Illinois Supreme and Appellate Court Case Summaries

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

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2 Appellate Cases Posted 10-28-14

1. Defamation/Tortious Interference: Affirmed: Trial court properly granted summary judgment to television company which broadcast video of plaintiff, a competing television reporter, at home of a person who was the subject of controversy in connection with his wife's disappearance, as plaintiff was a "public figure" and no genuine issue of fact related to her claim that defendants had exercised "actual malice" in connection with their reporting, and deriviative claims relating to invasion of privacy and tortious interference with business relationships were also properly dismissed. Hoffman, J.

No. 2014 IL App (1st) 132480  Jacobson v. CBS Broadcasting, Inc.  Filed 9-30-14 (TJJ)

The plaintiff, news reporter Amy Jacobson, filed suit against the defendant, CBS Broadcasting, Inc. (CBS), for damages arising from a videotape made of her and her two young children while they were swimming in the backyard pool of a high-profile  source in a story upon which the plaintiff was reporting. The seven-count, fifth-amended complaint (complaint) asserted claims for intrusion upon seclusion, false light, intentional infliction of emotional distress, defamation of character, and tortious  interference with a business relationship and business expectation. After two separate proceedings, the circuit court granted summary judgment for CBS under section 2-1005 of the Code of Civil Procedure, as to all seven  counts, and the plaintiff now appeals, raising the following issues: (1) the court erred in finding her to be a public figure, and thus required to prove actual malice in her claims for defamation; (2) even assuming she is a public figure, she raised a triable  issue of fact as to the existence of actual malice; (3) summary dismissal of her false light claim similarly was error because a triable issue of fact exists as to actual malice; (4) the court erred in summarily dismissing her claim for intrusion upon seclusion  because she sufficiently demonstrated that CBS recorded private facts at a time when she had a reasonable expectation of privacy; and (5) the court erred in summarily dismissing her emotional distress and tortious interference claims as being merely  derivative of her defamation claims. For the reasons that follow, we affirm the judgment of the circuit court.

2. Paternity: Affirmed: Voluntary acknowledgement by "father" of paternity was not sufficient to establish paternity in the face of DNA evidence showing that the person who had voluntarily acknowledged paternity was not the father, and the "best interests" of the child standard was not to be applied in determining paternity and the trial court decision was correct. Welch, J.

No. 2014 IL App (5th) 140252  In re A.A.  Filed 10-28-14 (TJJ)

Matthew A. signed a voluntary acknowledgement of paternity with regard to the minor, A.A. (d.o.b. April 26, 2013). DNA testing later revealed that Matthew A. is not the biological father of A.A., but that Cort H., who is now deceased, is A.A.'s biological father. A guardian ad litem appointed to represent the interests of A.A. filed a petition to declare the nonexistence of a parent-child relationship between Matthew A. and A.A., which the trial court granted. Matthew A. now appeals from the order of the circuit court of Jefferson County declaring the nonexistence of a parent-child relationship between him and A.A. The issue raised in this appeal is whether the trial court applied the correct standard in evaluating the petition filed by the guardian ad litem and erred in granting the petition to vacate Matthew A.'s parental relationship with A.A. We affirm.

4 Appellate Cases Posted 10-27-14

1. Defamation/Malicious Prosecution: Affirmed in part, reversed in part, and remanded: In plaintiff's suit against defendant parents-in-law claiming malicious prosecution and defamation stemming from defendants' suit claiming that plaintiff had negligently administered sleeping drug to defendants' son leading to his death, trial court improperly dismissed malicious prosecution count, as plaintiff properly alleged facts showing defendants' lack of probable cause in making the lallegations in their suit against plaintiff and plaintiff did not have t plead "special damages," but trial court properly dismissed defamation count, as plaintiff failed to allege that defendants published the claim, or caused it to be published. Harris, J. (Connors, J., dissenting).

No. 2014 IL App (1st) 131276  Grundhoefer v. Sorin  Filed 10-27-14 (TJJ)

Plaintiff, Dava Grundhoefer, appeals the order of the circuit court granting the motions of defendants, John Sorin and Bette Sorin (Sorins), and James J. Roche and James J. Roche Associates (collectively "Roche"), to dismiss with prejudice Grundhoefer's  second amended complaint alleging malicious prosecution and defamation per se pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)). On appeal, Grundhoefer contends the trial court erred in dismissing her  complaint where (1) regarding her malicious prosecution claim, she alleged sufficient facts showing the Sorins lacked probable cause to bring the underlying wrongful death suit against her; and (2) regarding her defamation per se claim, she sufficiently  pled the publication element against all defendants. For the following reasons, we affirm the trial court's dismissal of the defamation per se counts, but reverse the dismissal of the count pertaining to malicious prosecution and remand for further  proceedings.

2. Criminal Law: Affirmed: Defendant's conviction for possession of controlled substance was affirmed in the face of his claims that the trial court erred in denying his motion to suppress where the police conducted a "free air" "search outside of his vehicle using a police dog and requiring defendant and the driver to turn the car and the car heater on so as to facilitate the search per People v. Bartelt, 214 Ill.2d 217 (2011), but conviction for felony resisting a peace officer reduced to a misdemeanor and remanded for re-sentencing where State's evidence failed to prove injury to the officer. Schmidt, J.

No. 2014 IL App (3d) 120676  People v. Thomas  Filed 10-27-14 (TJJ)

After a stipulated bench trial, defendant, Norman E. Thomas, was convicted of possession of a controlled substance and resisting a peace officer. The trial court sentenced  defendant to 30 months' conditional discharge. Defendant appealed, and this court remanded for further proceedings. People v. Thomas, 2011 IL App (3d) 090886-U. Following remand, defendant filed motions for a new trial and to reconsider his amended  motion to suppress evidence. Both motions were denied. On appeal, defendant argues that: (1) he could only be found guilty of misdemeanor resisting a peace officer; (2) the State failed to prove actual or constructive possession of cocaine; (3) he received  ineffective assistance of trial counsel; (4) he was unlawfully seized as a result of the officer's request to roll up the car windows and turn the heat on; and (5) the officer's request regarding the windows and heat constituted an unlawful search. We affirm in  part, modify in part, and remand for further proceedings.

3. Criminal Law/Juvenile Delinquency: Reversed: In case where juvenile arrestee gave false information to police officer after he was arrested, conviction for obstruction of justice was reversed, as that crime required as an element that the obstruction be done with the intent to prevent "apprehension," which, in this case, had already been effectuated when juvenile gave officer a fictitious name, even if alleged lie was for purpose of preventing police from finding out about unrelated outstanding warrant. O'Brien, J. (Holdridge, J., dissenting).

No. 2014 IL App (3d) 140346  In re Q.P.  Filed 10-27-14 (TJJ)

The minor, Q.P., was charged in a delinquency petition with obstruction of justice. The petition alleged that on March 31, 2014, Q.P. knowingly furnished false information to a police officer with the intent to prevent his own apprehension. Following a  bench trial, Q.P. was found guilty of the charged offense and sentenced to a term in the Department of Juvenile Justice not to exceed three years or the minor's twenty-first birthday, whichever shall come first. Q.P. appeals, arguing that the evidence was insufficient to prove he had the intent to prevent his own apprehension, because the evidence showed that he had already been apprehended at the time he gave false statements to the police. We reverse.

4. Criminal Law: Affirmed: Trial court properly granted defendant's motion to suppress results of blood draw from defendant in connection with arrest for driving under the influence of alcohol where blood draw was done without benefit of a warrant nor any exigent circumstances, as there was no evidence that the nature of the police investigation would have suffered unnecessary delay by seeking a warrant. Cates, J.

No. 2014 IL App (5th) 130432  People v. Armer  Filed 10-27-14 (TJJ)

The defendant, Jake P. Armer, was charged with driving while under the influence of alcohol in violation of sections 11-501(a)(1) and (2) of the Illinois Vehicle Code. He filed a motion to suppress the results of a blood-alcohol analysis on grounds that his  blood was drawn without his consent, without a warrant, and in the absence of exigent circumstances which would excuse the arresting officer from obtaining a search warrant. Following an evidentiary hearing, the trial court found that the arresting officer  was not faced with exigent circumstances that would justify acting without a warrant, and it granted the defendant's motion to suppress. The State filed a certificate of impairment and appealed. On appeal, the State claims that the trial court erred in finding  that there was no exigency and in granting the defendant's motion to suppress, where the arresting officer could have reasonably believed that the time delay attendant to processing the motor vehicle accident and transporting the defendant to a hospital  would lead to the destruction of evidence, namely the dissipation of alcohol from the defendant's blood. We affirm.

1 Appellate Case Posted 10-24-14

1. Arbitration: Affirmed: Trial court ruling that defendant waived both the right to arbitrate discovery matters and waive arbitration upheld, where defendants pursued year and a half course of seeking to fight its obligations as a respondent in discovery, only after then requesting it be considered party defendants and submitting 33,000 heavily redacted pages in response to discovery requests in its capacity as a respondent, in connection with plaintiff's claims that defendant and others had engaged in fraud in connection with plaintiff's brokerage account. Zenoff, J.

No. 2014 IL App (2d) 140682  Rathje v. Horlbeck Capital Management  Filed 10-24-14 (TJJ)

Defendant, Cantella & Co., Inc. (Cantella), appeals the trial court’s order of June 12, 2014, asserting that the court improperly conditioned Cantella’s right to arbitrate upon compliance with an outstanding discovery order. We affirm.

1 Appellate Case Posted 10-23-14

1. Criminal Law: Affirmed: In prosecution for violation of an order of protection, where the order required defendant to turn over firearms "typically kept by him" in a particular location, failure of the defendant to turn weapons over thereafter to investigating officers was sufficient to prove defendant guilty beyond a reasonable doubt; in order for defendant to raise defense of impossibility, he had to raise (or show in State's case) some evidence showing that it was impossible for him to comply, and where he did not, he was properly found guilty of violating the order of protection. O'Brien, J.

No. 2014 IL App (3d) 121001  People v. Costello  Filed 10-23-14 (TJJ)

The defendant, Thomas F. Costello, was found guilty of violation of an order of protection (720 ILCS 5/12-3.4(a)(1)(i) (West 2010)). The defendant appeals, arguing that the evidence was insufficient to prove him guilty beyond a reasonable doubt. We  affirm.

4 Supreme Court Cases Posted 10-17-14

1.  Mental Health Code: The supreme court examined the applicable provisions of the Mental Health Code and concluded that the circuit court was not required to consider the voluntary admission request where no oral or written motion therefor had been made by the respondent’s attorney. The circuit court was not required to sua sponte grant a continuance for the filing of such a motion. The supreme court said that courts “rule on motions and matters properly addressed to the court for determination” and that without “a specific request to continue the cause, the court did not act improperly in proceeding to a final disposition.” Although the circuit court could, in its discretion have granted a continuance to file an application for voluntary admission if a motion therefor had been made by counsel, no such motion was made here.  The circuit court was affirmed.  Chief Justice Garman delivered the judgment of the court, with opinion. Justices Freeman, Thomas, Kilbride, Karmeier, and Theis concurred in the judgment and opinion. Justice Burke dissented, with opinion.

2014 IL 114899      In re Lance H.     Filed 10-17-14 (RJC)

In re Lance H., 2014 IL 114899 - Opinion Summary

This Randolph County case concerns the procedure for how, at a hearing on a petition for involuntary admission to a mental health facility, a circuit court must deal with the subject individual’s oral request in his testimony for voluntary admission.
The 53-year-old respondent in this case has spent much of his adult life either incarcerated or institutionalized, having been admitted to mental health facilities fifteen times since the 2008 conclusion of his sentence for parole violations. In that year, he was involuntarily admitted to Chester Mental Health Center. On April 28, 2011, a petition for his involuntary admission was filed in the circuit court, certified by a psychiatrist at the center and supported, at the subsequent hearing, by the testimony of a center social worker. The respondent, who was represented by counsel, testified on his own behalf, expressing his desire for voluntary, rather than involuntary, admission. No oral or written motion as to this was filed by his attorney. The circuit court committed him involuntarily to the center and he appealed.
In 2012, after the term of commitment at issue here had ended and its issues might be considered moot, the appellate court reversed, finding the public interest exception to the mootness doctrine to be applicable. The supreme court did not disagree that a mootness exception was applicable in the appeal which followed. However, the appellate court had reversed the circuit court’s involuntary commitment order, holding that the circuit court should have considered and ruled on the respondent’s request for voluntary admission. On this point, the Illinois Supreme Court did not agree with the appellate court and reversed it.

2.  Criminal Law/Statements/Minors/Rape shild Law: Reversed and remanded:  In this appeal, the Illinois Supreme Court addressed the question of whether, in dealing with the minor, the police made a “reasonable” attempt to notify a proper person as required by statute. It held that this was done here and that the statute does not mandate the presence of a concerned adult at the questioning or even that actual notice be provided before the start of questioning. Although recognizing that the taking of a juvenile confession requires great care, the court said that the attempt here by police to provide proper notice was sufficient to comply with the statutory mandate, and that the conduct of the youth officer was not improper.  At the suppression hearing, counsel for the defendant had specifically denied any coercion or duress by police. Based on the totality of the circumstances, the supreme court upheld the denial of the motion to suppress. Although the defendant challenged the suppression-hearing effectiveness of his attorney, the supreme court said that the overwhelming evidence corroborating the victim’s testimony meant that there was no reasonable probability that the jury would have acquitted even in the absence of any reference to the confession. The claim of ineffectiveness was, thus, rejected by the supreme court.  In remanding for a new trial, the appellate court had opined that, under the “constitutional necessity” exception to Illinois’s rape shield statute, the defendant should be allowed to introduce evidence of the victim’s sexual history. The emergency room physician testified as to how he found external bruises on the victim and, internally, some cervical redness, which, however, he was unable to attribute to a sexual assault. The parties stipulated that no DNA of the defendant was found. The rape shield law, which, generally, bars inquiry into a victim’s prior sexual history with persons other than the defendant, was relied on by the trial court in excluding any further inquiry by the defense to explain the redness. In this decision, the supreme court said that the proper standard for evaluating the trial court’s ruling on sexual history is whether discretion was abused, but that, here, the issue is not reviewable because of the inadequacy of the original defense offer of proof. The appellate court, in its remanding order, should not have ordered admission of sexual-history evidence.  In this decision, the supreme court rejected the defendant’s challenge on cross-appeal to the constitutionality of the statute automatically allowing him to be tried as an adult because of the offenses with which he was charged. However, the court urged the General Assembly to review this provision and consider whether the exercise of judicial discretion should be added to it.  The appellate court had not reached the claim of an excessive sentence which the defendant had raised. That question should be addressed by the appellate court on remand to it. The new trial order was improper and was reversed. Justice Kilbride delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Karmeier, and Burke concurred in the judgment and opinion. Justice Theis dissented, with opinion.

2014 IL 115102    People v. Patterson    Filed 10-17-14 (RJC)
People v. Patterson, 2014 IL 115102 - Opinion Summary

In 2008, this defendant was 15 years old and residing at the John Costigan Center in Schaumburg, a residential treatment facility for adolescents, which was run by Streamwood Health Systems. A ward of the State, he was arrested on a Sunday evening in the lobby of the facility, charged with three counts of aggravated criminal sexual assault of a social worker, and transferred from juvenile court to criminal court pursuant to the Illinois automatic transfer statute. He was found fit for trial and, after a Cook County jury convicted him, he was sentenced to 36 years in prison based on 12 consecutive terms for each count. The appellate court, however, had ordered a new trial, and the State appealed.
The victim was a woman who was a 25-year-old staff member at the facility and who had just given the defendant a ride to it from a weekend family visit. She alleged that he forced her to drive off the main road to a location where he sexually assaulted her. She sustained bruises and there was evidence of damage to the vehicle which indicated a struggle, but no DNA evidence was found providing a link to the defendant.
At his trial in the circuit court, the defendant was unsuccessful on his motion to suppress his police station confession, and the Rape Shield statute was applied to overcome his efforts to have the victim’s sexual history admitted into evidence.
The appellate court took the opposite view on both of these issues and ordered a new trial, opining that the confession should have been suppressed and that the victim’s sexual history should have been admitted. Statute requires that, when a minor is arrested, a “reasonable attempt” must be made to notify the parent or legally responsible person. The defendant argued that this statute was not complied with and that this called for suppression of his inculpatory statement.
A Schaumburg police officer who was the youth officer assigned to the defendant’s case testified at the suppression hearing that both the defendant’s caseworker from the Department of Children and Family Services and the director of the residential facility were that night notified by telephone of the defendant’s arrest, but that the caseworker did not return the phone call for two days. He also testified that the director gave permission that night to speak with the defendant and search the vehicle. At the suppression hearing, the director was unable to recall giving permission, but never denied giving it. The youth officer testified that he read Miranda rights to the defendant, and that he was present at the questioning, but that the interrogation was conducted by another officer. The defendant did not claim at the suppression hearing that he was threatened, mistreated or coerced by the police, that he failed to understand the interrogation process, that he asked to speak to another adult, or that he told the officers that he was a special education student with trouble reading and writing. The circuit court, however, had viewed the defendant as “astute.” It found that the youth officer had done his duty and that the confession was voluntary.          

3.  Public Construction Bond Act: Reversed and remanded:  The Illinois Supreme Court, in this decision, reversed both of the lower courts. The Bond Act states that the bonds it calls for are “deemed” to cover payments for labor and materials furnished even if this is not specifically provided for. Therefore, the plaintiff could not recover on its theory that the bonds were inadequate and that the Village was, therefore, liable to it. The supreme court agreed with the Village’s assertion that the bonds provided under its agreements with Neumann would have satisfied all of plaintiffs’ claims if plaintiff had presented them within the limitation period provided in the Act. Therefore, the Village cannot be said to have been in breach of its contracts with Neumann so as to have liability to the plaintiff. Summary judgment for the plaintiff was improper, and the appellate court’s affirmance of it was reversed.  On remand, summary judgment for the Village should be entered on this issue in the circuit court. Justice Theis delivered the judgment of the court, with opinion.  Chief Justice Garman and Justices Thomas, Kilbride, and Karmeier concurred in the judgment and opinion.  Justice Freeman dissented, with opinion, joined by Justice Burke.

2014 IL 115805    Lake County Grading Co. v. Village of Antioch   Filed 10-17-14 (RJC)

This is a public construction bond case. In the Village of Antioch in Lake County, two residential subdivisions were built by a developer, Neumann Homes, Inc., which is not a party to this appeal and which declared bankruptcy in 2007. Neumann had entered into an agreement with defendant Village to provide certain public improvements and, for this purpose, subcontracted with plaintiff Lake County Grading, Inc., to furnish labor and materials. Plaintiff did so, but was not fully paid by Neumann.  Subcontractors have no right to a mechanics’ lien against public bodies in Illinois. Therefore, the Public Construction Bond Act was enacted by the legislature to protect such subcontractors by requiring surety bonds for public construction that guarantee payment for labor and materials furnished over certain amounts, which were involved here. The bonds provided by Neumann to the Village did not contain specific provisions for such payment.  Neumann defaulted on its contractual obligations to the Village and, although plaintiff Lake County Grading was not fully paid, plaintiff could not seek to recover under the bonds themselves because its claims for payment were filed too late, beyond the 180-day limitations period called for in the Bond Act. Plaintiff claimed in this suit that it was a third-party beneficiary of the contracts between Neumann and the Village and that the Village, in not including a specific provision referring to payment of subcontractors, had breached its contractual obligations by not complying with the Bond Act. Therefore, plaintiff theorized, the Village was liable to compensate it for the unpaid claims. The circuit court of Lake County awarded summary judgment to the plaintiff and the appellate court affirmed.  

4.  Department of Professional Regulation Law: Affirmed: In this decision, the Illinois Supreme Court affirmed the results reached below. It noted that the statute, which amended the Department of Professional Regulation Law, clearly was intended to apply to convictions predating its effective date through its use of the language “has been convicted.” The plain language indicates that individuals are subject to the statute regardless of the date of their convictions. Thus, the legislature has clearly prescribed the temporal reach of the enactment.
Plaintiffs argued that what they characterized as “retroactivity” raised constitutional issues, such as denial of due process, but the supreme court rejected this theory. Rather, new per se eligibility requirements are being established with which licensees must comply in order to practice health care professions. There is no reaching back to change criminal penalties and no rendering unlawful of conduct which was lawful at the time it was committed. The challenged statute has no effect on the right to engage in health care professions before its effective date. The supreme court said that this amended statute, which creates new requirements to be imposed in the present or future, and not in the past, does not have a retroactive impact. It only affects present or future ability to engage in health care.  Although the plaintiffs complained of a violation of their fundamental rights, the supreme court said that medical licenses are not vested rights, but are subject to ongoing legislation to set licensing requirements in the public interest. The court said that the statute is a valid exercise of legislative authority as a measure which is rationally related to protecting the public and, therefore, plaintiffs have not alleged a substantive due process violation. In addition, plaintiffs have already received procedural due process in the underlying criminal proceedings, which they had an opportunity to contest.
Insofar as discipline was previously imposed for the misconduct at issue, there is no res judicata impact because there is no identity of causes of action. Any prior administrative discipline and reinstatement of licenses did not create a vested right to practice or to be free of legislative changes. Justice Burke delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Theis concurred in the judgment and opinion.

2014 IL 116203    Hayashi v. Illinois Department of Financial & Professional Regulation    Filed 10-17-14 (RJC)

These consolidated appeals involving revocation of health care licenses come from Cook County. The plaintiffs in these cases are one chiropractor and two physicians. Their licenses to practice were revoked under a statute which became effective on August 20, 2011, and which calls for permanent revocation of health care licenses for certain criminal convictions involving patients or for being required to register as a sex offender. All of the plaintiffs qualified for revocation under this statute, but their convictions had been entered before its effective date. Contending that the 2011 enactment was improperly retroactive, the plaintiffs challenged its application to them on a number of theories and sought declaratory and injunctive relief from the circuit court which, however, dismissed the actions. The appellate court consolidated the appeals and affirmed the dismissals. Plaintiffs appealed.           

2 Appellate Cases Posted 10-20-14

1. Criminal Law: Affirmed: Defendant was not denied effective assistance of counsel at trial, or on appeal, where the record rebutted defendant's claims in his post-conviction petition that trial counsel failed to communicate a pre-trial offer to plead guilty to a potentially lesser sentence, defendant's jury waiver was not involuntary where lengthy admonitions showed that defendant's intent was for a stipulated bench trial so as to effectuate an appeal of the trial court's ruling denying his motions to suppress inculpatory statements, and appellate counsel were not ineffective for failing to raise certain issues where those issues lacked merit. Jorgensen, J.

No. 2014 IL App (2d) 131082  People v. Hernandez  Filed 10-20-14 (TJJ)

Following a stipulated bench trial, defendant was convicted of first-degree murder after he and his brother, Edwin Hernandez, set fire to a home, killing a 12-year-old boy and seriously injuring the boy’s family members (including the boy’s mother, who  was apparently paralyzed after she jumped from a second-story window to escape the fire). The crime was gang-related, and the intended target of the crime was not home. During the investigation, defendant, in a videotaped statement, confessed to the  crime. The court denied his motion to suppress the confession. Because the denial of his motion to suppress could not be appealed if he entered a guilty plea, defendant proceeded with a stipulated bench trial to preserve his appellate rights regarding the confession’s admissibility. After finding defendant guilty and denying defendant’s posttrial motion (which attacked the suppression ruling), the court sentenced defendant to 84 years’ imprisonment, followed by  years of mandatory supervised release  (MSR). Defendant appealed, arguing that the confession should have been suppressed (and challenging his eligibility for extended-term sentencing and a public defender fee), and this court affirmed the denial of the motion to suppress. People v. Hernandez,  2012 IL App (2d) 110817-U. On June 4, 2013, defendant filed a pro se postconviction petition pursuant to section 122- 1 of the Post-Conviction Hearing Act, arguing: (1) that the application of MSR was  unconstitutional; and (2) that he was denied effective assistance of trial and appellate counsel. The petition is signed by defendant and notarized. One notarized affidavit, from Edwin, is attached to the petition. In his affidavit, Edwin attests that, on the night of the crime, defendant was asleep  and did not leave his house. Further, Edwin attests that he wanted to testify at defendant’s trial, that he told this to defendant and defendant informed his attorney, but that defendant told him that his attorney did not respond to the information and no one  contacted Edwin about testifying. Finally, in a handwritten note included with his petition, defendant writes that he was waiting for an affidavit from Nidia Hernandez (his sister), but that, due to mail delays, he had not yet received it. On September 19,  2013, in a lengthy written decision, the court denied the postconviction petition as frivolous and patently without merit. Defendant appeals. Because defendant’s allegations are directly contradicted by the record and he cannot establish prejudice, we affirm.

2. Criminal Law: Reversed and remanded: In case where defendant was found guilty the Class 2 offense of failing to register as a sex offender, and the trial court that the prior sex offense (which required him to register) and another Class 2 offense rendered him eligible for sentencing as a Class X offender, sentence was an impermissible example of double enhancement, and defendant was entitled to post-conviction relief. Harris, J.

No. 2014 IL App (1st) 122868  People v. Hall  Filed 10-20-14 (TJJ)

Defendant Thomas Hall appeals from the summary dismissal of his pro se petition for relief under the Post-Conviction Hearing Act. On appeal, defendant contends that he was subject to an improper double enhancement at sentencing because a prior  conviction was used both as an element of the instant offense and to find him eligible for a Class X sentence. Defendant acknowledges that he did not include this issue in his pro se postconviction petition, but argues that his sentence is void, thus, this issue  may be raised at any time. We agree with defendant, and remand for a new sentencing hearing.

1 Appellate Case Posted 10-17-14

1. Insurance Coverage/Sanctions: Affirmed: Trial court ruling awarding attorneys' fees to insured, but no sanctions against insurance company attorneys, stemming from insurance company failure to produce correct policy in court in connection with coverage dispute relating to an auto accident, not an abuse of discretion, and trial court ruling that policy limit was $20,000 not improper. Spomer, J.

No. 2014 IL App (5th) 130582  American Service Insurance v. Miller  Filed 10-17-14 (TJJ)

Defendant David Miller appeals the orders of the circuit court of St. Clair County that awarded Miller sanctions. The plaintiff, American Service Insurance, cross-appeals. For the following reasons, we affirm.

1 Appellate Case Posted 10-16-14

1. Negligence/Aircraft accident: Affirmed in part, reversed in part, and remanded: Trial court ruling dismissing plaintiffs' claims of negligent entrustment in connection with fatal aircraft accident affirmed as to some defendants who no longer owned the plane at the time of the accident, but reversed as to other defendants where factual allegations, as well as deposition testimony, presented a sufficient scenario alleging that corporate defendants were vicariously liable for negligently entrusting pilot with alleged insufficient experience to pilot the airplane, and where persons on plane may have been sufficiently engaged in business on behalf of corporate defendants so as to render those corporate defendants vicariously liable for flight done at their purported instance. Fitzgerald Smith, J.

No. 2014 IL App (1st) 112615  Garland v. Sybaris Club International, Inc.  Filed 10-16-14 (TJJ)

The instant cause arises from the death of Scott Garland. Garland's surviving spouse, plaintiff Jennifer Garland, filed a complaint against numerous persons and entities following Garland's death. By her complaint, plaintiff sought recovery for Garland's  death on a number of grounds. As to the Levinson defendants, plaintiff alleged that Levinson had been negligent in entrusting the aircraft to Turek, whom, she alleged, was not qualified to fly that particular kind of airplane. As to Knudson, plaintiff alleged  negligent entrustment of the aircraft as well as negligent supervision, alleging that Knudson, who was onboard the doomed flight, failed to properly supervise Turek during the flight itself. As to HK, owner of the aircraft, plaintiff alleged it was vicariously  liable for its agents, Levinson and Knudson. Plaintiff also sued Sybaris, a group of hotels whose president and founder was Knudson, who conducted the doomed flight in the course of Sybaris business and was, allegedly, a de facto owner of the aircraft.  Plaintiff appeals the dismissal of her ninth amended complaint pursuant to section 2- 619 of the Code of Civil Procedure against the named parties herein. Affirmed in part, reversed in part, and remanded.

3 Appellate Cases Posted 10-15-14

1. Criminal Law: Affirmed: Evidence sufficient to prove defendant guilty beyond a reasonable doubt of aggravated battery in connection with incident where defendant spit blood on a corrections officer, despite defendant's claim that evidence was insufficient to show incident was not accidental, and trial court did not deny defendant the right to proceed pro se where defendant made request to do so, but thereafter retained private counsel to represent him. Hyman, J.

No. 2014 IL App (1st) 120586  People v. Pena  Filed 10-15-14 (TJJ)

After a bench trial, defendant Daniel Pena appeals his conviction for aggravated battery of a peace officer, contending that the State failed to prove him guilty beyond a reasonable doubt because the officer's testimony was not credible and was disputed by a videotape of the incident. Pena also contends that he was denied his constitutional right to self-representation, and that the trial court failed to conduct a proper inquiry into his pro se posttrial claim of ineffective assistance of counsel. The trial court  sentenced Pena to six years' imprisonment as a Class X offender based on his criminal history. We affirm.

2. Criminal Law/Certificate of Innocence: Affirmed: Defendant, whose conviction for first degree murder and aggravated battery in connection with the death of her child was reversed by the Illinois Supreme Court, was properly denied a certificate of innocence where the evidence showed that three and a half year old child had at least 100 injuries, some as old as two weeks before her death and some inflicted at the time of her death, despite defendant's claim that her paramour's confession established her innocence. Schmidt, J. (Lytton, J., sp. concurring) (McDade, J., dissenting).

No. 2014 IL App (3d) 120773  People v. Pollock  Filed 10-15-14 (TJJ)

A Henry County jury convicted defendant, Tabitha Pollock, of aggravated battery and felony murder of her 3½-year-old daughter. This court affirmed. People v. Pollock, 309 Ill. App. 3d 400 (1999). A divided panel of our supreme court found “insufficient  evidence to support the inference that, prior to [the daughter’s] death, [defendant] knew [her paramour] was abusing her children.” People v. Pollock, 202 Ill. 2d 189, 220 (2002). As such, the court reversed Pollock’s conviction without remand. Id. at 224. Following the reversal, Pollock filed a petition for a certificate of innocence pursuant to section 2-702 of the Illinois Code of Civil Procedure. The matter proceeded to a hearing, after which the circuit court  denied Pollock’s petition. She appeals. We affirm.

3. Criminal Law: Affirmed: Trial court ruling sustaining State objection to question asked on direct examination of defendant's expert witness in first degree murder of 18-month-old child was not improper, and in any event doctor testified to defense theory of case, and prosecution closing argument did not warrant reversal of defendant's conviction for first degree murder. Lavin, J.

No. 2014 IL App (1st) 121740  People v. Alvidrez  Filed 10-15-14 (TJJ)

Defendant Jose Alvidrez was tried and found guilty by a jury of the first degree murder of his 18-month-old son, Joshua Alvidrez, who died as a result of a severe head injury suffered at home while under defendant's care. Defendant was sentenced to 25  years' imprisonment and now appeals contending the trial court erred when it precluded his expert from testifying about the amount of force required to cause Joshua's brain injuries. Defendant also contends that the State engaged in prosecutorial  misconduct during its closing and rebuttal arguments by disparaging his character and that of his expert, thereby prejudicing the jury. Lastly, Defendant contends that he is entitled to additional days of presentence credit and that the trial court improperly  levied various fines, fees and costs against him. We affirm.

1 Appellate Case Posted 10-10-14

1.  Juvenile Justice/Abuse and Neglect: Affirmed: The appellant failed to raise this constitutionalargument in the trial court, it has been procedurally defaulted and waived.  We further observe that forfeiture is a limitation on the parties, and not the court, and we may relax the rules of forfeiture where an issue impacts the fundamental fairness of a proceeding and address it under the plain error rubric. Parents have a fundamental due process right to the care, custody and control of their children, but that right is subject to termination."  The procedure to terminate a parent's rights "must comply with the requirement of procedural due process." Id. The overriding concern remains the best interests of the child.  Pursuant to the Juvenile Court Act, the involuntary termination of parental rights involves a two-step process. First, the State must prove by clear and convincing evidence that the parent is "unfit" as defined by section 1(D) of the Adoption Act.  The circuit court must then consider whether it is in the best interests of the children to terminate parental rights.  "A parent's rights may be terminated if even a single alleged ground for unfitness is supported by clear and convincing evidence." This means that, on review, if there is sufficient evidence to satisfy any one statutory ground we need not consider other findings of parental unfitness."  Palmer, J.

2014 IL App (1st) 140773  In re J.B. Filed 10-10-14 (LJD)

Respondent, Natasha B., is the biological mother of minors, J.H., born on November 20, 2003, and J.B., born on November 4, 2009. Respondent appeals the trial court's November 14, 2013, ruling finding the two minors neglected and abused and adjudicating respondent unfit, and the trial court's March 17, 2014, order finding that it was in the best interests of the minors to terminate respondent's parental rights. On appeal, respondent asserts that her due process rights were violated because she was incarcerated, she was refused any services, and she was denied visitation with her children, and these facts were used as evidence to establish unfitness. She also contends that the trial court's findings of unfitness were against the manifest weight of the evidence.1 For the following reasons, we affirm.

1 Appellate Case Posted 10-09-14

1. Insurance Law: Affirmed: Our state supreme court has held that the trial de novo provision of the uninsured motorist provision in the insurance policyif the award exceeding the statutory limits issue did not violate public policy. The Reed court explained that because such provisions were explicitly required by statute to be included in all uninsured motorist coverage policies, it was only logical that they could not, at the same time, be violative of public policy. The arbitrators' determination is binding only with respect to awards below $20,000, however, for the statute permits either party to reject an award that exceeds that amount and to resolve the claim instead through the judicial process."   Fitzgerald Smith, J.

2014 IL App (1st) 131036 Nelson v. Country Mutual Insurance Company Filed 10-09-14 (LJD)

Following a bench trial, judgment was entered in favor of defendant-appellee Country Mutual Insurance Company (Country Mutual) and against plaintiff-appellant Forest Lee Nelson (Nelson).1 Nelson appeals, attacking not this final judgment but, rather, a prior order We note for the record that the party designations in this cause are somewhat confused, perhaps due to the fact that the cause began in the chancery division of the trial court and later was entered by the trial court vacating an arbitration award, granting summary judgment in favor of Country Mutual and allowing trial in the first place. He contends that the underinsured endorsement provision to the insurance policy at issue did not provide the option for a trial to take place, and that the provision, which was the basis for the arbitration award's rejection, was ambiguous. He asks that we reverse the judgment  of the trial court, that we reinstate the arbitration award, and that we remand the cause for determination of the proper setoffs to the award. For the following reasons, we affirm.

5 Appellate Cases Posted 10-08-14

1.  Election Law: Affirmed: Our supreme court has repeatedly cautioned that "[m]andamus is an extraordinary remedy," which may be used to enforce the performance of  official duties by a public officer, only where the petitioner is entitled to the performance "as a matter of right," and only " 'where no exercise of discretion' "on the part of the officer " 'is involved.' "The Liquor Control Act grants Illinois citizens the right to restrict or prohibit the sale of alcohol in their own precinct, but it grants them this right only under certain conditions. However, the submission of the issue to the electorate is mandatory only "when the petition has been filed in proper form with the clerk."   Gordon, J.

2014 IL App (1st) 142771 Mabwa v. Mendoza Filed 10-08-14 (LJD)

On July 22, 2014, plaintiffs filed a petition with the Office of the City Clerk of the City of Chicago which requested that the voters of the 18th precinct in the 27th ward be able to vote in the upcoming November 4, 2014, election on the question of whether: "the sale at retail of alcoholic liquor be prohibited in this 18th precinct of the 27th ward of the City of Chicago (as such precinct existed as of the last general election)?" Defendant Susana A. Mendoza, the Clerk of the City of Chicago, did not certify the petition as valid, and plaintiffs then sought a writ of mandamus from the trial ourt to order the clerk to certify the petition.  For the following reasons, we affirm the trial court.

2.  Family Expense Act: Affirmed: The Act requires parents to pay for the "expenses of the family," which, according to judicial interpretation of the statute, includes medical expenses of their minor children.  "The common law in turn gives parents a cause of action against a tortfeasor who, by injuring their child, caused them to incur the medical expenses."  Such a claim is not a claim for damages as a result of the child's personal injury, but is founded on the parents' liability for the child's medical expenses under the Act. Parents may assign to their child their cause of action to recover medical expenses, but the child asserting such a claim as assignee must prove that her parents had a cause of action and any defense that could have been raised against the parents may be asserted against the child.  Because of its derivative nature, the limitations period applicable to a claim under the Act is co-extensive with the limitations period applicable to the claim for the underlying injury.   Mason, J.

2014 IL App (1st) 133964 Pirrello v. Maryville Academy, Inc.Filed 10-08-14 (LJD)

Plaintiff, Brandy Pirrello, appeals from partial summary judgment entered in favor of defendant, Maryville Academy, Inc., finding that Pirrello was not entitled to recover medical expenses incurred prior to her eighteenth birthday under a section of the Rights of Married Persons Act commonly referred to as the Family Expense Act (750 ILCS 65/15(a)(1) (West 2008)). The trial court found that the claim under the Act did not relate back to the filing of Pirrello's original complaint on July 16, 2009, and was thus barred by the applicable two-year statute of limitations. The court further denied Pirrello leave to file a third amended complaint adding her father as a party. We agree that the claim under the Act is time-barred and affirm.

3. Domestic Battery: Affirmed: A reviewing court faced with a challenge to the sufficiency of the evidence must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the elements of the crime proven beyond a reasonable doubt.  Thus, the Collins standard of review gives " 'full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'  Self-defense is an affirmative defense—once it has been raised by the defendant, the State bears the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense, in addition to proving the elements of the charged offense.  To establish a claim of self-defense, the defendant must present some evidence as to each of the following six elements: (1) that unlawful force was threatened against him; (2) that he was not the aggressor; (3) that the danger of harm was imminent; (4) that the use of force was necessary; (5) that he actually and subjectively believed a danger existed that required the use of the amount of force applied; and (6) that his beliefs in that regard were objectively reasonable. The decisive question is whether the defendant's belief that it was necessary to use deadly force was reasonable under the circumstances.  A person who is thrust into a life-endangering situation is not required to use infallible judgment in deciding whether or how to act to defend himself.  The right of self-defense, however, may not be used to justify an act of retaliation or revenge. The self-defense concept is to protect person, not pride."  The term "brutal" is defined as cruel and cold-blooded, grossly ruthless, or devoid of mercy or compassion; the term "heinous" is defined as enormously and flagrantly criminal, hatefully or shockingly evil, or grossly bad; and the term "wanton cruelty" is defined as consciously seeking to inflict pain and suffering on the victim of the offense. Carter, J.

2014 IL App (3rd) 120905  People v. Holman  Filed 10-08-14 (LJD)

After a jury trial, defendant, Exulam Holman, was convicted of aggravated domestic battery (720 ILCS 5/12-3.2(a)(1), 12-3.3(a) (West 2010)) and was sentenced to 14 years in prison. Defendant appeals, challenging both his conviction and his sentence. We affirm the trial court's judgment.

4.  Post Conviction Petition: Reversed and Remanded:  The Act (725 ILCS 5/122-1 to 122-7 (West 2010)) establishes a three-stage process for adjudicating a postconviction petition.  At the first stage, the trial court must review the postconviction petition and determine whether "the petition is frivolous or is patently without merit."  In the first stage of a postconviction proceeding, the allegations of the petition, liberally construed and taken to be true, need only state "the gist of a constitutional claim."  The "gist" means the essence, the main point or part (Merriam-Webster's Collegiate Dictionary 493 (10th ed. 2000)), as opposed to a factually complete statement of the claim  By requiring, in the first stage, only "the gist of a constitutional claim," the supreme court intends to set "a low threshold."  At the first stage of postconviction proceedings, however, a defendant need establish only it is arguable counsel's performance fell below an objective standard of reasonableness and he arguably was prejudiced as a result. Pope, J.

2014 IL App 4th) 120887  People v. Brown  Filed 10-08-14 (LJD)

Defendant, Michael B. Brown, appeals the trial court's first-stage dismissal of his postconviction petition, arguing the court erred in finding the petition frivolous and patently without merit where he raised the gist of a meritorious claim of ineffective assistance of trial counsel. We reverse and remand for second-stage proceedings.

5.  Criminal Law:Reversed and Remanded:  A criminal defendant's right to confront the witness used against him or her is protected by the confrontation clauses contained in both the federal constitution, by the sixth amendment, made applicable to the state through the fourteenth amendment, and the Illinois Constitution.  Although constitutional rights may be waived, "[t]here is a presumption against the waiver of constitutional rights."  For a waiver to be effective " 'it must be clearly established that there was an "intentional relinquishment or abandonment of a known right or privilege.  Prejudice is presumed under the second prong of the plain-error doctrine due to the importance of the right involved.  Our supreme court has described a criminal defendant's right to confront the witness against him or her as "a fundamental right."  Harris, J. Connors, J. dissents

2014 IL App (1st) 113534 People v. Hood Filed 10-08-14 (LJD)

A jury convicted defendant, Terry Hood, of aggravated battery to a senior citizen causing great bodily harm. Prior to trial, the State conducted an evidence deposition of the complaining witness pursuant to Illinois Supreme Court Rule 414 in which the witness identified defendant as his  attacker. Ill. S. Ct. R. 414 (eff. Oct. 1, 1971). Defense counsel attended the deposition, and conducted cross-examination, but defendant did not attend. Over six months after the deposition, the State informed the circuit court that the defense had waived defendant's appearance at the deposition,  but that the waiver did not appear on the record. Defense counsel agreed that she waived defendant's appearance at the deposition.  Defendant asks this court to review, under the second prong of the plain-error doctrine, whether he knowingly and voluntarily waived his right to confront the witness against him at the evidence deposition. We hold defendant has satisfied his burden of proving plain error because he has shown that he did not knowingly or voluntarily waive his confrontation rights and that his claim of error involved a substantial right, i.e., his right to confront the   witness against him as guaranteed by both the federal and state constitutions.  Defendant asks this court to review, under the second prong of the plain-error doctrine, whether he knowingly and voluntarily waived his right to confront the witness against him at the evidence deposition. We hold defendant has satisfied his burden of proving plain error because he has shown that he did not knowingly or voluntarily waive his confrontation rights and that his claim of error involved a substantial right, i.e., his right to confront the witness against him as guaranteed by both the federal and state constitutions.

2 Appellate Cases Posted 10-06-14

1.  Post Conviction Proceedings: Reversed:Mootness discussed.  The right to counsel when a postconviction petition advances to the second stage (as defendant’s petition did here) is statutory, not constitutional.  Under the Act, “defendants are entitled to a reasonable level of  assistance, but are not assured of receiving the same level of assistance constitutionally guaranteed to criminal defendants at trial.”   When a defendant’s appointed postconviction attorney is called upon to assert that the defendant’s appointed trial attorney was ineffective, the distinction between constitutional and statutory rights makes no difference. If postconviction counsel is appointed to mold the defendant’s allegations into legally cognizable shapes [citation], that counsel must be as conflict-free as trial counsel. The right to
reasonable assistance of postconviction counsel includes the correlative right to conflict free representation. Jorgensen, J., dissent by Spence, J.

2014 IL App (2nd) 130327 People v. Yaworski Filed 10-06-14 (LJD)

Following a jury trial in the circuit court of De Kalb County, defendant, Glenn A. Yaworski, was found guilty of driving under the influence of alcohol (DUI) in violation of section 11-501(a)(2) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501(a)(2) (West 2004)) and driving while his  icense was revoked (DWLR) (625 ILCS 5/6-303(a) (West 2004)). Defendant received a Class 2 felony sentence of 3½ years’ imprisonment for DUI pursuant to section 11-501(c-1)(3) of the Code (625 ILCS 5/11-501(c-1)(3) (West 2004)). The trial court vacated the DWLR conviction. In an  arlier appeal, we affirmed defendant’s DUI conviction and his sentence for that offense.  Thereafter, on February 29, 2012, defendant, while on mandatory supervised release (MSR), filed a pro se petition under the Post- Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)),  challenging the enhancement of the offense of DUI to a Class 2 felony. The trial court appointed the office of the De Kalb County public defender to represent defendant in the postconviction proceedings. Assistant Public Defender Charles Criswell appeared on defendant’s behalf. Criswell had represented defendant at trial. The State successfully moved to dismiss defendant’s petition and this appeal followed. Defendant argues that, because the petition claimed that he had not received the effective assistance of counsel at trial, Criswell labored under a conflict of interest in the  ostconviction proceedings. We agree, and we therefore vacate and remand for further proceedings.

2.  Animal Control Act: Affirmed: A primary purpose of the Animal Control Act is to encourage tight control of animals in order to protect the public from harm. Section 2.19b defines a vicious dog as "a dog that, without justification, attacks a person and causes serious physical injury or death or any individual dog that has been found to be a 'dangerous dog' upon 3 separate occasions."  Section 15(a) provides that: "[a] dog may not be declared vicious if the court determines the conduct of the dog was justified because *** the dog was ***  protecting itself, its owner, custodian, or member of its household, kennel, or offspring."  Cates, J.

2014 IL App (5th) 130325 People v. Helm Filed 10-06-14 (LJD)

The State filed a complaint under section 15 of the Illinois Animal Control Act (Act) (510 ILCS 5/15 (West 2012)) and sought an order declaring Roscoe, a dog owned by the defendant, William P. Helm, to be a vicious dog within the meaning of section 2.19b of the Act (510 ILCS 5/2.19b  West 2012)). After a bench trial, the circuit court declared Roscoe to be a vicious dog and ordered that he be humanely euthanized. The court also ordered the defendant to pay a $100 public safety fine. On appeal, the defendant contends that the circuit court erred in declaring Roscoe to be a  icious dog where the evidence established that his conduct was justified under section 15(a)(3) of the Act (510 ILCS 5/15(a)(3) (West 2012)), because he was protecting a member of his household. We affirm.

2 Appellate Cases Posted 10-03-14

1. Partnership: Reversed and Remanded: "Res judicata is an equitable principle intended to prevent multiple lawsuits between the same parties involving the same facts and issues." "Res judicata bars any subsequent actions when a final judgment was reached on the merits by a court of competent jurisdiction between their same parties or privies on the same cause of action."  " 'Res judicata is conclusive as to any matter that was offered to sustain or defeat the claim or demand, as well as any other matter that might have been offered for that purpose.' " "Therefore, the moving party must demonstrate (1) an identity of the parties or their privies in the two lawsuits; (2) an identity to the causes of action; and (3) a final judgment on the merits of the first lawsuit." Under a transactional test to setermine identity of litigation, "separate claims will be considered the same cause of action for purposes of res judicata if they arise from a single group of operative facts, regardless of whether they assert different theories of relief."  Liu, J.

2014 IL App (1st) 140342 Andrews v. Gonzalez Filed 10-03-14 (LJD)

Plaintiff, William T. Andrews, filed suit against defendant, Dagoberto Gonzalez (Dagoberto), to recover an outstanding judgment awarded in a personal injury lawsuit against G & G Cement Contractors (G&G), a partnership of which Dagoberto was the sole surviving partner. The circuit court  ranted Dagoberto's motion to dismiss pursuant to section 2-619(a)(4) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(4) (West 2012)), finding that plaintiff's claim was barred by res judicata because Dagoberto was a named defendant in the prior underlying action and was found  ot liable for negligence. On appeal, plaintiff contends that the circuit court erred in dismissing his claim against Dagoberto because various provisions of the Uniform Partnership Act (1997) (Act) (805 ILCS 206/100 et seq. (West 2012)) and sections 2-410 and 2-411 of the Code (735 ILCS  /2-410, 2-411 (West 2012)) demonstrate that res judicata does not bar a judgment creditor of a partnership from enforcing an outstanding judgment against a partner who was named individually in the underlying lawsuit. For the reasons that follow, we reverse the judgment of the circuit court  of  Cook County and remand the cause for further proceedings.

2.  EPA: Affirmed: Res judicata is a legal doctrine that serves to bar a subsequent action if an initial court action concluded with a final judgment on the merits involving the same claim and the same parties or their privies. The three required elements to establish res judicata are a final judgment on the merits rendered by a court of competent jurisdiction, identical causes of action, and identical parties or privies.  A final judgment on the merits is one "adjudicating the contested rights in a conclusive and definitive manner." The Illinois legislature enacted section 31 of the Environmental Protection Act to establish a prelitigation process for the alleged violators to meet and work with the EPA to correct violations.  Chapman, J.

2014 IL App (5th) 130244 Illini Environmental, Inc. v. The Environmental Protection Agency Filed 10-03-14 (LJD)

llini Environmental, Inc. (Illini), appeals from the trial court's May 6, 2013, order denying its motion for summary judgment. On appeal, Illini argues that dismissal of an enforcement action filed by the Illinois Environmental Protection Agency (EPA or Agency) against Illini was res judicata on certain issues of fact in Illini's declaratory judgment action. Illini claims that the EPA accepted its proffered "Compliance Commitment Agreement" and therefore cannot pursue enforcement on one of the two violation notices. Illini also argues that the trial court erred in finding that Illini was responsible for determining whether waste was hazardous. Illini further argues that the trial court erred in concluding that Illini violated Illinois law in listing itself as a generator of waste that it transported from another company to an Illinois landfill. Finally, Illini argues that the trial court was incorrect in concluding that the Illinois EPA complied with applicable law when it posted information on its website about Illini's violations. We affirm.

1 Supreme Case Posted 10-02-14

1.  Legal Negligence: Appellate Court Affirmed, Cuase remanded for recalculation of Interest: In order to recover damages in a legal malpractice action in Illinois, a plaintiff must establish what the result would have been in the underlying action which was improperly litigated by the plaintiff’s former attorney. The basis of the legal malpractice claim is that the plaintiff would have been compensated for an injury caused by a third party, absent negligence on the part of the plaintiff’s attorney. The injuries resulting from legal malpractice are not personal injuries but, instead, are pecuniary injuries to intangible property interests.  The plaintiff must affirmatively prove that he suffered actual damages as a result of the attorney’s malpractice and a plaintiff who obtains recovery in a malpractice suit can be ‘in no better position by bringing suit against the attorney than if the underlying action against the third-party tortfeasor had been successfully prosecuted’.  Punitive remedies vs. remedial remedies analyzed and discussed.  Kilbride, J.

2014 IL App 116362  Goldfine v. Barack, Ferrazzano, Kirschbaum & PerlmanFiled 10-02-14 (LJD)

This legal malpractice action comes from Cook County. The plaintiffs are Morton and Adrienne Goldfine. In the years 1987 through 1990, they worked with broker Michael Steinberg, of the Peoria office of investment firm Shearson Lehman Brothers, to purchase $4.5 million worth of stock in First Capital Holdings. That stock became worthless in 1991 after First Capital’s bankruptcy. Plaintiff had a number of claims against Steinberg and Shearson arising from their stock purchases. Their claims for common law fraud and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act were ultimately settled in 2007 for $3.2 million in what is referred to here as the “underlying” lawsuit. However, their claim for violation of the Illinois Securities Law of 1953 was held to be time-barred for failure of plaintiffs’ attorneys to timely file the required notice called for by that securities statute. Those attorneys are the firm of Barack, Ferrazzano, Kirschbaum & Perlman, the defendants here, who are accused of malpractice in the plaintiffs’ loss of their statutory claim. That is the case which is at issue here.

1 Appellate Case Posted 10-01-14

1.  Contempt of Court:  Reversed: Criminal contempt arises from “conduct that is calculated to impede, embarrass, or obstruct the court in its administration of justice or derogate from the court’s authority or dignity, or to bring the administration of the law into disrepute.” Direct criminal contempt involves a defiant or disrespectful verbal or nonverbal act which takes place in the courtroom and is witnessed by the judge.  Neither a formal charge nor an evidentiary hearing must precede a hearing on direct criminal contempt because the misconduct was actually observed by the court and the relevant facts lie within the court’s personal knowledge.  (“Direct criminal contempt may be found and punished summarily because all elements are before the court and, therefore, come within its own immediate knowledge.”).  Indirect criminal contempt is based on conduct the court has not personally witnessed.  A charge of indirect criminal contempt gives rise to similar procedural safeguards as those required in criminal proceedings.  For example, a respondent in an indirect criminal contempt proceeding has the right to be advised of the nature of the charge, to be presumed innocent, to require proof beyond a reasonable doubt, and to invoke the privilege against self-incrimination. Wright, J. Holdridge, , J. specially concurred

2014 IL App (3rd) 120978  People v. Perez Filed 10-01-14 (LJD)

Respondent, Valerie Perez, was in traffic court waiting to appear on a speeding ticket. When the court took a recess, respondent exited the courtroom and was overheard by a bailiff saying, “I waited all fucking morning and now she takes a break.” After the bailiff relayed the comment to the court, the trial judge returned to the bench and instructed the State to prepare and file a petition for contempt. The court denied the defense request for a short continuance to prepare for trial and presided over a hearing on the same date as the alleged misconduct. After finding respondent guilty of indirect criminal contempt, the court sentenced respondent to serve eight days in custody. Respondent appeals. We reverse.