit court erred by finding the presumption of public access to judicial documents did not apply to the documents at issue. We reverse and remand for further proceedings.

8. Criminal Law: Affirmed: Trial court properly permitted State in murder prosecution to introduce preliminary hearing testimony of a witness who was unavailable at trial; prosecutor's argument did not constitute improper conduct on defendant's post-arrest silence; and trial court properly refused to answer jury question regarding self defense beyond stating, "continue your deliberations." Reyes, J.

No. 2017 IL App (1st) 140369  People v. Boston  Filed 3-31-17 (TJJ)


Following a jury trial, defendant Sylvester Boston was convicted of first degree murder in connection with the fatal stabbing of Steven Moore, Sr. (Moore) and sentenced to 50 years’ imprisonment. On appeal, defendant contends (1) the admission of  preliminary hearing testimony of a key eyewitness violated the confrontation clause and the Illinois Rules of Evidence, (2) the trial court erred in allowing the State to introduce defendant’s prior conviction for possession of contraband in a penal institution,  (3) the State’s improper comments on defendant’s postarrest silence warrant a new trial, (4) defendant was denied his right to a properly instructed jury where the court failed to clarify Illinois law on self-defense in response to a jury note, (5) defendant’s right to a unanimous jury verdict was violated where a juror expressly dissented during the polling of the jury, and (6) defendant’s trial counsel was ineffective for failing to preserve certain issues for appellate review. For the reasons discussed below, we affirm the judgment of the circuit court in its entirety.

9. Criminal Law: Affirmed in part and reversed in part:  Defendant conviction for possession of a firearm by a street gang member reversed where State's evidence did not show a "course or pattern of criminal activity" since the effective date of the statute; conviction for aggravated unlawful use of weapon affirmed. Reyes, J. (Gordon, J., dissenting).

No. 2017 IL App (1st) 142723  People v. Lozano  Filed 3-31-17 (TJJ)


Following a jury trial in the circuit court of Cook County, defendant Gilbert Lozano was convicted of unlawful possession of a firearm by a street gang member and aggravated unlawful use of a weapon, predicated on defendant not possessing a valid  Firearm Owner’s Identification card. Defendant appeals his conviction, asserting the evidence was insufficient to find him guilty beyond a reasonable doubt where the State failed to present evidence that established he was a member of a “street gang” as  provided by the statutory definition. For the reasons that follow, we agree and reverse defendant’s conviction for unlawful possession of a firearm by a street gang member.

10. Criminal Law: Reversed and remanded: Trial court erred in finding that illegal arrest was attenuated, thus requiring reversal as defendant's statment ought to have been suppressed in murder case, but remaining evidence sufficient to prove defendant guilty beyond a reasonable doubt thus providing a basis to warrant a new trial. Gordon, J. (Reyes, J., sp. concurring) (Lampkin, J., dissenting).

No. 2017 IL App (1st) 150575  People v. Hernandez  Filed 3-31-17 (TJJ)


After a jury trial, defendant Sergio Hernandez was found guilty of the first-degree murder of Rocio Munoz and of personally discharging the firearm that caused her death. Defendant was sentenced to 30 years for the murder and 25 years as a result of a firearm enhancement, for a total sentence of 55 years with the Illinois Department of Corrections (IDOC). Defendant now appeals the trial court's decision, arguing: (1) that the trial court erred in finding attenuation; (2) that his counsel at the attenuation hearing had a conflict of interest, since the appellate court permitted defendant on remand to address his claim that his trial counsel was ineffective for failing to move to suppress his statement as involuntary, and the same trial counsel continued to represent defendant on remand (Hernandez, 2013 IL App (1st) 103447-U, ¶ 56 (permitting the parties " 'an opportunity to develop a factual record' "); and (3) that this counsel was ineffective for failing to move to suppress defendant's statement as involuntary. For the following reasons, we reverse defendant's conviction, suppress the statement he made at the police station and remand for further proceedings consistent with this opinion.

11. Real Estate Taxes: Affirmed: County assessor could properly seek penalties and interests for taxpayers who had incorrectly claimed a homestead exemption for real estate, and higher interest for taxpayers with more inaccurate homestead claims was not unconstitutional, but assessor could not claim as far back as 2007 tax year. Delort, J.

No. 2017 IL App (1st) 151318  Cuevas v. Berrios  Filed 3-31-17 (TJJ)


Illinois law allows property owners to claim a partial exemption, commonly known as the “homestead exemption,” from real estate taxes for their primary residence. Plaintiff Daniel Cuevas claimed homestead exemptions on 11 different properties which he owned in Cook County. Only one of those properties was his principal residence. The county assessor, defendant Joseph Berrios, convened an administrative hearing to determine the relevant facts regarding Cuevas’s exemptions and the amount he might owe due to any improper exemptions. The Department of Erroneous Homestead Exemption Administrative Hearings (DEHE) determined that Cuevas improperly took exemptions on 10 of the 11 properties and that he owed $91,984.85 for back taxes, penalties, and interest for tax years 2007 to 2012. Cuevas filed two lawsuits challenging this action. In case No. 15 CH 2321 (the class action case), the circuit court upheld the legality of the administrative hearing process and the underlying statute against a host of challenges asserted by Cuevas. Cuevas also filed an administrative review case, No. 15 CH 169. In that case, the circuit court reversed the DEHE’s determination that Cuevas was responsible for back taxes for the 2007 tax year. We affirm the circuit court’s judgments in both cases.

12. Criminal Law: Affirmed: Chain of custody in narcotics case properly proved beyond a reasonable doubt over claim that chain was not proven where recovering officer described suspect narcotics as a "rock" and stipulation to chemist's testimony described it as "powder"; where parties stipulated as to "chain of custody" at trial, defendant could not on appeal claim that the chain had not been maintained. Gordon, J. (Lampkin, J., sp. concurring).

No. 2017 IL App (1st) 152090  People v. Trice  Filed 3-31-17 (TJJ)


After a bench trial, defendant Sammy Trice was convicted of delivery of a controlled substance and sentenced to six years with the Illinois Department of Corrections. On appeal, defendant claims: (1) that the State failed to establish a proper chain of  custody for the controlled substance, although it was the subject of a stipulation between the parties; and (2) that both the fines and fees order and the mittimus should be corrected. The State agrees that the fines and fees order must be corrected to reflect a  total amount owed of $954 and that the mittimus must be corrected to reflect a single count of delivery of a controlled substance, rather than manufacture and delivery as currently indicated. Thus, these corrections are so ordered.  However, for the following reasons, we do not find persuasive defendant's chain-of-custody arguments, and we affirm his conviction.

13. Consumer Leasing Act/Attorneys' Fees: Affirmed: Trial court did not abuse its discretion in awarding only 10% of hours claimed in award for attorneys' fees under federal Consumer Leasing Act, where plaintiff was successful in part on claims not entitled to award of attorneys' fees and supreme court ruling worked on by attorneys did not benefit plaintiff individually. Hall, J.

No. 2017 IL App (1st) 152114  Robinson v. Point One Toyota  Filed 3-31-17 (TJJ)


More than 20 years of litigation and three appeals later, this case returns to us to review the circuit court’s award of attorney fees and costs to plaintiff Latanya Kemp (Ms. Kemp) on her claim under the federal Consumer Leasing Act of 1976 (15 U.S.C. §1667(a) (1994) (CLA)). The sole issue on appeal is whether the circuit court erred in its determination of the amount of reimbursable attorney fees and costs it awarded to Ms. Kemp. Ms. Kemp challenges the award on several grounds. For clarity sake we address Ms. Kemp’s arguments as follows: (1) whether the circuit court applied the wrong methodology in calculating the amount of reimbursable attorney fees; (2) whether the circuit court erred when it; (a) reduced the amount of costs requested by Ms.  Kemp, (b) denied her request for attorney fees incurred for the fee petition proceeding, and (c) arbitrarily reduced her attorney fees request; and (3) whether the circuit court erred when it failed to award fees for the appellate proceedings. Affirmed.

14. Affirmed: Trial court decision that plaintiff not enetitled to award based on quantum meruit for services in connection with construction of a sewer system upheld, as plaintiff's work upon which it based its quantum meruit claim was required by terms of contract, so that plaintiff was not entitled to additional funds beyond those required by the contract. Ellis, J.

No. 2017 IL App (1st) 153409  Archon Construction Company Inc. v. U.S. Shelter, LLC  Filed 3-31-17 (TJJ)


This appeal involves the trial court’s decision on a quantum meruit claim made by plaintiff, Archon Construction Company, Inc. (Archon) against defendants, U.S. Shelter, L.L.C., U.S. Shelter Group, Inc., and Oak Ridge of Elgin, L.L.C. (collectively, U.S.  Shelter). Archon appeals the trial court’s decision denying its claim. U.S. Shelter cross-appeals the trial court’s decision denying its counterclaim for breach of contract against Archon. As we explain below, the contract required a sanitary sewer system that was subject to the final approval of the city. This matter actually involves a contractual dispute between the parties for the extra work and costs involved in obtaining that final approval. But, because an express contract existed between Archon and U.S. Shelter, Archon cannot recover under the quasi-contractual quantum meruit theory. We also conclude that the circuit court’s decision finding in favor of Archon on U.S. Shelter’s counterclaim was not against the manifest weight of the evidence. For the reasons that follow, we affirm the judgment of the circuit court of Cook County.

15. Evictions: Reversed and remanded: A material issue of genuine fact existed as to whether defendant tenant had a month to month lease with bank that succeeded defaulting mortgagor as landlord, so that tenant might have been eligible for "relocation assistance fee" of $10,600 under applicable municipal ordinance. Reyes, J.

No. 2017 IL App (1st) 153576  Wells Fargo Bank, N.A. v. McCondichie  Filed 3-31-17 (TJJ)


Defendant Volneat McCondichie appeals from the circuit court’s order, granting summary judgment in favor of plaintiff Wells Fargo Bank, N.A. on its claim for forcible entry and detainer. On appeal, defendant maintains that summary judgment should not  have been granted where she was entitled to a relocation assistance fee pursuant to section 5-14-050 of the Protecting Tenants in Foreclosed Rental Property Ordinance (Ordinance) (Chicago Municipal Code § 5-14-050 (added June 5, 2013)). For the  reasons that follow, we reverse and remand for further proceedings.

16. Construction Law: Affirmed: In third party action by construction company against limited liability corporation for damages in connection with work done in construction of condominium building, trial court properly ruled that LLC was not a "mere continuation" of initial corporation that worked on the project, and judgment entered in favor of LLC upheld. Gordon, J.

No. 2017 IL App (1st) 161036  The Groves of Palatine Condominium Association v. Walsh Construction Company  Filed 3-31-17 (TJJ)


The instant appeal arises from the trial court’s dismissal of plaintiff Walsh Construction Company’s third-party complaint against defendant K & K Iron Works, LLC (the LLC) on the basis that the LLC was not a mere continuation of the company that had  subcontracted for certain construction work with plaintiff. On appeal, plaintiff argues that the LLC was a mere continuation of K & K Iron Works, Inc. (the corporation), and, accordingly, the trial court erred in dismissing the third-party complaint on that basis. For the reasons that follow, we affirm.

17. Qui Tam Claims: Affimed: Trial court properly dismissed qui tam claim made in connection with investments in real estate in Illinois by State of Hawaii pension system based on res judicata, as plaintiff's claims had been substantially litigated in prior case; defendants not entitled to more liberal "costs" available under Hawaii law. Delort, J.

No. 2017 IL App (1st) 161480  The Employees' Retirement System of The State of Hawaii v. Clarion Partners, LLC   Filed 3-31-17 (TJJ)


Plaintiff Stephen Jackson filed this qui tam lawsuit under Hawaii’s false claims statute, Haw. Rev. Stat. § 661-21 et seq. (2014) (Hawaii False Claims Act), against defendants Clarion Partners, LLC, and ING Clarion Realty Services, LLC. The circuit court granted summary judgment to the Clarion defendants. Jackson appeals that decision. The Clarion defendants have filed a cross-appeal claiming that the court erred by denying their request for certain costs which they contend were recoverable under Hawaii law. We affirm.

18. Medical Malpractice/Statute of Limitations: Certified Question Answered: In action for medical malpractice, omission of treating doctor can be deemed a "mistake" for puropses of relation back doctrine, so as to obviate statute of limitations, but whether defendant doctor in this instance had constructive notice of claim was an issue of fact to be developed on remand. Gordon, J. (Lampkin, J., dissenting).

No. 2017 IL App (1st) 161709  Owens v. VHS Acqusition Subsidiary Number 3  Filed 3-31-17 (TJJ)


Dr. Raziuddin filed a motion to dismiss the lawsuit, claiming that he was not the physician who treated plaintiff and that Dr. Seema Elahi was actually the treating physician. Plaintiff then amended his complaint, adding Dr. Elahi as a defendant. Dr. Elahi then filed a motion to dismiss the complaint, arguing that the statute of limitations had expired. The trial court denied the motion to dismiss, finding that the amended complaint related back to the initial filing of the complaint, but certified the question for review pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 1, 2015). We allowed Dr. Elahi’s petition for leave to appeal and now answer the trial court’s certified question in the affirmative. However, while we are able to answer the question of law presented in the certified question, the record of the case at bar is not sufficiently developed for us to determine the application of that law to the factual circumstances present in the instant case. Accordingly, our analysis provides a roadmap that may be used to answer this important question in the court below, as well as in the future, and the case is remanded back to the trial court.

19. Unemployment Benfits: Affirmed: Trial court properly dismissed complaint for administrative review in connection with denial of unemployment benefits where complaint not filed within required 35-day period, but petitioner not entitled to relilef in any event, where record supported referee decision that petitioner was excessively absent from job. Gordon, J.

No. 2017 IL App (1st) 162367  Twyman v. The Illinois Department of Employment Security  Filed 3-31-17 (TJJ)


Plaintiff Wayde Twyman appeals the trial court's grant of defendant's motion to dismiss for lack of subject matter jurisdiction. The trial court dismissed plaintiff's complaint because plaintiff failed to file it within 35 days after service of a decision by the  Board of Review of the Illinois Department of Employment Security (Board). In his complaint, plaintiff had sought review of a final decision by the Board denying him unemployment benefits. For the following reasons, we affirm the dismissal.

5 Appellate Cases Posted 3-30-17

People v. Rottau

1. Civil Law:  Affirmed in part, Reversed in part:  The two-page summary Kopnick attached to her complaint, which addressed only the initial sections of the RLTO, is not what the City Council intended to be attached to a lease. The omitted sections offer significant protection to tenants, and their absence from the summary that was attached to Kopnick’s complaint is not in keeping with the ordinance’s stated purpose. We find that the trial court abused its discretion in rendering a “with prejudice” dismissal of Count I and denying Kopnick leave to amend, given that (1) Kopnick proposed allegations that would correct the defects of her original pleading, (2) amending would not prejudice or surprise the defendant because the dismissed complaint was the only pleading on file and the defendant’s discovery into possible defenses was still available, (3) the proposed amendment was timely made at the preliminary stages of this relatively new case, and (4) Kopnick had no previous opportunities to amend. Kopnick’s claims with respect to the Consumer Fraud Act fail because she fails to allege specific, actual damages. Furthremore, Kopnick’s failure to tender the late notice fee to her landlord means she cannot sustain a claim for unjust enrichment on the basis of the unpaid “charge.” Unjust enrichment occurs where one person has received money under such circumstances that in equity and good conscience, he ought not retain. McBride, J.

No. 2017 IL App (1st) 152054 Kopnick v. JL Woode Management Company, LLC Filed 3-30-2017 (ATH)

 

Charlene Kopnick sued her former landlord, claiming a violation of section 5-12-170 of Chicago’s Residential Landlord and Tenant Ordinance (RTLO), a violation of section 2 of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) and common law unjust enrichment with regard to her 2014 lease. The trial court granted the landlord’s motion to dismiss the action with prejudice.  On appeal, Kopnick argues her allegations were factually sufficient and that, at minimum, she should have been allowed to amend. This is a case of first impression regarding section 5-12-170 of the RLTO.  In count I, Kopnick alleged the landlord “did not give” her a summary copy of the RLTO.  In Count II, she alleged the daily fee charged by her landlord for each of the eight days she had not provided timely notice of her intent to renew or move out were in violation of the RTLO as well as unfair, unscrupulous, and contrary to public policy thereby violating the Consumer Fraud Act.  In count III, she alleged that her landlord’s “collection of notice fees and the enforcement of their notice fee policy is an unjust retention of a benefit obtained by coercion.”

People v. Rottau

2. Criminal Law:  Affirmed: Here, the trial court reexamined the underlying science, concluded that the State presented an adequate foundation for the admission of the evidence, and found the evidence reliable. We need not decide whether the trial court erred in admitting the human-remains-detector-dog evidence, because the overwhelming evidence of defendant’s guilt rendered any potential error harmless beyond a reasonable doubt.  The human-remains-detector-dog evidence, without corroborating scientific evidence of the victim’s presence on the rug or at the excavation site, could be viewed as analogous to bloodhound trailing evidence, which has been deemed inadmissible per se to show any factual proposition in a criminal case in Illinois. However, the trial court followed the procedure outlined by Rule 702, Lerma, and Frye to reexamine the scientific reliability of the evidence. The court admitted the evidence upon finding the State’s expert to be qualified and credible and the science to be generally accepted in its related field. Burke, J.  

No. 2017 IL App (2d) 140326 People v. Montano Filed 3-30-2017 (ATH)

 

In July 1990, Guadalupe Montano, the wife of defendant, Aurelio Montano, went missing, and her body was never found. The State’s theory was that defendant, motivated by jealousy, strangled Guadalupe with a rope, wrapped her in a rug, buried her at a horse farm with the help of his brother, told other family members about the killing, and moved the body before the police could find it. In 2014, a jury found defendant guilty of first-degree murder, and the trial court imposed a sentence of natural life imprisonment.  On appeal, defendant argues he is entitled to a new trial because the court erred in allowing evidence that three detector dogs alerted to the scent of remains on the rug which was found buried in an outdoor area of the horse farm.  Defendant argues the evidence did not meet the reliability standard set forth in Frye v. United States. 

People v. Rottau

3. Administrative Review:  Affirmed:  On administrative review, the appellate court reviews the final decision of the Board, not the decision of the trial court. Under the Unemployment Insurance Act, an employee is ineligible for unemployment insurance benefits if the employee was discharged for misconduct connected to his or her work. we are indeed left with a definite and firm conviction that the Board committed a mistake in determining that Timmerman’s false statement was not material. The record shows that, although the employer was not required to hire a CVT, it had chosen to do so and had elected to employ Timmerman in that position. Because the employer believed that Timmerman was a CVT, the employer paid Timmerman at a higher rate than the other veterinary technicians, gave Timmerman more responsibility (the ability to perform CPR on the animals), and held Timmerman to a higher standard of conduct. Ruling of the Board is set aside and ruling of the trial court affirmed.  Carter, J.

No. 2017 IL App (3d) 150676 Peterson Vet, Inc. v. The Department of Employment Security Filed 3-30-17 (ATH)

 

Plaintiff, Peterson Vet, Inc., filed a complaint in the trial court for administrative review of a decision of the Department of Employment Security Board of Review (Board) that granted unemployment insurance benefits to one of Peterson Vet’s former employees, defendant Kara Timmerman. Defendant had worked for Peterson Vet as a veterinary technician and was discharged after it was learned she falsely represented on her application that she was a Certified Veterinary Technician.  Her license had actually lapsed.  After being discharged, the defendant filed an application for unemployment benefits. A Department claims adjudicator determined that Timmerman was ineligible for unemployment benefits based upon misconduct. Defendant appealed this ruling.  A department referee later affirmed the decision of the claims adjudicator after a hearing. Defendant than appealed to the Board who later revered the referee’s decision.  Upon review, the trial court reversed the Board’s decision and denied Timmerman’s claim for benefits. Timmerman appeals. Trial court affirmed.

People v. Rottau