Illinois Supreme and Appellate Court Case Summaries
    
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By  Robert Clifford( RJC) ,Timothy J. Joyce(TJJ) and Jean M. Cocozza(JMC),

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6 Appellate Cases Posted 4-8-15

1. Criminal Law: Post-Conviction Hearing Act: Reversed and remanded: Defendant stated an arguable constitutional claim of ineffective assistance of counsel. Thus, the trial court erred when it dismissed his postconviction petition.  Birkett, J.

No. 2015 IL App (2d) 130587    People v. Shipp   Filed 4-08-15 (RJC)


Defendant, Phillip M. Shipp, appeals the trial court’s summary dismissal of his petition filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)) in connection with his convictions of possession of cannabis (720 ILCS 550/4(a) (West 2008)), armed violence (720 ILCS 5/33A-2(a) (West 2008)), unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West 2008)), unlawful possession of a firearm by a felon (720 ILCS 5/24-1.1(a) (West 2008)), and unlawful use of weapons (720 ILCS 5/24-1(a)(4) (West 2008)). He contends that he stated a sufficient claim that his counsel on direct appeal was ineffective for failing to challenge the denial of his motion to suppress. We agree. Accordingly, we reverse and remand.

2. Stalking No Contact Order Act/Appeals: Affirmed: The record makes clear that the trial court dismissed the petition, following an emergency hearing, for failing to plead a course of conduct as required under the Act.  Nevertheless, petitioner argues that he was “entitled to have his day in court.” Petitioner’s argument seems to be that a plenary hearing was warranted, despite the trial court’s finding that no course of conduct had been demonstrated by the petition. However, petitioner has forfeited this argument by failing to cite supporting
authority. Also, Petitioner filed the appeal so that he could continue to harass respondent and interfere with the criminal prosecution against him. Accordingly, sanctions are warranted.  Jorgensen, J.

No. 2015 IL App (2d) 140252   Gakuba v. Kurtz   Filed 4-08-15 (RJC)


Pro se petitioner, Peter Gakuba, filed a verified petition, pursuant to the Stalking No Contact Order Act (Act) (740 ILCS 21/1 et seq. (West 2010)), against respondent, Kate C. Kurtz, the assistant State’s Attorney who was prosecuting petitioner for three counts of aggravated criminal sexual abuse. The trial court dismissed the petition. Petitioner timely appealed and raises the following issues: (1) whether the trial court erred in dismissing the petition without allowing petitioner to present evidence; (2) whether the trial court erred in sealing the record; and (3) whether the trial court erred in denying petitioner’s motion to substitute judges. Respondent argues that we should strike petitioner’s brief and dismiss the appeal, based on petitioner’s failure to comply with supreme court rules. Respondent also argues that sanctions should be imposed on petitioner for filing a frivolous appeal. For the reasons that follow, we reject petitioner’s arguments, as they are either forfeited or unsupported by the record. Further, though we decline respondent’s invitation to strike petitioner’s brief and dismiss the appeal, we grant respondent’s request for sanctions.

3. Settlements/Appeals/Cert. Questions: Certified questions are answered in the negative, and the cause is remanded: Regardless of whether the draft agreement spelled out the requirement that the agreement be approved by the City Council, section 3.1-40-40 of the Municipal Code imposes such a requirement, and that requirement does not disappear merely because the agreement failed to mention it. To the contrary, those who enter into agreements with municipalities are charged with knowledge of the statutory requirements that govern such
agreements.  Schostok, J. with McLaren, J. dissenting.  

No. 2015 IL App (2d) 140645    Meade v. The City of Rockford     Filed 4-08-15 (RJC)


On the eve of trial, the plaintiff, Jane Meade, and the defendant, the City of Rockford (City), reached a settlement agreement and the trial date was stricken. The plaintiff subsequently signed a written settlement agreement drafted by the City. However, when the settlement was presented to the city council (City Council or Council) a few weeks later, that body (including some of the Council members who had been present at the settlement conference and had approved the settlement offer at that time) voted to reject the settlement agreement. The plaintiff moved to enforce the settlement agreement, and the circuit court of Winnebago County denied the motion but certified certain questions pursuant to Illinois Supreme Court Rule 308. We accepted the appeal to resolve the certified questions, and now answer all of them in the negative.

4. Mortgage Foreclosure: Affirmed: This case does not present an issue of standing as the trial court was correct to determine that the Perrys waived their right to assert that affirmative defense. Accordingly, the argument, as originally raised by the Perrys' denial of the allegation in their answer, is whether Aurora proved its alleged "legal capacity to sue." Having alleged capacity in its complaint, it is incumbent upon Aurora to prove capacity notwithstanding the Perrys' waiver of their right to argue standing or even their denial of Aurora's capacity to bring suit. Aurora did prove its claim of capacity. McDade, J.

No. 2015 IL App (3d) 130673    Aurora Bank FSB v. Perry    Filed 4-08-15 (RJC)


Defendant-appellants, Evelyn and John Perry (the Perrys), appeal from a trial court order granting summary judgment to plaintiff-appellee, Aurora Bank. In this appeal the Perrys contend that the trial court erroneously decided the issue of capacity as an issue of standing. The Perrys also appeal the trial court's subsequent confirmation of the sale of the subject property and substitution to plaintiff. We affirm the trial court's rulings.

5. DUI/Sentencing: Affirmed in part and vacated in part and cause remanded: The trial court's sentence of nine years' imprisonment was not manifestly disproportionate to the nature of the offense. There is no indication from the record that the trial court failed to consider any factor in mitigation, including defendant's remorse, history of employment, and the fact that he did not intend to hit the horse with his vehicle. Defendant's presentence incarceration credit does not apply against the VCVAF fine. Schmidt, J.

No. 2015 IL App (3d) 140031   People v. Lake    Filed 4-08-15 (RJC)


Defendant, Angus D. Lake, pled guilty to aggravated driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(1), (d)(1)(F) (West 2010)). Defendant appeals, arguing that: (1) his sentence of nine years' imprisonment was excessive; and (2) a $5-per-day presentence incarceration credit should be applied against various fines imposed by the trial court. We affirm defendant's sentence, vacate the trial court's order for fines and fees, and remand the matter of fines and fees to the trial court with directions.

6. Administrative Review Law: Affirmed in part and vacated in part and cause remanded: It is the Board that must be named as a defendant in plaintiff's administrative review complaint. Plaintiff failed to name the Board as a defendant and, therefore, the circuit court properly dismissed the complaint with prejudice. Appleton, J. 

No. 2015 IL App (4th) 140531   Mannheim School District No. 83 v. Teachers' Retirement System of Illinois    Filed 4-08-15 (RJC)


Plaintiff, Mannheim School District No. 83 (Mannheim), appeals the circuit court's order dismissing with prejudice its complaint for administrative review filed against defendant, Teachers' Retirement System of Illinois (TRS). The court dismissed the complaint because plaintiff failed to sue and serve the correct defendant in compliance with the applicable section of the Administrative Review Law (735 ILCS 5/3-107(a) (West 2012)). We affirm.

3 Appellate Cases Posted 4-7-15

1. Criminal Law/Jury issues/Zehr: Reversed and remanded: “[T]he language of Rule 431(b) is clear and unambiguous ***.”  It requires trial courts to ask prospective jurors whether they both understand and accept the four principles set forth in the rule.  “The failure to do so
constitutes error.” In this case, the trial court failed to ask the jurors whether they understood the first principle. Thus, the court committed error.  Lytton, J. with McDade, J. specially concurring, and with Schmidt, J. concurring in part and dissenting in part.

No. 2015 IL App (3d) 130064    People v. Gashi   Filed 4-07-15 (RJC)


Defendant Liridon Gashi was convicted of two counts of aggravated criminal sexual abuse following a jury trial. The trial court sentenced defendant to 24 months of conditional discharge. Defendant appeals, arguing that he was denied a fair trial because the trial court (1) told jurors that they could decide what “reasonable doubt” means, and (2) failed to ask prospective jurors if they understood and accepted each of the principles set forth in Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). We agree that the trial court committed reversible error by telling jurors that they could decide for themselves what “reasonable doubt” means. Reversed and remand.

2. Mental Health: Reversed and remanded: Appeal is moot; however, public interest exception applies.   Here, the trial court did not question defendant before denying his request to waive counsel and proceed pro se. The trial court improperly denied respondent his right to waive counsel. Lytton, J. with Schmidt, J. specially concurring. 

No. 2015 IL App (3d) 130605    In re Kurtis C.    Filed 4-07-15 (RJC)

Respondent Kurtis C. voluntarily admitted himself to a hospital for mental health treatment. The admitting physician filed a petition for administration of psychotropic medications. Prior to a hearing on the petition, respondent indicated his desire to waive counsel and represent himself. After hearing testimony from respondent’s treating physician, the court denied respondent’s request to proceed pro se. Following a hearing, the court found the petition proven by clear and convincing evidence and entered an order authorizing medical personnel to administer to respondent the medications set forth in the petition. On appeal, respondent argues that (1) the trial court improperly denied his request to waive counsel, (2) the allegations set forth in the petition were inadequate, (3) he was denied effective assistance of counsel, and (4) the petition was not proved by clear and convincing evidence. We reverse, holding that the trial court improperly denied respondent his right to waive counsel.

3. Insurance/Duty to defend: Affirmed in part, reversed in part and remanded: The circuit court erred when it found adequate evidence in the record to prove, as a matter of law, that Allianz breached its duty to defend Sinclair on any claims for bodily injury arising from the
underlying lawsuits. However, the circuit court's determination that Allianz breached its duty to defend Sinclair with respect to the property damage claims, and as such, is liable for defense costs Sinclair has incurred defending the property damage claims from the time it gave Allianz notice of said claims in 2006 is affirmed. Moore, J.  

No. 2015 IL App (5th) 140069    Sinclair Oil Corporation v. Allianz Underwriters Insurance Company    Filed 4-07-15 (RJC)

The defendant, Allianz Underwriters Insurance Company, formerly known as Allianz Underwriters, Inc. (Allianz), appeals, pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010), the January 8, 2013, order of the circuit court of Madison County which granted a partial summary judgment in favor of the plaintiff, Sinclair Oil Corporation (Sinclair). In said order, the circuit court made a determination that Allianz breached its duty to defend Sinclair with respect to multiple underlying lawsuits and claims arising out of alleged environmental contamination of soil and groundwater in Hartford, as well as cleanup activities and alleged exposure to benzene-containing products as a result of such alleged contamination (the underlying lawsuits).


1 Appellate Cases Posted 4-3-15

1. DUI: Affirmed: In this case, defendant did not offer any testimony to the court establishing the amount of time for this particular traffic stop. Absent evidence from the defense allowing us to determine how much time elapsed during the traffic stop, we will not speculate concerning the length of time this traffic stop consumed. Therefore, we conclude the trial court properly allowed the State’s request for a directed finding.Circumstantial evidence supports the finding that defendant was in actual, physical control of the black SUV before the driver of the blue Chevy picked her up and offered her a ride home. Wright, J.

No. 2015 IL App (3d) 140105    People v. Taiwo  Filed 4-03-15 (RJC)


After a bench trial, defendant, Herika Taiwo, was convicted of driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2012)), improper lane usage (625 ILCS 5/11-709(a) (West 2012)), and failure to notify authorities of an accident (625 ILCS 5/11-406(a) (West 2012)). Defendant appeals the DUI conviction alone by challenging two rulings in the trial court. First, defendant claims the trial court improperly denied her motion to quash her arrest and suppress evidence (motion to suppress). Alternatively, defendant contends the State failed to prove beyond a reasonable doubt that she was in actual physical control of any vehicle on the night of her arrest for DUI. We affirm.

3 Appellate Cases Posted 4-2-15

1. Appellate Procedure: Nonappealable Interlocutory Orders/Santions. Hyman, J.

No. 2015 IL App (1st) 133138 The Raymond W. Pontarelli Trust v. Pontarelli   Filed 3-18-15(JMC)


Defendants filed an interlocutory appeal from three orders, two of which involved the leasing of condominiums held in a trust and the disbursement of trust income. The third order denied defendants' motion to dismiss. Held: the first two orders did not qualify as injunctions and, therefore, were not appealable. The third order did not purport to finally resolve any issue and was likewise not ripe for appeal. Appeals dismissed for lack of jurisdiction.  The court also sanctioned Defendant’s counsel for filing three frivolous appeals.

2. Federalism: Res Judicata Effect of Bankruptcy Judgment/Admissibility of Stipulation: Affirmed: Pucinski, J.

No. 2015 IL App (1st) 122725 National Union Fire Insurance Company of Pittsburgh, PA v. DiMucci   Filed 3-31-15 (JMC)


The case involved the effect of bankruptcy judgments and stipulations regarding claims entered in bankruptcy court on state-court claims. Issues: (1) whether a default judgment in a bankruptcy proceeding on a state-law claim for fraudulent transfer of funds from a bankruptcy claim after the claim process is a final judgment for res judicata purposes; and (2) whether a stipulation entered into in a bankruptcy case, despite defendant's claim that his attorney did not have authority to enter into the stipulation, was admissible.

3. Criminal Law: Admissibility of Expert Witness Testimony/Waiver of Jury Instruction. Affirmed. Pucinski, J., with Mason, J., dissenting.

No. 2015 IL App (1st) 121016  People v. Jones   Filed 3-31-15 (JMC)


Jones was convicted of first-degree murder based on circumstantial evidence and the expert opinion testimony of a firearm/toolmark examiner who identified the bullet found by the victim as being fired from Jone's gun.  Issues: (1) admissibility of the firearm/toolmark examiner's testimony where it lacked an adequate foundation where the expert testified that he found "sufficient agreement" but did not testify to any facts that formed the bases or reasons for this ultimate opinion that the bullet matched defendant's gun; and (2) whether Jones waived his right to a second-degree murder instruction. 

3 Appellate Cases Posted 4-1-15

1. Contracts: Statute of Liminations/Release/Recusal: Affirmed. Schwarm, J.

No. 2015 IL App (5th) 140037 Hassebrock v. CEJA Corporation   Filed 3-31-15(JMC)


Hassebrock and Deep Rock Energy, owner of oil and gas leases, contracted with Ceja Corporation to perform a seismic survey in exchange for a 25% working interest in the leases.  Ceja would also operate any producing wells, and the parties would enter into a separate agreement regarding Ceja's operations, which never occurred.  Deep Rock later obtained other leases on different land which Ceja developed into working wells without Hassebrock. Hassebrock filed a “Notice of Claim of Interest” on those leases.  Deep Rock sued hassebrock to remove the notice as a cloud on title.  Hassebrock filed a counterclaim against Deep Rock to enforce the venture agreement.  Hassebrock and Deep Rock entered into a settlement agreement, which Hassebrock later claimed Deep Rock breached.  As part of that agreement, Hassebrock released all claims to the subject leases.  Issues: (1) whether Hassebrock’s claims against Deep Rock were time-barred; (2) whether the release precluded Hassebrock’s claims where Deep Rock was named in the release; (3).whether Deep Rock was judicially estopped from claiming the benefits of the release; (4) whether it was proper for the trial court to enter judgment for Deep Rock and then recuse itself without stating why.  The circuit court ruled for Deep Rock on all issues


2. Illinois Public Relations Act: Burden of Proof in Grievance-Arbitration Disputes. Affirmed. Carter, J.

No. 2015 IL App (3rd) 140369 County of Tazewell v. Illinois Fraternal Order of Police Labor Council    Filed 4-1-15 (JMC)


The County and its sheriff sought to vacate an arbitrator's decision sustaining a grievance that the Fraternal Order of Police (Union) had filed over the creation of two non-bargaining-unit supervisory positions within the county sheriff's department.  The trial court upheld the arbitrator's decision, sustaining the Union's grievance.  Issues: (1) whether the two newly created positions were included in the bargaining unit; (2) whether the arbitrator ignored the plain language of the collective bargaining agreement; and (3) whether the arbitrator exceeded his authority by looking outside of the agreement in ruling upon the Employer's timeliness objection.

3. Criminal Law: Admission of Evidence of Subsequent Bad Act/Sentencing Juvenile as Adult. Affirmed.  Jorgensen, J.

No. 2015 IL App (2nd) 120444  People v. Cavazos   Filed 3-31-15 (JMC)


Justin Cavazos, a 16-year-old, and his brother, Joshua, were tried as adults and convicted of killing Oscar Rodriguez and Claudia Lozano in a drive-by shooting.  Justin’s jury convicted him of two counts of first-degree murder, attempted first-degree murder, unlawful possession of a stolen motor vehicle, and aggravated discharge of a firearm.  As to the first-degree-murder and attempted-murder convictions, the jury found that Justin, or one for whose conduct he was responsible, committed the crimes while armed with a firearm, thus subjecting him to mandatory sentencing enhancements.  He was sentenced him to an aggregate of 60 years.  Issues: was Justin denied a fair trial where the State introduced evidence: (1) of a subsequent bad act, which evidence he argues was relevant only for propensity purposes; and (2) from a gang expert, which he argues was purely cumulative and served only to characterize him as a bad person.  Justin also argued that Illinois law is unconstitutional where, together, the provisions for the mandatory transfer of juveniles to adult court, the application to juveniles of mandatory firearm enhancements, mandatory consecutive sentencing, and “truth in sentencing” (requiring that Justin serve 100% of the murder sentence and 85% of the attempted-murder sentence)) do not permit consideration of youthfulness at the time of the offense.