Illinois Supreme and Appellate Court Case Summaries

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

 

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3 Appellate Cases Posted 6-17-13

1. Criminal Law/sentencing: Affirmed: Here, given all of the facts presented, a 120-year sentence, which is the maximum that could have been imposed, was not excessive. The evidence reveals that defendant has been a criminal for more than half of his life. Because of the abundance of aggravating factors, the trial court did not abuse its discretion in sentencing defendant. Although Crt. agreed that an opportunity for rehabilitation should be granted in most cases, the trial court found that the circumstances here dictated otherwise. App. Crt. cannot conclude that the trial court’s assessment constituted an abuse of discretion. Hutchinson, J.

No. 2013 IL App (2d) 111083    People v. McGowan   Filed 6-17-13 (RJC)


Following a jury trial, defendant was found guilty of two counts of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2), (a)(5) (West 2010)), aggravated battery to a senior citizen (720 ILCS 5/12-4.6(a) (West 2010)), and home invasion (720 ILCS 5/12-11(a)(2) (West 2010)). In finding defendant guilty of aggravated criminal sexual assault and home invasion, the jury determined that the commission of those offenses was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty (see 730 ILCS 5/5-5-3.2(b)(2) (West 2010)). Following a sentencing hearing, the trial court vacated defendant’s conviction of aggravated battery to a senior citizen, finding it a lesser included offense of aggravated criminal sexual assault; sentenced defendant to 60 years’ imprisonment for home invasion; merged the two convictions of aggravated criminal sexual assault; and sentenced defendant to a consecutive term of 60 years’ imprisonment for aggravated criminal sexual assault. Defendant moved the trial court to reconsider his sentence, arguing, among other things, that his aggregate sentence was excessive. The trial court denied the motion, and this timely appeal followed. We affirm.

2. Class Actions: Reversed and remanded: As a result of applying the improper legal standard, the court erred in its finding that defendant was liable for all fax advertisements sent on its behalf by B2B, which exceeded the scope of its authority to send faxes to small electric motor repair and service companies. This plaintiff has not stated a valid claim against this defendant and, therefore, is not an adequate class representative of the March 2006 fax recipients. We also find plaintiff is not an appropriate class representative for those who received unsolicited faxes from defendant in December 2006. As a result, the circuit court abused its discretion by granting class certification. Based on this ruling, we conclude the issue of whether plaintiff’s counsel is adequate to represent the class is moot. Delort, J.

No. 2013 IL App (1st) 112566   Uesco Industries, Inc. v. Poolman of Wisconsin, Inc.   Filed 6-17-13 (RJC)


In this lawsuit, brought by a “junk fax” recipient, we are called upon to determine whether the circuit court properly granted class certification. Reversed and remanded.

3. Workers' Compensation: Affirmed: Claimant proved that her injury arose out of her employment.  Pursuant to the Act, the employer must adjust the medical bills to conform to the fee schedule of section 8.2 of the Act.  The Commission's decision ordering the employer to "pay any unpaid, related medical expenses according to the fee schedule and *** provide documentation with regard to said fee schedule payment calculations to Petitioner" complies with the statutorily mandated procedures set forth in the Act. Therefore, we need not remand to the Commission for a determination of a dollar amount owed to claimant pursuant to the medical fee schedule. Harris, J.

No. 2013 IL App (4th) 120219WC    Springfield Urban League v. The Illinois Workers' Compensation Commission   Filed 4-23-13 (RJC)


On February 22, 2008, claimant, Cass Kohlrus, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2006)), seeking benefits from the employer, Springfield Urban League, for injuries suffered to her left leg on January 2, 2008. The arbitrator awarded claimant temporary total disability (TTD) benefits, permanent partial disability (PPD) benefits and $50,328.90 for medical services. The employer filed a petition for review of the arbitrator's decision before the Illinois Workers' Compensation Commission (Commission). On review, the Commission modified the arbitrator's decision, finding claimant failed to prove a causal connection between her work accident on January 2, 2008, and her "knee injury (and prospective total knee replacement) and aggravation of her pre-existing degenerative arthritis." The Commission otherwise affirmed and adopted the arbitrator's decision. Thereafter, the employer filed a petition seeking judicial review in the circuit court of Sangamon County and the court confirmed the Commission's decision.

4 Appellate Cases Posted 6-14-13

1. Criminal Law: Affirmed: No abuse of discretion by the trial court when weighing the prejudicial impact and the probative value of the other crime evidence. No abuse of discretion in allowing the admission of defendant's other crimes evidence or the cross-examination of defendant regarding that evidence.  No case law with the same fact pattern as this case, i.e., where a defendant's privilege against self-incrimination was raised at the trial level and the court allowed the State to cross-examine the defendant regarding prior crimes for which the door was not "opened" on cross-examination.  The trial court did not violate defendant's fifth amendment right in allowing cross-examination regarding the R.G. offense because it properly discredited defendant's testimony, was probative of his intent and motive, and impeached his claim of consent. Lampkin, J.

No. 2013 IL App (1st) 111075    People v. Stevens   Filed 6-14-13 (RJC)


Following a bench trial, defendant, Mark Stevens, was convicted of three counts of aggravated criminal sexual assault and sentenced to 60 years' imprisonment. On appeal, defendant contends the trial court abused its discretion in admitting proof of a prior aggravated criminal sexual assault. Defendant additionally contends the trial court erred in allowing the State to question him on cross-examination regarding evidence of the prior aggravated criminal sexual assault in violation of his right against self-incrimination. Based on the following, we affirm.

2. Dept. of Financial and Professional Regulation: Affirmed: This outcome is unquestionably harsh. Vali Mohammad had a successful career and unblemished record as a self-employed mortgage loan originator. Apparently none of the 533 loans he helped generate since 2003 resulted in any complaint to the Department. It is unfortunate that his conviction for a single count of mail fraud, more than a decade ago, in an unrelated profession, has led to a lifetime prohibition from the mortgage loan field rather than the statute's seven-year prohibition for lesser crimes. However, the law, as it is currently written, dictates this result. " 'Where the words employed in a legislative enactment are free from ambiguity or doubt, they must be given effect by the courts even though the consequences may be harsh, unjust, absurd or unwise. Such consequences can be avoided only by a change of the law, not by judicial construction ***.' "  McBride, J.

No. 2013 IL App (1st) 122151    Mohammad v. The Department of Financial and Professional Regulation   Filed 6-14-13 (RJC)


Plaintiff Mohammad Vali Mohammad was a registered mortgage loan originator with defendant Illinois Department of Financial and Professional Regulation (Department) when he applied for license renewal and disclosed that he had been convicted of mail fraud in 2000. The Department disciplined Vali Mohammad by suspending his license for 120 days, fining him $1,000, and placing him on two years' probation; however, Vali Mohammad completed the discipline without incident and the Department renewed his annual license in 2007, 2008, and 2009. At issue here is the Department's denial of Vali Mohammad's 2010 application for renewal based on a 2009 amendment to the Residential Mortgage License Act of 1987 (205 ILCS 635/7-3 (West 2010)) (Mortgage License Act), which indicates individuals with felony convictions for crimes involving "fraud" are ineligible for mortgage loan originator licensing. Vali Mohammad challenged the Department's denial in an administrative proceeding, arguing in part that his state and federal constitutional rights were being violated, but he was unsuccessful in that proceeding as well as in an administrative review action in the circuit court of Cook County. He appeals, contending the 2009 law should not be applied retroactively.

3. Illinois Labor Relations Board,: Affirmed: The court was not left with the definite and firm conviction that the Board was mistaken in concluding supervising investigators not only direct their subordinates, but also exercise significant discretionary authority that affects wages, discipline and other working conditions likely to fall within the scope of union representation. Accordingly, the Board's decision was not clearly erroneous. Given the disposition of this issue, no need to reach the Union's contention that supervising investigators are not managerial employees under the Act.  Reyes, J.

No. 2013 IL App (1st) 120279    Service Employees International Union v. Illinois Labor Relations Board   Filed 6-14-13 (RJC)


Petitioner, Service Employees International Union, Local 73 (Union), brings this action for direct review of a decision by the Illinois Labor Relations Board, Local Panel (Board), denying the representation-certification petition brought by the Union to represent supervising investigators employed by the City of Chicago's (City) Independent Police Review Authority (IPRA). The Board rejected the administrative law judge's (ALJ) recommendation, concluding the supervising investigators were supervisors within the meaning of section 3(r) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/3(r) (West 2010)). On appeal, the Union contends there are no indicia of supervisory authority in this case, in particular that supervising investigators do not "direct" employees within the meaning of the Act. For the following reasons, we conclude the Board's decision was not clearly erroneous.

4. Criminal Law: Vacated and remanded: The trial court was left with no sufficient basis to find that anyone other than defendant personally discharged the firearm that caused Bethell’s death. It was thus required to sentence defendant with the 25-years to life enhancement, making 45 years the minimum possible sentence. Because defendant was sentenced to less than that amount, and was not admonished of the enhancement, his sentence and the plea agreement that led to it are void.  Defendant’s sentence and plea agreement are void. Accordingly, the judgment of the circuit court of Kane County is vacated and the cause is remanded to the trial court with directions to allow defendant to withdraw his guilty plea and proceed to trial if he chooses to do so. Zenoff, J.

No. 2013 IL App (2d) 111089    People v. Deng   Filed 6-14-13 (RJC)


Defendant, Gareng Deng, appeals his sentence of 35 years’ incarceration for first-degree murder (720 ILCS 5/9-1(a)(3) (West 2004)). He contends that his sentence and plea agreement are void because he did not receive, and was not admonished about, a mandatory sentencing enhancement. We agree. Accordingly, we vacate the sentence and remand to allow defendant to withdraw his plea.

6 Appellate Cases Posted 6-13-13

1. Healthcare Liens/Uninsured Motorist Benefits: Affirmed: Health care service providers were entitled to a lien on the proceeds of uninsured motorist coverage and under-insured motorist coverage, and trial court properly granted providers' claims totaling 40% of available proceeds under under-insured and uninsured coverage settlement in connection with traffic accident. Chapman, J.

No. 2013 IL App (5th) 120017  McRoberts v. Porter  Filed 6-13-13 (TJJ)


The only issue presented in this case is whether a health care services lien attaches to underinsured-motorist benefits. Affirmed.

2. Sexually Violent Persons Commitment Act: Reversed and remanded: Trial court erred in refusing to conduct Frye hearing with respect to State expert's diagnosis of respondent as suffering from the mental disorder of "paraphilia not otherwise specified, attracted to early pubescent males," as no evidence was presented to show that that diagnosis was generally accepted in the scientific community; matter remanded for trial court to conduct Frye hearing, and, if necessary thereafter, a new trial. Hyman, J.

No. 2013 IL App (1st) 111556  In re The Detention of New  Filed 6-12-13 (TJJ)


Involuntary commitment under the Illinois Sexually Violent Persons Commitment Act is not punishment for the respondent's past crimes, nor should it be. The proceeding under the SVP Act is a statutorily created civil action that considers the respondent's  current mental state to determine the likelihood of respondent engaging in further acts of sexual violence on his or her release. Essentially, the respondent's liberty is tied to an assessment of the mental disorder and the risk of future sexual offenses. These  cases turn on expert testimony. Respondent John New Jr. appeals his commitment raising four issues: (i) whether the court should have held a Frye hearing to determine whether the State's expert testimony regarding his diagnosis was admissible; (ii)  whether the State improperly presented evidence of certain psychological conditions not asserted in its petition; (iii) whether the SVP Act is constitutional as applied to New; and (iv) whether the evidence at trial supported New's commitment as a sexually  violent person. Finding the trial court erred by failing to conduct the Frye hearing, we reverse and remand.

3. Asset Forfeiture: Affirmed: Fourth amendment exclusionary rule applies to asset forfeiture proceedings, and trial court properly granted claimant's motion to suppress evidence from police search of claimant's suitcase where no probable cause for search existed and claimant purportedly did not consent to search; trial court properly ordered return of funds totaling $280,020 to claimant. Neville, J.

No. 2013 IL App (1st) 111820  People v. $280,020 in United States Currency  Filed 6-12-13 (TJJ)


Police officers found cellophane wrapped bundles of cash in Shayne Kolody's luggage at Union Station. The officers seized the luggage and the State filed a complaint under the Drug Asset Forfeiture Procedure Act, alleging that either someone intended to  use the cash to purchase narcotics, or someone received the cash in exchange for narcotics. Shayne filed a claim for the cash. He moved to suppress the evidence discovered in the search of his luggage. During a trial at which Shayne and police officers  testified, the trial court granted the motion to suppress, based on its findings that Shayne did not consent to the search and that the police lacked probable cause to search the luggage. The trial court found that without the evidence discovered in the search,  the State lacked any basis for forfeiture of the cash. The court ordered the State to return the cash to Shayne. On appeal, the State argues: (1) Shayne lacked standing to claim the cash; (2) the court erred when it suppressed the evidence; and (3) the State  showed probable cause for forfeiture of the cash. We find: (1) Shayne's possession of the cash at the time of the seizure gave him standing to claim the cash; (2) Shayne's testimony adequately supports the trial court's decision to suppress the evidence; and  (3) without the suppressed evidence, the State cannot prove its case for forfeiture of the cash. Accordingly, we affirm the trial court's judgment.

4. Sale of Business/Sales Commissions: Affirmed in part, reversed in part, and remanded: Trial court properly awarded, in bench trial, damages to plaintiff who sold business to defendant and was thereafter entitled to certain sales commissions, but erred in refusing plaintiff's claim for damages during 34-month period for which plaintiff produced no documentary evidence, where plaintiff's failure resulted from defendant's failure to produce certain of those records; cause remanded to permit plaintiff to present evidence relating to that part of his claim. Hyman, J.

No. 2013 IL App (1st) 112455  Kay v. Prolix Packaging, Inc.  Filed 6-12-13 (TJJ)


After defendant Prolix Packaging, Inc. purchased the assets of plaintiff's business through an assignment for the benefit of creditors, Prolix employed plaintiff Barry Kay as a salesperson. Some five years later Prolix sold its business to a third party and,  thereafter, Kay sued Prolix for allegedly failing to pay certain sales commissions under the employment agreement. The focal point of this appeal is whether or not Prolix owes Kay for his commissions, and if so, how much. We hold the trial court erred by not allowing Kay to introduce evidence of estimates of his unpaid commissions based on his past sales for the 34 months in which no summary documents were produced. This evidence is part of Kay's offer of proof and exhibits and, therefore, we remand  the case to allow plaintiff to further testify and defendant to defend on the sole issue of the amount of damages for the 34 months.

5. Criminal Law: Affirmed: In attempt murder prosecution where defendant was alleged to have stabbed his girlfriend, trial court properly permitted State to introduce evidence that four months earlier defendant had crashed his car into the girlfriend's car and punched her in the face; evidence was admissible to show motive and intent, and probative value outweighed prejudicial effect. Hyman, J.

No. 2013 IL App (1st) 113366  People v. Nash  Filed 6-12-13 (TJJ)


After the defendant Keith Nash and his girlfriend Denise Rules had argued, Denise sought to get away from Nash in a car driven by her brother when defendant suddenly reached through the open car window and stabbed her. Nash was charged with  attempted first degree murder and aggravated domestic battery. A bench trial resulted in a conviction of Nash for attempted first degree murder. The trial court sentenced Nash to prison for 7 ½ years. On appeal, Nash contends that he was denied a fair trial  when the trial court permitted the State to introduce other-crimes evidence that took place less than four months earlier. Nash argued that the prior altercation was not relevant to the case at bar, and that its prejudicial effect outweighed any probative value of the evidence. The trial court admitted the evidence as proof of Nash's state of mind, motive, and intent, but not for propensity. The trial court also determined that the probative value of the evidence was not outweighed by the danger of unfair prejudice to  Nash. We affirm.

6. Workers' Compensation: Affirmed in part, reversed in part, and remanded: Evidence was sufficient to sustain arbitrator's decision that subsequent accident while employee worked for a second and subsequent employer constituted an independent, intervening cause that broke the connection between employee's current condition and an earlier injury suffered while working for a previous employer, but arbitrator conclusion that employee not entitled to an award of permanency with respect to first injury reversed. Hudson, J.

No. 2013 IL App (5th) 120043WC  National Freight Industries v. The Illinois Workers' Compensation Commission  Filed 6-12-13 (TJJ)


For the reasons set forth above, we conclude that the Commission properly determined that the injury claimant sustained on December 4, 2008, while working for National Freight constituted an independent, intervening cause breaking the causal  connection between claimant’s current condition of ill-being and the injury he sustained on November 6, 2006, while working for Fischer Lumber. However, we vacate the Commission’s finding that claimant is not entitled to a permanency award from  Fischer Lumber and remand this cause for further proceedings pursuant to Thomas, 78 Ill. 2d 327. Accordingly, the judgment of the circuit court of Madison County, which confirmed the decisions of the Commission, is affirmed in part, vacated in part, and remanded.

5 Appellate Cases Posted 6-11-13

1. Employment Law: Affirmed: Employee's action against employer for intentional infliction of emotional distress stemming from allegations relating to sexual orientation properly dismissed by trial court, as claim is preempted by Illinois Human Rights Act, and was subject to the provisions of the Workers Compensation Act exclusivity provisions, and was properly dismissed. Harris, J.

No. 2013 IL App (1st) 122483  Schroeder v. RGIS, Inc.  Filed 6-11-13 (TJJ)


Plaintiff, Frederick Schroeder, brought a claim of intentional infliction of emotional distress against his former employer, defendant RGIS. Defendant filed a combined motion to dismiss, brought pursuant to section 2-619.1 of the Illinois Code of Civil  Procedure, arguing, among other reasons, that plaintiff's complaint must be dismissed pursuant to section 2-619 of the Code because his claim of intentional infliction of emotional distress was preempted and, thus, barred by the Illinois Human Rights Act  and by the exclusivity provision of the Illinois Workers' Compensation Act. The circuit court granted defendant's motion to dismiss. The following issues are before this court: (1) whether plaintiff is able to establish, independent of any duties created by the  Human Rights Act, the elements of the tort of intentional infliction of emotional distress; and (2) whether the exclusivity provision of the Workers' Compensation Act bars plaintiff's claims. We hold that the circuit court properly dismissed plaintiff's  second amended complaint because his tort claim of intentional infliction of emotional distress is inextricably linked to a civil rights violation. Therefore, plaintiff's claim is preempted and, thus, barred by the Human Rights Act. We further hold that  plaintiff''s alleged injury is compensable under the Workers' Compensation Act. Therefore, plaintiff's claim is also preempted and, thus, barred by the Workers' Compensation Act. Accordingly, the circuit court properly dismissed plaintiff's second amended  complaint.

2. Criminal Law: Reversed and remanded: Defendant was charged with possession of controlled substance with intent to deliver, and armed violence based on the offense of possession of controlled substance. When trial court found defendant guilty of possession of controlled substance, and uttered "Not guilty" as to armed violence charge based upon trial court's mistaken belief that armed violence charge was based upon underlying offense of possession of controlled substance with intent to deliver, rather than actual charge based upon possession only, trial court's attempt to rectify "mistake" and find defendant guilty of armed violence as charged was barred by double jeopardy. Remanded for re-sentencing on possession charge. Zenoff, J.

No. 2013 IL App (2d) 110191  People v. Cervantes  Filed 6-11-13 (TJJ)


Defendant, Jose L. Cervantes, appeals from an order of the circuit court of Kane County finding him guilty of the offense of armed violence (720 ILCS 5/33A-2(a) (West 2008)) following a trial without a jury. We reverse and remand.

3. Criminal Law: Vacated in part and affirmed in part: Restitution was properly "re-ordered" in connection with re-sentencing on revocation of probation for burglary offense, but part of restitution order as to complainant in previously dismissed case vacated, and defendant's posted bond money was improperly ordered to be applied "first" to restitution; applicable statute required bond to be applied first to court costs and any fine imposed. Holdridge, J. (Wright, concurring in part and dissenting in part).

No. 2013 IL App (3d) 110474  People v. Moore  Filed 6-11-13 (TJJ)


Defendant, Jarmarco Moore, pled guilty to two counts of burglary and was sentenced to probation. Thereafter, his probation was revoked, and the trial court sentenced him to four years in prison and ordered that his bond money be applied first to  restitution. Defendant appeals, arguing that the portion of the sentencing order applying his bond first to restitution is void. Specifically, defendant contends that: (1) he was not under any obligation to pay restitution after his probation was revoked; (2)  restitution on one count was not supported by a valid agreement to pay; and (3) the restitution statute does not authorize applying bond to restitution before court costs. We vacate the portion of the sentencing order applying bond first to restitution, reduce  defendant's restitution, and otherwise affirm defendant's conviction and sentence.

4. Criminal Law: Reversed: In a case of apparent first impression, trial court ruling denying defendant's motion to suppress evidence was reversed, where Appellate Court determined that Section 3-413 of Illinois Vehicle Code relating to requirement that license plates be "free of any materials that would obstruct the visibility of the plate," and the purported justification for the stop of defendant's car, applied only to materials affixed to the plate, and not to a trailer hitch allegedly obstructing the officer's view of the plate numbers. Knecht, J.

No. 2013 IL App (4th) 120217  People v. Gaytan  Filed 5-21-13 (TJJ)


In September 2010, a McLean County grand jury indicted defendant, Jose Gaytan, for unlawful possession of cannabis with intent to deliver and unlawful possession of cannabis.  Defendant filed a motion to suppress evidence, arguing the police officers did not have articulable suspicion a crime had been committed or was being committed when they stopped defendant for an obstructed license plate. In October 2011, the trial court  held a stipulated bench trial and found defendant guilty. The court sentenced defendant to 30 months' probation, including a condition that he serve 120 days in the county jail. On appeal, defendant argues the trial court improperly denied the motion to suppress evidence. Defendant asserts section 3-413(b) of the Illinois  Vehicle Code only prohibits materials physically attached to the registration plate itself and not obstructions, such as a trailer hitch, not attached to the registration plate. We agree and reverse.

5. Criminal Law: Affirmed: Trial court did not abuse its discretion by refusing a continuance on the day of trial for defendant to secure substitute counsel; trial court's failure to comply properly with Supreme Court Rule 431 (b) was not plain error requiring a new trial; prosecutor's closing argument was not improper; and trial court response to jury to continue deliberations in response to jury note was proper. Holder White, J.

No. 2013 IL App (4th) 120724  People v. Curry  Filed 6-11-13 (TJJ)


Following a January 28, 2012, encounter with police, defendant, David Curry, was arrested and subsequently prosecuted for (1) aggravated driving under the influence, (2) driving with an expired registration, and (3) improper lane usage. On the scheduled  jury trial date, defendant filed a motion to continue, seeking to obtain new counsel. The trial court denied defendant's motion as untimely, and defendant's trial commenced the following day. Following defendant's July 2012 trial, the jury found defendant  guilty of operating a motor vehicle with an expired registration, improper lane usage, and DUI. Defendant appeals, arguing (1) the trial court abused its discretion by denying him his right to counsel of choice, (2) the court failed to comply with Illinois  Supreme Court Rule 431(b) during voir dire, (3) the State committed reversible error by making several improper remarks during closing argument, (4) the court erred by instructing the jury to continue deliberating after the jury indicated it had reached an impasse, and (5) defendant received ineffective assistance of trial counsel. We affirm.

2 Appellate Cases Posted 6-10-13

1.  Mortgage Foreclosure: Affirmed: By "filing a motion seeking relief from the trial court and recognizing its jurisdiction, defendants waive[s] all objections to the trial court’s jurisdiction.”  An abuse of discretion occurs when the trial court "acts arbitrarily without the employment of conscientious judgment or if its decision exceeds the bounds of reason and ignores principles of law such that substantial prejudice has resulted."  The activity of foreclosing on [a] property pursuant to a deed of trust is not the collection of a debt within the meaning of the FDCPA" because foreclosure by a trustee is not an attempt to collect funds from a debtor. McBride, J.

No. 2013 IL App (1st) 121700 Aurora Loan Services, LLC v. Kmieck Filed 6-07-13 (LJD)

Plaintiff, Aurora Loan Services, LLC (Aurora), filed a mortgage foreclosure complaint against Jozef Kmiecik (defendant) and Elzbieta Kmiecik1 in January 2010. Defendant filed an answer to Aurora's complaint which was untimely and, in October 2010, the trial court entered an order of default and judgment of foreclosure against defendant. After the court entered an order approving the sale and distribution of the property at issue, defendant filed a combined motion to quash and motion to vacate all orders pursuant to section 2-1301 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1301 (West 2010)). The trial court denied both motions. On appeal, defendant contends that: (1) the trial court erred in denying the motion to quash because the affidavit of the special process server showed the  individual served was between the ages of 26 and 30 years while defendant is 61 years old; and (2) the trial court's judgments are void because Aurora did not register as a collection agency with the State as required by the Collection Agency Act (Act) (225 ILCS 425/1 et seq. (West 2010)). We affirm.

2.  Criminal Law: Affirmed: Where a private individual, not “act[ing] as an ‘instrument’ or agent of the state”  delivers evidence to the police, there has been no seizure under the fourth amendment. If, then, the incriminating nature of the computer disks had been immediately apparent to the police, no justification would have been needed for further police action with respect to them.  The fourth amendment does not prohibit the government from using information discovered by a private search, because the private search has already frustrated any expectation that the information will remain private.  Where a private search has already occurred, the question is whether the police search exceeded the scope of the private search.  When the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.  Common authority may be actual or apparent.  In assessing whether apparent authority exists, the court determines “whether the circumstances known to the police at the time of the entry or opening would warrant a person of reasonable caution in the belief that the consenting party had authority over the premises or effects.” Birkett, J.

No. 2013 IL App (2nd) 120392 People v. Lyons   Filed 6-10-13 (LJD)

Following a bench trial, defendant, Kevin Lyons, was convicted of possession of child pornography. He appeals the denial of his motion to suppress evidence in the form of electronic media that his wife gathered from their home and delivered to the police. For the following reasons, we affirm.

3 Appellate Cases Posted 6-7-13

1. Criminal Law: Affirmed: Trial court properly denied defendant's pre-trial motion to suppress evidence on fourth amendment grounds, where officer had probable cause to arrest passenger who sought to leave area after car he was in was properly stopped, in violation of officer's order, and search of defendant's person proper as an incident to custodial arrest; and trial counsel not ineffective for failing to file motion to suppress defendant's post-arrest, pre Miranda statement to police, as such a motion would not have altered outcome of trial. Birkett, J. (Opinion of May 6, 2013, modified upon denial of rehearing).

No. 2013 IL App (2d) 111084  People v. Brannon  Filed 6-7-13 (TJJ)


Defendant, Jarriet E. Brannon, appeals from his convictions of unlawful possession of a controlled substance and unlawful possession of cannabis. He contends that the trial court erred in denying his motion to suppress physical evidence. He further  maintains that his trial counsel was ineffective for failing to move to suppress statements he made to the police both before and after he was given Miranda warnings. Because the trial court properly denied defendant’s motion to suppress and because  defendant’s trial counsel was not ineffective for failing to seek suppression of his statements, we affirm.

2. Domestic Relations Law: Affirmed: Trial court order requiring husband to pay wife's share of cost of psychologist appointed by trial court after husband filed motion to modify child custody upheld as a taxable "cost," even though husband voluntarily dismissed his motion thereafter. McLaren, J. (Zenoff, J., dissenting).

No. 2013 IL App (2d) 120523  In re Marriage of Tiballi  Filed 6-7-13 (TJJ)


In September 2005, the circuit court of Kane County entered a judgment dissolving the marriage of Robert N. Tiballi and Sheila J. Ilagan Tiballi. This appeal stems from a child custody dispute that arose years later. Robert filed a petition to modify custody, but the petition was voluntarily dismissed without prejudice. The trial court ordered Robert to pay the fees of a psychologist appointed by the trial court pursuant to section 604(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS  5/604(b) (West Supp. 2011)). Robert argues on appeal that the fees were not taxable as costs upon the voluntary dismissal of his petition. We disagree and and affirm.

3. Juvenile Abuse and Neglect: Reversed and remanded: Trial court orders regarding custody of child determined to be an "enrolled member of the Seminole Indian Tribe" reversed where record failed to show that trial court complied properly with federal Indian Child Welfare Act of 1978. Lytton, J.

No. 2013 IL App (3d) 120969  In re K.T.  Filed 6-7-13 (TJJ)


Respondent is the mother of K.T. K.T. is a member of the Seminole Indian tribe. The State filed a juvenile petition alleging that K.T. was neglected because her environment was injurious to her welfare, in part, as a result of respondent's behavior. At  respondent's combined adjudication and dispositional hearing, the Illinois Department of Children and Family Services notified the court that K.T.'s Indian tribe was interested in becoming a party to the case. Respondent then moved for a continuance so that the tribe could enter the case. The trial court denied respondent's motion. We reverse and remand.

4 Appellate Cases Posted 6-6-13

1. Municipal Employment Law: Affirmed: Decision by City administrative hearing officer that defendant police officer did not timely report his divorce to City in order to have former spouse removed from insurance policy upheld; hearing officer could properly consider affidavit "testimony"; hearing officer did not shift burden of proof to officer; and notifications to all employees regarding necessity to advise City of divorce within 30 days were not vague or inconsistent. Lavin, J.

No. 2013 IL App (1st) 120987  Aich v. City of Chicago  Filed 6-6-13 (TJJ)


This appeal arises from a determination of the department of administrative hearings (DOAH) of the City of Chicago (the City) that petitioner Abraham Aich, a Chicago police officer, violated the Municipal Code of Chicago by failing to reimburse the City for expenses incurred when petitioner failed to timely report to the City that he had obtained a divorce from Sumaya Aich and failed to remove her as a beneficiary of his insurance benefits. On appeal, petitioner asserts that the administrative law judge  (ALJ) improperly considered hearsay evidence and transferred the City's burden of proof to petitioner. He also contends that the ALJ's findings were against the manifest weight of the evidence. We affirm.

2. Federal Employer Liability Act: Affirmed: Trial court properly refused defendant's requested special interrogatory to jury in FELA action, where proposed instruction spoke to only one of three alleged claims of manner in which defendant breached its duty to plaintiff. Epstein, J.

No. 2013 IL App (1st) 121050  Goranowski v. Northeast Illinois Regional Commuter Railroad Corporation  Filed 6-6-13 (TJJ)


Plaintiff Clarence Goranowski was injured while attempting to install a door, by himself, on a Metra train car. He brought suit under the Federal Employers’ Liability Act, alleging that defendant Northeast Illinois Regional Commuter Railroad Corporation,  d/b/a Metra, was negligent in one or more of the following ways: failing to provide a reasonably safe work environment, failing to provide sufficient manpower to reinstall the lavatory door, or failing to act on Goranowski’s requests for assistance. The jury  returned a verdict in favor of Goranowski for $545,000, later reduced to $272,500 based on the jury’s finding that he was 50% at fault. Metra now appeals, arguing that the trial court erred when it declined to tender a special interrogatory to the jury. For the  reasons that follow, we affirm.

3. Criminal Law: Affirmed: Police officer who noted the strong odor of cannabis emanating from the interior of a vehicle he had lawfully stopped had the authority to search passenger's person, and trial court order denying suppression of 43 grams of cannabis found in passenger's shoe upheld. Steigmann, J.

No. 2013 IL App (4th) 110857  People v. Williams  Filed 6-6-13 (TJJ)


In this case, we are asked to decide whether a police officer's detecting the "strong odor of cannabis" emanating from the interior of a lawfully stopped vehicle provides the police with the probable cause and exigent circumstances necessary to perform a  warrantless search of a passenger in that vehicle. We conclude that it does.

4. Tort Immunity: Reversed and remanded: Trial court grant of summary judgment to defendant municipality in action where plaintiff alleged injuries resulting from condition of municipal street when she attempted to enter her lawfully parked vehicle reversed, where trial court conclusion that plaintiff was not an "intended user" of street was erroneous. Steigmann, J.

No. 2013 IL App (4th) 120957  DeMambro v. City of Springfield  Filed 6-6-13 (TJJ)


This case, which is before us on appeal from the trial court's decision to grant summary judgment in favor of defendant, the City of Springfield (City), requires this court to determine whether, as a matter of law, the plaintiff, Laura DeMambro, was an  "intended" user of the City property on which she was injured pursuant to section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act. Plaintiff injured her ankle  when she slipped into a pothole while attempting to enter her vehicle, which was lawfully parked near the curb on a city street. Because we conclude that plaintiff was an "intended" user of the portion of the city street where she was injured, we reverse and  remand for further proceedings.

2 Appellate Cases Posted 6-05-13

1. Medical Negligence: Affirmed: Trial court grant of summary judgment to defendant hospital in medical malpractice action upheld where circumstances showed no genuine issue of material fact existed with respect to whether two treating physicians who allegedly caused plaintiff's injuries were actual or apparent agents of hospital. Sterba, J.

No. 2013 IL App (1st) 121835  Frezados v. Ingalls Memorial Hospital  Filed 6-5-13


Plaintiff-appellant John Frezados filed a complaint alleging medical negligence against defendant-appellee Ingalls Memorial Hospital, d/b/a Ingalls Family Care Center, Tinley Park ("defendant" or "Ingalls"), and defendants Sullivan Urgent Aid Centers,  Ltd., and Dr. John Olivieri. Specifically, plaintiff alleged defendant was vicariously liable for the negligent acts of Dr. Olivieri and Dr. Hassan Ibrahim, two of his treating physicians. Defendant moved for summary judgment, which was granted. On appeal,  plaintiff contends that the circuit court erred in granting summary judgment because genuine issues of material fact exist concerning: (1) whether defendant held out Drs. Olivieri and Ibrahim as its employees; and (2) whether plaintiff's signature on a form  that disclaimed any employer-employee relationship between defendant and Drs. Olivieri and Ibrahim precluded him from arguing that he reasonably believed the doctors were employees of the hospital. For the following reasons, we affirm.

2. Election Law: Affirmed: Electoral board rule setting a maximum number of signatures on a candidate's nominating petition, and a rule that all signatures after the set maximum number would not be applicable toward required number, were not unconstitutional, and petitions circulated by person who garnered signatures for candidate both as a Democratic candidate and as an independent for single office were properly invalidated. Sterba, J.

No. 2013 IL App (1st) 130957  Wilson v. Municipal Officers Electoral Board for the City of Calumet City  Filed 6--5-13 (TJJ)


Plaintiff-appellant Brian Wilson filed nomination papers for the office of mayor of Calumet City as a member of the Democratic party for the consolidated primary election scheduled to be held on February 26, 2013. After objections were filed to Wilson's  candidacy, Wilson withdrew his candidacy. Wilson subsequently filed nomination papers for the same office as an independent candidate for the consolidated election to be held on April 9, 2013. Objections were again filed to Wilson's candidacy and,   following a public hearing, the Municipal Officers Electoral Board for the City of Calumet City (Board) found that Wilson's nominating papers were invalid because he did not have the required minimum number of signatures and because section 7-43(f) of  the Illinois Election Code (Code) (Pub. Act 97-681 (eff. Mar. 30, 2012) (amending 10 ILCS 5/7-43(f) (West 2010)) prohibits a candidate from running as a member of the Democratic party and as an independent candidate in the same election cycle. The circuit court affirmed the Board's findings. On appeal, Wilson contends that the circuit court erred in affirming the Board's findings because (1) the Board's rule relating to signatures submitted in excess of the maximum allowed is arbitrary and  unconstitutional, (2) there is no prohibition against a voter signing a nominating petition for a party in the primary and then signing a petition for an independent candidate for the same office in the same election, (3) there is no prohibition against an  individual circulating nominating petitions for a party candidate in a consolidated primary and then for an independent candidate in a consolidated election, and (4) the provisions of section 7-43(f) do not apply to consolidated primaries and consolidated elections. On April 3, 2013, this court entered a brief order affirming the judgment of the circuit court. The order stated that an opinion or order of the court would follow at a later date. For the reasons that follow, we affirm the judgment of the circuit court of Cook County.

2 Appellate Cases Posted 6-4-13

1. Criminal Law: Affirmed: In sexual assault prosecution, defendant's attorney was not ineffective for failing to investigate defendant's alleged neurological and cognitive disabilities as a basis to suppress defendant's post-arrest statements where claim of disabilities was speculative, defendant's educational accomplishments belied the claim, and there was "literally" no evidence that defendant's will was overborne in recorded statements of defendant to police. Quinn, J.

No. 2013 IL App (1st) 113030  People v. Cooper  Filed 6-4-13 (TJJ)


Following a jury trial, defendant Christopher Cooper was found guilty of four counts of criminal sexual assault and four counts of predatory criminal sexual assault. At sentencing, the court merged defendant's convictions and sentenced him to consecutive  terms of 8 years' imprisonment on the four counts of predatory criminal sexual assault, for an aggregate term of 32 years' imprisonment. On appeal, defendant contends that: (1) trial counsel was ineffective for failing to investigate the extent of his  neurological and cognitive impairments and their effect on his ability to knowingly and competently waive his Miranda rights; (2) trial counsel was ineffective for failing to present a meaningful pretrial challenge to the voluntariness of his confession; (3)    trial counsel was ineffective for failing to call available witnesses; (4) he was denied a fair trial when the State was allowed to present evidence that the complaining witness was forced to undergo an abortion; (5) he was denied a fair trial when the State  inferred to the jury that he sexually abused other adopted siblings; and (6) the trial court erred in giving a pattern jury instruction in its modified form. For the following reasons, we affirm.

2. Election Law: Affirmed: Decision of municipal elections board upheld denying objector's objection to candidate's nominating petitions where candidate for village trustee resided in Cook County portion of municipality (Roselle) but wrongly filed statement of economic interests in Cook County rather than properly in DuPage County, as candidate substantially complied with candidacy requirements. McLaren, J.

No. 2013 IL App (2d) 130139  Atkinson v. Roddy  Filed 6-4-13 (TJJ)


Petitioner, Kory Atkinson, appeals from an order of the trial court affirming the decision of the Village of Roselle Municipal Officers’ Electoral Board (Board). The Board overruled objections to the nomination papers of Robert D. Roddy and Carrie   Dahlstrom (Candidates), candidates for the office of trustee of the Village of Roselle (Roselle) in the April 9, 2013, election. This court granted petitioner’s motion to accelerate the appeal. For the reasons that follow, we dismiss in part and affirm in part.

4 Appellate Cases Posted 6-3-13

1. Criminal Law: Affirmed: Defendant did not dispute his prior felony conviction, so the the relevant inquiry to sustain his conviction is whether the State proved that he knowingly possessed the handgun.  In viewing the evidence in the light most favorable to the State, the evidence sufficiently corroborated the defendant's confession.  The corpus delicti of the offense was established through both the recovered handgun and the defendant's incriminating statement to Officer.  The record supports the trial court's finding that, in balancing the State's interest in nondisclosure against the defendant's right to prepare a defense, disclosure was not warranted.  The defendant was in custody for the purposes of Miranda at the time Officer Dennis posed his question at the residence regarding the ownership of the handgun. The defendant's initial incriminating statement to the police at the apartment was obtained in violation of Miranda.  The error  was harmless where the defendant subsequently made a second incriminating statement regarding his ownership of the handgun after he was advised of his Miranda rights at the police station. Cunningham, J.

No. 2013 IL App (1st) 111660   People v. Hannah   Filed 6-03-13 (RJC)


Following a bench trial in the circuit court of Cook County, defendant Laroyal Hannah was convicted of unlawful possession of a weapon by a felon and sentenced to two years of probation. On direct appeal, the defendant argues that: (1) the State failed to prove the corpus delicti of the
offense; (2) the trial court erred in denying his pretrial motion to disclose the identity of the confidential informant; and (3) the trial court erred in denying his pretrial motion to suppress his incriminating statement to the police. For the following reasons, we affirm the judgment of the
circuit court of Cook County.

2. Administrative review: Law: Affirmed in part and reversed in part and remanded: Whether the Commission had jurisdiction over Welch's discharge appeal depends on whether Welch was a "certified" or "probationary" employee at the time of her discharge.  Because Welch was not discharged prior to her certification date, she "satisfactorily completed" her probationary period and automatically became a certified employee on August 12, 2010.  the Commission had jurisdiction.  The Commission's determination that Welch's conduct did not warrant discharge was not against the manifest weight of the evidence. The Commission's decision to reduce Welch's suspension from 60 days to 14 days was conclusory and arbitrary. Harris, J. with Turner, J. dissenting.

No. 2013 IL App (4th) 120114  The Department of Corrections v. Welch    Filed 4-10-13 (RJC)


Effective August 26, 2010, the Illinois Department of Corrections (Department) discharged Mariah Welch for cause. Following a March 2011 hearing on the merits of Welch's discharge, the administrative law judge (ALJ) found that Welch had violated the Department's rules but proposed a 60-day suspension was appropriate in lieu of discharge. In May 2011, the Illinois Civil Service Commission (Commission) adopted the ALJ's proposal but reduced the suspension period to 14 days. In January 2012, the circuit court affirmed. ¶ 2 The Department appeals, arguing (1) the Commission lacked jurisdiction to consider Welch's administrative appeal because she was not a "certified employee" when she was discharged; and (2) if the Commission had jurisdiction, this court should find Welch was properly discharged for cause and should reverse the Commission's decision on the merits or, in the alternative, should reinstate the ALJ's 60-day suspension recommendation because the Commission's decision to reduce Welch's suspension from 60 to a 14 days was arbitrary, unreasonable, and unrelated to the requirements of service. We affirm in part, reverse in part, and remand with directions.

3. Workers' Compensation: Affirmed in part and reversed in part and remanded: The Commission's finding on the issue of causation was against the manifest weight of the evidence.  The Commission's finding that the claimant reached MMI as of February 25, 2008, is contrary to the manifest weight of the evidence. The claimant's refusal to participate in the RIC program cannot be a basis for denying him further TTD benefits. Furthermore, the RIC program is the only multidisciplinary program that the claimant declined to participate in. The employer did not suggest or approve any other multidisciplinary program despite Dr. Koh's recommendation that an alternative program be considered. The claimant cannot be faulted for his failure to attend some unnamed, unapproved multidisciplinary pain management program. Stewart, J. with Turner, J. specially concurring in part and dissenting in part.

No. 2013 IL App (1st) 120469WC    Kawa v. Illinois Workers' Compensation Commission  Filed 6-03-13 (RJC)  


The claimant, Bryon Kawa, was employed as a launch engineer for the employer, Ford Motor Co., when he was involved in a job-related vehicle accident. As a result of the accident, the claimant underwent treatments for injuries to his right shoulder, right knee, and low back, and the claimant has experienced continuous shoulder, back, and knee pain since the date of the accident. After a hearing pursuant to section 19(b) of the Workers' Compensation Act (the Act) (820 ILCS 305/19(b) (West 2010)), the arbitrator found that the claimant engaged in an injurious practice, which both imperiled and retarded his recovery, by declining to participate in a multidisciplinary pain management program that included psychological treatments. The claimant appealed the arbitrator's decision to the Commission. The Commission affirmed and adopted the arbitrator's decision, except that the Commission found that the claimant did not engage in an injurious practice by declining to participate in the multidisciplinary pain management program. The Commission found, however, that the claimant had reached MMI because he "chose not to avail himself of further treatment." The claimant appealed the Commission's decision to the circuit court, and the circuit court entered a judgment confirming the Commission's decision. The claimant now appeals the circuit court's judgment.

4. Workers' Compensation: Reversed: The statute, under its plain and ordinary language, does not contemplate multiple figures to be computed and awarded at future dates. Therefore, the Commission's interpretation of section 8(d)(1), that it requires the wage differential to be determined as of the date of the arbitration hearing is correct.  The Commission's decision to award the claimant $277.06 per week, based on evidence of the wages he had earned as a ramp service worker before the injury and the wages he was earning as an SOR after the injury, is not against the manifest weight of the evidence.  The Commission's decision to exclude the claimant's alleged mandatory overtime hours in his wage differential award was not against the manifest weight of the evidence. Hoffman, J. 

No. 2013 IL App (1st) 121136      United Airlines, Inc. v. Illinois Workers' Compensation Commission    Filed 6-03-13 (RJC)   


The claimant, Richard Young, appeals from an order of the Circuit Court of Cook County which reversed a decision of the Illinois Workers' Compensation Commission (Commission) awarding him, amongst other relief, weekly wage differential payments of $277.06, beginning April
27, 2009, pursuant to section 8(d)(1) of the Workers' Compensation Act (Act) (820 ILCS 305/8(d)(1) (West 2006)) and continuing for the duration of the disability he suffered as a consequence of his employment with United Airlines, Inc. (UAL). In addition, the circuit court reinstated the decision of the arbitrator which, in part, had awarded the claimant weekly wage differential payments which decreased annually over the course of ten years and terminated on April 13, 2018. For the reasons which follow, we reverse the judgment of the circuit court and reinstate the decision of the Commission.


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