Illinois Supreme and Appellate Court Case Summaries
    

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

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People v. Garcia, 2015 IL App (1st) 131180

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2015 IL App (5th) 120401

7 Appellate Cases Posted 4-29-16 

1. Criminal Law: Affirmed: In trial wherein medical doctor was charged with criminal sexual assault in connection with sexual acts committed upon patient during "examination," trial court did not err in admitting testimony of other patients who made similar claims; trial court properly refused discovery by defendant of patients' mental health records; trial court did not abuse its discretion in refusing to admit into evidence or provide to jurors during deliberations certain medical records; and trial court properly permitted former patient to testify at sentencing. Reyes, J.

No. 2016 IL App (1st) 131959  People v. Arze  Filed 4-29-16 (TJJ)


Following a jury trial in the circuit court of Cook County, defendant Ricardo Arze was found guilty of two counts of criminal sexual assault and sentenced to 13 years in the Illinois Department of Corrections. On appeal, defendant argues the trial court  erred in: (1) granting the State's motion to reconsider and reinstating the verdict, after admitting other-crimes evidence; (2) failing to admit subpoenaed medical records or publish certain medical records to the jury; (3) precluding or limiting the examination  of witnesses; and (4) imposing an improper sentence based in part on limiting the cross-examination of a witness. For the following reasons, we affirm the judgment of the circuit court.

2. Criminal Law: Affirmed: Trial court properly denied post-conviction petition in face of claim that defendant's trial lawyer had told him that payment of a bribe to corrupt judge would garner an acquittal, and claim that co-defendant had bribed the same judge, where trial court 's credibility determination that attorney testified credibly when he stated that he never said any such thing was not against manifest weight of the evidence, and subsequent trial attorney who had represented decedent's relative in a prior matter did not operate under a conflict of interest. Hoffman, J. (Delort, J., dissenting).

No. 2016 IL App (1st) 133492  People v. Gacho  Filed 4-29-16 (TJJ)


The defendant, Robert Gacho, appeals from the circuit court's denial of his petition brought pursuant to the Post-Conviction Hearing Act, following an evidentiary hearing. He argues that the denial of his petition is manifestly erroneous as the evidence  presented established both that he was denied a fair trial due to the corruption of the trial judge and that he was denied effective assistance of counsel when his trial attorney labored under a conflict of interest. For the reasons which follow, we affirm the judgment of the circuit court.

3. Mental Health and Disabilities Act: Affirmed: Trial court properly denied declaratory judgment action filed by public school teacher seeking medical and psychological records of student, whose relationship with plaintiff was basis for education board hearing seeking to terminate plaintiff for an allegedly inappropriate relationship with student, as student's mental health was never made relevant at dismissal proceedings so as to permit release of the records under the Mental Health and Developmental Disabilities Act. Reyes, J.

No. 2016 IL App (1st) 142918  Thompson v. N.J.  Filed 4-29-16 (TJJ)


Plaintiff Mark Thompson, filed a three-count declaratory judgment complaint against defendants N.J.,1 Welke (N.J.'s psychiatrist), Locascio (N.J.'s therapist), and NorthShore University HealthSystem (the record custodian of N.J.'s mental health records)  (collectively, the defendants) in the circuit court of Cook County. Plaintiff sought a declaration that N.J., a former high school student he privately coached, waived the confidentiality protections of section 10(a)(1) of the Illinois Mental Health and   Developmental Disabilities Confidentiality Act (Act) (740 ILCS 110/10(a)(1) (West 2014)) by introducing her mental condition as part of a discharge proceeding brought by the Illinois State Board of Education (Board) against him. Plaintiff now appeals the order of the circuit court of Cook County dismissing his declaratory judgment complaint with prejudice. On appeal, plaintiff, pro se, contends he sufficiently alleged that N.J. waived her privilege under the Act so as to warrant the disclosure of her  mental health records and, in turn, have a declaratory judgment entered in his favor. For the reasons that follow, we affirm the judgment of the circuit court.

4. Administrative Review/Insurance Broker License: Affirmed: Department of Insurance acted properly in revoking petitioner's insurance broker's license in connection with claim that broker provided misleading and incorrect information stemming from failure in applications in this State to list license revocations in other states. Delort, J.

No. 2016 IL App (1st) 150439  Walsh v. Illinois Department of Insurance  Filed 4-29-16 (TJJ)


The Director of the Illinois Department of Insurance (Department), Andrew Boron, (Director)1 issued an order revoking the Illinois insurance producer license of plaintiff Joseph M. Walsh. Walsh requested a hearing to challenge the Director’s decision.  After the hearing, a Department hearing officer recommended that: (1) the Director’s decision to revoke Walsh’s license be sustained; (2) Walsh be assessed a $5000 civil penalty; and (3) the costs of the hearing, totaling $520.90, be assessed against Walsh.  Thereafter, the Director entered an order adopting the hearing officer’s findings of fact and conclusions of law. In addition, the Director adopted the hearing officer’s recommendation that the Department revoke Walsh’s license and assess the costs of the  hearing against him. However, the Director overruled the hearing officer in part and increased the civil penalty to $15,000. Walsh filed a complaint for administrative review in the circuit court of Cook County. The circuit court affirmed the Director’s  decision, precipitating this appeal. Affirmed.

5. Criminal Law: Affirmed: Trial court did not err in accepting prosecutors' race-neutral reasons for exercising peremptory challenges against minority venirepersons, and trial court did not err in permitting evidence that possession of cannabis was a "fine only" offense, so as to argue why defendant (charged with possession of cocaine) would seek to flee the police. Harris, J.

No. 2016 IL App (4th) 150444  People v. Shaw  Filed 4-29-16 (TJJ)


Following an October 2012, trial, a jury found defendant, Davey R. Shaw, Jr., guilty of possession of a controlled substance, possession of cannabis, and resisting or obstructing a peace officer. In December 2012, the trial court sentenced defendant to 5  years' imprisonment for possession of a controlled substance (cocaine), to run concurrently with a 364-day sentence for resisting or obstructing a peace officer and a 30-day sentence for possession of cannabis. Defendant appealed, arguing the trial court (1)  erred in refusing to conduct a Batson hearing (Batson v. Kentucky, 476 U.S. 79, 89 (1986)); (2) erred in admitting evidence, over objection, and allowing argument that possession of cannabis was a "fine-only" offense; and (3) violated his constitutional  right to be present during sworn testimony. The case now comes back to us for resolution of the Batson issue in light of the proceedings conducted on remand, with defendant asserting the trial court erred by accepting the State's race-neutral explanations  for exercising peremptory challenges. Defendant also argues for the first time that the trial court erred when it ordered the balance of defendant's bond to be reimbursed to the public defender's office without having provided defendant with notice or a  hearing to determine defendant's ability to pay the public defender fee. In addition, we now consider the remaining issues over which we retained jurisdiction relating to the admissibility of certain evidence and defendant's constitutional right to be present  during certain sworn testimony. We affirm.

6. Workers' Compensation: Affirmed: Industrial Commission properly dismissed employee's claim for additional permanency and medical expenses, where petition was filed after 30-month period after original award, and thus outside limitation of Workers' Compensation Act, notwithstanding that original award was subject to judicial review and modified before being reinstated, as 30-month period begins to run from date of original award. Stewart, J.

No. 2016 IL App (4th) 150152WC  Weaver v. Illinois Workers' Compensation Comm'n  Filed 4-29-16 (TJJ)


The claimant, Gerald Weaver, appeals the order of the circuit court of Macon County confirming the decision of the Illinois Workers' Compensation Commission (Commission) dismissing his petition for review under section 19(h) of the Workers' Compensation Act (Act) (820 ILCS 305/19(h) (West 2012)) for lack of jurisdiction. For the reasons that follow, we affirm.

7. Workers' Compensation: Reversed and remanded: Serious injuries to employee stemming from work-related blister developed in connection with driving truck were properly deemed worthy of award by arbitrator, and Commission decision to reverse award because employee's actions in lancing blister itself reversed, as lancing of blister was not an intervening accident that broke chain of causation leading to amputation of toe and other medical problems experienced by employee. Stewart, J.

No. 2016 IL App (4th) 150543WC  Dunteman v. Illinois Workers' Compensation Comm'n  Filed 4-29-16 (TJJ)


A majority of the Illinois Workers' Compensation Commission (Commission) reversed the arbitrator's decision and vacated the awards of compensation, finding that the claimant suffered a work-related injury on July 21, 2011, but that his self-treatment of the work-related injury constituted an intervening accident that broke the chain of causation between his work-related blister and subsequent infection. The dissenting Commissioner believed the claimant's infection was a foreseeable and natural consequence of the work-related blister and that his self-treatment was not an intervening accident that broke the chain of causation. On judicial review, the circuit court of Macon County confirmed the Commission's decision. The claimant filed a timely  appeal. For the reasons that follow, we reverse and remand for further proceedings.

1 Appellate Case Posted 4-28-16 

1. Workers' Compensation/Set-off: Affirmed: Employer-third party defendant in construction accident litigation for personal injuries sutained by employee did not have to plead set-off under Kotecki doctrine as an affirmative defense- - set-off was permitted as a matter of law; and trial court properly applied set-off consistent with Kotecki. Holdridge, J.

No. 2016 IL App (3d) 140794  Burhmester v. Steve Spiess Construction, Inc.  Filed 4-28-16 (TJJ)


Defendant and third-party plaintiff, Steve Spiess Construction Company (Spiess) appeals from an order of the circuit court of La Salle County denying its motion for a directed verdict against third-party defendant L.J. Keefe Co. (Keefe). Spiess’s motion  sought to direct a verdict denying Keefe’s affirmative defense against Spiess’s third-party claim based upon the Kotecki doctrine. Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155 (1991). On appeal, Spiess maintains that it was error for the circuit court to  deny its motion for a directed verdict on the Kotecki claim since Keefe had offered no evidence at trial to prove that it had a right to assert a Kotecki claim. As an alternative argument, Spiess maintains that the trial court erred in vacating its judgement  against Keefe pursuant to Kotecki as no evidence had been presented regarding the past of future value of the underlying workers’ compensation claim. Affirmed.

5 Appellate Cases Posted 4-27-16

1. Civil Actions (Punitive Damages): Punitive damages vacated: Trial court award of punitive damages in action under the Replevin Act for return of property held by defendant but owned by plaintiff was improper, as punitive damages are not authorized by the terms of the Replevin Act. McLaren, J.

No. 2016 IL App (2d) 150468  Sensational Four, Inc. v. Tri-Par Die & Mold Corp.  Filed 4-27-16 (TJJ)


Defendant, Tri-Par Die and Mold Corporation, appeals the trial court’s award of $100,000 in punitive damages in favor of plaintiff, Sensational Four, Inc, in a replevin action. On appeal, defendant argues that: (1) punitive damages may not be awarded in a  suit for replevin; and (2) the punitive damages award violates defendant’s due process rights. We vacate the punitive damages award.

2. Illinois Human Rights Act: Certified questions answered: In action by city employee under Illinois Human Rights Act, the Act prohibits "hostile work-environment disability harassment" and an action for such can be brought, and Tort Immunity Act prohibits a claim for damages but not a claim for equitable relief. Jorgensen, J. (McLaren, J., sp. concurring).

No. 2016 IL App (2d) 150493  Rozsavolgyi v. City of Aurora  Filed 4-27-16 (TJJ)


Plaintiff, Patricia Rozsavolgyi, has a medical history of unipolar depression, anxiety, panic attacks, and partial hearing loss. Her employer of 20 years, the City of Aurora (the City), terminated plaintiff’s employment after she made a statement to a coworker  in which she used the word “idiots.” Plaintiff sued the City, alleging violations of the Illinois Human Rights Act, including refusal to accommodate, disparate treatment, retaliation, and hostile work environment. Following several interlocutory trial court orders, the City petitioned for leave to appeal under Illinois Supreme Court Rule 308 (permissive interlocutory appeals), asking that we answer certain certified questions. We granted the petition, and, for the reasons set forth herein, we answer the certified questions as follows: (1) section 2-102(A) of the Human Rights Act prohibits hostile-work-environment disability harassment, and a reasonable-accommodation claim may be brought as a separate claim under that provision; (2) section 2-102(D)  of the Human Rights Act applies to hostile-work-environment disability-harassment claims brought under section 2-102(A), and the employee always bears the ultimate burden of persuasion in such a case; and (3) the Tort Immunity Act applies to actions  under the Human Rights Act; the City thus can assert immunity with respect to plaintiff’s request for damages but not to her request for equitable relief; and we acknowledge that the supreme court has impliedly rejected our holdings that the Tort Immunity  Act applies only to tort actions and does not apply to constitutional claims and, thus, we do not follow that precedent.

3. Criminal Law: Affirmed: Trial court properly denied defendat's motion to dismiss under Speedy Trial Act where defense counsel's motion for a bond reduction and "agreement" to continue the matter to the next date constituted a tolling of the Speedy Trial Act. Carter, J. (O'Brien, J., dissenting).

No. 2016 IL App (3d) 140286  People v. Lilly  Filed 4-27-16 (TJJ)


Defendant, Gregory L. Lilly, appeals his convictions of burglary and retail theft. Defendant contends that his statutory speedy trial right was violated because the State failed to bring him to trial within 120 days as required by section 103-5(a) of the Code of  Criminal Procedure of 1963. Defendant argues that the trial court abused its discretion when it attributed several delays to defendant and denied his motion to dismiss the charges. We affirm.

4. Criminal Law: Certain fines vacated: Imposition of fines by action of the clerk of the court rather than a judge rendered the fines void (and fines were additionally void by virtue of their imposition more than 30 days after sentencing). O'Brien, J.

No. 2016 IL App (3d) 140418  People v. Strong  Filed 4-27-16 (TJJ)


Defendant, Phillip A. Strong, challenges the imposition of certain monetary assessments against him following his conviction for aggravated driving while license suspended. We find that fines totaling $150 were improperly levied against defendant, and  vacate those fines.

5. Criminal Law: Reversed in part and affirmed in part: In case where defendant seemed to be following his two-year-old stepdaughter down Secretary of State hallway and entering office where cash was stolen, in absence of any evidence that defendant directing child to go in that direction, conviction for contributing to delinquency of a minor was reversed (but burglary conviction affirmed). Steigmann, J.

No. 2016 IL App (4th) 140315  People v. Gharrett  Filed 4-27-16 (TJJ)


In October 2013, the State charged defendant with burglary and contributing to the criminal delinquency of a minor after defendant allegedly enlisted the help of his wife's two year- old daughter to steal cash and checks from an office within the Secretary  of State (SOS) building in Clinton. After a February 2014 trial, the jury found defendant guilty of both counts. The court later sentenced defendant to 12 years in prison for contributing to the criminal delinquency of a minor and an extended-term sentence  of 12 years for burglary. Defendant appeals, arguing that (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt of contributing to the criminal delinquency of a minor, (2) the evidence was sufficient to prove him guilty beyond a  reasonable doubt of burglary, (3) the trial court erred by allowing witness testimony narrating a surveillance video, and (4) the court erred by imposing an extended-term sentence on the burglary conviction. Because we agree only with defendant's first argument, we (1) reverse defendant's conviction for contributing to the criminal delinquency of a minor and (2) affirm his conviction and sentence for burglary.

4 Appellate Cases Posted 4-26-16 

1. Legal Malpractice: Affirmed in part, reversed in part, and remanded: In action for legal malpractice stemming from a claim that plaintiff suffered damages by virtue of her lawyers' failure to provide proper legal services in connection with actions brought against plaintiff for violations of state Deceptive Trade Practices Act, trial court properly denied defendant lawyers' motion for summary judgment, but erred in granting summary judgment to plaintiff in light of absence of expert evideence showing that defendants' conduct fell below some reasonable standard applicable to lawyers, and a genuine issue of material fact existed as to whether plaintiff's unclean hands was reason for initial judgment against her when represented by defendants. Simon, J.

No. 2016 IL App (1st) 141984  Fox v. Seiden  Filed 4-26-16 (TJJ)


This is a legal malpractice case in which the trial court entered summary judgment in favor of the plaintiff. The defendants appeal, principally arguing that they were the ones entitled to summary judgment. We conclude that the defendants are not entitled to  judgment as a matter of law, but neither is the plaintiff. Because the error in representation alleged by the plaintiff does not fall within the "common knowledge exception," expert testimony is required to establish the standard of care. A trier of fact must  then determine whether the defendants complied with that standard—whether they acted with the skill and care ordinarily used by a reasonably well-qualified attorney under similar circumstances. If the plaintiff can prove that the defendants' representation  fell below that standard, the fact-finder also must determine the amount of damages that flowed from the breach. Accordingly, we affirm the denial of the defendants' cross-motion for summary judgment, reverse and vacate the judgment entered in the  plaintiff's favor, and remand the case for further proceedings.

2. Criminal Law: Affirmed: In aggravated discharge of a firearm and armed habitual criminal prosecution, alleged to have occurred in 2012, trial court properly admitted evidence of defendant's involvement in a shooting from 2006 in which victim was then targeted, as victim in 2012 offense was a "family or household member" and other crimes evidence was therefore admissible for propensity to commit domestic violence, and trial court did not err in admitting hearsay statements of victim, where prosecution properly showed that defendant was responsible for procuring victim's absence from trial, and hearsay statements by victim were thus admissible under doctrine of forfeiture by wrongdiong. Hudson, J.

No. 2016 IL App (2d) 130514  People v. Nixon  Filed 4-26-16 (TJJ)


Following a jury trial in the circuit court of Lake County, defendant, Eric L. Nixon, was convicted of aggravated discharge of a firearm and being an armed habitual criminal. Pursuant to one-act, one-crime principles, the trial court entered a conviction on  only the latter offense and sentenced defendant to a prison term of 24 years. Defendant appeals his conviction, raising two issues. First, defendant argues that he was denied a fair trial because the trial court erroneously admitted testimonial and photographic  evidence regarding his involvement in a shooting that occurred six years prior to the incident at bar. Second, defendant contends that his sixth amendment right to confront the witnesses against him (U.S. Const., amend. VI) was violated  because the trial court admitted testimonial hearsay statements on which he had no opportunity to cross-examine the declarant. We affirm.

3. Criminal Law: Reversed and remanded: Trial court did not err in conducting examination of child victim of alleged sexual assault in chambers rather than in open court, but trial court did err in maintaining shackling of defendant during trial without conducting requisite Boose hearing. O'Brien, J. (McLaren, J., sp. concurring).

No. 2016 IL App (3d) 130901  People v. Williams  Filed 4-26-16 (TJJ)


The defendant, Calvin Williams, appealed from his conviction of two counts of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)) and one count of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(1) (West 2012)). Reversed and remanded.

4. Criminal Law: Affirmed: Defendant proved guilty beyond a reasonable doubt of placing his penis inside child's vagina, even though child testified that defendant did not "touch his private with her private," where prior statment by victim properly admitted under Section 115-10 of Code of Criminal Procedure claimed that defendant did do that; prior statements of victim properly admitted under Section 115-10 and video- and audio-recordings of 115-10 evidence properly admitted; and consecutive sentences of 20 years not excessive. Steigmann, J.

No. 2016 IL App (4th) 150004  People v. Johnson  Filed 4-25-16 (TJJ)


In January 2014, defendant, Jason C. Johnson, was indicted on two counts of predatory criminal sexual assault of a child, alleging that he committed acts of sexual penetration with M.B., who was less than 13 years of age. Defendant appeals, raising several arguments: (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt; (2) the trial court abused its discretion by admitting hearsay evidence under section 115-10 of the Code; (3) the court erred by entering an insufficiently detailed  order when admitting the hearsay statements under section 115-10; (4) the court abused its discretion by admitting the recording as substantive evidence without laying a proper foundation; (5) trial counsel was ineffective for failing to object to (a) the  court's insufficiently detailed order admitting evidence under section 115-10, (b) testimony that was not presented at the section 115-10 hearing, and (c) the admission of the recording as substantive evidence or to request a jury instruction prohibiting its use  as substantive evidence; and (6) the court imposed an excessive sentence. We affirm.

2 Appellate Cases Posted 4-25-16

1. Securities Law: Affirmed in part and reversed in part, and remanded: Trial court properly dismissed claims by purchasers in connection with sale of securities where element of "reliance" on defendants' oral representations was barred by non-reliance provisions of written agreement; SEC Regulation D did not provide a basis for additional claim; but trial court erred in dismissing common law fraud count, as complaint filed by plaintiffs stated a cause of action. Harris, J.

No. 2016 IL App (1st) 150614  Kim v. Song  Filed 4-25-16 (TJJ)


Plaintiffs brought suit against defendants seeking to recover damages and to rescind certain stock purchase transactions, alleging that defendants made false oral representations about the stock and the corporation. The circuit court granted defendants'  motion to dismiss the complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)) and allowed plaintiffs to amend their complaint. Plaintiffs subsequently filed a first amended verified complaint alleging,  inter alia, that defendants committed common-law fraud (count I), violations of the Illinois Securities Law of 1953 (815 ILCS 5/1 et seq. (West 2012)) (count III), and violations of Regulation D (see 17 C.F.R § 230.500 et seq. (2012)) (count IV). Defendants filed a section 2-615 motion to dismiss all of the counts in the amended complaint, which the court granted. Plaintiffs were given leave again to amend the complaint, but declined to do so. Only the claims set forth under counts I, III and IV of  the first amended verified complaint are at issue in this appeal. For the following reasons, we reverse the trial court's dismissal of count I, and affirm its dismissal of counts III and IV.

2. Criminal Law: Affirmed: Trial court properly dismissed post-conviction petition as untimely where defendant was convicted in 1984 and he did not file his petition until 2013; defendant's claim that discretionary sentence of natural life violated Miller v. Alabama inapplicable, as Miller only applies to mandatory sentences of natural life, and defendant received a discretionary sentence of natural life. Schmidt, J.

No. 2016 IL App (3d) 140723  People v. Walker  Filed 4-25-16 (TJJ)


In July 1984, a Will County jury convicted defendant, James Walker, of felony murder (Ill. Rev. Stat. 1983, ch. 38, ¶ 9-1). He was 17 years old at the time of the offense. The court sentenced him to natural life imprisonment without the possibility of parole.  Defendant raised three issues, including his sentence, on direct appeal; this court affirmed. People v. Walker, 136 Ill. App. 3d 177 (1985). The Illinois Supreme Court denied defendant’s petition for leave to appeal. People v. Walker, 111 Ill. 2d 563 (1985). Defendant appeals the dismissal of his postconviction petition, arguing his sentence: (1) violates the United States Constitution; (2) violates the proportionate penalties clause of the Illinois Constitution; and (3) as it applies to juveniles, Illinois’s natural life  sentencing scheme is unconstitutional. In addition to countering defendant’s claims, the State asserts that defendant’s postconviction petition is untimely. We find defendant’s petition is untimely, and affirm the trial court's ruling.

2 Appellate Cases Posted 4-22-16

1. Administrative Review Law: Affirmed: Trial court properly confirmed administrative decision where record contained substantial evidence supporting the administrative agency’s decision. The record further revealed that the decision was not arbitrary or capricious and that proper procedures were followed, with no violation of due process. Holdridge, J., with Schmidt, J., specially concurring.

No. 2016 IL App (3d) 130947  Mercy Crystal Lake Hospital & Medical Center v. Illinois Health Facilities & Service Review Board   Filed 43-22-16 (JMC)

Centegra Hospital-Huntley and Centegra Health Systems (collectively “Centegra”), seeking to construct an acute care hospital in Huntley, Illinois, applied for a “certificate of need” permit from the Illinois Health Facilities and Services Review Board (“Board”). During the administrative process before the Board, Mercy Crystal Lake Hospital and Medical Center, Mercy Harvard Hospital, and Mercy Alliance (collectively “Mercy”) and Advocate Health and Hospitals Corporation d/b/a Advocate Good Shepard Hospital, Sherman Hospital, and Sherman Health Systems (collectively “Advocate”) were granted permission to intervene. The Board approved Centegra’s application. Mercy and Advocate sought administrative review in the circuit court of Will County, which ultimately upheld the Board’s final administrative decision. On appeal, Mercy and Advocate argued that (1) the Board’s written decision following remand from the circuit court of Will County was legally deficient; (2) the Board’s decision was clearly erroneous; (3) the procedural history of Board’s ruling on the Centegra application clearly demonstrates that its decision was both arbitrary and capricious; and (4) the Board’s approval of Centegra’s application deprived them of due process.

HELD: (1) The Board’s written decision was not legally deficient. (2) The decision was not clearly erroneous as the record contains substantial evidence supporting the Board’s decision to grant the application. (3) The Board’s decision was neither arbitrary nor capricious as the record revealed compliance with procedural rules. (4) The record did not reveal any violation of due process.

2. Civil Law: Mortgage Foreclosure: Sufficiency of Pleadings: Affirmed. Trial court properly denied motion to dismiss foreclosure complaint where allegation that plaintiff was a mortgagee was contained in the pleadings. Reyes, P. J.

No. 2016 IL App (1st) 152931 Wells Fargo Bank, N.A. v. Mundie    Filed 4-22-16 (JMC)

Defendants appeal from the circuit court of Cook County's order denying their motion to dismiss which was brought pursuant to section 2-615 of the Code of Civil Procedure (Code). On appeal, defendants contended that the circuit court erred in denying their motion because plaintiff Wells Fargo Bank, N.A., insufficiently plead that it had the capacity to sue as a "mortgagee." HELD: An allegation that a plaintiff is a mortgagee pursuant to section 15-1208 of the

Illinois Mortgage Foreclosure Law is sufficient to plead capacity to sue. Moreover, by attaching copies of the mortgage and a note endorsed in blank to the complaint, plaintiff sufficiently plead that it was bringing suit in the capacity of legal holder of the indebtedness.

 

 

 

1  Appellate Case Posted 4-21-16

1. Civil Law: Declaratory Action/Motion to Compel Arbitration: Affirmed: Trial court properly denied motion to compel arbitration based on the language of the parties underlying trust/partnership agreement. Holdridge, J.

2016 IL App (3d) 140570   Watkins v. Mellen   Filed 4-21-16 (JMC)


Watkins, trustee of the Watkins Enterprises Land Trust and Partnership, sought declaratory relief in order to auction estate held by the trust.  The sale was opposed by 3 of the 26 trust beneficiaries.  The dissenting beneficiaries moved to dismiss Watkins’ action on the ground that he had no authority to bring the action under the terms of the trust/partnership agreement without unanimous agreement.  The trial judge agreed with Watkins.  The dissenters then moved to compel arbitration on the same issue, which motion was dismissed.  The dissenters took an interlocutory appeal under Supreme Court Rule 307(a)(1).  HELD: Watkins had authority under the terms of the agreement to act.

 

3 Appellate Cases Posted 4-20-16

1. Criminal Law: Armed Habitual Criminal/Attempted Residential Burglary/One-Act One-Crime Rule: Affirmed in part; reversed in part; mittimus corrected: Trial court improperly found attempted residential burglary is a predicate offense for a conviction of being an armed habitual criminal. Defendant was also improperly convicted of two criminal offenses based on the same physical act. Mason, P.J.

No. 2016 IL App (1st) 141381 People v. Sanderson    Filed 4-20-16 (JMC)

Defendant Nicholas Sanderson’s conviction for being an armed habitual criminal was predicated on prior convictions for aggravated unlawful use of a weapon (AUUW) and attempted residential burglary. On appeal, he argued that (1) attempted residential burglary is not a “forcible felony” as defined in the Criminal Code of 2012 (Code); (2) one of his remaining convictions for unlawful use of a weapon (UUW) by a felon and AUUW must be vacated because both convictions were based on the single act of possession of a firearm; and (3) he was entitled to an additional day of credit for time served. HELD: (1) Attempted residential burglary is not a “forcible felony” as defined in the Code. (2) The State confessed error because one of defendant’s remaining convictions for unlawful use of a weapon (UUW) by a felon and AUUW were based on the single act of possession of a firearm. (3) Defendant  entitled to an additional day of credit for time served.

.

2. Civil Law: Forcible Entry and Detainer/Condominium Assessments/Order of Possession: Affirmed: Trial court correctly denied motion to vacate order of possession where there was no evidence that judgment had been cured and attorney fees had been paid. Pucinski, J.

No. 2016 IL App (1st) 140426  State Place Condominium Ass'n v. Magpayo   Filed 4-20-16 (JMC


This appeal arises out of a forcible entry and detainer action filed by a condominium association against one of its unit owners based on unpaid assessments. Plaintiff won a judgment and order for possession (judgment) for defendant’s condominium property due to defendant’s  failure to pay assessments for common expenses. Defendant later filed several motions to vacate the judgment, asserting that her delinquent account had been satisfied. The circuit court denied all the motions. On appeal, defendant contends that (1) the court's denial of her motion to vacate was improper, in that the court was required to hold an evidentiary hearing on her motion and that the absence of such a hearing was error; (2) the payment of postjudgment attorney fees is not a condition precedent to cure a judgment for possession and (3) there was no evidence of a lease of the subject property and it was error for the court to find that a lease existed. HELD: (1) The statutory language does not mandate an evidentiary hearing, only sufficient evidence adduced by the movant that the judgment has been cured and the property has not been leased. (2) Illinois law not only permits, but requires that attorney fees incurred by the

Condominium Association that arise out of a default be added to a unit owner's share of the common expenses. Plaintiff’s attorney fees had to be paid to cure the judgment and there was evidence that defendant  had notpaid the fees. (3) The record reveals that defendant’s counsel saw the lease, and never attempted to bar that evidence.


3. Criminal Law: Post-Conviction Hearing Act: Second Stage Dismissal/Rule 651 Compliance: Reversed and remanded with directions: Second stage post-conviction dismissal was improper where lawyer failed to amend the petition in compliance with Rule 651. O’Brien, J.

No. 2016 IL App (3d) 140386 People v. Russell   Filed 4-20-16 (JMC)

Russell appealed a second-stage dismissal of his post-conviction petition following a conviction for first degree murder.  Among other things, Russell’s pro se petition alleged improper admission of other crimes evidence.  A public defender was appointed to assist him.  After the petition was dismissed, Russell appealed, claiming his lawyer was ineffective.  Russell’s appellate lawyer failed to raise the issue of the admission of other crimes evidence on appeal.  His post-conviction lawyer failed to amend the petition to allege the earlier ineffectiveness claim, a “routine” amendment in the court’s view.  This therefore contributed directly to the dismissal of the petition without an evidentiary hearing and rebutted the presumption of reasonable assistance created by the filing of the certificate of compliance with Rule 651(c). HELD: Dismissal of petition reversed and cause remanded with directions to allow Russell to replead.


1 Appellate Case Posted 4-19-16

1. Criminal Law: Krankel Ineffectiveness Hearing/Appellate Jurisdiction: Affirmed in part; dismissed in part: On remand from the appellate court, the trial court conducted a proper inquiry that comported with both People v. Krankel  and the appellate court’s mandate. Remainder of defendant’s challenges on appeal were dismissed because appellate court lacked jurisdiction over them. Hyman, J.

No. 2016 IL App (1st) 142346   People v. Willis  Filed 4-19-16 (JMC)

In People v. Willis, 2013 IL App (1st) 110233, the appellate court remanded for a proper inquiry into defendant’s claims of ineffective assistance of counsel under People v. Krankel. Defendant now contends that the trial court again failed to adequately inquire into his posttrial allegations of ineffective assistance of counsel in violation of both Krankel and the appellate court mandate. Defendant also requests reassessment of the appellate’s court ‘s decision regarding two claims he made before—that his sentence was excessive and that the automatic transfer provision of the Juvenile Court Act of 1987 (Act).

HELD: The trial court conducted a proper preliminary Krankel hearing, and followedthe appellate court’s mandate. Defendant’s remaining challenges were dismissed for lack of appellate jurisdiction as an appeal taken from a specific judgment does not confer jurisdiction to review other judgments, or parts of judgments, not specified or inferred from the notice of appeal).

1 Appellate Case Posted 4-18-16

1. Civil Law:  FOIA: Affirmed:  Trial court correctly granted summary judgment in favor of disclosure of FOIA requested police report where City did not meet its burden of establishing that the report was exempt under FOIA. Lytton, J.

No. 2016 IL App (3d) 140838   Peoria Journal Star v. Cty of Peoria   Filed 4-18-16 (JMC)


Plaintiffs Peoria Journal Star and Matt Buedel filed a request, pursuant to the Illinois

Freedom of Information Act (FOIA) 2012)), seeking from defendant City of Peoria (City) all special reports written by Sergeant Kerrie Davis of the Peoria Police Department in 2013. The City responded by providing plaintiffs a copy of one report but refused to provide another report written by Davis, asserting that it was exempt from disclosure under FOIA. Plaintiffs filed a complaint for declaratory and injunctive relief, seeking an order compelling the City to release the undisclosed report. The trial court granted summary judgment in favor of the plaintiffs, finding that the City failed to establish that the report was exempt under FOIA.

HELD: The non-disclosed report constituted a grievance that was investigated, substantiated and ultimately resulted in disciplinary proceedings. However, the report was created well before any

adjudication took place and existed independent of any adjudication. That the report later led to

disciplinary action against two officers is insufficient to make it exempt under FOIA.

 

2 Appellate Cases Posted 4-15-16

1. Involuntary Commitment: Notice/Statutory Compliance/Mootness Doctrine: Affirmed in part, reversed in part and remanded: Although the appeal was moot, respondent’s claims regarding the State and the trial court’s failures to comply with statutory provisions and her counsel’s ineffectiveness were subject to the public interest exception to the mootness doctrine. On the merits, both the State and trial court failed to follow statutory provisions. Counsel’s did not render ineffective assistance of counsel. McDade, J.

No. 2016 IL App (3d) 140980  In re Sharon H.  Filed 4-15-16 (JMC)

 

Respondent was the subject of petitions for involuntary admission and for involuntary administration of medication, both of which were granted by the circuit court. Respondent appeals, contending respondent argues that: (1) the evidence was insufficient to establish that she was subject to involuntary admission; (2) the evidence was insufficient to establish that she was subject to involuntary medication; (3) the State and the circuit court failed to comply with the statutory provisions on involuntary medication; and (4) her trial counsel was ineffective.

HELD:  The first two issues concerning the sufficiency of the evidence were moot; however, the remaining issues were excepted from the mootness doctrine under the public interest exception. The State conceded that it failed to comply with the three-day notice requirement contained in the statute. The State also concedes error because he lack of evidence presented at the medication hearing and the non-specific nature of the court’s order regarding testing violated section 2-107.1(a-5)(4)(G). The failure to provide proper notice pursuant to section 2-107.1(a-5)(1) means that the court's medication order must be reversed as does the court's error regarding the ordering of testing. Finally, respondent’s counsel did not render ineffective assistance at the admission hearing as alleged by the respondent, because she cannot establish prejudice.

 

2. Civil Law: Mortgage Foreclosure/Lien Priority based on dissolution judgment. Trial court erred in awarding surplus funds arising from judicial sale of marital home where former wife had priority based on the language of the dissolution of judgment. Lytton, J.

No. 2016 IL App (3d) 140205  Peru Federal Savings Bank v. Weiden   Filed 4-15-16 (JMC)


Defendants, Donald and Tina Weiden, divorced in 2006. In 2012, plaintiff, Peru Federal

Savings Bank, foreclosed on the martial residence. Olivero & Olivero Law Offices, the firm that

represented Donald during the divorce, successfully requested that the surplus funds from the

sale be awarded to it in satisfaction of a judgment lien for attorney fees. Tina appeals, claiming

that she had priority based on the dissolution judgment and that her equitable lien should have

been satisfied first.

HELD: the dissolution judgment created an equitable lien in Tina's interest in the marital property. The dissolution judgment awarded Donald the marital residence. In exchange for her interest in the marital property, Tina agreed to execute a quitclaim deed giving her interest in the property to Donald, and Donald agreed to refinance the mortgage and use those funds to pay Tina. The specific language of the dissolution judgment clearly indicated that the martial residence was the security for Tina's equity interest. Upon refinance of the mortgage and note, Donald would receive the money necessary to buy Tina's interest in the property, and when Tina received her money, she would execute a quitclaim deed releasing her interest in the property. The dissolution judgment therefore created an equitable lien that has priority over the judgment lien recorded by Olivero & Olivero. The dissolution judgment therefore created an equitable lien that has priority over the judgment lien recorded by Olivero & Olivero.


1 Appellate Case Posted 4-14-16

1. Criminal Law: Reversed and remanded: Trial court improperly dismissed State’s superseding indictment on the basis that violation of a bail bond is not a continuing offense.  Defendant had been given bail in 1996, fled the jurisdiction, and was later apprehended some 20 years later. Burke, J.

No. 2016 IL App (2d) 150456  People v. Casas  Filed 4-14-16 (JMC)


The question presented in this case is whether the offense of violation of bail bond is a

continuing offense such that the limitations period on a violation-of-bail-bond prosecution is

tolled until an offender is returned to custody.

HELD: Yes, it is. The legislature intended that, like escape, violation of bail bond would

be treated as a continuing offense. The nature of the offense is that the offender has secured bail

and fled. Like escape, wherever else the bail-bond offender is, he is not where he is lawfully

supposed to be; he has breached his lawful custody and obstructed justice. Such acts “pose[ ] a

threat to the integrity and authority of the court.” he General Assembly intended violation of bail bond to be treated as a continuing offense because the offense aggregates the entirety of the defendant’s criminal conduct.

1 Appellate Case Posted 4-13-16

1. Civil Law: Contracts/Consideration/Public Policy/Interest Act: Prejudgment Interest: Affirmed in part, Reversed in part and remanded: Trial court correctly concluded that contract was enforceable as it was supported by consideration and did not violate the Rules of Professional Conduct; trial court improperly denied prejudgment interest under the Interest Act.  Fitzgerald Smith, J.

No. 2016 IL App (1st) 143858   Chandra v. Chandra   Filed 4-13-16 (JMC)


Following recovery in a qui tam action, plaintiff-appellee/cross-appellant Rakesh

Chandra, M.D. (Rakesh) filed a cause of action for declaratory judgment against defendant-appellant/cross-appellee Lokesh Chandra, M.D. (Lokesh) and defendant-appellee/cross-appellant Robin B. Potter and Associates (Potter), seeking to enforce a contract entered into by the parties. Potter filed a cause of action for declaratory judgment against Lokesh in the same vein, also seeking to enforce the contract. Lokesh, meanwhile, filed answers and

defenses, as well as a counterclaim and crossclaim, seeking to have the contract declared

unenforceable. Rakesh and Potter eventually filed motions for judgment on the pleadings

and for prejudgment interest. The trial court granted their motions in part by finding the contract at issue to be enforceable, but denied their request for prejudgment interest. Lokesh appeals, contending that the trial court erred in finding the contract enforceable. He asserts that there was no consideration from Rakesh in forming the contract and that the contract itself violated the Illinois Rules of Professional Conduct (Rules). Concurrently, both Rakesh and Potter

appeal the trial court's denial of their requests for prejudgment interest.

HELD: The contract at issue was, as the trial court found, supported by consideration

and, therefore, clearly enforceable. There was consideration to support both the legal services contract between the parties and the agreement between Lokesh and Rakesh to equally share in the recovery obtained and, thus, that these were legally valid and enforceable. The contract did not violate the Rules in anyway, as it was not an instance of fee sharing or the unauthorized practice of law, nor did this relationship amount to a conflict of interest. With respect to prejudgment interest, all the statutory requirements of the Interest Act have been met for an award of prejudgment interest based on this instrument in writing, and the trial judge erred in denying it.

 

 

1 Appellate Case Posted 4-12-16

1. Civil Law: Insurance: Duty to Defend: Reversed and remanded: In duty to defend case, trial court incorrectly granted judgment on the pleadings for insurer where the underlying complaint alleged a “loss” that was defined in the policy and was not specifically excluded. Pope, J.

No. 2016 Il App (4th) 150550 Illinois Municipal League Risk Management Ass'n v. City of Genoa  Filed 4-12-16 (JMC)


The Illinois Municipal League Risk Management Association (Association) filed a complaint for declaratory judgment against the City of Genoa (City) and the Regional Transportation Authority (RTA), seeking a declaration it had no duty to defend or indemnify the City in a lawsuit brought against it by RTA. The trial court granted the Association  judgment on the pleadings, finding no duty to defend in the underlying suit. The City appealed, arguing the court erred in granting the Association's motion for judgment on the pleadings.

HELD: The RTA’s underlying complaint alleged a “loss” as defined by the policy. Because the “loss” was not specifically excluded in the policy, the trial court erred in granting judgment on the pleadings for the Association.

 


2 Appellate Cases Posted 4-8-16

1. Worker’s Compensation: Affirmed: Trial court’s confirmation of Commission’s award was proper as evidencee supported Commission’s determination regarding (1) injured arm and (2) employer’s entitlement to a credit for previous compensation made pursuant to a settlement. Holdridge, P. J.

No. 2016 IL App (1st) 143044WC  Dorsey v. Illinois Workers' Compensation Comm'n    Filed 4-8-16 (JMC)

Following a hearing and determination by the Worker’s Compensation Commission, claimant sought judicial review of the Commission’s decision awarding claimant a sum equal to the loss of 37.5% of the use of the left arm. The Commission further ordered that the employer was due a credit for an earlier payment pursuant to a settlement regarding the same injured arm. The trial court confirmed the award. Claimant appeals, contending: (1) whether the Commission’s award

of compensation for the loss of the use of the arm under section 8(e) of the Act rather the loss of

the use of the person-as-a-whole under section 8(d)(2) was against the manifest weight of the

evidence; and (2) whether the Commission erred in granting a credit to the employer for

payments made pursuant to a prior settlement agreement.

HELD: (1) All the medical evidence established that the claimant’s surgery was limited to the area near the elbow. The overwhelming evidence supports the Commission’s finding that he injured his arm and its finding on that issue was not against the manifest weight of the evidence.

(2) A settlement contract approved by the Commission is a final award of the Commission for all legal effects, including credits due in later awards and the ability to collaterally attack the agreement. The record established that the claimant was compensated for a prior injury to his left arm and the Commission properly concluded that the employer was entitled to credit for that prior compensation.

2. Civil Law: Cemetery Care Act/Consumer Fraud: Affirmed in part, reversed in part, and remanded: Trial court properly dismissed breach of fiduciary duty claims where plaintiffs failed to state a cause of action; trial court also correctly ruled that no private of action under the Act, trial court erred in dismissing consumer fraud claims because plaintiffs stated a cause of action under the Care Act. Hall, J.

No. 2016 IL App (1st) 131274   Kagan v. Waldheim Cemetery Co.  Filed 4-8-16 (JMC)


This consolidated appeal centered on provisions of the Cemetery Care Act (Care Act). The Care Act was enacted to remedy the evils relating to possible frauds or mismanagement in the handling of care funds and in the advertising and sales of services to which the funds for care were to be devoted. A cemetery licensed under the Care Act must establish a care fund into which deposits of the funds collected from the purchasers of cemetery property and services are placed and must hold the funds in trust. Plaintiffs brought suit against defendants, alleging

conversion, common law breach of fiduciary duty, violations of the Illinois Cemetery

Oversight Act and the Care Act and violation of the Consumer Fraud Act. They also sought

an accounting. Plaintiffs appeal the trial court’s dismissal of the complaints.

HELD: The dismissal with prejudice of the plaintiffs' claim against the Bank for breach of fiduciary duty under common law was proper. There is no right of private action under the Care Act, and therefore, none of the plaintiffs have standing to sue for violations of the Care Act. Plaintiffs abandoned their motion for leave to amend their second amended consolidated complaint, and the issue raised with respect to the motion for leave to amend is procedurally defaulted. The trial court erred in dismissing plaintiffs’ Consumer Fraud claims because the plaintiffs have stated a cause of action under section 2Z of the Consumer Fraud Act for the Bank's violation of the Care Act.

 

1 Appellate Case Posted 4-7-16

1. Criminal Law: Section 2-1401/Sua Sponte Dismissal: Affirmed: Trial court properly dismissed petition where the record failed to affirmatively show effective service on the State. Appleton,  J.

No. 2016 Il App (4th) 130832   People v. Rolfe   Filed 4-7-16 (JMC)

Thirty-nine days after defendant, Tony R. Rolfe, filed his section 2-1401 petition for relief from

judgment, the trial court dismissed the petition, sua sponte. Defendant appealed, arguing that his petition was unripe for adjudication.

HELD: The record fails to affirmatively show the petition was unripe for adjudication..

4 Appellate Cases Posted 4-5-16

1. Civil Law: Domestic Relations/Illinois Marriage and Dissolution of Marriage Act/Modification of Child Support/Income: Affirmed: Trial court properly classified proceeds of wrongful death settlement as income for purposes of child support and did not abuse its discretion in ordering father to make one-time upward deviation from the guideline amount of child support based on those proceeds. Chapman, J.

No.2016 IL App (5th) 150246  In re Marriage of Fortner   Filed 4-5-16 (JMC)

 

Husband appeals from an order  modifying child support. The trial court found that the proceeds of a wrongful death settlement husband received did not constitute income for purposes of child support. However, the court found that the settlement increased husband’s financial resources, thus constituting a material change in circumstances justifying a one-time upward deviation from the guideline amount of child support. The court therefore ordered husband to make a one-time payment of $15,000 as child support to the wife. Husband argues that (1) the court erred in ordering child support on the basis of the wrongful death settlement proceeds despite the court's finding that the proceeds did not constitute income; and (2) the court erred by ordering him to pay an amount that exceeded the needs of the child.

HELD: In light of the broad, inclusive definition of income in the Dissolution Act, we conclude that damages for emotional grief and loss  are properly included as income within the meaning of the Dissolution Act. Therefore, the settlement proceeds were income for purposes of child support.  The settlement proceeds resulted in an inconsistency of at least 20%  between the amount of the existing order and the amount of child support that results from application of the statutory guideline to the supporting parent's current income for the year in which the husband received the settlement. The trial court did not abuse its discretion in awarding child supportin an amount that exceeded Kylie's demonstrated needs.


2. Civil Law: Domestic Relations/Maintenance/Pension Benefits: Affirmed: Trial court properly modified the parties’ Marital Settlement Agreement by considering husband’s pension benefits as income for purposes of calculating maintenance. Carter, J.

No. 2016 IL App (3d) 150496  In re Marriage of Knutson    Filed 4-5-16 (JMC)


Husband  appeals from the reduction of his maintenance obligation with wife, arguing that the trial court improperly modified the parties' Marital Settlement Agreement (MSA) by considering his pension benefits as income for the purposes of calculating maintenance.

HELD: Because the Illinois Marriage and Dissolution of Marriage Act expressly commands the trial court to consider "retirement benefits" when maintenance is being reviewed, modified, or terminated, we hold the trial court did not abuse its discretion in considering the pension benefits as income. The parties’ MSA did not contain an express or implicit waiver of pension benefits, therefore, the trial court did not improperly modify it when it followed the terms of the statute by considering husband’s pension benefits.

3. Criminal Law: Motion to Withdraw Guilty Plea/Appellate Jurisdiction: Appeal Dismissed: Defendant failed to file his notice of appeal within 30 days of his motion to reconsider sentence.  O’Brien, J.

No. 2016 IL App (3d) 150090  People v. Kibbons   Filed 4-5-16 (JMC)


Defendant pled guilty to one count of aggravated driving under the influence and was sentenced to eight years in prison. On appeal, he challenged the denial of his motion to withdraw his guilty plea and his sentence.

HELD: Appeal dismissed for lack of appellate jurisdiction because defendant’s notice of appeal was untimely.

.

4. Criminal Law: Illinois Torture Inquiry and Relief Commission Act: Reversed and remanded: Trial court improperly dismissed claims from prisoners on timeliness grounds in that the torture alleged to have occurred after John Burge had been fired by the Chicago Police Department. The Act contemplates allegations of torture by officers under Burge’s previous command.  Howse, J.

 

No. 2016 IL App (1st) 141109   Mitchell v. People   Filed 3-31-16 (JMC)


Petitioners in this case allege they were tortured by individuals who previously served

under the supervision of Jon Burge. Jon Burge was first suspended from the Chicago police

department (CPD) in 1991 and was subsequently fired from the CPD in 1993. The acts of torture

alleged in the cases now before us occurred after Jon Burge had been fired by the CPD. Under the Illinois Torture Inquiry and Relief Commission Act (Torture Act), the Illinois legislature created the Illinois Torture Inquiry and Relief Commission (TIRC) "[t]o conduct inquiries into claims of torture with priority to be given to those cases in which the convicted person is currently incarcerated solely for the crime to which he or she claims torture by Jon Burge or officers under his command, or both.” The TIRC found each of petitioners' claims had merit and referred the claims to the circuit court of Cook County, where each claim was assigned to a different judge. Soon thereafter, the State filed motions to dismiss in each case arguing that the TIRC did not have jurisdiction to review the claims filed by petitioners because those claims arose out of alleged torture committed after Jon Burge had been fired and was no longer employed by the CPD. The circuit court granted the motions to dismiss.

HELD: The language of the Torture Act, specifically the definition of "claims of

torture," is ambiguous. Generally, courts will give substantial weight and deference to an interpretation of an ambiguous statute by the agency charged with the administration and enforcement of the statute. Prior to the present appeal, the TIRC was presented with the same question and in an "Order Concerning its Jurisdiction" and in proposed

regulations, the TIRC clearly expressed its opinion that "claims of torture" includes those like

Fair's and Mitchell's claims, where the alleged torture occurred at the hands of officers

previously under the supervision of Jon Burge and, therefore, such claims fell within the TIRC's

jurisdiction and were reviewable by the TIRC.

 

 

1 Appellate Case Posted 4-4-16

1. Criminal Law: Affirmed: Defendant filed a post-conviction petition alleging that the trial judge considered an improper aggravating factor and also was biased against him; trial court correctly dismissed the petition at the first stage because it failed to state the gist of a constitutional claim. Schmidt, J.

No. 2016 IL App (3d)   130881  People v. Rademacher   Filed 4-4-16 (JMC)


Defendant appeals the first-stage dismissal of his pro se postconviction petition, arguing that his petition stated the gist of a constitutional claim.

HELD: Defendant’s claim that the trial court considered an improper aggravating factor at sentencing is not of constitutional dimension as required under the Post-Conviction Hearing Act.

Defendant’s second claim, that the trial judge was biased against him was patently without merit because something more than an unfavorable result to the defendant is required to

demonstrate bias or prejudice on the part of the trial court. Case law  described that

“something more” means “a showing of animosity, hostility, ill will, or distrust towards [a]

defendant.” The trial court’s remarks did not evince any animosity, hostility, ill

will, or distrust toward defendant.

1 Appellate Case Posted 4-1-16

1. Civil Law: Military Veterans Assistance Act/Declaratory Judgment: Affirmed in part, reversed in part, remanded: Declaratory suit was brought seeking a declaration that County’s reorganization of a second Veteran’s Commission was invalid. The trial court correctly determined the first Commission was invalid, but erred in concluding that the second Commission was valid. Schmidt, J.

No. 2016 IL App (3d) 130969 Veterans Assistance Comm'n of Grundy County, Illinois v. County Board of Grundy County, Illinois   Filed 4-1-16 (JMC)


Grundy County passed a resolution recognizing the original Veterans Commission VAC (VAC 1), with Elton Monson serving as duly-elected superintendent.  A later resolution passed by the Grundy County board reorganized a second Commission (VAC 2), with a different superintendent, Kenneth Buck.  VAC 1 brought a declaratory judgment action to declare VAC2 invalid. The trial court found the county board had the authority to recognize that VAC 2 was not required to fund VAC 1. VAC 1 appealed and the appellate court reversed and remanded with instructions to make specific factual findings as to whether either purported VAC met the statutory requirements of the Military Veterans Assistance Act.  On remand, the trial court concluded that VAC 1 extinguished its own legal status by arbitrarily and capriciously excluding some posts and chapters of duly recognized military veterans’ organizations in the county.

VAC 1 appealed, claiming, that VAC 1 did not extinguish its own legal status and that VAC 1’s bylaws were valid, binding, and enforceable on the VAC 1 members. 

HELD: VAC 2 was an invalid VAC.


9 Appellate Cases Posted 3-31-16

1. Criminal Law: Reversed and remanded: Defendant's trial counsel provided ineffective assistance of counsel in advising defendant to plead guilty to failure to register as a sex offender where predicate offense (here, unlawful restraint that was "sexually motivated") did not become a triggering offense until after defendant's conviction. Burke, J.

No. 2016 IL App (2d) 140358  People v. Armstrong  Filed 3-22-16 (TJJ)


Defendant, Craig Armstrong, entered a negotiated plea of guilty to one count of failing to register as a sex offender as required by section 6 of the Sex Offender Registration Act and was sentenced to three years in prison. The trial court denied his postjudgment motion. On appeal, this court remanded summarily. On remand, defendant proceeded pro se and filed a postjudgment motion, which the trial court denied. On appeal, defendant contends that his trial counsel was ineffective for advising him to plead guilty even though the conviction on which his status as a sex offender depended was not actually of a sex offense under the Act. We reverse and remand.

2. Insurance Coverage (Diretors & Officers): Reversed and remanded: Trial court erred in granting summary judgment to insurance broker defendant, and against insured, where policy exclusion proferred by defendant claiming that plaintiffs' alleged violations of "securities laws" excluded coverage was ambiguous by its terms, thus militating in favor of coverage. Hutchinson, J.

No. 2016 IL App (2d) 150303  Robert R. McCormick Foundation v. Arthur J. Gallagher Risk Management Services, Inc.  Filed 3-31-16 (TJJ)


Plaintiffs, the Robert R. McCormick Foundation and the Cantigny Foundation (the Foundations) filed suit against their former insurance broker, Arthur J. Gallagher Risk Management Services, Inc. (Gallagher), for the loss of defense coverage under the  Foundation’s directors’ and officers’ (D&O) liability insurance policy. The trial court determined that an exclusion in the D&O policy would have prevented coverage altogether. Because the trial court erred in interpreting the exclusion by failing to see it as  ambiguous, we reverse and remand.

3. Firearm Owners' Identification Card: Affirmed: Trial court properly denied petition for issuance of a FOID card where petitioner had previously been convicted of domestic battery, and never sought to avail himself of available remedies to get relief from prior conviction for domestic battery and thus remove "federal ferearms disability." Harris, J.

No. 2016 IL App (4th) 150035  Baumgartner v. Greene County State's Attorney's Office  Filed 3-31-16 (TJJ)


Plaintiff, Kyle R. Baumgartner, applied to the Illinois State Police for a firearm owners identification (FOID) card but was denied based on his criminal history, which included a misdemeanor conviction for domestic battery. Pursuant to section 10 of the  Firearm Owners Identification Card Act, he petitioned the circuit court for relief from ISP's decision. Initially, the court granted plaintiff relief, finding him eligible for a FOID card. However, ISP was allowed to intervene in the underlying proceedings and  filed a motion to vacate the court's order. Ultimately, the court granted ISP's motion and denied plaintiff's petition. Plaintiff appeals, arguing (1) the circuit court erred in finding statutory review pursuant to section 10 of the FOID Act could not remove a  federal firearms disability; (2) federal law does not prohibit him from possessing a firearm because his civil rights were restored following his domestic battery conviction; and (3) if state and federal law are read together to prohibit him from obtaining a  FOID card, the relevant statutory provisions unreasonably restrict his second amendment right to bear arms and are unconstitutional as applied to him. We affirm.

4. Criminal Law: Affirmed: Trial court properly denied defendant's motion for leave to file successive post-conviction petition, as evidence forming basis of defendant's claim of actual innocence was available prior to defendant's prior post-conviction pleadings, and he thus failed to show why it could not have been presented previously. Cunningham, J.

No. 2016 IL App (1st) 123092  People v. Wideman  Filed 3-31-16 (TJJ)


Defendant-appellant Lawrence Wideman appeals the circuit court's denial of his motion seeking leave to file a successive petition for relief under the Post-Conviction Hearing Act. For the following reasons, we conclude that the defendant did not establish  his right to obtain leave to file the successive postconviction petition, and thus we affirm the judgment of the circuit court of Cook County.

5. Criminal Law: Affirmed: Defendant's original sentences of 20 years IDOC for attempt murder, originally ordered erroneously to be served concurrently, did not prohibit imposition of consecutive 15 year sentences after remand, as defendant's sentences were actually decreased, not increased, and consecutive sentences reflect only the manner in which any sentence is served, not its length. Fitzgerald Smith, J.

No. 2016 IL App (1st) 141664  People v. Cole  Filed 3-30-16 (TJJ)


After a jury trial, defendant Brandon Cole was found guilty of two counts of attempted first degree murder and two counts of aggravated battery with a firearm for the shooting of Zachary Parson and Tiffany Space. He was sentenced to two terms of  20-years' imprisonment on the attempted murder convictions, to be served concurrently. He appealed, arguing that that his trial counsel was ineffective and that the evidence was insufficient to convict him. People v. Cole, No. 1-08-0761 (2010)  (unpublished order under Supreme Court Rule 23). We affirmed defendant's convictions, but vacated the trial court's imposition of concurrent sentences, remanding for imposition of consecutive sentences. People v. Cole, No. 1-08-0761 (2010)  (unpublished order under Supreme Court Rule 23). On remand, the trial court held a new sentencing hearing after which it resentenced defendant to two consecutive terms of 15 years' imprisonment. Defendant now appeals from the resentencing, contending: (1) his original 20-year concurrent terms were not void and are, therefore, neither subject to increase nor appealable by the State; and (2) the resentencing court erred in increasing his "aggregate sentence" by 10 years on remand. For the  following reasons, we affirm.

6. Criminal Law: Affirmed: Armed habitual criminal statute not unconstitutional, and predicate felony of delivery of a controlled substance was not impropery doubly enhanced, despite claim that that offense had been previously used to support conviction for unlawful use of a weapon by a felon, where that latter offense was also used as second predicate offense for armed habitual criminal charge. Liu, J.

No. 2016 IL App (1st) 141765  People v. Fulton  Filed 3-31-16 (TJJ)


Defendant was convicted of being an armed habitual criminal, aggravated unlawful use of a weapon, and unlawful use of a weapon by a felon. On appeal, he contends that his armed habitual criminal conviction subjected him to an improper double  enhancement, and that the armed habitual criminal statute violates substantive due process because it potentially criminalizes innocent conduct. We find that defendant was not subjected to improper double enhancement where his conviction for delivery of  a controlled substance was only used once, as a predicate felony, to support his conviction as an armed habitual criminal. Furthermore, the armed habitual criminal statute is not unconstitutional where the statute is rationally related to the public interest it  serves and defendant failed to demonstrate that the statute could not be constitutionally applied in any set of circumstances. For these reasons, we affirm the judgment of the circuit court.

7. Insurance Coverage (Workers' Compensation): Reversed and remanded: Trial court erred in granting summary judgment to insurance company where company claimed that "Other States Insurance Endorsement" excluded coverage for workers' compensation claim arising in Illinois for services performed on behalf of employer based in Indiana. Gordon, J.

No. 2016 IL App (1st) 143083  Continental Western Insurance Co. v. Knox County EMS, Inc.  Filed 3-31-16 (TJJ)


Defendant Knox County EMS, Inc. (Knox) appeals from the circuit court's orders granting summary judgment to plaintiff Continental Western Insurance Company, Inc. (Continental) on its declaratory judgment action against Knox and denying Knox's  motion to reconsider. Continental had issued a workers' compensation policy to Knox. It sought a ruling that, under the policy, it had no duty to defend Knox against or pay benefits on an Illinois workers' compensation claim brought against Knox by a  Knox employee. The circuit court agreed with Continental that the policy did not cover Illinois workers' compensation claims. It held that Illinois law required Knox to purchase separate workers' compensation insurance coverage for its operations in  Illinois and Knox, therefore, had not met the conditions for coverage in the policy's residual market limited other states insurance endorsement. The questions on appeal are whether the circuit court (1) should have dismissed the action as the Illinois  Workers' Compensation Commission1 (commission) had primary jurisdiction over the action and (2) erred in finding that section 4(a)(3) of the Illinois Workers' Compensation Act required Knox to purchase separate workers' compensation insurance  coverage for its Illinois claim. We reverse and remand.

8. Judgments: Reversed and remanded: Default judgment entered against dissolved corporation in connection with proceedings initiated after dissolution was improper for plaintiffs' failure to serve Illinois Secreatry of State, and trial court erred in failing to vacate default judgment. Mason, J.

No. 2016 IL App (1st) 143211  John Isfan Construction, Inc. v. Longwood Towers, LLC  Filed 3-30-16 (TJJ)


The Husmans eventually moved to vacate the default judgment against Longwood under section 2-1301(e) of the Code of Civil Procedure. Their motion was denied. They now appeal, arguing that (1) the default judgment against Longwood is void, because  Longwood was never properly served; (2) alternatively, the default should be vacated in the interests of substantial justice, because Isfan did not give Longwood proper notice of the default; and (3) Isfan’s third amended complaint against  Longwood was legally deficient and therefore insufficient to support the default. We find that the default judgment is void and reverse.

9. Mecahnics' Liens: Affirmed: Trial court judgment in favor of homeowners and mortgage company affirmed in plaintiff's action to enforce mechanic's lien, where evidence showed that plaintiff had committed "constructive fraud" by misrepresenting the copmpletion date of work performed on defendants' home, and award of attorneys' fees as sanction against plaintiff upheld. Gordon, J.

No. 2016 IL App (1st) 143666  Father & Sons Home Improvement II, Inc. v. Stuart  Filed 3-31-16 (TJJ)


This appeal arises from plaintiff Father & Sons Home Improvement II, Inc.’s mechanic’s lien action brought against defendants Tracee and Cedric Stuart (the Stuarts); and Bank of America, N.A., and Mortgage Electronic Registration Systems, Inc. (together, Bank of America1). Plaintiff raises three issues on appeal: (1) whether the circuit court erred in finding that plaintiff had committed constructive fraud and granting summary judgment in favor of the Stuarts and Bank of America; (2) whether  the  circuit court erred in awarding the Stuarts attorney fees pursuant to the Mechanics Lien Act; and (3) whether the circuit court erred in awarding Bank of America attorney fees pursuant to Illinois Supreme Court Rule 137. We affirm all three of the circuit  court’s orders for the reasons set forth below.

4 Appellate Cases Posted 3-30-16 

1. Mental Health Code: Reversed and remanded: Failure of State to notify Bulgarian consulate at request of respondent, a Bulgarian native, in connection with petition by State for involuntary administration of pshychotropic drugs, was error, as Mental Health Code permits the respondent to designate two "persons" to receive notification from the State regarding the petition, and respondent's nation's consulate qualifies as a person respondent may delegate; in the face of respondent's repeated requests for such, it was error to proceed to hearing without notifying the consulate. Jorgensen, J. (Spence, J., dissenting).

No. 2016 IL App (2d) 141022  In re Miroslava P.  Filed 3-30-16 (TJJ)


The State petitioned for both the involuntary admission of and the involuntary administration of psychotropic medication to respondent, Miroslava P., a Bulgarian citizen. At three early status hearings, respondent requested that the Bulgarian consulate be  notified of the admission proceedings. The State did not ensure notification. One month after the petitions had been filed, respondent moved to strike the petitions on the basis that the consulate had not been notified. Respondent cited the Vienna  Convention’s requirement that foreign consulates be notified when their citizens are detained. Subsequently, the court, under a third judge, heard the State’s petitions and granted them. Respondent moved to reconsider, arguing that the petitions never should  have proceeded on the merits, because the consulate had not been notified. This time, respondent cited section 3-609 of the Code as a primary authority for her contention that two persons of respondent’s choosing, specifically the consulate, should  have received copies of the admission petition and accompanying documentation. The State argued that respondent’s late citation to the proper authority precluded the trial court from reconsidering the notice issue. The court stated that it would reconsider the issue, given that a mistake of law had been made. The court granted the motion to reconsider, finding that noncompliance with the requirements of section 3-609 warranted a reversal of both the admission order and the medication order. The State  appeals, and, for the reasons that follow, we affirm.

2. Criminal Law: Reversed and remanded: Trial court erred in permitting State to introduce numerous letters by defendant to public officials which contained allegations of offenses other than those charged, where the probative value was outweighed by prejudicial effect in case where defendant was charged with threatening public officials and cyberstalking. Birkett, J.

No. 2016 IL App (2d) 140294  People v. Gregory  Filed 3-30-16 (TJJ)


Defendant, Scott Gregory, appeals his convictions of one count of threatening a public official and three counts of cyberstalking. He contends that the trial  court erred by allowing into evidence 10 letters containing references to other crimes and prior bad acts, which he argues were not relevant and were highly prejudicial. We reverse and remand for a new trial.

3. Criminal Law: Reversed and remanded: In bench trial for leaving the scene of a fatal accident, trial court mistaken belief that State was not required to prove that defendant knew that the accident in question involved another person required that defendant receive a new trial, as that is precisely what the State had to prove. Burke, J.

No. 2016 IL App (2d) 140194  People v. Meuris  Filed 3-30-16 (TJJ)


Defendant, Kraig Meuris, appeals from his conviction of failure to stop after an accident involving personal injury or death. The sole issue on appeal is whether the charge required the State to prove that defendant knew that he was in an accident with  another person. For the reasons that follow, we find that it did. Thus, we reverse defendant’s conviction and remand for a new trial.

4. Criminal Law: Reversed and remanded: Trial court erred in summarily dismissing post-conviction petition alleging that counsel provided ineffective assistance of counsel for failing to file brief on appeal; whether counsel should or should not have filed a brief raising issues that were of no merit should not have been resolved at first stage in a summary fashion. Schostok, J.

No. 2016 IL App (2d) 140509  People v. Meeks  Filed 3-30-16 (TJJ)


Defendant, Calvin Meeks, appeals from the summary dismissal of his petition under the Post-Conviction Hearing Act for relief from convictions of a single count each of home invasion and unlawful restraint. In his petition, defendant claimed, inter alia,  that, because the attorney representing him in his direct appeal failed to file an appellate brief, he did not receive the effective assistance of counsel in his direct appeal. We conclude that the summary dismissal of the petition was error and we therefore  reverse and remand for further proceedings under the Act.

4 Appellate Cases Posted 3-29-16

1. Insurance Coverage: Reversed and remanded: Trial court erred in granting declaratory judgment to Michigan insurer that it was not obligated to cover insured's uninsured claim stemming from accident involving insured's work vehicle while on personal business (and with family members) where Michigan insurer's conduct and communications to insured constituted a waiver of its position that it was not obligated to cover the accident where, among other things, it told the insured that his uninsured claim, even as to non-employee family members, was "covered." Birkett, J.

No. 2016 IL App (2d) 150462  State Farm Mutual Automobile Insurance Co. v. Burke  Filed 3-29-16 (TJJ)


Plaintiff and counterdefendant, State Farm Mutual Automobile Insurance Company, appeals the judgment of the circuit court of Du Page County granting summary judgment in favor of defendant and counterplaintiff, Granite State Insurance Company. At  issue is the applicability of uninsured motorist coverage through a policy issued by Granite State. State Farm argues that the uninsured motorist provision in the Granite State policy is unenforceable because it violates Illinois law and public policy  requiring  that all motorists have uninsured motorist coverage, notwithstanding the choice-of-law provision spelled out in the policy. Alternatively, State Farm argues that Granite State waived its policy defenses by extending coverage to defendants Patrick  and Lisa Burke and their son Jonathon. Last, State Farm argues generally that it would be unjust to allow Granite State to evade the requirements of Illinois public policy embodied in the mandatory insurance laws. We agree that Granite State waived its policy defenses, and we reverse and remand.

2. Criminal Law: Affirmed: Trial court properly dismissed post-conviction petition at second stage where petition did not allege that claimed perjurious witnesses knew that their testimony was false at time that they gave it. O'Brien, J. (McDade, J., sp. concurring).

No. 2016 IL App (3d) 130737  People v. Clinton  Filed 3-29-16 (TJJ)


A jury found defendant, Victor Clinton, guilty of first degree murder. After this court affirmed defendant's conviction on direct appeal (People v. Clinton, No. 3-97-0902 (1999) (unpublished order under Supreme Court Rule 23)), defendant filed a pro se  postconviction petition. The petition, which made several claims of perjury before the grand jury, was advanced to the second stage of postconviction proceedings, and counsel was appointed. The trial court dismissed the petition at the second stage. On  appeal, defendant argues that the dismissal was in error because his petition made a substantial showing of a constitutional violation. For the reasons set forth below, we affirm.

3. Insurance Coverage: Affirmed: Insurance policy which only covered insured cement company for vicarious liability stemming from acts of its subcontractors attributable to it, did not require insurer to cover a claim by subcontractor's employee alleging only negligence on part of cement company, and third party complaint filed by cement company against subcontractor did not trigger coverage. Wright, J.

No. 2016 IL App (3d) 140469  Pekin Insurance Co. v. Illinois Cement Co., LLC  Filed 3-29-16 (TJJ)


Illinois Cement Company, LLC (ICC), hired Perino Plumbing & Heating, Inc. (Perino) to provide labor and materials to install a trash pump, purchased from Perino, on ICC’s commercial property. Perino obtained an insurance policy from Pekin Insurance  Company (Pekin), which listed ICC as an additional insured for any vicarious liability attributable to ICC due to Perino’s negligence. Pekin issued a letter to ICC refusing to defend ICC in an underlying negligence action against ICC initiated by Michael Hanson, Perino’s employee, because Hanson’s complaint only alleged ICC’s direct negligence and failed to allege any negligent act on the part of Perino. Subsequently, ICC filed a third-party complaint against Perino in Hanson’s underlying negligence  action alleging breach of contract and claiming Perino’s own negligence caused or contributed to Hanson’s injuries. Pekin filed a complaint for declaratory relief in the circuit court against ICC, Perino, and Hanson asking the trial court to declare that Pekin  did not have a duty to defend the property owner, ICC, as an additional insured under Perino’s policy. Pekin contended the court should disregard ICC’s third-party complaint that alleged Perino’s negligent acts or omissions, as Hanson’s employer, resulted  in his injuries. Relying on this court’s recent decision in Pekin Insurance Co. v. United Contractors Midwest, Inc., 2013 IL App (3d) 120803 (United Contractors), the trial court granted summary judgment in favor of Pekin and refused to consider ICC’s  self-serving, third-party complaint filed in the negligence action. ICC appeals the trial court’s award of summary judgment in favor of Pekin. We affirm.

4. Criminal Law: Reversed and remanded: Trial court erred in granting defendants' motions to suppress evidence where evidence at hearing showed that interaction by police officer with defendants was a consensual encounter that did not implicate the fourth amendment until defendants' contradictory stories to officer, at which point officer had a reasonable, articulable suspicion that criminality was afoot which then justified the officer's actions leading to the recovery of drugs. Schmidt, J.

No. 2016 IL App (3d) 140648  People v. Smith  Filed 3-29-16 (TJJ)


Defendants, Amber M. Smith and Kristopher Youngman, were each charged with one count of unlawful possession of a controlled substance and one count of unlawful possession of a hypodermic needle. The trial court subsequently granted each  defendant’s motion to suppress evidence, and the State appeals on certificates of impairment. We consolidated the appeals. We reverse and remand for further proceedings.


3 Appellate Cases Posted 3-28-16

1. Tortious Interference with Contract/Breach of Contract/Punitive Damages: Affirmed: With no offer of proof in the circuit court, we are unable to assess what effect, if any, the barred testimony might have had on the jury's award of punitive damages. Having reviewed the relevant common law criteria, we cannot say that the jury's assessment of punitive damages in this case was excessive as a "result of passion, partiality, or corruption." The circuit did not err in limiting plaintiff's breach of contract damages to severance pay but permitting the jury to award plaintiff the other benefits he would have received if the agreement had been performed in connection with his tortious interference claim against the individual defendants.The collateral source rule, generally applied in personal injury cases, is not applicable to plaintiff's claims in a wrongful termination case. The circuit court did not rely on an erroneous conclusion of law in deciding plaintiff's motion in limine to exclude evidence of his post-termination earnings, and did not abuse its discretion in denying that motion. The circuit court did not abuse its discretion in its discretionary award of costs. Liu, J.

No. 2016 IL App (1st) 142767    Koehler v. Packer Group, Inc.   Filed 3-28-16 (RJC)


Pursuant to an employment agreement with The Packer Group, plaintiff Dr. Michael Koehler was employed as chief executive officer of its wholly owned subsidiary, Packer Engineering. Plaintiff alleged that he was first demoted and then discharged from this position after revealing to the company's board that its founder and chairman, Dr. Kenneth Packer, had engaged in financial improprieties. Plaintiff sued Packer Engineering and The Packer Group for breach of contract. He also sued Dr. Packer; Charlotte Sartain, board secretary and vice president of finance for The Packer Group; and longstanding board member Warren Denniston for tortious interference with contract, claiming they each induced The Packer Group to breach its agreement with him. After a three-week trial, the jury returned a verdict for plaintiff.  On appeal, defendants contend that plaintiff's claims against them should have been resolved by binding arbitration and that the circuit court erred in granting plaintiff leave to file a late jury demand absent a showing of good cause. Beyond this, they claim no error with respect to the jury's verdict in plaintiff's favor on the breach of contract claim against Packer Engineering and The Packer Group (the corporate defendants). With respect to the tortious interference claim against Dr. Packer and Ms. Sartain (the individual defendants),1 defendants raise additional claims of error, arguing that: (1) they were entitled to judgment as a matter of law, (2) the circuit court improperly instructed the jury, (3) the jury's verdict was against the manifest weight of the evidence, (4) the award of compensatory damages was improper in several respects, (5) punitive On cross-appeal, plaintiff additionally argues the circuit court improperly limited his damages for breach of contract to severance pay, improperly admitted evidence of his posttermination earnings, and failed to award him the full amount of costs he requested as On cross-appeal, plaintiff additionally argues the circuit court improperly limited his damages for breach of contract to severance pay, improperly admitted evidence of his posttermination earnings, and failed to award him the full amount of costs he requested as a prevailing party. We affirm the judgment of the circuit court.

2. Juvenile/ Parental Rights: Affirmed: Nylani's statements fit squarely within the requirements of section 2-18(4)(c) of the Juvenile Court Act of 1987 and were therefore properly admitted. The trial court made proper evidentiary rulings, therefore, respondent was neither denied a fair hearing nor deprived of due process of law. Also, the evidence shows "a very heightened significant risk of harm that [respondent], for whatever reason, diminishes or does not understand why [Bruce] cannot have access to this child." Based on the evidence presented at the fitness hearing,  the State has met its burden.  Connors, J.

No. 2016 IL App (1st) 152262    In re Nylani M.   Filed 3-28-16 (RJC)


This is an expedited appeal that concerns the care and custody of a minor. On July 21, 2015, the trial court found respondent mother, Bianca M. (respondent), and father, Bruce S. (Bruce), unfit to parent their minor child, Nylani M. (Nylani), and that it was in the best interest of the child that their parental rights be terminated. Respondent appeals, arguing that she was denied a fair hearing due to improper admission of evidence and the court's findings were against the manifest weight of the evidence.

3. Criminal Law/Evidence/Closing Arguments: Affirmed: Any error in the admission of the grooming evidence was harmless as no reasonable probability existed that the verdict would have been different if this irrelevant evidence was excluded.The State impermissibly vouched for the victim's credibility when it argued that the victim "was credible and you should believe her," and "we believe [the victim is] credible." The State further erred when it said in its rebuttal argument that "we believe [the victim is] credible, that she told—everything she said was completely credible and makes perfect sense as to how everything happened." While the State's comments during closing arguments were error,  the evidence was not closely balanced. Lytton, J. with McDade, J. dissenting.

No. 2016 IL App (3d) 140203   People v. Effinger   Filed 3-28-16 (RJC)


Defendant, Elton Effinger, appeals from his conviction for aggravated battery. On appeal, defendant argues that his conviction should be reversed and remanded for a new trial because: (1) evidence that defendant was "grooming" the victim was inadmissible; and (2) the State improperly vouched for the victim's credibility during its closing and rebuttal arguments. We affirm.


2 Appellate Cases Posted 3-25-16

1.  Illinois Torture Inquiry and Relief Commission Act: Affirmed: The explicit language of the Act limits its application only to petitioners who were victims of Burge or officers under his supervision. Delort, J.

No. 2016 IL App (1st) 142125   People v. Allen   Filed 3-25-16 (RJC)


This case presents an issue of first impression: whether the Illinois Torture Inquiry and Relief Commission Act (Act) (775 ILCS 40/1 et seq. (West 2012) provides relief to a petitioner who alleges that his conviction resulted from evidence which was physically coerced at the hands of police officers other than former Chicago police commander Jon Burge or his subordinates.

2.  Medical Malpractice/Relation Back Doctrine/Illinois Wrongful Death Act: Affirmed: The relation back doctrine applies so the wrongful death action is not barred. Delort, J.

No. 2016 IL App (1st) 143189   Lawler v. University of Chicago Medical Center   Filed 3-25-16 (RJC)


This appeal concerns an issue of first impression in Illinois regarding the interplay of three statutes. We must determine whether the medical malpractice statute of repose (735 ILCS 5/13-212(a) (West 2010)) bars the application of the relation back doctrine (735 ILCS 5/2-616(b) (West 2010)) for purposes of adding a claim to an existing case under the Illinois Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2010)). 

7 Supreme Court Case Posted 3-24-16

1. Criminal Law/Traffic/MTS/Probable Cause: Affirmed: The standard for when police may stop a motor vehicle is less demanding than the standard of probable cause. An officer may conduct a brief investigatory stop when, based on the totality of the circumstances, there is a reasonable belief that the driver has committed or is about to commit a crime. The officer must have a reasonable, articulable suspicion that criminal activity is afoot, rather than a mere hunch. This is an objective standard which must be based on specific, articulable facts and rational inferences therefrom. In Illinois, U-turns are legal as long as they can be made safely and without interfering with other traffic.Courts are divided on the issue of when evasive behavior by a motorist may justify a traffic stop, and there is no clear consensus. The United States Supreme Court has declined to establish a bright-line rule, opining that all factors must be considered. The prosecution contended that the U-turn to avoid the roadblock provided a reasonable, articulable suspicion on which to base a stop of the defendant’s vehicle. In this decision, the Illinois Supreme Court agreed with this conclusion. It said that, in the absence of a reasonable suspicion, an individual has a right to avoid a police encounter and go about his business. However, continuing eastbound on the highway would have been going about his business. Here, the defendant’s U-turn, 50 feet in front of a well-marked police roadblock which was not busy in the early morning hours of a weekend was sufficient to support a reasonable suspicion to justify a stop under the totality of the circumstances. The motion to suppress was properly denied, and the judgment of the circuit court was affirmed.  Justice Freeman delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Kilbride, Karmeier, and Theis concurred in the judgment and opinion. Justice Thomas specially concurred, with opinion. Justice Burke dissented, with opinion.

No. 2016 IL 118181    People v. Timmsen    Filed  3-24-16 (RJC) 


In a stipulated bench trial in the circuit court of Hancock County, this defendant was found guilty of driving on a suspended license and was sentenced to 24 months of conditional discharge and 90 days in the county jail. His motion to suppress evidence had been denied.

Timmsen appealed, claiming that police had no valid reason for stopping his vehicle and that the circuit court should not have admitted evidence obtained as a result of the stop. The appellate court agreed with him and reversed the conviction, remanding for further proceedings.

The underlying facts of the case are not in dispute. At 1:15 a.m. on Saturday, December 17, 2011, the defendant was driving east on U.S. Highway 136 when he crossed the Mississippi River and entered Illinois from Iowa. Just across the border, he encountered a police safety roadblock. He made a U-turn about 50 feet in front of the roadblock, utilizing a railroad crossing which was, at that point, the only place to turn around before reaching the roadblock. The roadblock was not busy. Now headed west, he was stopped by a deputy who emerged from the roadblock and, among other things, discovered that the defendant’s driver’s license was suspended. This deputy did not testify at trial and there is no evidence as to his reasons for the stop.

2. Arbitration/CBA/Public Policy: Arbitration award vacated and the circuit and appellate courts are reversed: In this decision, the supreme court rejected the State’s claims that the arbitrator improperly applied his own personal notion of fairness and justice in lieu of giving effect to the terms of the agreement. The court applied the usual standard of review for an arbitration decision and said that the award drew its essence from the agreement and that the arbitrator was guided by contract principles and acted within the scope of his authority. However, an arbitration award is not enforceable if it is contrary to public policy. Public policy concerns may not be ignored when they are undermined through the process of arbitration.The supreme court pointed out that collective bargaining agreements are different where public sector employees are involved. Their unions must often engage in political activities in order to achieve what most private sector unions are able to achieve at the bargaining table. It has been recognized that, when labor representatives bargain with executive branch agencies, they do so with knowledge that any agreement reached will be affected by the General Assembly’s appropriation power. This is an inherent feature of collective bargaining in the public sector. Some collective bargaining agreements in the public sector have made pay increases expressly contingent on legislative appropriations, and some, like the one here, have not. This fact does not change the result in this case.The Appropriation Clause of the Illinois Constitution and Section 21 of the Illinois Public Labor Relations Act evince a well-defined and dominant public policy under which multiyear collective bargaining agreements for State employees are subject to the appropriation power of the State, a power which may only be exercised by the General Assembly. This public policy was violated by this arbitration award, which ordered immediate payment of a wage increase without regard to the existence of corresponding appropriations by the legislature.The decision today involves a specific contract. It does not create uncertainty as to the State’s obligations, generally, under its contracts.  Justice Theis 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 Kilbride concurred in part and dissented in part, with opinion. 

No. 2016 IL 118422    State of Illinois v. American Federation of State, County & Municipal Employees, Council 31    Filed  3-24-16 (RJC)


In this public employee union case, the Illinois Supreme Court held that multiyear collective bargaining agreements are subject to the appropriation power of the State, a power which may only be exercised by the General Assembly. The court vacated an arbitration award which had held otherwise and which had been affirmed by the circuit court of Cook County and the appellate court. At issue is a 2% wage increase which was scheduled to take effect from July 1, 2011, through the remaining six months of the State’s fiscal year, pursuant to a four-year collective bargaining agreement (with modifications) between the defendant, American Federation of State, County and Municipal Employees, Council 31 (AFSCME), and the Department of Central Management Services of the State of Illinois, the plaintiff here. AFSCME represents employees of executive agencies such as departments, authorities, boards and commissions which are under the authority of the Governor. The Governor’s proposed budget for the time period in question would have fully funded these wage increases, but the General Assembly’s appropriations bills were insufficient to fund all of them. The acting director of the Department of Central Management Services announced that all of the wage increases could not be implemented on the anticipated date, but funding was subsequently found for many of the executive agencies while the dispute proceeded. By the time the issue was ready for trial in the circuit court, the pay raises for only six agencies remained insufficiently funded. AFSCME brought the matter to arbitration before the parties’ designated arbitrator, whose order was based squarely on the four corners of the collective bargaining agreement. He entered an award in favor of AFSCME, ordering the State to pay. As to the provision of the Illinois Public Labor Relations Act relied on by the State in opposition, the arbitrator said that he was without authority to interpret the statute, and that this was a matter for the courts. He also declined to consider constitutional and public policy arguments made by the State, citing his lack of authority. The State filed a circuit court complaint seeking to vacate this result, but the circuit court confirmed the arbitrator’s award in 2012, saying that the State’s “contractual obligation remains unsatisfied and continues until paid in full.” The appellate court affirmed, and the State appealed to the Illinois Supreme Court. The 1970 Constitution of Illinois states that the “General Assembly by law shall make appropriations for all expenditures of public funds by the State.” Section 21 of the Illinois Public Labor Relations Act states that “(s)ubject to the appropriation power of the employer, employers and exclusive representatives may negotiate multiyear collective bargaining agreements pursuant to the provisions of this Act.” In this quoted provision, the term “employer” has always been expressly defined to include the State of Illinois. The collective bargaining agreement states that an arbitrator “shall neither amend, modify, nullify, ignore, add or subtract from the provisions” of the agreement. It also states that the “provisions of this contract cannot supersede law.”

3. Criminal Law/Retail Theft/Burglary: Judgments reversed:  In this decision, the supreme court said that it did not believe that the legislature intended to classify a single act of shoplifting as retail theft, while classifying several acts of shoplifting in a single course of conduct as the Class 2 felony of burglary. The supreme court said that the appellate court’s reading of the burglary statute was too broad and that “it strains logic to presume that the legislature intended most incidents of retail theft to be prosecuted as burglaries.” The State failed to prove that the defendant remained within the store without authority as charged under the burglary statute. The courts below were reversed. 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.

No. 2016 IL 118674    People v. Bradford    Filed  3-24-16 (RJC)


On July 19, 2012, this defendant was seen committing multiple acts of shoplifting in different areas of a Walmart store in Bloomington. Apprehended outside the building, he later confessed to taking two DVDs, a hat, shoes and a bottle of Dr. Pepper. He was not, however, charged with retail theft, but with burglary by knowingly and without authority remaining within a building with intent to commit a felony or theft. He was convicted in a McLean County bench trial and received a three-year sentence. The appellate court affirmed, opining that the defendant remained without authority “as he moved through the store and stole merchandise,” and that the multiple acts of shoplifting showed that he remained in the store with intent to commit a theft.  While conceding that the evidence was sufficient to prove retail theft, the defendant argued that the evidence was insufficient to show burglary as charged. In this decision, the Illinois Supreme Court agreed with him and reversed the conviction. Burglary is a Class 2 felony punishable by three to seven years in prison. Retail theft of the amount involved here is a Class A misdemeanor. (The State did not dispute that the value of the property here did not exceed $300.)

4. Criminal Law/Lesser included offenses: Affirmed and remanded for resentencing: In this decision, the supreme court said that this was proper. Although there may be no conviction for an offense which has not been charged, nevertheless a defendant may be convicted of an uncharged offense which is supported by the trial evidence if it is a lesser-included offense of a crime expressly charged. The firearm offenses originally charged and the nonfirearm offenses for which he was convicted are mutually exclusive of each other, so that the latter are not lesser-included offenses of the former. This defect was not timely asserted so as to preserve it for review, but it amounts to plain error which may be considered on appeal where, as here, the unauthorized convictions are clear or obvious error which challenges the integrity of the judicial process. Justice Karmeier delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke, and Theis concurred in the judgment and opinion.

No. 2016 IL 118845    People v. Clark    Filed  3-24-16 (RJC)


In 2011, a Chicago man who was parking his vehicle in his garage was accosted by two individuals who took it from him. One of them was alleged to be this defendant, who was identified by the victim in a lineup and in open court. The victim testified that Fred Clark held a 9-millimeter Ruger handgun to his head and also struck him on the head with it. The gun was found in the stolen vehicle when it was recovered, and a photograph of it was identified by the victim. The defendant was charged with two firearm offenses: aggravated vehicular hijacking while armed with a firearm and armed robbery while armed with a firearm. These were Class X felonies carrying a potential sentence of 21 to 45 years.  At the defendant’s Cook County bench trial, he testified in his own defense, claiming innocence and acknowledging that, at the time of trial, he was in custody for a juvenile parole violation concerning a controlled substance. The circuit court judge announced his determination that the gun was used as a bludgeon and would be treated as such. Although the evidence supported conviction for the offenses as charged, the defendant was found guilty of two uncharged offenses which did not involve firearms and which called for lower sentencing ranges: aggravated vehicular hijacking and also armed robbery without a firearm. The statutory provisions on which these two new offenses were based explicitly excluded the possession or use of a firearm. Concurrent terms of 17 and 7 years were imposed. The judge shed some light on his thought process when he said that he “gave some deference and benefit of the doubt and justice” in light of Clark’s age and the fact that the gun was not fired. What had occurred here was in fact an acquittal of the charged offenses, and both the appellate and supreme court viewed this as intentional on the part of the trial judge.

The appellate court reduced the convictions to the nonfirearm offenses of vehicular hijacking and robbery, with a remand for resentencing.

5. Criminal Law/Seaarch and Seizure/Warrantless use of a drug-detection dog: Affirmed: In this decision, the Illinois Supreme Court said that there is law allowing dog sniffs , but those are motor vehicle cases involving traffic stops. What is involved here is a home. The court said that, here, the front door and the landing outside the apartment were part of the “curtilage” of the defendant’s residence, which is protected by the fourth amendment. The principles of curtilage were recently discussed by the United States Supreme Court in a 2013 case involving a house with a porch, rather than an apartment building. Here, although it was claimed that the officers acted in good faith, what they did was not supported by Illinois precedent. With the dog sniff omitted from consideration, the other evidence in the warrant application was not sufficient to show probable cause, and the warrant should not have been issued. The Illinois Supreme Court held that the warrantless use of a drug-detection dog at 3:20 a.m. at defendant’s apartment door, located within a locked apartment building, violated defendant’s fourth amendment rights, and the motion to suppress was properly granted. The results below were affirmed. Justice Kilbride delivered the judgment of the court, with opinion. Justices Freeman, Burke, and Theis concurred in the judgment and opinion. Chief Justice Garman specially concurred, with opinion. Justice Thomas dissented, with opinion, joined by Justice Karmeier.

No. 2016 IL 118973   People v. Burns    Filed  3-24-16 (RJC)


A warrantless dog sniff for marijuana at an apartment door was found to violate the fourth amendment in this Champaign County case. The defendant lived on the third floor of a 12-unit apartment building in Urbana. Facing her apartment was one other unit, a landing, the stairwell, and a storage area. The building was usually kept locked at its two exterior entrances. In the early morning hours of January 10, 2013, police brought a drug-detection dog to the defendant’s apartment door, and he alerted to the presence of narcotics there. There was no search warrant. However, based on this, and other information, a search warrant was later issued. It is not known how the officers gained access to the building. Subsequent execution of the search warrant yielded marijuana. The defendant was charged with the Class 2 felony of unlawful possession of cannabis with intent to deliver. She challenged the dog sniff as a violation of the fourth amendment, and she filed a motion to suppress the evidence seized pursuant to the warrant. The trial court granted the motion on the basis of a 1978 case from the Appellate Court, Fourth District which had never been overruled. The appellate court affirmed, and the State brought this appeal.

6. Illinois Public Safety Employee Benefits Act: Appellate court judgment reversed and Circuit court judgment affirmed: In this decision, the supreme court held that the plaintiff had never been eligible for benefits under the Act in the first place, even though they had initially been approved. The plaintiff was presently contesting their proposed termination. (A 2012 medical examination required by statute had resulted in a doctor’s finding that the plaintiff was physically able to return to work.) The supreme court stated that it could not be said “every call from dispatch is an emergency until proven otherwise,” thereby rejecting the argument on which the plaintiff relied. The plaintiff’s claims based on equitable estoppel were also found not to be applicable. The defendant city was, therefore, not prohibited from terminating the plaintiff’s benefits under the Public Safety Employee Benefits Act. Justice Thomas delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2016 IL 119181    Vaughn v. City of Carbondale    Filed  3-24-16 (RJC)


The plaintiff in this Jackson County case was formerly employed as a police officer for the defendant city of Carbondale. While on duty on June 28, 2005, he was outside of his patrol car in a parking lot when a call from the police department’s dispatcher came in on the radio inside his vehicle. In order to reach the microphone to answer the call, he reached head first through the open driver’s side door and struck his head on the door frame. He would later claim that this caused him to “see stars” and that he experienced a sharp pain in his arm. There was no abrasion or blood loss. An MRI would later reveal a compression fracture of the T1-T3 vertebrae. After July 19, 2005, he never again worked for the police department. Illinois’ Public Safety Employee Benefits Act (Act) is applicable where a police officer suffers a catastrophic injury. It provides for the lifetime payment of health insurance premiums for such an employee and his spouse and children. Another prerequisite is required by the Act, however, and the one applicable to this plaintiff is that the injury must have occurred in response to what was reasonably believed to be an emergency. By the time this cause reached the Illinois Supreme Court, the defendant no longer disputed the issue of catastrophic injury, but still maintained that the plaintiff had not been responding to what he had reasonably believed was an emergency and thus was not entitled to the Act’s benefits.

7. Public Pension Systems/Contracts/Benefits: Affirmed: The supreme court has dealt with this issue in two recent rulings, Kanerva v. Weems, 2014 IL 115811, and In re Pension Reform Litigation, 2015 IL 118585, which held that the pension protection clause guarantees that membership in a public pension system is an enforceable contractual relationship and that the clause prohibits the legislature from unilaterally reducing or eliminating benefits conferred by a public pension system. In this decision, the supreme court followed this precedent and upheld the circuit court’s decision. In addressing the theories advanced in support of the challenged legislation, the supreme court said that the fact that some of its provisions are directed at improved funding cannot overcome the fact that constitutional rights of employees and retirees would be violated. The pension protection clause does not guarantee any particular method of funding, but, rather, guarantees the right to be paid. The supreme court also said that, insofar as the involved unions worked with the legislature concerning this enactment, they were not acting as authorized agents within a collective bargaining process. Pursuant to its own severability clause, Public Act 98-641 is unenforceable in its entirety. The circuit court was affirmed,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. Justices Freeman and Burke took no part in the decision.

No. 2016 IL 119618    Jones v. Municipal Employees' Annuity & Benefit Fund    Filed  3-24-16 (RJC)


The pension benefits of two groups of Chicago employees are at issue in this consolidated direct appeal from a ruling of statutory unconstitutionality by the circuit court of Cook County. Most civil servants and also nonteacher employees of the public schools participate in the Municipal Employees’ Annuity and Benefit Fund, known as the MEABF. The Laborers’ and Retirement Board Employees’ Annuity and Benefit Fund, known as the LABF, includes primarily labor service workers. Two other major city pension funds that are not at issue here are the Firemen’s Annuity and Benefit Fund and the Policemen’s Annuity and Benefit Fund. As to the latter two pension funds, the General Assembly addressed concerns about underfunding in 2011 with a statute that required increased municipal contributions. However, no such legislation was then enacted as to the MEABF and the LABF. Instead, as to them, the General Assembly enacted Public Act 98-641 in 2014. Although this act did increase city funding, it also raised employee contribution rates and reduced the annual increases for current and future retirees. In the present litigation, Public Act 98-641 was challenged in the circuit court as invalid under the pension protection clause of the 1970 Illinois Constitution. On cross-motions for summary judgment, the circuit court declared the statute unconstitutional in its entirety and permanently enjoined its enforcement. What followed was this direct appeal to the Illinois Supreme Court, which consolidated five separate appeals.


3 Appellate Cases Posted 3-24-16

1. Criminal Law: Affirmed: Defendant's corpus delicti argument is rejected. There was sufficient evidence that an offense had been committed to corroborate defendant's confession that the guns in his home belonged to him, including the fact that guns were seized from a bedroom in defendant's home.  The State was not required to restore the complaint under the Act, because it had what it purported to be a complete copy of the complaint. Thus, the State was simply required to authenticate that copy of the complaint under the rules of evidence. The State sufficiently authenticated the complaint. Ellis, J.

No. 2016 IL App (1st) 132205   People v. Pitts   Filed 3-24-16 (RJC)


After police searched his house and found firearms and ammunition, defendant Michael Pitts was charged with unlawful use or possession of weapons by a felon (720 ILCS 5/24-1.1(a) (West 2010)) and possessing a firearm with defaced identification marks (720 ILCS 5/24-5(b)
(West 2010)). He moved to suppress the evidence recovered from his home on the basis that the complaint supporting the search warrant for his home was incomplete: the second page of the complaint, which had been signed by the judge issuing the warrant, had gone missing. The trial
court denied that motion, after the State presented an unsigned copy of the complaint at the motion-to-suppress hearing. After a bench trial, defendant was convicted of both offenses, based largely on evidence that he told the police that the guns belonged to him. On appeal, defendant contends that: (1) the State failed to prove the corpus delicti of defendant's offenses, because his guilt rested solely on his uncorroborated statements to the police; and (2) the circuit court erred when it failed to quash the warrant to search his house because the State failed to restore the search warrant, part of which had been lost, under the Court Records Restoration Act (705 ILCS 85/0.01 et seq. (West 2010)).

2. Parental Rights/Termination/Appeals: Affirmed: Based on our review of the record, the State presented clear and convincing evidence that Thomas failed to make reasonable progress during the first nine-month period. Accordingly, the trial court’s finding that Thomas was unfit was not against the manifest weight of the evidence. Also, the court discussed the reason(s) for the time that it took to have this case reviewed Illinois Supreme Court Rule 311(a)(5) (eff. Feb. 26, 2010.)  Hutchinson, J.

No. 2016 IL App (2d)  150431    In re Phoenix F.   Filed 3-24-16 (RJC)


Thomas F. and Sarah Z. are the biological parents of their son, Phoenix F., born December 19, 2009. Thomas appeals from the trial court’s order finding him unfit to parent Phoenix. (Sarah is not a party to this appeal.) We note that Thomas challenges only the finding of his unfitness; he does not challenge the trial court’s final order that it was in Phoenix’s best interests to terminate Thomas’s parental rights. Accordingly, we confine our discussion of the case to the finding of Thomas’s unfitness. We affirm.

3. Criminal Law/DCS/Sentencing: Affirmed: Where defense counsel does not tender a lesser-included offense instruction, the trial court generally should not interfere with what might very well be a defense strategy and need not give generalized admonishments to the
defendant. The trial court in this case was not required to ensure defendant agreed with the decision not to object to the State’s tender of the instruction. The trial court considered all the relevant factors and fashioned a sentence that was proportionate to the offense and justified in light of defendant’s criminal history, the need to protect society, and the need to deter others from committing similar crimes. Schmidt, J.

No. 2016 IL App (3d)  140112   People v. Higgins   Filed 3-24-16 (RJC)


A La Salle County jury found defendant, Thomas J. Higgins, guilty of unlawful delivery of a controlled substance. The trial court sentenced defendant to 12 years’ imprisonment. Defendant appeals, arguing: (1) the trial court’s failure to determine whether he agreed with defense counsel’s decision to concede that he delivered heroin and to then tender a jury instruction on unlawful delivery of a controlled substance denied him a fair trial and his right to decide how to plead; and (2) the trial court imposed an excessive sentence. We affirm.



4 Appellate Cases Posted 3-23-16

1. Post-Conviction Hearing Act/Juvenile sentencing: Affirmed in part and vacated in part; cause remanded with directions: Although the trial court exercised discretion in imposing defendant’s sentence, the court’s reasoning did not comport with the juvenile sentencing factors recited in Roper, Graham, Miller and MontgomeryMiller requires that before sentencing a juvenile to life without parole, the sentencing judge take into account ‘how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.’ ”  The record shows that the court did not consider the corresponding characteristics of defendant’s youth. Relief following a first-stage dismissal under the Act ordinarily involves remand for second-stage proceedings.  The particular issue raised in this appeal, however, requires us to vacate defendant's sentence and remand for resentencing.  In light of our determination, we need not consider defendant's challenge under Illinois' proportionate penalties clause. Furthermore, as stated, defendant has abandoned all issues originally raised in his petition. Accordingly, we affirm the trial court's dismissal of those claims. Lavin, J.

No. 2016 IL App (1st) 121604   People v. Nieto  Filed 3-23-16 (RJC)


Defendant Michael Nieto appeals from the trial court's order summarily dismissing his pro se petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). On appeal, defendant argues for the first time that his sentence is unconstitutional as applied under the eighth amendment to the United States Constitution (U.S. Const., amend. VIII), and Illinois' proportionate penalties clause (Ill. Const. 1970, art. I, § 11). After considering the complex state of case law following Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), including the United States Supreme Court's most recent pronouncement in Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016), we vacate defendant's sentence and remand for resentencing. We affirm the judgment in all other respects.

2. Foreclosure/Service of Process: Affirmed: Service of process was defective, rendering the judgment against defendant void. Pursuant to section 2-202(a) of the Code (735 ILCS 5/2-202(a) (West 2008)), process could be served by a special process server, but in a county with a population of 1 million or more, the special process server must have first been appointed by the court. Here, U.S. Bank did not seek the appointment of a special process server. Nevertheless, section 2-1401(e) protected the Badermans’ rights in the Subject Property. Spence, J.

No. 2016 IL App (2d) 150040   U.S. Bank National Ass'n v. Rahman   Filed 3-23-16 (RJC)

This appeal concerns whether defendant, Syeda Nazia Rahman, was properly served and, if she was not, whether she could obtain relief. Plaintiff, U.S. Bank National Association (U.S. Bank), filed a complaint to foreclose a mortgage against, inter alios, defendant. U.S. Bank issued summonses for defendant and attempted service at two listed addresses.  After defendant did not appear, U.S. Bank moved for a default judgment. The court granted the motion and entered a default judgment of foreclosure and sale. U.S. Bank subsequently sold the foreclosed property at a sheriff’s sale, and the court confirmed the report of sale.  More than two years after the sale, defendant filed a petition to quash service of process because she had been improperly served by a special process server in Cook County in violation of section 2-202(a) of the Code of Civil Procedure (Code) (735 ILCS 5/2-202(a) (West 2008)). The court found that service had been improper under section 2-202(a), the court had lacked personal jurisdiction over defendant, and the default judgment was void. However, it also found that the property rights of Catherine and John Baderman, the third-party purchasers of the property, were protected by section 2-1401(e) of the Code (735 ILCS 5/2-1401(e) (West 2014)), because no jurisdictional defect affirmatively appeared on the face of the record.

3. Class Actions: No. 2-15-0236, Affirmed. No. 2-15-0326, Affirmed; cross-appeal dismissed: The record indicates that the notice was adequate and satisfied the requirements of due process. Requiring class members to be present in court to object did not violate their due-process rights. A trial court’s final approval of a class-action settlement will not be disturbed unless the trial court abused its discretion. The trial court found that objectors failed to present any evidence that the settlement here was not the product of good-faith, arm’s-length negotiation, that the Old National Bank settlement influenced any action taken by class counsel in this case, or that class counsel breached its fiduciary duty to any class member. Nothing in the record indicates otherwise. Therefore, the trial court did not abuse its discretion by overruling objectors’ objection. McLaren, J.

No. 2016 IL App (2d) 150236    Fauley v. Metropolitan Life Insurance Co.   Filed 3-23-16 (RJC)

Objectors, Judd Clayton, Jr., and Austin Distributing, appeal the trial court’s final approval of a settlement in a class-action fax-blasting lawsuit. Plaintiffs, Shaun Fauley, Sabon, Inc., Sandy Rothschild & Associates, Inc, Debaun Development, Inc., and Christopher Lowe Hicklin DC PLC (class representatives), individually and as the representatives of a class of similarly situated persons, filed the lawsuit against defendants, Metropolitan Life Insurance Company, Storick Group Company, The Storick Group, Scott R. Storick, and John Does 1 through 10 (collectively MetLife). Objectors objected to the settlement reached by the classaction parties. The trial court considered the objections and approved the settlement, which included a common fund of $23 million and attorney fees of over $7.6 million. On appeal, objectors argue that the trial court erred by approving the settlement, because: (1) the dueprocess rights of the class were violated; (2) class counsel was inadequate; (3) the class representatives were inadequate; and (4) the attorney-fee award was excessive. The class representatives cross-appeal, arguing that the trial court erred by denying their motion to strike Austin’s objection. We affirm the trial court’s final approval of the settlement. We dismiss the class representatives’ cross-appeal appeal as moot.

4. Criminal Law/Statements: Reversed and Remanded: The preponderance of the evidence in this case establishes the recorded segment of the interrogation followed the unrecorded segment of the custodial interrogation and therefore, is presumed inadmissible.  Hence, the detectives’ decision not to record the first segment of the custodial interrogation has significant negative consequences on the prosecutor’s ability to introduce compelling evidence of guilt at trial; specifically, defendant’s own incriminating admissions to felony murder. Based on this record, the trial court erred by failing to recognize the second portion of the custodial interrogation in this case was presumptively inadmissible, as a matter of law, because the detectives did not record the preceding segment of the interrogation as required by section 103-2.1(b) of the Code. 725 ILCS 5/103-2.1(b) (West 2010).  Also, a cigarette break is not a sufficient amount of time to remove the taint of the original Miranda violaton. The trial court’s finding that there was “enough disconnect” between the statement given before Miranda and the statement given after Miranda is contrary to the manifest weight Miranda violation.Wright, J.

No. 2016 IL App (3d) 140124   People v. Little  Filed 3-23-16 (RJC)


Defendant filed a “Motion in Limine/Motion to Suppress Statements” on the grounds that all of defendant’s self-incriminating statements should be presumed inadmissible as evidence because the homicide detectives did not strictly comply with the requirements for electronically recording his custodial interrogation as required by section 103-2.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/103-2.1 (West 2010)). In addition, the motion to suppress requested suppression of defendant’s statements due to a violation of his Miranda rights.  A jury found defendant guilty of murder and the court sentenced defendant to serve 75 years in prison. On appeal, defendant challenges the trial court’s decision to admit the videotaped portion of his custodial interrogation by homicide detectives and his sentence. We reverse and remand.

2 Appellate Cases Posted 3-22-16

1. Criminal Law/Sex Offender Registration Act/Counsel: Reversed and Remanded: Trial counsel rendered ineffective assistance. First, trial counsel was aware that the charge against his client was predicated on a conviction of unlawful restraint, which was not, per se, a sex offense. Therefore, to perform reasonably, trial counsel would have reviewed the record in the 1997 case—and learned that, because the victim’s age was not put before the court, the offense in fact was not a sex offense. Second, it is reasonably probable (to say the least) that, had defendant realized that he could not be properly convicted of violating the Act, he would have forgone entering his plea and would have taken his chances (if any) at a trial. Burke, J.

No. 2016 IL App (2d) 140358    People v. Armstrong   Filed 3-22-16 (RJC)


Defendant, Craig Armstrong, entered a negotiated plea of guilty to one count of failing to register as a sex offender as required by section 6 of the Sex Offender Registration Act (Act) (730 ILCS 150/6 (West 2010)) and was sentenced to three years in prison. The trial court denied his postjudgment motion. On appeal, this court remanded summarily. On remand, defendant proceeded pro se and filed a postjudgment motion, which the trial court denied. On appeal, defendant contends that his trial counsel was ineffective for advising him to plead guilty even though the conviction on which his status as a sex offender depended was not actually of a sex offense under the Act (see 730 ILCS 150/2 (West 1996)). We reverse and remand.

2. Negligence/Illinois Snow and Ice Removal Act: Affirmed in part and reversed in part; cause remanded: The duty in the case at bar relates directly to the allegations, made in the complaint, of negligence with regard to premises defects, a common law duty that supports a common law claim that is wholly independent of the Act. Because the Act bars claims against the defendants for negligent snow and ice removal, so too does the Act bar such claims by the defendants against Powell. However, because the plaintiffs may move forward against the defendants with the plaintiffs' common law claims related to a premises defect, so too may the defendants move forward with their allegations that Powell negligently maintained the gutters in question. Of course, on remand, Powell may persist in his defense against those allegations. Moore, J.

No. 2016 IL App (5th) 150170   Reed v. Country Place Apartments Moweaqua I, L.P.    Filed 3-21-16 (RJC)


The plaintiffs, Terry Reed and Carolyn Reed, appeal the order of the circuit court of Shelby County that granted the motion for summary judgment filed by the defendants: Country Place Apartments-Moweaqua I, L.P.; Country Place Apartments-Moweaqua II, L.P., Professional Property Management, LLC; Country Place GP, LLC, also known as Country Place Apartments, GP, LLC, doing business as Moweaqua Country Place Apartments I & II; and unknown owners. The defendants, as third-party plaintiffs and separate appellants, appeal the portion of that order that granted the motion for summary judgment filed by the third-party defendant, Gary Powell,1 doing business as Powell Lawn Care (Powell). For the following reasons, we affirm in part, reverse in part, and
remand for further proceedings.


5 Appellate Cases Posted 3-21-16

1. Unemployment Benefits: Reversed: In sum, we cannot say that the Board's conclusion that Williams was terminated for misconduct within the meaning of section 602(A) of the Act was clearly erroneous. Accordingly, the circuit court should not have disturbed the Board's July 5, 2013 decision. Based on the foregoing reasons, we reverse the judgment of the circuit court of Cook County and reinstate the July 5, 2013 decision of the Board. Cunningham, J.

No. 2016 IL App (1st) 142376    Williams v. Department of Employment Security  Filed 3-21-16 (RJC)


Defendants-appellants, the Illinois Department of Employment Security (the Department), the Director of the Department (the Director), and the Board of Review of the Department (the Board) appeal from an order of the circuit court of Cook County, which reversed the Board's decision finding the plaintiff-appellee Helen Williams ineligible for unemployment benefits because she had been terminated for misconduct.

2. Forcible Entry and Detainer: Affirmed: Questions of title are distinct from the issue of the right to immediate possession under the Act.  The distinctive purpose of a proceeding under the Act is to determine which party has the right to immediate possession of the relevant premises, not the validity of either party’s title to the premises. However, instead of arguing that he had a superior right to immediate possession over Teton, Jimenez challenged the validity of Teton's title in an attempt to attack Teton's right to possession without ever asserting his own. Thus, Jimenez's attack on Teton's title was irrelevant to the crucial issue in this summary proceeding. Cunningham, J.

No. 2016 IL App (1st) 150584    Teton, Tack & Feed, LLC v. Jimenez  Filed 3-21-16 (RJC)

This appeal arises from the February 13, 2015 order of the circuit court of Cook County which granted judgment to plaintiff-appellee Teton, Tack & Feed, LLC (Teton), in its forcible entry and detainer action against defendants-appellants Gerardo Jimenez and Patricia Calvillo and awarded possession of the premises commonly known as 2840 N. Mulligan, Chicago, Illinois (the property) to Teton. On appeal, Jimenez argues that the circuit court's judgment should be reversed because Teton's deed to the property was fraudulent and, consequently, Teton has no right to possession of the property. For the following reasons, we affirm the judgment of the circuit court of Cook County.

3. Illinois Pollution Control Board/Illinois Environmental Protection Act: Affirmed: In this case, the debris in the pile constituted “waste” under the Act because it consisted of “any garbage *** or other discarded material.” 415 ILCS 5/3.535 (West 2012). The PCB’s finding of causing or allowing the open dumping of waste is not against the manifest weight of the evidence. The Act does not define litter, but the PCB relied on its prior holding that it means “discarded, used, or consumed substance or waste.”  The finding that the material constituted
litter is not against the manifest weight of the evidence. To narrowly define construction or demolition debris only as material originating at the site and not including outside material that is commingled with it would be an absurd result. The PCB’s finding that at least some of the material in the pile was construction or demolition debris is not against the manifest weight of the evidence. Burke, J.

No. 2016 IL App (2d) 150172    Northern Illinois Service Co. v. Illinois Environmental Protection Agency  Filed 3-21-16 (RJC)

The Illinois Pollution Control Board (PCB) issued an opinion finding that petitioner, Northern Illinois Service Company, committed three violations of the Illinois Environmental Protection Act (Act) (415 ILCS 5/1 et seq. (West 2012)). The PCB found that petitioner (1) caused or allowed open dumping of waste that resulted in litter (415 ILCS 5/21(p)(1) (West 2012)); (2) caused or allowed open dumping of waste that resulted in the deposition of construction or demolition debris (415 ILCS 5/21(p)(7) (West 2012)); and (3) caused or allowed the accumulation of water in used or waste tires (415 ILCS 5/55(k)(1) (West 2012)). Ordinarily, each violation would be punishable by a civil penalty of $1,500, but based on petitioner’s prior violations of sections 21(p)(1) and 21(p)(7), the PCB imposed a civil penalty of $7,500, plus hearing costs. Petitioner appeals, challenging the PCB’s findings of the three violations. We affirm.

4. Child Support:  Affirmed as modified: The trial court was authorized to order Brian to pay child support, despite his status as the custodial parent. In light of the plain language of section 14 of the Parentage Act requiring the noncustodial parent to make such a contribution, the trial court should have granted Brian the only relief he did not waive and should have imposed the statutory minimum support obligation on Alix. Schostok, J.

No. 2016 IL App (2d) 150291   McClure v. Haisha  Filed 3-21-16 (RJC)

The petitioner, Brian McClure, was successful in gaining custody of his daughter from her mother, the respondent, Alix Haisha. (The parties never married.) He then moved to terminate or modify his child support obligation. The trial court granted his motion in part, decreasing his monthly support obligation, but refused to impose any child support obligation on Alix. Brian appeals, arguing that it was improper to order him to continue paying such a high level of child support now that he has legal custody of his daughter. He also argues that Alix should have been ordered to contribute to their daughter’s support. We affirm the trial court’s ruling regarding Brian’s child support obligation, but modify the amount of Brian’s child support obligation to reflect a mandatory statutory offset of $10 per month in child support by Alix.

5. Criminal Law/Open Vehicle Titles/Evidence of Other Crimes: Reversed and remanded: In this case, due to prosecutorial zealousness, the jury may have convicted this defendant solely because the jury concluded he was a thief or a “bad person deserving punishment.”  This level of overpersuasion is the reason other crimes evidence must be strictly limited by the court. Therefore, due to the unique circumstances in the case at bar, we conclude the trial court abused its discretion by allowing the State to introduce unlimited other crimes evidence as
proof of, in the court’s words, defendant’s “mental state.” Schostok, J.

No. 2016 IL App (3d) 120390    People v. Salem  Filed 3-21-16 (RJC)

On July 8, 2010, investigators discovered defendant was in possession of multiple open Illinois vehicle titles pertaining to various stolen vehicles. Defendant appeals his convictions for four separate counts of unlawful possession of open vehicle titles.  On appeal, defendant argues the trial court’s evidentiary rulings allowing the jury to consider other crimes evidence both substantively and for purposes of impeachment constituted reversible error. We reverse defendant’s convictions for unlawful possession of open vehicle titles and remand for a new trial.



2 Appellate Cases Posted 3-18-16

1. Criminal Law/Counsel/Fines and Fees: Affirmed as modified: Defendant was not prejudiced by either defense counsel's failure to amend his answer to discovery or the trial court's denial of defendant's request to amend his answer. The preliminary hearing fee is vacated as the defendant was indicted and, therefore, did not receive a probable cause hearing.  The Violent Crime Victims Assistance Fund fee be reduced to $28. Reyes, J.

No. 2016 IL App (1st) 140046    People v. Guja   Filed 3-18-16 (RJC)


Following a bench trial in the circuit court of Cook County, defendant Daniel Guja was acquitted of attempted first degree murder, aggravated criminal sexual assault, aggravated criminal sexual abuse, burglary, and aggravated domestic battery, but was found guilty of domestic battery and unlawful restraint. Defendant was sentenced to two concurrent two-year terms in the Illinois Department of Corrections. On appeal, defendant argues: (1) defense counsel was ineffective for failing to include the affirmative defenses of necessity and self defense in his answer to discovery in violation of Illinois Supreme Court Rule 413(d) (eff. July 1, 1982); (2) the trial court abused its discretion in denying his motion to amend the answer as a sanction for the discovery violation; and (3) certain fees and fines should be vacated or reduced.

2. Juvenile/Delinquency/Sentencing: Affirmed; adjudication order corrected: There was proof beyond a reasonable doubt that respondent pushed the victim and grabbed her wallet out of her hand, which satisfies: (1) the physical contact required for aggravated battery; and (2) the use of force required for robbery.  The State's use of a single push to satisfy an element in two different offenses does not violate the one act, one crime rule; and the evidence is sufficient for both offenses.  Also, we are not persuaded that a juvenile robber is treated more harshly than an adult robber.  Finally, in light of the minor's reported grades of A's and B's, his lack of mental or physical health issues, and his supportive family, we cannot say that the trial court abused its discretion in ordering the minor to maintain a C average, in order to ensure that he develops the individual skills needed to grow into a productive adult. Gordon, J. with Lampkin, J. specially concurring.

No. 2016 IL App (1st) 152504    In re N.H.   Filed 3-18-16 (RJC)

Respondent N.H. appeals an adjudication of delinquency and dispositional order of probation. The State charged him with robbery, aggravated battery, battery, theft from person and theft; the trial court found him guilty after an adjudication hearing of all charges, and sentenced him to
five years of probation.

4 Appellate Cases Posted 3-17-16

1. Insurance/Arbitration: Vacated and remanded with directions: Defendant's request for arbitration was unequivocal. And under the terms of the policy, defendant could have reasonably concluded that, in order to commence arbitration—and thus avoid the limitations period—all he had to do was demand arbitration. The policy did not require defendant to select an arbitrator in order to commence arbitration. Ellis, J.

No. 2016 IL App (1st) 141497  Memberselect Insurance Co. v. Luz  Filed 3-17-16 (RJC)


This appeal addresses whether a letter sent by an insured, defendant Ferdinand Luz, to plaintiff MemberSelect Insurance Company (MemberSelect) was a sufficient demand for arbitration under the underinsured motorist provision of defendant's car insurance policy with MemberSelect. The policy contained a limitations provision that barred any arbitration of an underinsured motorist claim unless it was "commenced within three years after the date of the accident." Less than two months after the accident, defendant's attorney sent MemberSelect a letter requesting arbitration of the underinsured motorist claim. There was no subsequent correspondence between the parties in the more than three years that passed while the underlying personal-injury suit progressed and ultimately settled. Defendant then sought arbitration of his underinsured motorist claim, and MemberSelect filed this declaratory-judgment action seeking a declaration that it did not have to cover defendant's claim because the limitations period had run. On cross-motions for summary judgment, the trial court found that defendant's letter had not sufficiently demanded arbitration because it was not unequivocal and because defendant failed to select an arbitrator.

2. Negligence/Evidence/Medical Bills: Affirmed in part, reversed in part, and remanded with instructions: The trial court improperly admitted the written-off or settled portions of plaintiff’s medical bills into evidence and the jury awarded damages based on the improperly admitted medical bills. In this case, defendant did not stipulate to the admission of the written-off amounts and did object to the question of their reasonableness. Specifically, defendant argued plaintiff would have to “have testimony with respect to those remaining balances to meet the foundational requirements.” The foundational requirement for a medical bill is that it is reasonable. Howse, J.

No. 2016 IL App (1st) 150414    Klesowitch v. Smith   Filed 3-17-16 (RJC)

Plaintiff, Miguel Klesowitch, filed a complaint against defendant, Chiquita Smith, to recover damages for injuries he allegedly suffered as a result of defendant’s negligence. The trial court granted summary judgment in favor of plaintiff on the issue of defendant’s negligence only, leaving consideration of whether any of plaintiff’s conduct was a proximate cause of his injuries and the amount of damages for trial. The parties engaged in discovery. Plaintiff supplemented his discovery responses on the eve of trial. At trial before a jury, the court admitted certain medical bills into evidence. Portions of those bills had been written off by the medical providers. The jury returned a verdict in favor of plaintiff for the full amount of the medical bills admitted into evidence.

3. Foreclosure/Appeal: Appeal dismissed: The order from which Ms. McNeal appeals was not a final judgment, and Ms. McNeal has provided no alternative basis which would allow this court to exercise jurisdiction over her appeal. The appeal dismissed for lack of jurisdiction. McBride, J.

No. 2016 IL App (1st) 150465    MidFirst Bank v. McNeal   Filed 3-17-16 (RJC)

Plaintiff, Miguel Klesowitch, filed a complaint against defendant, Chiquita Smith, to recover damages for injuries he allegedly suffered as a result of defendant’s negligence. The trial court granted summary judgment in favor of plaintiff on the issue of defendant’s negligence only, leaving consideration of whether any of plaintiff’s conduct was a proximate cause of his injuries and the amount of damages for trial. The parties engaged in discovery. Plaintiff supplemented his discovery responses on the eve of trial. At trial before a jury, the court admitted certain medical bills into evidence. Portions of those bills had been written off by the medical providers. The jury returned a verdict in favor of plaintiff for the full amount of the medical bills admitted into evidence.

4.  Respondeat Superior: Affirmed:  The below question remains a disputed factual issue on which reasonable minds could differ, but we it is not material to the outcome. Even if the purpose of Woltmann’s travel to headquarters was to discuss a matter related to work, plaintiff cannot prevail against Woltmann’s employer under a respondeat superior theory as a matter of law, when Woltmann was merely travelling to a work site after work hours. There are exceptions to this general rule, but we find neither exception applicable to these facts. Thus, we affirm the grant of summary judgment for defendant on a different ground than that reached by the trial court. Ellis, J.

No. 2016 IL App (1st) 150877    Hoy v. Great Lakes Retail Services, Inc.  Filed 3-17-16 (RJC)

This appeal presents the question of whether Kurt Woltmann, an employee of defendant Great Lakes Retail Services, Inc. (Great Lakes), was acting in the scope of his employment when he rear-ended a car driven by plaintiff Thomas Hoy. Plaintiff appeals, arguing that a question of material fact exists as to whether the subject matter of the conversation was related to Woltmann’s employment, and that summary judgment was thus improper.



6 Appellate Cases Posted 3-16-16

1. Easements: Affirmed: Trial court properly granted summary judgment to defendant landowners in action where plaintiffs claimed that they had a right to access to beach through defendants' property. Mason, J.

No. 2016 IL App (1st) 150036  Katsoyannis v. Findlay  Filed 3-16-16 (TJJ)


Plaintiffs and defendants are neighbors in a small subdivision in the Village of Winnetka. The subdivision consists of 10 parcels and is bounded on the east by a private beach that runs in front of the subdivision along Lake Michigan. Defendants own beach  front property and thus have unfettered access to the beach year-round. Defendants' private beach is burdened by a 15 foot wide easement on the south end of the private beach in favor of certain subdivision parcels. The easement runs from the edge of the  bluff on the west side of the beach east to Lake Michigan. Plaintiffs, whose properties front Sheridan Road and are not beach front properties, have access to the beach via the beach easement, but access is limited due to a gate installed by the Village in the  mid-1990s that is locked overnight during warmer months and at all times otherwise. Plaintiffs commenced this action seeking a determination that they had a right, under various legal theories, to cross over defendants' property to access the beach so that  they, like defendants, would have unrestricted access. Affirmed.

2. Criminal Law: Affirmed: Motion for substitution of judge, filed by defendant pro se while defendant was represented by counsel and never thereafter presented to trial court or ruled upon, did not render subsequent guily plea to murder involuntary. Harris, J.

No. 2016 IL App (1st) 133201  People v. Haywood  Filed 3-14-16 (TJJ)


Defendant, Karl Haywood, appeals the judgment of the circuit court denying his motion to withdraw his guilty plea. On appeal, defendant contends that he is entitled to a new hearing on his motion where he never received a ruling on his prior motion for  substitution of judge. Defendant contends that the hearing on his motion was also deficient because the judge had a duty to recuse himself where he had personal knowledge of the underlying motion for substitution of judge. He further contends that he is  entitled to a new hearing because during the hearing (1) the trial court considered information from his codefendant's trial; (2) the trial court improperly permitted testimony regarding statements defendant made during a fitness examination; and (3) the trial  court misrepresented to defendant that his right to substitution of judge would be protected. Finally, defendant contends that he is entitled to a new sentencing hearing because the trial court sentenced him without a written presentence report or a  finding as to his criminal history. For the following reasons, we affirm.

3. Criminal Law: Reversed and remanded: Trial court erred in refusing defendant request to continue case for trial to secure private counsel, where case had pended only 61 days since arraignment. Hyman, J.

No. 2016 IL App (1st) 141135  People v. Adams  Filed 3-15-16 (TJJ)


Defendant Willie Adams, charged with delivery of a controlled substance, requested on the day set for a bench trial that the case be continued so he could retain private counsel. Adams had been indicted 70 days before the request. Adams now contends the  ruling violated his sixth amendment right to have the counsel of his choice. He also challenges the amount of fees and fines imposed by the trial court. We conclude the trial court abused its discretion in denying Adams' request for a continuance to  substitute counsel of his choice, and accordingly, reverse and remand for a new trial.

4. Civil Procedure/Res Judicata: Affirmed: Plaintiff's action for damages stemming from accident while plaintiff was being transported in non-emergency ambulance, brought against parent company of ambulance and hospital, properly dismissed where plaintiff had previously lost suit against other defendants in connection with accident. Hyman, J.

No. 2016 IL App (1st) 143853  Carlson v. The Rehabilitation Institute of Chicago  Filed 3-15-16 (TJJ)


A nonemergency wheelchair van taking plaintiff Herbert Carlson from one medical facility to another facility located a little over a mile away got involved in a minor accident (the van struck the rearview mirror on a CTA bus). Carlson remained in the van  for two to three hours before substitute transportation arrived. Carlson sued the transport company for negligence and breach of contract and its parent corporation for breach of contract. Before trial, however, Carlson voluntarily dismissed the contract  claims, and went to trial only against the transport company on the negligence claim. A jury found against Carlson. A year later this suit arose when Carlson again sued the parent corporation of the transport company and also sued the medical facility from  which he had been taken for breach of contract, propounding a third-party beneficiary theory of standing. Rejecting this argument, the trial court granted both defendants' motions to dismiss. Moreover, the trial court found the 2013 claim was barred by the  doctrine of res judicata and collateral estoppel. We affirm.

5. Parentage: Affirmed in part, reversed in part, and remanded: In action by father to establish paternity, and for joint custody and visitation, trial court decision finding petitioner was the father of child at issue upheld; joint custody award and visitation schedule upheld; but child support order against father improper as below statutory guidelines; reimbursement rate of medical expenses payable to mother too low, and trial court erred in changing child's name to father's last name. Schostok, J.

No. 2016 IL App (2d) 151136  In re Oliver B.  Filed 3-16-16 (TJJ)


The respondent, Emily B., appeals from the judgment of the circuit court of Ogle County finding that the petitioner, Evan W., is the father of her child, Tate Oliver B., and making various provisions involving legal custody, visitation, Tate’s surname, child  support, and the repayment of medical expenses. We affirm in part, reverse in part, and remand.

6. Criminal Law: Reversed and remanded: Appointed counsel in post-conviction proceedings did not provide reasonable assistance of counsel where counsel did not specify or particularize the manner in which a statement of defendant was suposedly redacted at trial, or provide a record to support defendant's claim that autopsy photographs viewed by jurors prejudiced his case. O'Brien, J. (Carter, J., dissenting).

No. 2016 IL App (3d) 140094  People v. Jones  Filed 3-16-16 (TJJ)


Following an unsuccessful direct appeal, defendant, Thomas E. Jones, filed a pro se petition under the Post-Conviction Hearing Act. After 90 days passed, the petition advanced to the second stage and the trial court appointed counsel to represent defendant.  Appointed counsel amended the petition arguing that defendant's appellate counsel was ineffective for failing to raise arguments on direct appeal concerning evidence presented at trial of the victim's autopsy photographs and a redacted video  recording of defendant's statements to police. Following a hearing on the State's motion to dismiss, the trial court dismissed the petition  at the second stage. Defendant appeals, arguing appointed counsel failed to provide reasonable assistance of  postconviction counsel. Specifically, defendant argues that appointed counsel failed to satisfy his duty under Illinois Supreme Court Rule 651(c) to make amendments to his pro se petition necessary to adequately present the defendant's  contentions. We reverse the order dismissing defendant's petition and remand the matter for further secondstage proceedings and the appointment of new postconviction counsel to amend the petition as necessary.

5 Appellate Cases Posted 3-14-16

1. Civil Procedure/Corporate Dissolution: Affirmed: Where shareholder plaintiffs had filed prior action to compel dissolution of corporation, naming third shareholder as a defendant, subsequent action against that defendant by same plaintiffs for fraud properly dismissed by trial court under Section 2-619(a)(3), as initial action precluded filing of second. Gordon, J.

No. 2016 IL App (1st) 141931  Schacht v. Lome  Filed 3-14-16 (TJJ)


The instant appeal arises from a dispute between plaintiffs and defendant over the dissolution of a corporate medical physician practice. Plaintiffs, Mark Schacht, M.D., and Peter Vaselopulos, M.D., filed a complaint alleging fraud against defendant Leon  Lome, M.D., alleging that defendant made fraudulent representations concerning the distribution of assets while they were winding up a dissolved corporation. The trial court dismissed their complaint pursuant to section 2-619(a)(3) of the Code of Civil  Procedure, finding that there had been another pending action for the same cause between the parties. Plaintiffs appeal, arguing both: (1) that the trial court should have permitted them an extension of time to file a response to the motion to dismiss and (2)  that the trial court should not have dismissed the complaint. For the reasons that follow, we affirm.

2. Attorney Sanctions: Affirmed, and sanctions awarded: Trial court properly dismissed 2-1401 petition by attorney relating to award of attorney's fees as sanctions in action where attorney continued to make frivolous arguments, and award of attorneys' fees on appeal entered as sanction by Appellate Court as sanction for "long history of frivolous conduct" with respect to this litigation. Cunningham, J.

No. 2016 IL App (1st) 142396  Stolfo v. Kindercare Learning Centers, Inc.  Filed 3-14-16 (TJJ)


Petitioner-appellant Dennis James Stolfo, an attorney, appeals from the dismissal of his petition pursuant to section 2-1401 of the Code of Civil Procedure, which sought to vacate a November 3, 2011 judgment of the trial court that imposed sanctions  against Stolfo for pursuing frivolous claims in an underlying lawsuit against the respondents-appellees. We conclude that dismissal of the section 2-1401 petition was proper under the doctrine of res judicata. Moreover, as Stolfo has persisted in filing  frivolous submissions in the trial court as well as in this court despite numerous warnings and sanctions, we also impose sanctions against him for prosecution of this current appeal.

3. Parental Rights: Affirmed: Finding by trial court relating to parentage in action to terminate parental rights constituted a substantive ruling by trial court such that respondent parents no longer had right to "automatic" subststitution of judge, and trial court finding that minor children were subject to injurious environment upheld. Cunningham, J.

No. 2016 IL App (1st) 150560  In re Chelsea H.  Filed 3-14-16 (TJJ)


Respondents-appellants Christopher H. (father) and Phoebe R. (mother) (together, respondents) respond, the parents of the minors-respondents-appellees Chelsea H. and Courtney H. (children), appeal from the trial court's denial of their motion to substitute  judge. They also challenge the trial court's subsequent findings of abuse and neglect pursuant to the Juvenile Court Act of 1987, as well as the trial court’s dispositional orders. Affirmed.

4. Citation to Discover Assets/Appellate Jurisdiction: Appeal dismissed: Trial court ruling denying judgment creditor's motion for judgment against bank  served with citation to discover assets as to judgment debtor, was not final and appealable under the circumstances of the case so as to permit appeal by judgment creditor against bank. Connors, J.

No. 2016 IL App (1st) 151446  National Life Real Estate Holdings, LLC v. International Bank of Chicago  Filed 3-14-16 (TJJ)


This matter stems from a third-party citation to discover assets issued by the judgment creditor, National Life Real Estate Holdings, LLC (National Life) and directed against the citation respondent, International Bank of Chicago (IBC), regarding judgment  debtor, Ronald S. Scarlato (Scarlato). National Life appeals the circuit court's order, which denied its motion for entry of judgment against IBC based on an alleged violation of section 2-1402 of the Code of Civil Procedure. We find that this court does not  have jurisdiction and dismiss.

5. Criminal Law: Affirmed: Defendant in criminal sexual assault case previously found unfit to stand trial properly found by trial court to be in need of mental health services on an inpatient basis, despite argument by defense that since defendant refuses treatment relating to pedophilia he may only be malingering. Zenoff, J.

No. 2016 IL App (2d) 150874  People v. Olsson  Filed 3-14-16 (TJJ)


Defendant, Paul Olsson, appeals from an order entered by the circuit court of Lake County on July 23, 2015, remanding him to the Department of Human Services (Department) after a hearing pursuant to section 104-25(g)(2)(i) of the Code of Criminal  Procedure of 1963. For the reasons that follow, we affirm.

3 Appellate Cases Posted 3-11-16 

1. Attorney Contracts: Affirmed in part, reversed in part, and remanded: Procedural history of filings in connection with law firm's claim that it had a contingency fee contract with defendant in connection with work done to reduce property taxes was such that contract claim was not pled, and trial court did not err in ruling that plaintiff law firm was not entitled to claim that contract was breached; but trial court erred in dismissing law firm's claim that it was entitled to recovery on claim of quantum meruit. Lampkin, J.

No. 2016 IL App (1st) 141315  Rubin and Norris, LLC v. Panzarella  Filed 3-11-16 (TJJ)


This consolidated appeal involves a dispute over whether the plaintiff law firm represented the defendant and was entitled to compensation for legal services. Plaintiff, the law firm of Rubin and Norris, LLC (Rubin), challenges the trial court’s dismissal of  its claims against defendant Stephen Panzarella, alleging a breach of a contingent fee agreement and, alternatively, a claim based on quantum meruit for Rubin’s alleged representation of Panzarella concerning a village’s proposed special assessment on  certain property. Specifically, the trial court held that Rubin failed to plead sufficient facts to demonstrate the existence of a written contingency fee agreement signed by Panzarella and an attorney-client relationship. For the reasons that follow, we affirm the trial court’s dismissal of Rubin’s contract claim, reverse the dismissal of Rubin’s quantum meruit claim, and affirm the denial of Panzarella’s motion for sanctions. We hold that (1) Rubin has forfeited review of the trial court’s dismissal of its breach of  contract claim; (2) the trial court erred by finding Rubin failed to plead sufficient facts to demonstrate an attorney-client relationship and dismissing Rubin’s claim for damages pursuant to a theory of quantum meruit; and (3) the trial court did not err by  ruling that Rubin had an objectively reasonable argument to claim it was owed fees for representing Panzarella in a tax dispute and denying Panzarella’s motion for sanctions.

2. Criminal Law: Vacated and remanded: Trial court improperly dismissed 2-1401 petition in criminal case, where less than 30 days had passed from time petition filed, and State had not yet filed an answer or other pleading, since prior motions filed by defendant and pending before the trial court were "free-standing" and did not constitute petitions under 2-1401, despite fact that prior petitions sought same relief. Jorgensen, J.

No. 2016 IL App (2d) 130473  People v. Needham  Filed 3-11-16 (TJJ)


Defendant, Michael E. Needham, appeals the trial court’s sua sponte dismissal of his pro se motion, effectively a petition for relief from judgment filed under section 2-1401 of the Code of Civil Procedure. Defendant contends that, under People v. Prado,  2012 IL App (2d) 110767, the dismissal was premature because he never sufficiently served his petition on the State. In the alternative, defendant argues that, under People v. Laugharn, 233 Ill. 2d 318 (2009), the dismissal was premature because it occurred before the expiration of the State’s 30 days to answer or otherwise plead. Applying People v. Carter, 2015 IL 117709, we determine that defendant failed to show deficient service of the petition. However, we agree that Laugharn applies. Accordingly, we  vacate and remand.

3. Domestic Relations: Affirmed in part, reversed in part, and remanded: In post-dissolution proceedings relating to sale of former marital home, pro se litigant not entitled to award of lost wages in connection with time spent preparing for and conducting litigation, as Marriage and Dissolution of Marriage Act authorizes no such relief. Birkett, J.

No. 2016 IL App (2d) 150898  In re Marriage of Pickering  Filed 3-11-16 (TJJ)


Petitioner, Kimberli Pickering, and respondent, Robert Pickering, filed postdissolution contempt petitions against each other. Petitioner was pro se; respondent had counsel. After a hearing on both petitions, the trial court found both parties in contempt. The  court awarded respondent attorney fees under section 508(b) of the Illinois Marriage and Dissolution of Marriage Act and awarded petitioner lost wages representing the time that she had spent preparing and arguing her petition. Respondent appeals, contending that (1) the court exceeded its authority under the Act by awarding petitioner lost wages; and alternatively (2) even if the Act authorized the award, the amount was excessive. We agree with respondent’s first contention, and we affirm in part and  reverse in part.


6 Appellate Cases Posted 3-10-16

1. Criminal Law: Affirmed in part and remanded: Trial court failure to comply with Supreme Court Rule 431(b) regarding Zehr questions during voir dire harmless in face of overwhelming evidence, but trial court failure to properly admonish defendant regarding his right to represent himself at trial required remandment for new Krankel hearing and, and pending that determination, for new sentencing hearing. Ellis, J.

No. 2016 IL App (1st) 133741  People v. Jackson  Filed 3-10-16 (TJJ)


Following a jury trial, defendant Ieliot Jackson was convicted of delivery of less than one gram of a controlled substance (heroin) within 1,000 feet of a school. He was sentenced to 13 years in prison. In defendant's first appeal, we vacated his sentence and  remanded for new posttrial proceedings based on the trial court's failure to properly admonish defendant under Illinois Supreme Court Rule 401(a). People v. Jackson, 2013 IL App (1st) 112269-U. Defendant raises several arguments in support of a second remand. Defendant initially argues that we must reverse his conviction and remand for a new trial because the trial court's failure to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) was plain error, and the evidence at trial was closely  balanced. Defendant alternatively argues, and the State agrees, that we must remand this case for a proper preliminary inquiry into his claims of ineffectiveness of counsel under People v. Krankel, 102 Ill. 2d 181 (1984). Defendant additionally argues, and  the State again agrees, that we should remand this case for further proceedings to determine whether defendant should be permitted to proceed pro se for posttrial motions and sentencing.We agree with defendant that the trial court's Rule 431(b) admonishments were improper, but we hold that they did not constitute plain error because the evidence at trial was not closely balanced. We hold that the trial court did not conduct an adequate evaluation of defendant's claim of ineffective assistance of  counsel in the preliminary Krankel hearing. We further hold that the trial court improperly denied defendant his right to proceed pro se at the posttrial proceedings that followed the Krankel hearing. We thus affirm defendant's conviction, vacate the trial  ourt's rulings at the Krankel hearing and on the motion for new trial, and vacate defendant's sentence.

2. Parental Rights: Affirmed: In action to adjudicate respondent father's parental rights where it was claimed that father sexually abused minor child, trial court did not err in admitting into evidence both recorded interviews of child and of father, over claims that evidence was insufficient to show reliability of equipment or the person who operated it. Howse, J.

No. 2016 IL App (1st) 152608  In re D.M.  Filed 3-10-16 (TJJ)


This is an appeal from an order of the circuit court of Cook County adjudicating minors D.M. and S.M. wards of the State. A petition for adjudication of wardship was filed after the siblings' half sister, K.S., reported that their father, Timothy M., had  sexually abused her multiple times over the span of several years. Timothy confessed to sexually molesting and abusing K.S. in a video recorded statement to the police, and he has since been arrested and charged with predatory criminal sexual assault and  is awaiting trial. Timothy appeals the trial court's ruling adjudicating D.M. and S.M. wards of the State arguing that the video recorded statement of K.S. was inadmissible hearsay and there was no proper foundation to admit his own video recorded statement and the video recorded statement of K.S. For the reasons that follow, we affirm the trial court's ruling at the adjudication hearing.

3. Criminal Law: Affirmed in part, and vacated in part: Where defendant who was sentenced to 60 years IDOC for murdering his wife, claimed in a subsequent 2-1401 petition that trial court failure to properly impose $25 fine entitled him to new sentencing hearing, trial court order denying that request upheld, but trial court order imposing fine was without authority under People v. Castleberry, and fine vacated. Hutchinson, J.

No. 2016 IL App (2d) 141061  People v. McDaniel  Filed 3-10-16 (TJJ)


Accordingly, we vacate the trial court’s order to the extent that it imposed the $25 fine and affirm the remainder of the order dismissing McDaniel’s section 2-1401 petition. As part of our judgment, we grant the State’s request for State’s Attorneys fees and  hereby assess McDaniel $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2014).

4. Criminal Law: Affirmed: Trial court properly dismissed post-conviction petition at second stage, despite defendant's claims that post-conviction counsel did not provide reasonable assistance of counsel, and automatic transfer of juvenile defendant to adult court for charge of first degree murder did not violate prohibition against cruel and unusual punishment. Knecht, J.

No. 2016 IL App (4th) 140168  People v. Nelson  Filed 3-10-16 (TJJ)


Defendant, Brandon J. Nelson, appeals the second-stage dismissal of his postconviction petition under the Post-Conviction Hearing Act. Defendant argues (1) postconviction counsel failed to provide reasonable assistance by not providing necessary  documentation to support his claims; (2) the Sangamon County circuit clerk, rather than the trial court, improperly imposed fines on defendant after sentencing; (3) he is entitled to 14 additional days of credit against his sentence; and (4) Illinois's statute  triggering the automatic transfer of juveniles to adult court (705 ILCS 405/5-130 (West 2008)) violates the eighth amendment's prohibition against cruel and unusual punishment (U.S. Const., amend. VIII). We affirm but remand for the imposition of  mandatory fines and applicable monetary credit against those fines.

5. Criminal Law: Affirmed: Defendant's conviction for first degree murder upheld over face of claims that identification testimony of three witnesses was unreliable; prior statement by one witness properly admitted as statment of identification; and statements by prosecutors during opening statement and closing argument describing defendant as "cold-blooded" and referencing one witness's experience in Iraq war did not rise to level of clear error. Hyman, J.

No. 2016 IL App (1st) 133648  People v. Thompson  Filed 3-8-16 (TJJ)


In 2010, Joshua Evans and Daniel Crockett, Jr., were shot in front of their home in Chicago by two men who drove up in a black Audi. Joshua Evans survived, but Daniel Crockett, Jr., did not. Crockett's brother Ryheam Crockett eventually informed police  (through his father, Daniel Crockett, Sr.) that he recognized the two shooters as "Brian" (defendant Thompson) and "Ant" (codefendant Anthony Nance), whom he knew from the neighborhood. Evans, Ryheam, and Ryheam's mother Colleen Crockett  eventually identified both Thompson and Nance as the shooters. The two men were tried simultaneously by separate juries; both were convicted of first degree murder and attempted first degree murder. Thompson was sentenced to a total of 60 years of  imprisonment. Thompson alleges the State's eyewitnesses (Joshua Evans, Ryheam, and Colleen Crockett) were unreliable and, hence the evidence against him insufficient to convict. We disagree, as the potential problems with the identifications were  presented to the jury. Thompson also alleges that the trial court erred in admitting Ryheam's prior consistent statement to his father identifying Thompson and Nance as the shooters. We hold that the statement was admissible when testified to by Ryheam as  a statement of identification. But, a police officer's testimony regarding the statement should not have been admitted, but any error was harmless. Thompson also alleges that the trial court committed plain error in allowing the State to make improper  opening statements and closing arguments. While some of the State's remarks rely on questionable advocacy, we do not find that they rise to the level of clear and obvious error.

6. Election Law: Affirmed: Electoral board properly excluded candidate from ballot as candidate for State's Attorney, where candidate's name was typed on on nominating petitions as "circulator," but his wife signed the petitions as the "circulator," and even though both testified before electoral board that they circulated petitions together; petitions (and testimony at hearing) did not establish who actual circulator was, thus requiring board to strike those petitions, with result that remaining valid petitions had insufficient number of signatures required for nomination. O'Brien, J. (Holdridge, J., sp. concurring).

No. 2016 IL App (3d) 160021  Schwartz v. Kinney  Filed 3-8-16 (TJJ)


Petitioner, Jack A. Schwartz, sought to be placed on the 2016 Democratic primary ballot as a candidate for Rock Island County State's Attorney. Respondents, Karen Kinney, Louisa A. Ewert, Christina Payne, and Douglas E. House, brought two objections  to petitioner's candidacy. The objections were grounded upon: (1) petitioner's alleged failure to properly identify the circulator on his nominating petitions; and (2) petitioner's residence. The Rock Island electoral board (the Board) overruled respondents' residency objection. However, it allowed the circulator objection. Consequently, the Board struck petitioner's nomination and excluded his name from the primary ballot on the basis of the circulator objection. The circuit court affirmed the Board's decision.  Petitioner now appeals the circulator finding. Respondents, in turn, cross-appeal the residency finding. Upon review, we hold the Board correctly allowed the circulator objection. We therefore affirm the Board's decision striking petitioner's nomination and  excluding his name from the primary ballot. We do not address respondents' cross-appeal–the residence objection.

3 Appellate Cases Posted 3-9-16

1. Criminal Law: Affirmed: Sentence of 55 years for first degree murder plus consecutive sentence of 7 years for aggravated discharge of a firearm not excessive, where defendant fired shots into a car on a busy thoroughfare. Mason, J.

No. 2016 IL App (1st) 140134  People v. Sauseda  Filed 3-9-16 (TJJ)


On a Saturday afternoon in the summer of 2009, on 18th Street, one of the main streets though Chicago's Pilsen neighborhood, defendant, Marcelino Sauseda walked up to a car stopped at an intersection and fired four shots into the vehicle, missing the  driver, but killing the passenger. A jury convicted Sauseda of murder and aggravated discharge of a firearm and the trial court later sentenced him to 55 years' imprisonment on the murder charge and a consecutive sentence of 7 years for the aggravated  discharge of a firearm. The sole issue Sauseda raises on appeal is the length of his sentence, which he claims is excessive. We disagree and affirm.

2. Parental Rights: Affirmed: Trial court finding that newborn child was neglected due to injurious environment based upon anticipatory neglect stemming from mother's failure to cooperate with medical personnel stemming from her history of seizures and follow treatment recommendations upheld. Fitzgerald Smith, J.

No. 2016 IL App (1st) 152034  In re Harriett L.-B  Filed 3-9-16 (TJJ)


Mother/respondent-appellant Tinisha L.-B. (respondent) appeals from both the trial court's adjudicatory order finding that her daughter, minor/respondent-appellee Harriett L.-B. (Harriett), was neglected and its dispositional order declaring that respondent  was unable and unwilling to care for her. She contends that the trial court misapplied the doctrine of anticipatory neglect, and that its findings based on medical evidence in the record were contrary to the manifest weight of the evidence and in derogation of  case law governing the practice of medicine as well as her constitutional rights regarding her own medical care. She asks that we reverse, vacate or declare void "all [o]rders entered against her in this matter" and remand for proceedings consistent with  the immediate return home of Harriett. The State and Harriett's public guardian have filed appellees' briefs. For the following reasons, we affirm.

3. Trusts and Estates: Affirmed: Trial court properly determined that mother never intended to place residence into joint tenancy with one of four sons prior to her death, so that son did not become owner of property upon her death, and son was not entitled to compensation under Probate Act for caring for mother in her later years. Schostok, J.

No. 2016 IL App (2d) 150084  The Estate of Mendelson  Filed 3-8-16 (TJJ)


The instant controversy arises primarily from a dispute as to whom the decedent, Diane Mendelson, intended to inherit her Highland Park home. In 2005, she signed a deed that placed the home in joint tenancy with her son Michael Mendelson. In 2006, she  prepared a trust that divided her estate (including the home) equally among her four sons. In 2011, three months before she died, she revoked the 2006 trust and created a new trust that indicated, among other things, that Michael was to receive the  home via the 2005 joint tenancy deed. After the decedent’s death, the circuit court of Lake County considered competing claims between Michael and his three brothers as to their interests in the Highland Park home and determined that the four brothers had equal interests in the home. The trial court also rejected Michael’s claim that he was entitled to compensation for the care that he provided to the decedent prior to her death. On September 9, 2015, this court entered an opinion determining that the trial  court properly rejected Michael’s claim for compensation but erred in not awarding him a 100% interest in the Highland Park home. This court held that the decedent conveyed a 100% interest in the home to Michael via her 2011 trust. We therefore  reversed the trial court’s decision, which found that Michael was entitled to 25% of the Highland Park home. On October 14, 2015, the decedent’s estate filed a petition for rehearing. Upon considering that petition, as well as Michael’s response and the  estate’s reply, we now determine that the decedent intended to convey to Michael an interest in her home only via the 2005 joint tenancy deed, not via the 2011 trust. As that deed was not valid, Michael was in fact entitled only to 25% of the Highland Park home. We therefore grant the petition for rehearing and now affirm the trial court’s decision.

4 Appellate Cases Posted 3-8-16

1. Negligence/Workers' Compensation: Affirmed: In action by paramedic trainee for injuries suffered in city training program, trial court properly concluded that Workers' Compensation Act was the exclusive remedy for plaintiff, and properly granted summary judgment to defendants. Hyman, J.

No. 2016 IL App (1st) 151369  Locasto v. The City of Chicago  Filed 3-8-16 (TJJ)


At issue is whether a Chicago fire department paramedic trainee who was injured while participating in a training program may sue the city and fire academy training staff for damages after having obtained workers' compensation benefits for his injuries.  Joseph Locasto sued defendants alleging they intentionally injured him during firefighter paramedic training by forcing him to engage in rigorous physical exercise with minimal water breaks that resulted in dehydration and acute kidney failure. While his  lawsuit was pending, Locasto also filed a claim for workers' compensation benefits, which was successful, and he eventually received medical expenses and disability benefits. We previously resolved an appeal in this case involving an order of default judgment entered against defendants for their having repeatedly failed to timely respond to Locasto's discovery requests. Locasto v. City of Chicago, 2014 IL App (1st) 113576. After remand, defendants filed a motion for summary judgment, arguing that an  award of medical expenses and disability benefits in his workers' compensation claim precluded the tort case, citing the exclusive remedy provisions of the Workers’ Compensation Act (Act) (820 ILCS 305/5(a), 305/11 (West 2012)). The trial court  agreed, and granted the motion for summary judgment. We find that the exclusive remedy provisions apply to Locasto's claim, and affirm.

2. Criminal Law: Vacated and remanded: Where defendant initially waived his right to be represented by counsel at trial, but therafter conveyed "a clear disinclination" to represent himself, the trial court erred in not re-appointing the public defender, and subsequent pleas of guilty ought to have been vacated. Birkett, J.

No. 2016 IL App (2d) 140057  People v. Mitchell  Filed 3-8-16 (TJJ)


In these consolidated appeals, defendant, Willis Mitchell, argues that the circuit court of Kane County erred in denying his motion to withdraw his negotiated plea of guilty to a single count each of unlawful possession of a controlled substance (case No. 12-CF-639) and resisting a peace officer (case No. 12-CF-1461). According to defendant, those pleas were accepted in violation of his constitutional right to the effective assistance of counsel. We vacate and remand.

3. Criminal Law: Affirmed: In case where defendant received consecutive sentences, including consecutive terms of mandatory supervised release, fact that consecutive MSR violated statutory scheme did not render defendant's convictions "void" so as to permit the filing of a 2-1401 petition outside the two-year limitation period, and petition was properly dismissed. Jorgensen, J.

No. 2016 IL App (2d) 140458  People v. Brown  Filed 3-8-16 (TJJ)


Defendant, Tizio T. Brown, appealed the dismissal of his petition under section 2-1401 of the Code of Civil Procedure. Pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), and People v. Lee, 251 Ill. App. 3d 63 (1993), his appellate counsel has moved  to withdraw. Although defendant alleged a statutory violation in his sentence, such a violation no longer renders a sentence void. Thus, we grant counsel’s motion and affirm the judgment.

4. Criminal Law: Reversed and remanded: Appointed counsel's failure to file a 651(c) certificate required reversal of order dismissing defendnat's post-conviction petition. Appleton, J.

No. 2016 IL App (4th) 140085  People v. Smith  Filed 3-8-16 (TJJ)


Defendant, Darnell M. Smith, who is serving a sentence of 18 years' imprisonment for burglary, appeals the second-stage dismissal of his pro se petition for postconviction relief. See People v. Harris, 2013 IL App (1st) 111351, ¶¶ 46-47 (describing the  three stages of a postconviction proceeding). Before granting the State's motion for dismissal, the trial court granted appointed counsel's motion to withdraw from representing defendant in this postconviction proceeding. Defendant appeals, arguing that the motion to withdraw failed to explain why each of the claims in his pro se petition was frivolous or patently without merit, as the supreme court now requires such a motion to do. See People v. Kuehner, 2015 IL 117695, ¶ 21. We do not even reach that  argument. Assessing the sufficiency of the motion to withdraw would be premature, considering that postconviction counsel never filed a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) and the record fails to clearly show counsel's fulfillment of all of his responsibilities under that rule. Therefore, we reverse the trial court's judgment, and we remand this case for further proceedings.

4 Appellate Cases Posted 3-7-16

1. Criminal Law: Affirmed: Trial court properly denied motion to suppress evidence stemming from police chase; trial court did not err in refusing to voir dire prospective jurors regarding their biases as to race or drug use; audio recording of police communications properly admitted; chain of custody regarding narcotics properly proved; and defendant proved guilty beyond a reasonable doubt of possession of cocaine with intent to deliver. Liu, J.

No. 2016 IL App (1st) 132785  People v. Abram  Filed 3-7-16 (TJJ)


The jury found defendant guilty of possession of a controlled substance with intent to deliver, and the circuit court sentenced him to seven years' imprisonment. On appeal, defendant contends that: (1) the circuit court erred in denying his motion to suppress  where the officers lacked reasonable suspicion to detain defendant when they saw him in the alley; (2) the court improperly denied his request to ask prospective jurors questions to reveal race- or drug use-related bias; (3) an audio recording of  officers' statements during the car chase should have been excluded as hearsay; (4) a proper chain of custody was not maintained for the narcotics evidence; and (5) the State failed to establish defendant’s guilt beyond a reasonable doubt. We affirm.

2. Criminal Law: Affirmed in part, and remanded: Trial court properly refused to instruct jury as to reckless conduct in aggravated battery case; aggravated unlawful use of weapon offense merged into aggravated battery with a firearm conviction; but matter remanded for new Krankel hearing. Harris, J.

No. 2016 IL App (1st) 134011  People v. Green  Filed 3-7-16 (TJJ)


Before this court, Defendant raises the following issues: (1) whether the trial court erred when it refused to instruct the jury on the offense of reckless conduct; (2) whether the trial court conducted an improper and adversarial preliminary Krankel hearing;  (3) whether this court should order Defendant's mittimus corrected to reflect that the trial judge merged Defendant's conviction for unlawful use of a firearm by a felon into his conviction for aggravated battery with a firearm; and (4) whether this court  should order the Defendant's fines, fees, and costs order corrected. We hold that the trial court did not err when it refused to give the reckless conduct instruction. We order that the Defendant's mittimus be corrected to reflect the merger of Defendant's  conviction for unlawful use of a firearm by felon into his conviction for aggravated battery with a firearm. We order that the Defendant's fines, fees, and costs order be corrected as stated below. Finally, we remand these proceedings for a new Krankel  hearing.

3. Criminal Law: Affirmed: Failure of defendant's trial counsel to seek to suppress statement in which defendant admitted to transporting cocaine was ineffective assistance of counsel, and conviction for possession of cocaine reversed. Carter, J. (Schmidt, J., dissenting).

No. 2016 IL App (3d) 130594  People v. Tayborn  Filed 3-7-16 (TJJ)


Following a jury trial, defendant, Eugene Tayborn, was found guilty of possession of cocaine. On appeal, defendant argues that he received ineffective assistance of counsel because his counsel failed to file a motion to suppress defendant's statement that he  was transporting cocaine, which defendant made in response to police questioning without having received Miranda warnings. Miranda v. Arizona, 384 U.S 436 (1966). We agree that defendant's counsel provided ineffective assistance by failing to file a  motion to suppress defendant's statement and reverse and remand for further proceedings.

4. Criminal Law: Affirmed in part, reversed in part, and remanded: Defendant's post-conviction counsel provided reasonable assistance of counsel, in reviewing defendant's pro se petition, but trial court erred in granting defense counsel's motion to dismiss; proper procedure is for State to answer petition at second stage, or move to dismiss. Holdridge, J. (Schmidt, J., concurring in part and dissenting in part).

No. 2016 IL App (3d) 130769  People v. Hayes  Filed 3-7-16 (TJJ)


The defendant, Michael E. Hayes, was convicted of armed violence, unlawful possession with intent to deliver a controlled substance, and unlawful possession of a controlled substance, and pled guilty to aggravated unlawful use of a weapon. The defendant appeals from the second-stage dismissal of his petition for postconviction relief and contends both the circuit court lacked authority to dismiss the petition and he was denied reasonable assistance of postconviction counsel. We affirm in part, reverse in part, and remand for further proceedings.

4 Appellate Cases Posted 3-4-16 

1. Criminal Law: Affirmed: Trial court decision denying post-conviction claim that defendant had been coerced into confessing at Area 2 headquarters in connection with stabbing death of his stepmother was not against the manifest weight of the evidence, and trial court not required to give any "preclusive effect" to torture commission decision. Gordon, J.

No. 2016 IL App (1st) 140030  People v. Christian  Filed 3-4-16 (TJJ)


The instant appeal arises from a postconviction proceeding pursuant to the Illinois Torture Inquiry and Relief Commission Act (Act) (775 ILCS 40/1 et seq. (West 2010)). In 2011, defendant Darryl Christian filed a petition before the Torture Inquiry and  Relief Commission (Commission), claiming that he had been tortured into confessing to the murder of his stepmother in 1989, a crime for which he was convicted and sentenced to 55 years in the Illinois Department of Corrections (IDOC), even though he  claimed he was innocent. After reviewing defendant’s petition, the Commission determined that sufficient evidence existed to warrant judicial review pursuant to the Act. Defendant’s petition was assigned to a judge in the circuit court of Cook County, where an evidentiary hearing occurred. After the evidentiary hearing, the circuit court found that there was no credible evidence that defendant was entitled to any relief on his torture claim and, accordingly, denied defendant’s petition. Defendant appeals,  raising an issue of first impression in this court, namely, whether the findings of the Commission are entitled to any preclusive effect before the circuit court. Alternatively, defendant argues that the circuit court’s findings were against the manifest weight of  the evidence. For the reasons that follow, we affirm.

2. Debt Collection: Reversed and remanded: Trial court improperly dismissed alleged debtor's class action counterclaim based on a violation of federal Fair Debt Collection Practices Act in matter where, it was claimed, plaintiff creditor and law firm sued defendant and others after statute of limitations would have prohibited suit. Gordon, J.

No. 2016 IL App (1st) 143922  HBLC, Inc. v. Egan  Filed 3-4-16 (TJJ)


The instant appeal arises from a debt collection lawsuit filed by plaintiff HBLC, Inc. (HBLC), which sought to collect on an unpaid credit card account that defendant Danny Egan claimed had been opened fraudulently. Egan filed a class action  counterclaim, which alleged that HBLC and counterdefendant Steven J. Fink & Associates, P.C. (Fink), violated the federal Fair Debt Collection Practices Act (FDCPA) (15 U.S.C. § 1692 et seq. (2012)) and the Illinois Collection Agency Act (225 ILCS  425/1 et seq. (West 2012)) by filing time barred lawsuits for the collection of debts that were beyond the statute of limitations. The trial court dismissed Egan’s counterclaim under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West  2012)) and, for the reasons that follow, we reverse.

3. Firearm Owner's Identification Card: Reversed and remanded: In action filed by petitioner to restore his right to a Firearm Owner's Identification Card following conviction for domestic battery, served only upon county State's Attorney, trial court decision not to permit Department of State Police to intervene was error. Cates, J.

No. 2016 IL App (5th) 140586  In re Restoration of Civil Rights and Issuance of Firearm Owner's Identification Card to Bailey v. The Department of State Police  Filed 3-4-16 (TJJ)


The Illinois Department of State Police (Department), intervenor-appellant, appeals the denial of its petition to intervene as of right pursuant to section 2-408(a)(2) of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-408(a)(2) (West 2012)). For  the following reasons, we reverse the judgment of the circuit court of Shelby County and remand, with directions, for further proceedings.

4. Tort Immunity: Reversed and remanded: Trial court erred in denying city's motion to dismiss, fostered on tort immunity, in action where missing person suffering from Alzheimer's disease and dementia was actively being searched for by city's police force and police dog, where police dog bit person sought for when she was found. Moore, J.

No. 2016 IL App (5th) 150241  Benton v. The City of Granite City  Filed 3-4-16 (TJJ)


This cause comes before the court as an interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 4, 2015). The circuit court of Madison County certified two questions after it denied the motion to dismiss (735 ILCS 5/2-619 (West 2014))  filed by the defendant, the City of Granite City (Granite City), in response to count I of the amended complaint filed by the plaintiff, Rynette Benton, as next friend of Genevieve Southward. The questions are as follows: (1) Does section 4-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/4-102 (West 2014)) provide immunity for claims brought under section 16 of the Animal Control Act (510 ILCS 5/16 (West 2014))? and (2) Is section 16  of the Animal Control Act (510 ILCS 5/16 (West 2014)) a strict liability statute? For the following reasons, we answer the first certified question in the affirmative under the facts of this case and decline to answer the second certified question. Accordingly,  we reverse the order of the circuit court that denied Granite City's motion to dismiss and remand with directions that the circuit court enter an order dismissing count I of the plaintiff's amended complaint.

2 Appellate Cases Posted 3-3-16

1. Airlines/Montreal Convention: Affirmed: Trial court properly granted defendant airline motion to dismiss action for damages stemming from airline's report to plaintiff's employer (the FAA !) regarding plaintiff's failure to follow crew instructions regarding a cellphone, as matter was governed by "Montreal Convention," permitting an action relating to international flights only in connection with "accidents." Cobb, J.

No. 2016 IL App (1st) 150813  El-Zoobi v. United Airlines, Inc.  Filed 3-3-16 (TJJ)


This case is before us on appeal of the trial court's order granting defendant United Airlines, Inc.'s motion to dismiss plaintiff Sam El-Zoobi's tortious interference with a business relationship and intentional infliction of emotional distress claims pursuant to  section 2-619 of the Illinois Code of Civil Procedure. Plaintiff alleged that defendant, through its agent, filed a report with his employer, the Federal Aviation Administration (FAA), containing false information concerning his failure to comply with a  crew member instruction on board an international flight from Washington D.C. to Beijing, China. Defendant filed a motion to dismiss asserting that these claims are governed by the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106-45, 2242 U.N.T.S. 309 (Montreal Convention), and plaintiff failed to state a claim under the Convention's terms. The court agreed and dismissed the complaint. Plaintiff appeals contending that his  claims are not governed by the Montreal Convention and consequently defendant is subject to liability under local laws. For the following reasons, we affirm.

2. Criminal Law: Affirmed: Discretionary sentence of natural life imposed for murder committed by 17-year-old defendant upheld where sentence was not mandatory, but imposed in discretion of trial court and after defendant had also been convicted of an additional two murders, and an atempted murder, all unrelated to this case, as a juvenile. Chapman, J.

No. 2016 IL App (5th) 100587-B  People v. Holman  Filed 3-3-16 (TJJ)


This appeal requires us to consider whether a natural-life sentence without the possibility of parole may be imposed on a defendant who was a minor at the time of the offense when the sentencing court had the discretion to impose a lesser sentence. The defendant, Richard Holman, was 17 years old when he committed the murder at issue in this case. In April 1981, a court sentenced him to natural life in prison. Since that time, courts have grappled with the question of the extent to which the eighth  amendment's proscription against cruel and unusual punishment (U.S. Const., amend. VIII) limits the sentences that may be imposed for crimes committed by juveniles. In Miller v. Alabama, the United States Supreme Court held that a mandatory sentence of natural life in prison without the possibility of parole runs afoul of the eighth amendment when imposed for a crime committed when the defendant was a juvenile. Miller v. Alabama, 567 U.S. ___, ___, 132 S. Ct. 2455, 2469 (2012). In this case, the  defendant filed a petition for leave to file a successive postconviction petition alleging that his natural-life sentence is unconstitutional. He appeals an order denying that petition, arguing that (1) the sentencing court did not take into account mitigating  factors associated with his youth, as required by the Court in Miller; and (2) the holding of Miller should be expanded to encompass any natural-life sentence imposed for a crime committed while the defendant was a juvenile. We affirm.

4 Appellate Cases Posted 3-2-16

1. Corporations/Piercing the Veil/Attorneys' Fees: Affirmed in part, reversed in part, and remanded: In action to collect on credit extended to subsequently dissolved corporation, trial court properly ruled that owner as well as subsequent corporation were properly liable for debt, and, in a case of first impression, the trial court erred in denying plaintiff creditor's request for attorneys' fees. Fitzgerald Smith, J.

No. 2016 IL App (1st) 132023  Steiner Electric Company v. Maniscalco  Filed 3-2-16 (TJJ)


Plaintiff Steiner Electric Company (Steiner), an Illinois corporation that extended credit to defendant Leonard J. Maniscalco's Delta Equipment Company (Delta) and Sackett Systems, Inc. (Sackett), and was not properly compensated thereafter, obtained a  default judgment against Delta. By that time, however, Delta had been dissolved. Steiner then filed suit to pierce the corporate veil, such that Maniscalco, as well as his corporate entity, Sackett, would be held liable for Delta's debt. Following a bench trial,  the circuit court pierced the corporate veil and entered judgment in favor of Steiner and against Maniscalco and Sackett, jointly and severally. On appeal, Maniscalco and Sackett contend that the circuit court erred by: (1) holding Maniscalco liable for  Delta's debt to Steiner where there is no unity of ownership between Maniscalco and Delta; and (2) holding Sackett liable for Delta's debt to Steiner where there is no unity of ownership between it and Delta. Maniscalco and Sackett also contend that there  would be no injustice in preserving the corporate entities here. In a separate but consolidated appeal, Steiner contends, in an issue of first impression, that the circuit court erred in refusing to award attorney fees for fees expended in the suit to pierce the  corporate veil where the attorney fees provision was contractual in the underlying, ancillary suit. For the following reasons, we affirm.

2. Retaliatory discharge/Punitive damages: Trial court properly ruled (and upheld jury's finding) that plaintiff attorney could maintain retaliatory discharge action against state university, and punitive damages were not prohibited, and defendants not entitled to a new trial based on juror malfeasance. Lavin, J.

No. 2016 IL App (1st) 142847  Crowley v. Watson  Filed 3-2-16 (TJJ)


After a lengthy jury trial, plaintiff James Crowley (Crowley) prevailed in his wrongful termination case stemming from an alleged violation of the Illinois State Officials and Employees Ethics Act (Ethics Act) (5 ILCS 430/1-1 et seq. (West 2008)). The jury  awarded back pay of $480,000 and punitive damages of $2 million. The jury further found that he was entitled to be reinstated to his position at Chicago State University (CSU). Pursuant to the statute, in dealing with the compensatory damages  verdict, the trial court doubled the back pay to $960,000, ordered defendants to pay attorney fees of $318,173.33, and awarded prejudgment interest in the amount of $60,000 for a total of $1,338,173.33. The trial court also ordered defendants to either reinstate Crowley to his position or provide "front pay" in an amount to be determined after the promised appeal. Defendants declined to reinstate Crowley. Affirmed and remanded.

3. Dead Man's Act: Reversed and remanded: In action to enforce personal guaranty by deceased owner/tenant of real estate, trial court erred in ruling that Dead Man's Act prohibited plaintiff's use of affidavit regarding lease and extensions of it, and trial court further erred in ruling that doctrine of laches barred plaintiff's action. Mason, J.

No. 2016 IL App (1st) 151924  General Auto Service Station, LLC v. Garrett  Filed 3-2-16 (TJJ)   


This breach of contract action arises from decedent Mark Garrett's breach of his personal guaranty of a commercial lease between BAH Properties, the lessor, and his company, Mark Galleries, Ltd., d/b/a Garrett Galleries, Ltd., the lessee. BAH Properties  successfully litigated a forcible entry and detainer action against Mark Galleries following the latter's breach of the lease in August 2003, but took no action to collect the judgment or enforce Mark's guaranty until January 2013. By then, BAH Properties  had been acquired by plaintiff General Auto Service Station, LLC. Shortly after General Auto brought suit, Mark passed away, and his widow, Monah Conner Garrett, was substituted as defendant in this action. General Auto then moved for summary  judgment, and Monah responded arguing that the doctrine of laches barred General Auto's suit, and further, that the Dead-Man's Act (735 ILCS 5/8-201 (West 2012)) operated to exclude the affidavit of General Auto's vice president regarding the terms of the lease. The trial court denied General Auto's motion and granted Monah's cross-motion for summary judgment, dismissing General Auto's claim. We find that both defenses raised are inapplicable and, therefore, we reverse.

4. Criminal Law: Affirmed: Trial court properly dismissed defendant's post-conviction petition at second stage in case where defendant pleaded guilty and thereafter became aware that police officers involved in investigation of defendant had been later indicted in unrelated matters allegedly involving drug conspiracies and arising after alleged commission of crime to which defendant pleaded guilty. McLaren, J.

No. 2016 IL App (2d) 140002  People v. Gray  Filed 3-2-16 (TJJ)


Defendant, Jason W. Gray, appeals the second-stage dismissal of his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)) from his conviction, based upon a negotiated guilty plea, of possession of cocaine  with the intent to deliver (720 ILCS 570/401(a)(2)(B) (West 2010)). Defendant contends that his petition made a substantial showing that his guilty plea was tainted by the State’s failure to disclose potentially impeaching evidence. See Brady v. Maryland,  373 U.S. 83 (1963). We affirm.


6 Appellate Cased Posted 3-01-16

1. Crimnal Law/Post-conviction Petiton/Sentencing: Affirmed as modified: Defendant is challenging the extended term portions of the sentence imposed because they were unauthorized by law. Defendant requests that the extended term portion of his sentences be vacated and he be resentenced to the maximum sentence for Class X offenses for which he was convicted: 30 years' imprisonment for aggravated criminal sexual assault, consecutive to 30 years' imprisonment for home invasion and armed robbery. Defendant is not challenging the trial court's imposition of consecutive sentences. Castleberry did not announce a new rule, but merely abolished the rule stated in Arna, thereby reinstating the rule in effect before Arna: a sentence that did not comply with statutory guidelines was only void if the court lacked personal or subject matter jurisdiction. Because Castleberry did not announce a new rule and cannot be applied retroactively, defendant has the right to challenge his sentence unauthorized by the sentencing statute in this court for the first time on appeal from the denial of leave to file a successive postconviction pursuant to Arna and Thompson. Castleberry only applies prospectively from the date of  pronouncement, November 15, 2015.  The extended term portion of defendant’s 60-year and 40-year sentences is vacated and reduce his sentence to 30 years’ imprisonment for aggravated criminal sexual assault and 30 years’ imprisonment for home invasion and armed robbery to be served consecutively for a total of 60 years’ imprisonment, as requested by defendant.  Pierce, J.

No. 2016 IL App (1st) 140887    People v. Smith    Filed 03-01-16 (RJC)


More than 20 years after our supreme court established the void-sentence rule in People v. Arna, 168 Ill. 2d 107, 113 (1995), the court found the rule to be "constitutionally unsound" in  People v. Castleberry, 2015 IL 116916, and abolished the rule. Prior to the decision in Castleberry, while Arna was still in effect, defendant sought to attack his consecutive 60-year extended term sentence for aggravated criminal sexual assault and 40-year extended term sentences for home invasion and armed robbery in this appeal from the denial of leave to file his successive postconviction petition. Defendant argues that his extended term sentences were unauthorized by law and therefore void because the trial court did not find the proper factors in imposing the extended term sentences. Castleberry was decided while defendant's appeal was pending here. We must now determine if Castleberry applies to defendant's case. If we determine it does, we are left to deal with the question of how defendant, and those similarly situated, can properly attack sentences unauthorized by law. If we determine that Castleberry does not apply, we must grant defendant the relief requested.

2. Crimnal Law/Evidence/Deposition: Reversed and remanded for a new trial: What the State characterizes as a "proffer," is not a proffer at all, nor did the State submit an evidentiary predicate of any kind. Indeed, what the State presented was unsupported argument, that's it.  As a matter of law, allowing Gloria's evidence deposition to be taken on an emergency basis constitutes reversible error. Separately and alternatively, admitting the deposition at trial violated Weinke's constitutional rights because his counsel did not have an adequate opportunity to cross-examine Gloria at the deposition.  Hyman, J.

No. 2016 IL App (1st) 141196    People v. Weinke    Filed 03-01-16 (RJC)


On the evening of Tuesday, July 18, 2006, Gloria Weinke, 77, was found at the bottom of her basement stairs. Gloria told police and paramedics that her son Wayne Weinke pushed her over a first-floor railing, causing her to fall to the basement. This happened in the early morning hours, and upwards of 12 hours passed before a security guard found her.  The State immediately asked to take an evidence deposition to preserve Gloria's testimony, even though defense counsel had just entered the case. The trial court granted permission over Weinke's objection, having been presented nothing other than statements by a
prosecutor. About three months later, Gloria, who was battling the effects of metastatic cancer,  died. Six years passed, and Weinke's case went to a bench trial at which Gloria’s deposition testimony was admitted into evidence. Weinke alleges that in granting the evidence deposition and in admitting the deposition.
the trial court violated his constitutional right to confront witnesses. The State contends that it provided evidence to the trial court by way of proffer to establish that, under Illinois Supreme Court Rule 414, there was a "substantial possibility" that Gloria would be unavailable for trial.

3. Crimnal Law: Fees vacated: Section 22-105 applies to defendant's motion and defendant's motion had an arguable basis in law and was not frivolous. Defendant's motion fell under the purview of section 22-105. 735 ILCS 5/22-105(a) (West 2012). However, the trial court's determination that defendant's motion was frivolous because the filing lacked an arguable basis in law or in fact and that it was presented to delay and increase the cost of litigation was erroneous. Pierce, J.

No. 2016 IL App (1st) 141221    People v. Chacon    Filed 03-01-16 (RJC)


Following a jury trial, defendant Oscar Chacon was found guilty of first degree murder and sentenced to 55 years' incarceration. Defendant subsequently filed a pro se document entitled "Motion to Modify-Correct a Void Mittimus and/or a Void Sentence" arguing that the Illinois Department of Corrections (IDOC) improperly added a three-year term of mandatory supervised release (MSR) that was not imposed by the trial court. Denying the motion, the trial court found that the motion was frivolous and assessed fees and costs against defendant pursuant to section 22-105 of the Code of Civil Procedure. Defendant contends that section 22-105 does not apply to his motion and that the trial court erroneously found that the motion lacked an arguable basis in law or in fact.  We vacate the fees.

4. Private Right of Action: Affirmed: The enabling statutes do not provide for a private cause of action and in the absence of evidence of Marshall's personal liability to replenish public revenues depleted by the alleged misuse, he lacks standing to bring a taxpayer lawsuit. Further, after the circuit court dismissed his complaint with prejudice, Marshall had no statutory right to amend, and the court correctly denied him leave to amend his complaint. Hyman, J.

No. 2016 IL App (1st) 142864    Marshall v. The County of Cook    Filed 03-01-16 (RJC)


Steven Marshall sued Cook County alleging the county misused funds collected from litigation fees by failing to use them for the purposes stated in the enabling statutes. The trial court dismissed Marshall's third-amended complaint with prejudice under section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2012)) on the ground that Marshall lacked standing—only the Cook County State's Attorney could bring the claim. Marshall contends: (i) as a taxpayer, he has standing to sue the county to recover any funds not spent for authorized purposes under the statute; and (ii) he should have been permitted to file a fourth amended complaint and proceed on a mandamus action. We reject both contentions and affirm.

5. Cigarette Tax Act: Affirmed:  The statute does not violate the constitutional principle that the subjects within a class be taxed uniformly.  Simon, J.

No. 2016 IL App (1st) 143485   Casey's Marketing Company v. Hamer    Filed 03-01-16 (RJC)

This appeal asks us to determine whether the most recent cigarette tax increase is unconstitutional. The appellant argues that it violates the uniformity clause of the Illinois Constitution.

6. Uniform Arbitration Act/CBA: Reversed and remanded with directions: Having reviewed the instant collective bargaining agreement and the facts of the present case, the intent of the parties on disciplinary matters is unclear and that the parties must proceed to arbitration so that an arbitrator can decide whether the instant disciplinary matter is, in fact, subject to grievance arbitration under the parties' agreement.  Carter, J. with O'Brien, J. specially concurring and with McDade, J. dissenting. 

No. 2016 IL App (3d) 150341   Village of Bartonville v. Lopez    Filed 03-01-16 (RJC)

Plaintiff, the Village of Bartonville (Village), filed a complaint in the trial court seeking a declaratory judgment and a permanent stay of the arbitration of a grievance filed by defendants, Salvador Lopez and the Policemen’s Benevolent Labor Committee, Inc. (Union), over the termination of Lopez from the Village’s police department. Defendants filed a motion to compel arbitration, and the Village filed a motion for summary judgment. After a hearing, the trial court granted summary judgment for the Village. Defendants appeal. We reverse the trial court's judgment and remand for the trial court to order the parties to proceed to arbitration so that an arbitrator can decide whether the instant disciplinary matter is subject to arbitration under the parties' agreement.

1 Supreme Court Case Posted 2-26-16

1. Criminal Law/Grand Jury/Subpoena: Affirmed:  Here, the supreme court agreed with the trial court that the State was “sloppy” in certain procedures that it followed before the grand jury and it should not be repeated. The subpoena in this case was not prepared at the direction of the grand jury but, rather, at the direction of the State’s Attorney. Additionally, the prints were made returnable to ASA Snow, or the Cook County investigator serving the subpoena purportedly as an agent of the grand jury, rather than the grand jury itself. As the trial court correctly concluded, there is nothing in the record to indicate that when the grand jury issued the subpoena that it was asked to grant agency powers, or that it had granted ASA Snow or the police detectives agency powers. In this case, we recognize that the palm prints were never returned to the grand jury. Instead, the grand jury that indicted defendant heard evidence from police that the palm print discovered at the crime scene matched defendant’s. Pursuant to section 112-6(c)(1) of the Code (725 ILCS 5/112-6(c)(1) (West 2012)), however, the grand jury could have disclosed the palm print evidence to the State for purposes of sending it to the crime lab for testing. Therefore, even if the palm prints had been returned to the grand jury before being submitted to the crime lab, the State could have still obtained that evidence under the Code from the grand jury for testing. Consistent with Wilson, there is no basis for us to disturb the trial court’s holding because defendant has not shown that he was prejudiced in any way. Justice Theis delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, and Karmeier concurred in the judgment and opinion. Justice Burke dissented, with opinion.

No. 2016 IL 118661    People v. Boston    Filed  2-26-16 (RJC)

 
This appeal arises from the first degree murder conviction of defendant, Jerry Boston, for the 1997 killing of his former girlfriend, Tonya Pipes. Defendant was charged in 2005 with the murder after a bloody palm print discovered at the crime scene was shown to match defendant’s palm print which was obtained by the State through a grand jury subpoena. The circuit court of Cook County denied defendant’s motion to quash the subpoena and suppress the palm print evidence, and the appellate court affirmed. 

2 Appellate Cased Posted 2-26-16

1. IEPA/Permits/MSJ: Reversed and remanded:  The data provided by petitioners regarding the out-of-state numeric water quality standards and the federal water quality recommendation, coupled with the data in the Egan study, raise a genuine issue of material fact regarding whether, to prevent unnatural plant or algal growth, the phosphorus level should be at the level set by the IEPA (1.0 mg/L) or closer to the lower levels set by Wisconsin, Minnesota, and the federal guideline. Given this question of material fact, we reverse the order granting summary judgment in favor of respondents and remand for further proceedings. Rochford, J.

No. 2016 IL App (1st) 150971    Prairie Rivers Network v. The Illinois Pollution Control Board    Filed 2-26-16 (RJC)


The Illinois Environmental Protection Agency (IEPA) issued permits allowing for the operation of three different water reclamation plants under the control of the Metropolitan Water Reclamation District (District). After the IEPA issued those permits, the six petitioners, Prairie Rivers Network, Natural Resources Defense Council, Sierra Club, Environmental Law & Policy Center, Friends of the Chicago River, and Gulf Restoration Network, filed petitions for review with the Illinois Pollution Control Board (Board). Petitioners alleged that the IEPA erred in issuing the permits because it failed to include conditions ensuring that discharges of phosphorus do not violate applicable Illinois water quality standards. The parties filed cross-motions for summary judgment. The Board denied petitioners' motion for summary judgment and granted summary judgment to the IEPA and the District, thereby upholding the issuance of the permits. Petitioners appeal. Because we find genuine issues of material fact exist, we reverse and remand for further proceedings.

2. IMDMA/Property/Distribution/Atty. Fees: Affirmed: Mark was not improperly burdened with proving the proper allocation of the appreciation in the 401(k) account, nor was he improperly sanctioned for his failure to comply with discovery. Any trial court error regarding the burden actually inured to Mark’s benefit. However, his own failings in this respect led to the results of which he now complains, and he is entitled to no relief here.  The trial court did not err as a matter of law in determining that any of the ESOP was marital. Also, "phantom stock" was 100% marital property.  Finally, no abuse of discretion in the trial court’s decision to let the parties pay their own attorney fees from their ample distributions. McLaren, J.

No. 2016 IL App (2d) 131083    In re Marriage of Faber    Filed 2-26-16 (RJC)


Petitioner, Mark Faber, appeals from the trial court’s allocation of property and debt in its order of dissolution of marriage. Mark disagrees with specific valuations and distributions ordered by the trial court regarding his: (1) nonmarital 401(k) retirement account; (2) Employee Stock Ownership Plan (ESOP); (3) phantom stock that he had received by virtue of his ownership interest in Chicago Metallic Products (CMP), at which he was employed; and (4) subordinated notes that he held from CMP. In her cross-appeal, respondent, Carole Faber, appeals from the trial court’s denial of her request for attorney fees.  We affirm the trial court.

1 Appellate Case Posted 2-25-16

1. Mandamus: Affirmed: Plaintiff has failed to demonstrate a clear duty on the AG's part to act or a clear right to the requested relief. Accordingly, the trial court did not err in dismissing plaintiff's mandamus complaint. Pope, J.

No. 2016 IL App (4th) 140917    Cebertowicz v. Madigan    Filed 2-24-16 (RJC)


In August 2012, plaintiff, Kenneth H. Cebertowicz, filed a pro se mandamus complaint, seeking to compel defendant, Lisa Madigan, the Illinois Attorney General (AG), to investigate his claim Illinois Department of Corrections (DOC) employees were violating his civil rights. Thereafter, the AG filed a motion to dismiss plaintiff's complaint, which the trial court granted. Plaintiff, proceeding pro se, appeals, arguing the trial court erred in granting the AG's motion to dismiss. We affirm.

2 Appellate Cases Posted 2-24-16

1. Criminal Law/UUW/Sentencing: Affirmed as modified; vacated in part; remanded with directions: Where defendant's prior conviction of aggravated battery to a peace officer was not based on great bodily harm or permanent disability or disfigurement, it was not within the statutory definition of a forcible felony, and that the trial court erred in using it to enhance defendant's present aggravated battery conviction to a Class 2 offense. The court erroneously enhanced the class of the offense of which defendant was convicted where his underlying conviction of aggravated battery to a peace officer was not a forcible felony. Mason, J.

No. 2016 IL App (1st) 140496   People v. Smith    Filed 2-24-16 (RJC)


Following a bench trial, defendant Arteze Smith was found guilty of unlawful use of a weapon (UUW) by a felon and sentenced as a Class X offender to nine years' imprisonment. On appeal, he contends that his conviction should be reduced from a Class 2 felony to a Class 3, and the matter remanded for resentencing because his prior conviction of aggravated battery to a peace officer was not a forcible felony that could enhance his conviction for UUW by a felon. We agree and remand for resentencing.

2. Criminal Law/Search & Seizure: Affirmed: The strip search of the defendant was unreasonable. The search of the defendant involved extremely intrusive means and it should have been performed in a manner that respected the defendant’s privacy. Officer failed to conduct the search in a minimally intrusive nature such that the search was unreasonable under the circumstances. McDade, J.

No. 2016 IL App (3d) 140780    People v. Zayed    Filed 2-24-16 (RJC)


The defendant, Seaf M. Zayed, was charged with unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2012)). He filed a motion to suppress evidence, which the circuit court granted. On appeal, the State argues that the circuit court erred when it granted the defendant’s motion to suppress. We affirm.

4 Appellate Cases Posted 2-23-16

1. Criminal Law/Search & Seizure/Strip Search: Reversed and remanded: Because the search warrant authorized a search of defendant’s person for narcotics, the strip search was within the scope of the warrant and did not violate the fourth amendment to the United States Constitution (U.S. Const., amend. IV), the search-andseizure clause of article I, section 6, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 6), or the privacy clause of article I, section 6 (Ill. Const. 1970, art. I, § 6). Therefore, we reverse and remand. Zenoff, J.

No. 2016 IL App (2d) 141231     People v. Jarvis    Filed 2-23-16 (RJC)


The State appeals from the judgment of the circuit court of Kane County granting defendant Ronald Jarvis’s motion to suppress evidence found during a strip search conducted pursuant to a search warrant.

1. Recapture Rights: Affirmed: Recapture fees due to a developer pursuant to section 9-5-1 of the Code are not an interest in the benefited property and are not subject to foreclosure. A trial court’s decision whether to award attorney fees is within its discretion and will not be reversed absent an abuse of discretion. The bank does not contest the amount or the reasonableness of the fees. Instead, the bank’s sole argument is that FRS was not properly the prevailing party. The trial court properly granted FRS’s motion for summary judgment, as such  FRS was the prevailing party. Accordingly, the trial court did not abuse its discretion in awarding fees.  Zenoff, J.

No. 2016 IL App (2d) 150157    F.R.S. Development Company, Inc. v. American Community Bank and Trust    Filed 2-23-16 (RJC)


Defendant and counterplaintiff, American Community Bank & Trust, and counterplaintiff, M&I Regional Properties, LLC (collectively the bank), appeal from an order of the circuit court of McHenry County granting summary judgment in favor of plaintiff and counterdefendant, F.R.S. Development Co., Inc. (FRS), on the bank’s amended counterclaim for declaratory judgment. The bank sought a declaration that it foreclosed certain “recapture rights” when it foreclosed on two parcels of real estate that were collateral for a defaulted loan. The trial court found that the recapture rights were personal property not subject to foreclosure.
The bank appeals in Case No. 2-15-0157. Following the court’s grant of summary judgment in FRS’s favor, FRS sought attorney fees from the bank, pursuant to a fee-shifting provision in the parties’ settlement agreement and mutual release that resulted in a consent foreclosure. The court awarded FRS $179,000, and the bank appeals in Case No. 2-15-0457. This court consolidated the appeals. We affirm.

3. Criminal Law/Contraband/Forfeiture: Affirmed: Wearing the vests facilitated the defendants’ goal, to be achieved by violent means if necessary, to show their dominance to others. Based on this testimony, the trial court could reasonably determine that the Outlaws’ vests and patches facilitated the defendants’ violent actions at the Lizard Lounge. Accordingly, the trial court’s determination that the vests and patches were derivative contraband subject to forfeiture is not against the manifest weight of the evidence. Schostok, J.

No. 2016 IL App (2d) 150495    People v. Black in Color Leather Vest with Attached Outlaws Motorcycle Club Patches    Filed 2-23-16 (RJC)


The claimant, AOA15 Civic Organization, Inc., better known as the Outlaws Motorcycle Club (the Outlaws), appeals from the April 17, 2015, judgment of the circuit court of McHenry County ordering that three black leather vests with attached Outlaws’ patches be forfeited. We affirm.

4. Juvenille/DCFS/Admin. Hrng.: Affirmed: The sole question on appeal here is whether the juvenile court’s August order was a judicial determination on the issue presented in the service appeal, thus requiring the ALJ to dismiss the service appeal. While a judicial determination under section 2-28 of the Juvenile Act is not the type of determination requiring dismissal of a service appeal  the juvenile court’s decision in this case was made not under section 2-28 of the Juvenile Act but rather under section 1-5 of the Juvenile Act, which pertains to motions to intervene. Spence, J.

No. 2016 IL App (2d) 150747    Campbell v. The Department of Children and Family Services    Filed 2-23-16 (RJC)


Plaintiff, Anika Campbell, filed an administrative service appeal after defendant the Department of Children and Family Services (DCFS) removed five children from her care. An administrative law judge (ALJ) ultimately dismissed Campbell’s service appeal in a final administrative decision. The ALJ determined that the dismissal was required by a decision in the children’s juvenile court proceedings. Campbell filed a complaint in the trial court seeking review of the dismissal of her service appeal, and the trial court affirmed the dismissal. Campbell appeals, arguing that the decision in the juvenile court did not require the dismissal of
her service appeal in the administrative proceeding.

2 Appellate Cases Posted 2-22-16

1. Criminal Law/Reckless Conduct/Sentencing/Fines & Fees: Affirmed and remanded with directions: When defendant saw the Peoria MEG unit van approaching his vehicle head on, he accelerated, causing the van and his vehicle to collide. This testimony was sufficient to establish recklessness. Because the Peoria MEG unit suffered out-of-pocket expenses as a result of defendant’s conduct, it was entitled to restitution. The circuit clerk improperly imposed fines against defendant. Lytton, J.

No. 2016 IL App (3d) 130650    People v. Ford    Filed 2-22-16 (RJC)


Defendant Jalin Ford was convicted of reckless conduct for causing damage to a van owned by the Peoria Multi-County Narcotics Enforcement Group (MEG) unit. The trial court sentenced defendant to one day in jail and 18 months of probation. The court ordered defendant to pay restitution to the Peoria MEG unit, as well as court costs and “mandatory assessments.” The Peoria County Circuit Clerk assessed a total of $902.50 in fines and fees against defendant. On appeal, defendant argues that (1) there was insufficient evidence to prove he committed reckless conduct, (2) the trial court erred in requiring him to pay restitution, and (3) the Peoria County Circuit Clerk improperly assessed fines and fees against him. We affirm defendant’s conviction and restitution judgment but vacate the fines and fees assessed by the circuit clerk and remand, with directions, for the trial court to properly assess fines and fees.

2. Criminal Law/MTSS/Immunity promise: Affirmed: Defendant cannot receive protection for committing a state crime that was unauthorized, unlawful and unrelated to the federal agreement. Defendant’s statement was not protected by the use immunity agreement,
and the trial court properly denied his request to suppress it. Lytton, J.

No. 2016 IL App (3d) 130861    People v. Tuson    Filed 2-22-16 (RJC)


Defendant, Terrance L. Tuson, appeals from an order of the circuit court denying his motion to suppress statements he made during a police interview. He claims that his statements should have been suppressed because they were induced by a promise of immunity. We affirm.

1 Supreme Court Case Posted 2-19-16

1. Criminal Law/Habitual Criminal Act/Sentencing/2-1401 Petition: Appellate court judgment reversed. Circuit court judgment affirmed:   The defendant’s earlier adjudication as an habitual criminal has no effect on this determination. The supreme court noted that, if the legislature determines that offenses with the exact same elements merit two different penalties, then one of those penalties has not been determined in accordance with the seriousness of the offense and is constitutionally invalid. Only the lesser penalty can stand. The indictment here charged that Ligon “knowingly took a motor vehicle, a 2000 Ford, from the person or immediate presence of [the woman] by the use of force or by threatening the imminent use of force and [the defendant] was armed with a dangerous weapon, to wit: a bludgeon.” The supreme court noted that it is irrelevant for the issue here that the indictment used the term bludgeon, rather than a BB gun, since it has been held that the two are interchangeable for purposes of the statute under which Ligon was indicted. The term “dangerous weapon” has a broad definition derived from the common law, and a BB gun has been held to fit into this category as an object that is used, or may be used, in a dangerous manner. In contrast, the dangerous-weapons categories of the armed violence statute are defined by that statute, and are limited to the weapons named therein. Many objects can qualify as dangerous weapons for purposes of aggravated vehicular hijacking, but not as to armed violence. The supreme court held here that, at the time the defendant committed this offense, the elements of the two offenses which he sought to compare were not identical. The appellate court erred in finding a proportionate penalties violation under the Illinois Constitution and in reversing the circuit court’s denial of the section 2-1401 petition. Justice Karmeier delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke, and Theis concurred in the judgment and opinion.

No. 2016 IL 118023    People v. Ligon    Filed  2-19-16 (RJC) 


On December 16, 2000, Dennis Ligon was armed with a BB gun when he approached a woman as she was getting out of her pickup truck and took the vehicle from her. At his 2003 trial, she testified that he pushed “a gun” into her side and threatened to kill her. She also identified both the defendant and the gun. A Cook County jury found him guilty of the Class X felony of aggravated vehicular hijacking with a dangerous weapon other than a firearm. The State successfully petitioned to have the defendant adjudged and sentenced under the Habitual Criminal Act because this was his third conviction for a Class X offense. A mandatory term of natural life was imposed. Ligon was not successful either in his direct appeal, or in his subsequent habeas corpus and pro se postconviction petitions. Then, in 2012, he sought relief under the Code of Civil Procedure by
filing the section 2-1401 petition for relief from judgment which is at issue here. He claimed for the first time that his sentence was invalid as unconstitutionally disproportionate under the identical elements test. He theorized that elements identical to those of the offense for which he was convicted were also elements of the Class 1 offense of armed violence predicated on vehicular hijacking with a dangerous weapon, for which the legislature had provided a lesser penalty. As for offenses committed after a statutory amendment enacted in 2007, this identical elements question is no longer at issue. The trial court dismissed the petition, but the appellate court reversed, vacating the life sentence and remanding for imposition of a lesser sentence as a Class 1 offender under the armed violence statute.


1 Supreme Court Case Posted 2-4-16

1. Unemployment Insurance Benefits: Appellate court judgment reversed. Circuit court judgment affirmed:   Misconduct which can render an employee ineligible for unemployment insurance benefits must be based on competent evidence in the record showing that the employee deliberately and willfully violated the employer’s reasonable rule or policy, and showing either that there was harm to the employer or an employee, or that the misconduct was repeated despite a warning or explicit instructions. Although the termination letter and the employer’s protest were relied on as showing American’s rules and policies, neither constituted competent evidence in the record. The termination letter recited two numbered rules dealing with such things as misrepresentation of facts, falsification of records, dishonesty of any kind, theft or pilferage. However, these rules were not referenced at the hearing or introduced into evidence. In the protest which the employer filed, it was stated that “[o]nly authorized employees may issue an upgrade” and “claimant was made aware of this policy through PC based training.” However, a protest is a pleading. Factual allegations set forth therein must be substantiated with competent evidence in the record. No actual evidence of a policy communicated to the plaintiff through computer training was introduced at the hearing or documented in the record.  At the telephone hearing, plaintiff’s supervisor, the employer’s sole witness to testify, stated that he had no personal knowledge of the matter, but that “[p]olicies and procedures were not followed,” without identifying any express or written policy regarding upgrades. He said that plaintiff asked the “wrong people” and failed to seek management approval for the upgrade. These vague and conclusory statements do not constitute competent evidence of a reasonable rule or policy prohibiting plaintiff’s actions. The employer failed to introduce any evidence that plaintiff was aware that her conduct was forbidden, and, thus, failed to establish the deliberate and willful violation of a reasonable rule or policy that is required before unemployment benefits may be denied. The supreme court said that the employee was eligible for benefits, and the circuit court was upheld. 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.

No. 2016 IL 118562    Petrovic v. The Department of Employment Security    Filed  2-4-16 (RJC)

 

Plaintiff, who was working as a tower planner at O’Hare Airport, had been employed by American Airlines for almost 24 years when she received a termination letter in January of 2012. Her application for unemployment insurance benefits was denied after American filed a protest, claiming that the termination was for misconduct at work. A referee for the Department of Employment Security so found after a telephone hearing, and the Department’s Board of Review affirmed, incorporating the referee’s determination in its entirety in its decision, with no additional independent findings. Plaintiff filed a complaint for administrative review in the circuit court of Cook County and was successful there, obtaining a reversal. However, the appellate court reversed, and plaintiff appealed to the Illinois Supreme Court.
While plaintiff was on duty at her job, she received a call from a friend at another airline, asking whether plaintiff could do something for a passenger who was scheduled to fly on American. Plaintiff requested that the catering department deliver a bottle of champagne to the passenger, and she then asked a flight attendant whether it would be possible to upgrade the passenger. The passenger was upgraded from business class to first class.

1 Appellate Cases Posted 2-19-16

1. Criminal Law/MTSS/Arrest: Reversed: The trial court’s finding was against the manifest weight of the evidence in that a reasonable person in Buschauer’s situation would have felt free to leave at any point during the questioning. Hyman, J.

No. 2016 IL App (1st) 142766    People v. Buschauer   Filed 2-19-16 (RJC)


On an early morning in February 2000, defendant Frank Buschauer’s wife died at their home in the master bathroom. At 2:30 a.m., Buschauer called 911 after allegedly finding his wife unresponsive in the whirlpool bathtub. About five minutes later, a South Barrington police officer arrived and was met by Buschauer who brought him upstairs to the bathroom. A week later, Illinois State Police officers interviewed Buschauer for 13 hours at the Hoffman Estates police station. During the morning, Buschauer gave inconsistent answers, and after a lunch break, he was read his Miranda rights and signed a waiver indicating he understood the warnings. He continued to answer questions throughout the afternoon and evening. In the early evening he signed a voluntary consent to search his home. Buschauer agreed to return to the Hoffman Estates police station the following morning. He showed up, and told the officers he did not want to speak to them further. 2 Years later, in 2013, Buschauer was arrested for his wife’s murder. The defense filed motions to suppress Buschauer’s statements and exclude evidence seized from his home. After a two day hearing, the trial court ruled that the totality of the circumstances demonstrated Buschauer was “arrested” without probable cause while at the police station in March 2000, and granted Buschauer’s motions to suppress. The State challenges the trial court's ruling on the motions to suppress as erroneous as a matter of law. In the alternative, the State argues that if Buschauer was “seized” in violation of the fourth amendment (U.S. Const., amend.IV), probable cause existed to arrest him, and, thus, he was not detained illegally. We reverse. 

3 Appellate Cases Posted 2-18-16

1. Workers’ Compensation Act/Dismissal/Sanctions: Affirmed: Plaintiff may not apply for a judgment on the medical expenses portion of his workers’ compensation award pursuant to section 19(g) of the Act because, at the time of his application, proceedings for review were pending. Accordingly, we uphold the circuit court’s section 2-619 dismissal of plaintiff’s section 19(g) application. In the case at bar, the circuit court concluded on the record that sanctions were not appropriate. After carefully reviewing the record, we cannot say that the circuit court abused its discretion in denying defendants’ request for sanctions. Cobbs, J.

No. 2016 IL App (1st) 130681    Reed v. Illinois Workers' Compensation Comm'n   Filed 2-18-16 (RJC)


Pursuant to section 19(g) of the Workers’ Compensation Act (Act) (820 ILCS 305/19(g) (West 2012)), plaintiff, Mark Reed, applied for a judgment on a portion of a workers’ compensation award. Defendants, TH Ryan Cartage Company and L & D Drivers Services, Inc., moved to dismiss the section 19(g) application. The circuit court of Cook County concluded that the Act did not permit enforcement because a portion of the award was on judicial review before the circuit court. Consequently, the court dismissed the section 19(g) application as premature. Defendants thereafter filed a motion for sanctions pursuant to Illinois Supreme Court Rule 137, which the circuit court denied. Plaintiff appeals from the dismissal of his section 19(g) application. Defendants appeal from the denial of their motion for sanctions. We affirm both orders of the circuit court.

2. Criminal Law: Affirmed: Defendant was required to show that the State acted in bad faith in failing to preserve the photo arrays. There is no evidence to suggest that the State acted in bad faith and defendant concedes this issue. Accordingly, we do not find a due process
violation in this case. the court's decision not to impose a sanction but to instead admonish the jury that it was permitted to make a negative inference was reasonable and not an abuse of discretion. Also, the court did not err in allowing testimony of codefendant’s confession.  The State and the court took significant precautions to not introduce substantive evidence from codefendant's confession. Notably, there was no reference to codefendant's confession until defense counsel opened the door on cross-examination. Cobbs, J.

No. 2016 IL App (1st) 133814    People v. Moore    Filed 2-18-16 (RJC)


Following a jury trial, defendant Donnie Moore was convicted of first degree murder (720 ILCS 5/9-1(a)(1) (West 2012)) and attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2012)). The trial court sentenced defendant to 50 years for the first degree murder conviction, with an additional 25 years for the discharge of a firearm, and then 30 years for the attempted murder conviction, with an additional 20 years for the firearm enhancement, for a total of 125 years in prison. Defendant appeals the judgment and sentence of the trial court and contends that: (1) the trial court's denial of his motion to dismiss after
the State failed to preserve identification evidence was a mistake as a matter of law; (2) the trial court's refusal to bar testimony based on evidence that the State failed to preserve was an abuse of discretion; (3) the trial court's admission of evidence from codefendant Eddie Fenton's confession was an abuse of discretion; (4) the trial court's refusal to allow testimony of a witness's coercion was an abuse of discretion; and (5) no reasonable trier of fact could find that the evidence presented at trial could prove guilt beyond a reasonable doubt.

2. DUI/Blood Test: Affirmed: Even if section 11-501.2(c)(2) is deemed unconstitutional in light of McNeely, police officer had acted in good-faith reliance on prior precedent upholding its validity. The trial court properly determined that the good-faith exception to the exclusionary rule was applicable under the circumstances. Schwarm, J.

No. 2016 IL App (5th) 150048   People v. Harrison   Filed 2-18-16 (RJC)

After refusing to submit to a breath test following his arrest for driving under the influence of alcohol (DUI), the defendant, Stephen Harrison, was taken to a hospital where samples of his blood were drawn without a warrant or his consent. Testing of the samples revealed that more than two hours after the defendant had been driving, his blood-alcohol concentration (BAC) was over twice the legal limit of 0.08. The defendant later moved to suppress the test results, arguing that the blood samples had been illegally obtained. Following the trial court's denial of the defendant's motion, the cause proceeded to a jury trial where the defendant was convicted on two counts of aggravated DUI. On appeal, the defendant contends that the trial court erred in denying his motion to suppress.

2 Appellate Cases Posted 2-17-16

1. TRO: Affirmed: Given the paucity of facts alleged by Bridgeview in its complaint, the same failing in its motion for a temporary restraining order and the debatable status of the information in Meyer's possession, the trial court correctly found that Bridgeview had failed to establish a likelihood of success on the merits sufficient to support a temporary restraining order. This same lack of specificity, coupled with the lack of any claim that the violation is ongoing and the delay in seeking relief, renders Bridgeview unable to demonstrate that it will sustain irreparable harm in the absence of a temporary restraining order. As these elements are essential to the award of a temporary restraining order, the order denying Bridgeview's motion must be affirmed. Mason, J.

No. 2016 IL App (1st) 160042    Bridgeview Bank Group v. Meyer   Filed 2-17-16 (RJC)


Plaintiff-appellant, Bridgeview Bank Group appeals from an order denying its motion for a temporary restraining order against its former employee, defendant-appellee Thomas Meyer. After a hearing on Bridgeview's motion, the circuit court denied relief based primarily on its finding that Bridgeview failed to establish a likelihood of success on the merits.

2. Criminal Law/ACSA/Consent/Prosecutorial Misconduct: Reversed: In sum, defendant’s conviction of aggravated criminal sexual assault is reversed because the State failed to prove force and failed to disprove defendant’s defense of consent by S.B. Also, the State committed prosecutorial misconduct in its closing and rebuttal arguments, which severely prejudiced defendant’s case. Birkett, J.  Burke, J.  specially concurred in part and dissented in part, with opinion. 

No. 2016 IL App (2d) 130703    People v. Mpulamasaka   Filed 2-17-16 (RJC)


Following a jury trial, defendant, Nsoni Mpulamasaka, was convicted of aggravated criminal sexual assault in violation of section 12-14(a)(2) of the Criminal Code of 1961 (720 ILCS 5/12-14(a)(2) (West 2010)). The trial court denied defendant’s motion for judgment notwithstanding the verdict or a new trial. Subsequently, defendant was sentenced to 12 years in the Illinois Department of Corrections. On appeal, defendant argues that: (1) he was not proven guilty beyond a reasonable doubt, because the State failed to prove force and failed to disprove his defense of consent by the victim; (2) the State committed prosecutorial misconduct during closing argument; and (3) his 12-year sentence was excessive. For the following reasons, we reverse.

5 Appellate Cases Posted 2-16-16

1. Criminal Law/Resisting or Obstructing/Instructions: Reversed and remanded: Although defendant was charged and ultimately convicted of the felony, the instructions given to the jury did not include the proximate cause of injury element. The failure to instruct the jury on an element of the offense was error. Where judgment depends solely on the credibility of witnesses at trial, the evidence is closely balanced. Since defendant has proved that an error occurred and the evidence is closely balanced, prejudice is presumed and reversal of defendant's conviction is required. Harris, J.

No. 2016 IL App (1st) 133656    People v. Jenkins   Filed 2-16-16 (RJC)


Defendant, John Jenkins, appeals from his conviction after a jury trial of the felony of resisting or obstructing a police officer. On appeal, defendant contends his conviction must be reversed and the cause remanded for a new trial where (1) an element of the offense of the felony was never submitted to the jury for a determination beyond a reasonable doubt; (2) the underlying information failed to plead specific facts and the State was allowed to make corrective amendments in the middle of trial; (3) the trial court erred in refusing defense counsel's tendered instructions on the lesser-included offense of reckless conduct; and (4) the trial court failed to properly ensure that the jury would abide by the four principles set forth in Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). For the following reasons, we reverse defendant's conviction and remand for a new trial.

2. Criminal Law/VOP/Ineffective assistance of counsel: Remanded with directions: Demus's claim stems from an allegation that his trial counsel failed to obtain a relevant and potentially impeaching document, which, according to Demus, he repeatedly requested his trial counsel to do. Moreover, the State acknowledged that it had the event query, indicating the document was readily accessible to Demus's trial counsel. While counsel's failure to use the event query in the manner urged by Demus may have qualified as trial strategy, we cannot say on this record that counsel's failure to even obtain a copy of the document falls into the same category. Accordingly, the proper remedy is to remand the cause to the trial court to conduct a hearing on Demus's claim of ineffective assistance of counsel with the appointment of new counsel. Mason, J.

No. 2016 IL App (1st) 140420    People v. Demus   Filed 2-10-16 (RJC)


Following a guilty plea to a vehicular burglary charge, defendant James Demus was sentenced to two years' probation. After being arrested for another vehicular burglary, the State filed a petition for a violation of probation. Following a hearing, Demus was found in violation of probation and sentenced to six years in prison. On appeal, he contends that the trial court failed to appoint him new counsel after he raised the ineffectiveness of his trial counsel. For the reasons that follow, we remand.

3. Criminal Law/Armed Habiual Criminal/UUWF: Affirmed in part; vacated in part; cause remanded: Because the State alleged only two prior felony convictions, and one of those convictions is fatally defective, the State failed to prove an essential element of the offense of AHC. We vacate defendant's conviction on count one. Defendant was not prejudiced from the allegation that the type of predicate felony alleged in the instant charge was "UUWF" or that a specific case number was used.  Removing this surplusage, count two charged the defendant with possession of a firearm "after having been previously convicted of the [sic] felony offense." The State proved all the elements of the merged conviction for UUWF so that the jury's guilty verdict for that offense stands. Pierce, J.

No. 2016 IL App (1st) 141013    People v. McGee   Filed 2-16-16 (RJC)


A jury convicted defendant Marchello McGee of armed habitual criminal (AHC) (720 ILCS 5/24-1.7(a) (West 2012)) and unlawful use of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1(a) (West 2012)). An essential element of the offense of AHC is proof that the defendant was previously convicted of at least two felonies enumerated in the statute. An essential element of the offense of UUWF is proof that the defendant was previously convicted of any felony under the laws of this State or of any other jurisdiction. The question presented here is whether a conviction under the portion of the aggravated unlawful use of a weapon (AUUW) statute found to be unconstitutional under People v. Aguilar, 2013 IL 112116, and People v. Burns, 2015 IL 117387, can be used to establish an element of the offense of AHC or UUWF.

4. IMDMA/Child Support/Trusts: Affirmed as modified: The trial court's order granting Respondent's "Motion to Increase Child Support" is correct.  The trial court properly admitted the challenged exhibits into evidence based on them being admissions of a party-opponent. The trial court complied with section 505 by stating the reasons for the deviation from the guidelines. Accordingly, no error with the trial court's order in this respect. The trial court did not abuse its discretion in calculating Petitioner's monthly income for child support purposes. The court found Petitioner to not be credible. The trial court failed to provide for the termination of the trust. With the exception of this modification, there was no abuse of discretion in the creation of the section 503(g) trust.  Supreme Court Rule 137 sanctons has been waived. Harris, J.

No. 2016 IL App (1st) 141453    Melamed v. Melamed   Filed 2-16-16 (RJC)

 
This appeal begins with a "Motion to Increase Child Support" brought by Respondent in September 2008. Petitioner raises the following issues on appeal: (1) whether the trial court erred in bifurcating a post trial petition to modify child support; (2) whether the trial court erred in admitting into evidence documents without proper foundation; (3) whether the trial court's finding regarding the credibility of witnesses is against the manifest weight of the evidence; (4) whether the court erred in determining the amount of child support and requiring the establishment of a section 503(g) trust; and (5) whether the trial court erred in denying Petitioner's motion for sanctions pursuant to Illinois Supreme Court Rule 219(c) (eff. July 1, 2002) and Illinois Supreme Court Rule 137 (eff. July 1, 2013).

5. Insurance/Notice: Affirmed: The actual notice rule does not apply in the case at bar.  Even if the actual notice rule applied, the 16-month delay was unreasonable as a matter of law, where there was no justification for this delay and where, as discussed, Hartz tendered notice to other insurers (West Bend, Country Mutual and AMCO) within one month after their respective primary insureds were named as defendants in the underlying action. Because Hartz's untimely notice barred coverage under the Erie policy, AMCO was not entitled to seek contribution from Erie for the $1 million that AMCO paid in settling the underlying action against Hartz.  The circuit court did not err in granting summary judgment in favor of Erie and against AMCO.  Cunningham, J.

No. 2016 IL App (1st) 142660    AMCO Insurance Company v. Erie Insurance Exchange   Filed 2-16-16 (RJC)

 
This appeal arises from the August 4, 2014 order entered by the circuit court of Cook County, which granted summary judgment in favor of defendant Erie Insurance Exchange (Erie) and denied a cross-motion for summary judgment filed by plaintiff AMCO Insurance Company (AMCO), in a declaratory judgment action between the two insurers. On appeal, AMCO argues that the circuit court erred in granting summary judgment in favor of Erie. Affirmed.

4 Appellate Cases Posted 2-11-16

1. Worker’s Compensation: Reversed. The circuit court erred in determining that the claimant was a traveling employee under the Worker’s Compensation Act. Stewart, J.

2016 IL App (1st) 151693WC   United Airlines, Inc. v. Illinois Workers' Compensation Comm'n   Filed 2-11-16 (JMC)


The issue in this appeal was the claimant, a United Airline flight attendant, was a traveling employee when she injured her knee on the United flight from Denver to New York. HELD: In order for an injured worker to recover compensation benefits under the Act, the worker has to show that her injuries arose out of and in the course of her employment. The undisputed facts of the present case establish that United had no control over where the claimant chose to live and derived no benefit from her choice to live in Colorado. The claimant's job duties were on flights departing JFK airport, and she earned wages only for her time working as a flight attendant on those flights. She did not perform any job duties during her travel from Colorado to New York. The Commission's finding that the claimant's injury did not arise out of or in the course of his employment was not against the manifest weight of the evidence.

2. Worker’s Compensation: Affirmed: Commission’s decision that claimant was an independent contractor and therefore ineligible for benefits was not against the manifest weight of the evidence. Holdridge, P.J.

2016 IL App (1st) 150706WC  Esquinca v. Illinois Workers' Compensation Comm'n  Filed 2-11-16 (JMC

The issue is whether the claimant was an independent contractor, and not an employee of the employer, at the time he was injured. HELD: The record contained sufficient evidence to support the Commission’s finding that the claimant was an independent contractor at the time of the accident, as the employer did not have the right to control the claimant’s work performance or work-related activities to any notable degree.

3. Worker’s Compensation: Affirmed: Trial court decision not to apply section 13-217 of the Code of Civil Procedure to claims filed under the Worker’s Compensation Act  was correct since application of the Code provision would conflict with Commission’s regulations. Stewart, J.

2016 IL App (1st) 143129WC Farrar v. Illinois Workers' Compensation Comm'n  Filed 2-11-16 (JMC)

The sole  issue raised in this appeal was whether section 13-217 of the Code of Civil Procedure (the Code) applies to claims filed under the Workers' Compensation Act (the Act) that are dismissed for want of prosecution.

HELD: Under the Act, the legislature granted the Commission the authority to "make and publish procedural rules and orders" governing the litigation of claims before it so that the process and procedure before it "shall be as simple and summary as reasonably may be." When the Act or the Commission's rules regulate a procedural area or topic, the Act or the Commission's rules apply, not the Code. Because the application of Section 13-217 would conflict with Commission’s regulations regarding reinstatement, section 13-217 cannot applied to claims filed under the Act.

4. Civil  Law: Contribution/Waiver of worker’s compensation lien/Appellate Procedure/Forfeiture: Affirmed: Trial court correctly allowed employee to waive its workers’ compensation lien. Appellant forfeited argument concerning denial of attorney fees by failing to cite authority for its position in its brief. Delort, J.

 

2016 IL App (1st) 151479  Cozzone v. Garda GL Great Lakes, Inc. Filed 2-11-16 (JMC)

In this appeal, the court considered two issues: 1) Whether an employer may waive its workers’ compensation lien and agree to forego any reimbursement for workers’ compensation payments made to the employee, and (2) Whether the trial court properly attorney’s fees. HELD: (1) Although  the belated lien waiver in this case created an immediate financial detriment to the estate, it was permitted by the governing statutes and controlling case law. (2) The estate forfeited this fees issue by failing to cite authority in support of its position in its brief in violation of Illinois Supreme Court Rule 341.

 


4 Appellate Cases Posted 2-10-16

1. Criminal Law: Affirmed: In case where off-duty police officer killed defendant's alleged co-offender during armed robbery leading to charge of felony murder, trial court properly instructed jury as to lawful authority of peace officer to use deadly force. Jorgensen, J.

No. 2016 IL App (2d) 131345  People v. Sago  Filed 2-10-16 (TJJ)


In this direct appeal of his first-degree murder (felony murder) conviction (720 ILCS 5/9- 1(a)(3) (West 2010)), defendant, Brandon Lewis Sago, argues only that the trial court erred in instructing the jury about an off-duty police officer’s status as a peace  officer and his right to use force. For the following reasons, we affirm.

2. Criminal Law: Affirmed: Trial court properly denied motion to suppress evidence in case where circumstances facing officer led to reasonable articulable suspicion that defendant driver had been trespassing on complainant's land "running dogs," and thus justified traffic stop leading to discovery that defendant was driving on a revoked license; it was not necessary to show that defendant had had actual notice as to trespassing before officer could conduct Terry stop. Carter, J.

No. 2016 IL App (3d) 130683  People v. Little  Filed 2-10-16 (TJJ)


After a stipulated bench trial, defendant, Brandon Little, was convicted of felony driving while license suspended or revoked (DWLS) (625 ILCS 5/6-303(d) (West 2010)) and was sentenced to one year conditional discharge and 60 days in county jail.  Defendant appeals, arguing that the trial court erred in denying his pretrial motion to quash his arrest and suppress evidence. We affirm the trial court's judgment.

3. Criminal Law: Affirmed: Trial court decision after finding of NGRI in aggravated battery case that defendant was in need of mental health services on an in-patient basis was not manifestly erroneous in light of evidence showing a history of mental illness, difficulties maintaining medication regimen on an out-patient basis, and lack of insight into defendant's mental health. O'Brien, J.

No. 2016 IL App (3d) 150115  People v. Bailey Filed 2-10-16 (TJJ)


Defendant, Daniel W. Bailey, appeals the trial court's ruling that he was in need of mental health services on an inpatient basis following a finding of not guilty by reason of insanity (NGRI). Because we find that the trial court's determination was not  manifestly erroneous, we affirm.

4. Criminal Law: Reversed and remanded: Defendant was charged with (and convicted of) second degree murder and aggravated battery in connection with death resulting from punch thrown by defendant; evidence was insufficient to show that punch was created "a strong probability of death or great bodily harm" and conviction for second degree murder vacated. Matter remanded for resentencing on aggravated battery conviction. Turner, J.

No. 2016 IL App (4th) 140363  People v. Nibbe  Filed 2-10-16 (TJJ)


In August 2013, the State charged defendant, Ryan A. Nibbe, by information with one count of aggravated battery (great bodily harm), one count of aggravated battery (public way), and one count of second degree murder. After a January 2014 trial, a jury  found defendant guilty of second degree murder and aggravated battery (public way) and not guilty of aggravated battery (great bodily harm). Defendant filed a motion for a new trial. At a joint hearing in February 2014, the Ford County circuit court  denied defendant's posttrial motion and sentenced him to 17 years' imprisonment for second degree murder. Defendant filed a motion to reconsider his sentence, which the court denied after a March 31, 2014, hearing. Defendant appeals, asserting (1) the  State's evidence was insufficient to prove him guilty of second degree murder, and (2) his convictions for aggravated battery and second degree murder should be reversed because the evidence established he acted in self-defense. We reverse and remand with directions.

1 Appellate Case Posted 2-9-16

1. Criminal Law: Vacated and remanded: in case where defendant was initially sentenced to county boot camp, but one week later was "re-sentenced" to IDOC, where there was no explanation proferred by the trial court or either party as to why defendant was being re-ssentenced, and where defendant was apparently ineligible for boot camp initially but that fact was never brought to the trial court's attention, defendant's IDOC sentence was vacated and the matter remanded for resentencing. Mason, J.

No. 2016 IL App (1st) 133410  People v. McGuire  Filed 2-3-16 (TJJ)


After an evidentiary hearing, the trial court determined that defendant Antoine McGuire had violated the terms of his probation on a drug possession conviction and later sentenced him to the Cook County impact incarceration program, also known as  sheriff’s boot camp. One week later, the trial court held a “resentencing” hearing and sentenced McGuire to 34 months in prison with one year of mandatory supervised release. Because the reason for the resentencing is not apparent from the record, we  vacate McGuire’s sentence and remand for further proceedings.

2 Appellate Cases Posted 2-8-16

1. Criminal Law: Sentence vacated and remanded: Trial court erred in considering, at sentencing on defendant's armed robbery conviction, a prior Class 2 aggravated unlawful use of weapon conviction, in light of the Illinois Supreme Court decisions in Aguilar and Burns finding that that offense is unconstitutional. Schostok, J.

No. 2016 IL App (2d) 130997  People v. Smith  Filed 2-8-16 (TJJ)


After a jury trial, defendant, Vernon L. Smith, was convicted of armed robbery with a firearm (720 ILCS 5/18-2(a)(2) (West 2010)) and was sentenced to a 20-year prison term (730 ILCS 5/5-4.5-25(a) (West 2010)) and a mandatory add-on of 15 years (720  ILCS 5/18-2(b) (West 2010)), for a total of 35 years. On appeal, his initial brief argued that he is entitled to a new sentencing hearing because the trial court improperly considered in aggravation a prior conviction of aggravated unlawful use of a weapon  (AUUW) (720 ILCS 5/24-1.6(a)(3)(A) (West 2002)). This conviction, from 2003 in Winnebago County, was a Class 2 felony, owing to defendant’s prior felony convictions (see 720 ILCS 5/24-1.6(d) (West 2002)). Defendant’s initial brief contended that  the AUUW conviction is void because it was based on the AUUW statute that was held facially unconstitutional in People v. Aguilar, 2013 IL 112116. Defendant also had a recent conviction of unlawful use of a weapon by a felon in Cook County. We hold that the trial court committed reversible error in considering both convictions at issue. We thus remand the cause for resentencing.

2. Traffic Law/Summary Suspension: Affirmed: Trial court properly denied defendant's petition to rescind statutory summary suspension where evidence showed that defendant never expressly refused, nor ever expressly agreed, to take breathalyzer test after being properly warned by the arresting officer; a "refusal to refuse" constitutes a refusal. Zenoff, J.

No. 2016 IL App (2d) 150691  Village of Spring Grove v. Pedersen  Filed 2-8-16 (TJJ)


Defendant, Donald J. Pedersen, was arrested for driving while under the influence of alcohol (DUI) (see generally 625 ILCS 5/11-501 (West 2014)). Because he failed to complete a Breathalyzer test, his driving privileges were summarily suspended (see  625 ILCS 5/11-501.1(e) (West 2014)). He petitioned to rescind that suspension (625 ILCS 5/2-118.1(b) (West 2014)), arguing that he never refused to complete the breath test. The trial court denied the petition, defendant moved the court to reconsider, the  court denied that motion, and this timely appeal followed. At issue on appeal is whether defendant refused to submit to a Breathalyzer test. For the reasons that follow, we conclude that he did. Accordingly, we affirm.

3 Appellate Cases Posted 2-5-16

1. Estates/Probate: Affirmed: Trial court properly determined the decedent's will created a class gift such that only those persons named in the will who survived after decedent's death were entitled to share in the estate, and any legatees of a person named in the will who did not survive the decedent were not able to share in decedent's estate. Gordon, J.

No. 2016 IL App (1st) 142500  In re Estate of Lello  Filed 2-5-16 (TJJ)


The instant appeal arises from the probate court’s denial of petitioners’ petition for construction of decedent Albert Lello’s will upon a finding that the will was unambiguous. Decedent left the entirety of his estate to two of his sisters and his wife, “to share  and share alike in equal shares or to the survivor or survivors of them.” One of the sisters predeceased decedent, and upon decedent’s death, petitioners, who are the sister’s children, argued that they were entitled to her share of decedent’s estate. The  probate court disagreed, finding that the will created a class gift that resulted in the deceased sister’s share being divided between the two remaining named legatees. For the reasons that follow, we affirm.

2. Criminal Law/Juvenile Statements: Affirmed in part, reversed in part, and remanded: Following remand from the Illinois Supreme Court's decision that one statement by respondent nine-year-old child who implicated himself in connection with the death of a 14-month old child was voluntary but second statement was not, Appellate Court ruled that use of the second statement at respondent's discharge hearing (following a finding of unfitness) was not harmless error, and remanded for a new discharge hearing, and trial court properly ruled that doctor performing autopsy was properly deemed to be an expert witness. Goldenhersh, J.

No. 2016 IL App (5th) 130341-B  In re D.L.H.  Filed 2-5-16 (TJJ)


This case originated after the State filed a petition for adjudication of wardship in the circuit court of St. Clair County, alleging respondent, D.L.H., Jr., age 9, committed first degree murder by repeatedly striking 14-month-old T.W. about the head (720  ILCS 5/9-1(a)(2) (West 2012)). The circuit court found respondent unfit to stand trial and in a later discharge hearing found respondent "not not guilty" of murder. The circuit court remanded respondent to the Department of Human Services (the  Department) for fitness restoration for the maximum period of up to five years so that respondent may become fit and be tried for murder. Respondent appealed, arguing inter alia that the circuit court erred in denying his motion to suppress two statements  he made to police. In an unpublished order, we found both statements involuntary, and we reversed and remanded for a new discharge hearing. In re D.L.H., 2013 IL App (5th) 130341-U. We also found the other issues raised by respondent outside of the  suppression issues were not likely to recur upon remand, and, therefore, did not address the other issues raised by respondent. In re D.L.H., 2013 IL App (5th) 130341-U. The State filed a petition for leave to appeal, which our supreme court  ranted. In re D.L.H., No. 117341, 5 N.E.3d 1123 (table) (Ill. Mar. 18, 2014). Ultimately, the court determined the first statement was voluntary, but the second was not. The supreme court affirmed in part, reversed in part, and remanded with directions for us  to conduct a harmless error analysis with regard to the second statement and "to consider any other claims of error previously raised but not decided that are necessary to the proper disposition of this case." In re D.L.H., 2015 IL 117341, ¶ 81, 32 N.E.3d  1075. Affirmed in part, reversed in part, and remanded.

3. Adoptions: Certified question answered, reversed: Despite fact that birth parents claimed that consent to adoption was fraudulently obtained, trial court erred in not dismissing action by birth parents to revoke adoption, as twelve month period in applicable statute of limitations had passed, and provisions of the statute expressly provided that fraud was no exception to its applicability. Chapman, J.

No. 2016 IL App (5th) 150203  In re Adoption of J.W.  Filed 2-4-16 (TJJ)


The question before us in this appeal is whether biological parents who executed a surrender of their child to an agency for purposes of adoption may revoke that surrender more than 12 months after signing it where they have alleged both fraud and a  conflict of interest by the attorney representing the prospective adoptive parents. The biological parents filed a motion to revoke their surrenders, and the adoption agency filed a motion to dismiss, citing the 12-month statute of limitations found in section  11 of the Illinois Adoption Act (750 ILCS 50/11(a) (West 2012)). The trial court denied the motion to dismiss and certified a question for our review pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 1, 2015). The certified question asks us to decide  whether allegations of fraud or conflict of interest provide an exception to the statute of limitations. We answer that question in the negative and reverse the court's ruling.

2 Appellate Cases Posted 2-3-16 

1. Title Insurance: Affirmed: Trial court properly ruled that payments by title companies to attorneys splitting a fee with the attorneys for referral of business in connection with title insurance services were not an illegal kickback. Mason, J. (Pucinski, J., dissenting).

No. 2015 IL App (1st) 140808  Chultem v. Ticor Title Insurance Co.  Filed 12-16-15 (TJJ)


In this consolidated class action appeal, plaintiffs Doljin Chultem and Paul Collella, individually and on behalf of all others similarly situated, appeal the trial court's ruling that defendants Ticor Title Insurance Company (Ticor), Chicago Title Insurance  Company (Chicago Title), Chicago Title and Trust Company (CT&T) and Fidelity National Financial, Inc. (Fidelity) (collectively, the "title companies") did not make illegal kickback payments by splitting a fee with attorneys for their referral of business to  the title companies in violation of the Illinois Title Insurance Act (215 ILCS 155/1 (West 2002)) (Title Act) and the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2002)) (Consumer Fraud Act). Plaintiffs  assert that payments made by the title companies to attorneys who also served as title agents (attorney agents) were unlawful because the title companies provided those attorneys with a pro forma title commitment that determined the insurability of a  property's title—a function they assert must be performed by the attorney agents to earn the fee paid by the title companies. Plaintiffs claim that because the attorney agents received the pro forma commitment, they did not perform "core title services" and  the title company's payment was unearned and, in reality, an illegal kickback. Because recent case law fails to support plaintiffs' position, we affirm.

2. Condominium Law: Affirmed: Condominium declarations and bylaws clearly granted right to condo owners to lease units of the building, and rules promulgated by condominium board to limit owners' right to lease their units were improper, and trial court ruling permitting plaintiffs to rent their unit upheld. Lavin, J.

No. 2016 IL App (1st) 141427  Stobe v. 842-848 West Bradley Place Condominium Association  Filed 2-3-16 (TJJ)


Plaintiffs Kenneth R. Stobe and Herbert R. Gottelt own a condominium at 846 West Bradley Place. Defendant, the 842-848 West Bradley Place Condominium Association, supervises the condominium building. When defendant's board (Board) adopted a  rule limiting the amount of units that could be leased at any one time, plaintiffs commenced this action, asserting that the Board's rule impermissibly conflicted with the condominium declaration. Specifically, plaintiffs argued that the declaration granted  unit owners the right to lease their units. Ultimately, the circuit court entered summary judgment in their favor. Defendant now appeals. Affirmed.

1 Appellate Case Posted 2-2-16

1. Insurance Coverage: Affirmed: Trial court properly granted judgment to defendant "umbrella" carrier in claim by "self-insured pool" relating to municipality that umbrella carrier should have been considered to be the primary insurer in connection with auto accident and multi-million dollar settlement; under recognized caselaw, "pool" insurance of the type held by municipality was properly deemed to be primary coverage and did not negate fact that parties intended for umbrella carrier to be responsible only for amounts beyond those covered by pool. Neville, J.

No. 2016 IL App (1st) 131180  Illinois Municipal League Risk Management Association v. State Farm Fire and Casualty Company  Filed 2-2-16 (TJJ)


This case involves the interplay between an umbrella insurance policy and a contract for pooled self-insurance. The trial court found enforceable a clause in the umbrella policy that made its coverage apply only after exhaustion of the limits of all applicable  "insurance and self insurance." The self-insurance pool appeals, arguing that the umbrella policy should count as primary insurance because the self-insurance pool uses public funds. We find the umbrella policy enforceable as written, and  therefore we affirm the trial court's order.

4 Appellate Cases Posted 1-29-16

1. Insurance Coverage: Affirmed: Where defendant homeowners' easement to neighboring landowner led to regular flooding which could reasonably have been remedied had defendants taken steps to remedy the flooding, defendants' homeowners' insurance provider had no duty to defend or indemnify defendants in connection with neighbor's claims against them. Hall, J.

No. 2016 IL App (1st) 141595  Travelers Personal Insurance Company v. Edwards  Filed 1-29-16 (TJJ)


Defendants Michael Edwards and Melissa Mizel appeal from the circuit court's determination on summary judgment that their home insurer, Travelers Personal Insurance Company (Travelers), had no duty to defend or indemnify them in an underlying  lawsuit filed by their neighbor, Ann Catherine McGoey. The circuit court granted summary judgment in favor of Travelers, holding, inter alia, that since McGoey's underlying lawsuit for injunctive and declaratory relief made no request for monetary  damages, the underlying action therefore failed to trigger liability coverage under the terms of the policy. Alternatively, the circuit court concluded that summary judgment in favor of Travelers was appropriate because the allegations in the underlying  lawsuit could not reasonably be interpreted to refer to an accident and therefore they failed to allege an "occurrence" within the terms of the policy which would have triggered a duty to defend. For the reasons that follow, we affirm the judgment of the circuit court granting summary judgment in favor of Travelers on the alternative ground.

2. Psychological Malpractice: Affirmed: Psychologist appointed by circuit court in connection with dissolution of marriage proceedings and relating to issues germane to plaintiff's fitness as a parent was absolutely immune from civil suit by the plaintiff parent. Burke, J.

No. 2016 IL App (2d) 150229  Heisterkamp v. Pacheco  Filed 1-28-16 (TJJ)


Plaintiff, Darin Heisterkamp, appeals from an order of the circuit court of Lake County granting the motion of defendants, Frances J. Pacheco and the Family Stress Clinic, Ltd., to dismiss plaintiff’s complaint seeking recovery for psychological  malpractice. The alleged malpractice arose from services Pacheco performed, as a court-appointed expert, in proceedings for the dissolution of plaintiff’s marriage. The trial court ruled that defendants enjoyed absolute immunity from suit. We affirm.

3. Mandamus: Affirmed: In action where citizen sought mandamus relief to compel governmental agency charged with maintaining the Chain O' Lakes to make that waterway "safe," plaintiff failed to state a claim for mandamus relief where agency's actions with respect to its duties were discretionary and thus beyond mandamus relief; and trial court properly limited pretrial discovery. Spence, J.

No. 2016 IL App (2d) 150502  The Y-Not Project, Ltd v. Fox Waterway Agency  Filed 1-29-16 (TJJ)


Plaintiffs, The Y-Not Project and Margaret Borcia, appeal the grant of summary judgment in favor of defendant, the Fox Waterway Agency (FWA), on their amended complaint for mandamus. On appeal, Borcia1 argues that the trial court erred by granting  summary judgment in favor of the FWA, by limiting discovery, and by limiting her ability to amend the complaint. We affirm.

4. Criminal Law/Forensic Testing: Reversed and remanded: Trial court erred in denying post-conviction request under Section 116-3 of the Code of Criminal Procedure for forensic testing, where defendant' claim that other person was the person who had had sex with the complainant properly put "identity" in issue, and thereby supported claim for forensic testing. Carter, J.

No. 2016 IL App (3d) 140211  People v. Grant  Filed 1-29-16 (TJJ)


Defendant, Andrew Grant, appeals from the trial court's order denying his motion for forensic testing. We reverse the judgment of the trial court and remand for forensic testing on the evidence identified in defendant's motion.

8 Appellate Cases Posted 1-28-16

1. Criminal Law/Jury Waiver: Affirmed; fines and fees order corrected: The record establishes that defendant's jury waiver was knowing and valid. The State's Attorney Record's Automation and Public Defender Records Automation assessments are legally fees, the Court System assessment assessed against defendant legally constitutes a fine. Defendant is therefore entitled to a $50 credit. Lavin, J.

No. 2015 IL App (1st) 140498    People v. Reed    Filed  1-27-16 (RJC)

Following a bench trial, defendant Antonio Reed was found guilty of possession of a controlled substance with intent to deliver and sentenced to nine years' imprisonment. On appeal, he contends the trial court did not adequately ensure that his waiver of his right to a jury trial was made knowingly. He also contends that various fees assessed against him are in actuality fines, and therefore subject to the $5 per diem credit under section 110-14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-14 (West 2012)). We affirm and correct the fines and fees order.

2. Insurance/Duty to Defend: Reversed and remanded: The crux of this case involves whether the complaint alleges an independent injury. If the complaint alleges an injury not “arising out of” the “use of” a controlled substance, Allied has a duty to defend. We hold that the underlying complaint contains allegations within, or potentially within, the coverage of both the homeowners’ and umbrella policies. Specifically, the complaint alleges Skolnik ("Skolnik" refers to Joshua) failed to request emergency medical assistance for Johnson within a reasonable period of time after knowing that she was physically incapacitated, unresponsive, or unconscious; and knowing or discovering she ingested or unknowingly
consumed methadone or other illegal substances in the Skolnik home. Further, count I alleges that Skolnik refused to allow Johnson’s two friends to check on, talk to, see, or render aid to Johnson on their request. These allegations of negligence, if proven, potentially could be covered under the insurance policies and, therefore, Allied has a duty to defend Skolnik in the underlying lawsuit. Hyman, J.

No. 2015 IL App (1st) 142438    Skolnik v. Allied Property & Casualty Insurance Co. - Modified upon denial of rehearing 1/26/16    Filed  12/-22-16 (RJC)
The day after an evening out with friends, 21-year-old Haley Johnson died of methadone intoxication in the bedroom of defendant Joshua Skolnik, who lived at his parents’ home. Plaintiff Allied Property and Casualty Insurance Company insured the home under homeowners’ and an umbrella personal liability policy. Both policies exclude liability for bodily injury “arising out of the use” of controlled substances; however, both policies also contain an exception clause that carves out "the legitimate use of prescription drugs by a person following the orders of a license d physician.” Skolnik’s prescribed methadone was found in the bedroom where Johnson died. Allied brought suit for a declaratory judgment regarding whether it had a duty to defend the Skolniks in a wrongful death lawsuit filed by Johnson’s father.

3. Medical Malpractice/Agency/Apaparent Authority: Affirmed in part and reversed in part; cause remanded: Plaintiff here generally argues that the substance of Advocate's bylaws and other requirements show a sufficient right of control, and that the bylaws and service agreement " go far beyond giving Dr. Barth the right to use the facilities to treat her own patients." Plaintiff does not provide specific facts supporting these general allegations. Although she need not prove her entire case at the summary judgment stage, plaintiff must allege facts showing she is entitled to judgment. Therefore, the trial court properly granted summary judgment on the issue of actual agency.  A question of material fact exists as to whether the consent form adequately informed plaintiff's husband of Dr. Barth's status as an independent physician.  A genuine issue of material fact exists as to the holding out element.  Also, a genuine issue of material fact exists regarding the reliance element. Since questions of material fact exist as to the holding out and reliance elements of plaintiff's claim based on the doctrine of apparent authority, the trial court erred in granting summary judgment on this issue. Harris, J. 

No. 2015 IL App (1st) 143066    Hammer v. Barth   Filed  1-25-16 (RJC)

Plaintiff, Natalie Hammer, individually and as administrator of her husband Jerry Michael Hammer's estate, appeals the order of the circuit court granting summary judgment in favor of defendant Advocate Christ Hospital (Advocate) on plaintiff's wrongful death complaint.
Plaintiff alleged that Advocate was vicariously liable for Dr. Barth's negligence based on theories of agency. On appeal, plaintiff contends the trial court erred in granting summary judgment because a genuine issue of material fact exists whether defendant Dr. Barth acted as an agent of Advocate. For the following reasons, we affirm the trial court's summary judgment on the issue of actual agency and reverse and remand for a jury trial on Advocate's liability under the doctrine of apparent authority.

4. Mortgage Foreclosure: Affirmed: Hansen has not demonstrated that the decision to deny a permanent loan modification prevents the judicial sale of a foreclosed property. Hansen has not met his burden to show that Wells Fargo's denial of a
permanent modification was contrary to HAMP guidelines. The trial court did not abuse its discretion in finding that Hansen had not shown, by a preponderance of the evidence, that his loan modification request was improperly rejected so as to justify vacating the sale. Because Hansen failed to sustain his burden to demonstrate any HAMP violations that would have precluded confirmation of the judicial sale, the trial court did not abuse its discretion in overruling Hansen's objections. Mason, J. 

No. 2015 IL App (1st) 143720    Wells Fargo Bank, N.A. v. Hansen   Filed  1-27-16 (RJC)

This case arises out of a mortgage foreclosure on residential property owned by defendant Neil Hansen. Hansen appeals from the trial court's denial of his motion to vacate the default judgment of foreclosure and sale in favor of plaintiff Wells Fargo Bank. He also appeals
from the judgment confirming the sale of the property following the foreclosure, arguing that Wells Fargo failed to comply with certain Home Affordable Modification Program (HAMP) guidelines. Finding no error, we affirm.

5. Domestic Violence/Order of Protection: Reversed and remanded: When the petitioner seeks a plenary order of protection and, after an evidentiary hearing, the trial court finds abuse, may the court decide instead to issue a civil restraining order, which is a less severe remedy? No. A civil restraining order carries neither the same rights nor gravitas conferred by an order of protection. Under the Illinois Domestic Violence Act of 1986 (Act), once the trial court finds respondent has committed an abuse against petitioner, it “shall issue” an order of protection. In this case before us, having found abuse, the trial judge had no authority to unilaterally enter a civil restraining order in lieu of the plenary order of protection. Accordingly, we reverse the trial court's order and remand for entry of a plenary order of protection.  Hyman, J. 

No. 2015 IL App (1st) 151189    Sanchez v. Torres   Filed  1-26-16 (RJC)

In May 2014, after a 17-year relationship and four children, Elisa Sanchez told Juan Jose Rameriz Torres that she wanted to end their relationship. Soon after, Torres became abusive toward Sanchez, and, in November 2014, having been subjected to several incidents of various forms of abuse. Sanchez sought and obtained an emergency order of protection. The hearing on a permanent and plenary order of protection occupied two days, February 10 and March 26, 2015.  The trial court then denied the plenary order of protection, entering a civil restraining order in its place “to help manage the relationship between mom and dad.”

6. Juvenile/Abuse and Neglect:  The sole issue on appeal is whether the circuit court's findings of abuse and neglect were against the manifest weight of the evidence. In sum, based on the entire record, the trial court's findings that Joshua, Isaiah and Adam were abused due to substantial risk of physical injury, neglected due to injurious environment, and neglected due to a lack of care were not against the manifest weight of the evidence.  Simon, J. 

No. 2015 IL App (1st) 152037    In re Adam B.   Filed  1-26-16 (RJC)

Respondent Alma B. appeals an order of the circuit court of Cook County adjudicating her minor children Adam B., Joshua B., and Isaiah B. abused and neglected.

7. Statutory Summary Suspension: Affirmed: The court’s legal ruling was correct, irrespective of any erroneous finding of fact. The trial court properly ruled that the extraterritorial arrest of defendant was valid. Schostock, J. 

No. 2015 IL App (2d) 150359    People v. Lee    Filed  1-28-16 (RJC)

Defendant, Donald J. Lee, appeals from the judgment of the circuit court of Kane County denying his petition to rescind the statutory summary suspension of his driver’s license. He contends that the trial court erroneously found that his arrest for speeding occurred within the boundaries of South Elgin and thus was valid.

8. Sexually Violent Persons Commitment Act: Reversed and remanded with directions: Overall, the facts established probable cause for an evidentiary hearing as they documented a change in respondent's behavior and professional knowledge. This evidence set forth a plausible account that both respondent and the professional understanding of pedophilia have changed such that there is no longer a substantial probability that respondent will reoffend and that he is a sexually violent person. McDade, J. with Carter, J. dissenting.  

No. 2015 IL App (3d) 140359    In re Commitment of Wilcoxen    Filed  1-28-16 (RJC)

Respondent, Ricky A. Wilcoxen, appeals from the trial court's order that found probable cause did not exist to warrant an evidentiary hearing to determine if respondent was still a sexually violent person.

4 Appellate Cases Posted 1-26-15

1. Criminal Law/Postconviction Petition: Affirmed: Upon review of the record, we affirm the denial of defendant's successive postconviction petition on the basis that the trial court's decision was supported by the manifest weight of the evidence and must be affirmed. But it was error to grant defendant's petition for leave to file his successive postconviction petition. Schmidt, J. with Holdridge, J. specially concurring and McDade, J. dissenting.

No. 2015 IL App (3d) 130779    People v. Jellis    Filed  1-26-16 (RJC)

Twenty years ago, a Whiteside County jury convicted defendant, Jerry D. Jellis, of one count of home invasion (720 ILCS 5/12-11 (West 1994)) and six counts of aggravated criminal sexual assault (720 ILCS 5/12-14 (West 1994)). Defendant appeals from the denial of his
successive petition for postconviction relief, which advanced to the third stage of postconviction proceedings. We affirm.

2. 2-1401/Criminal Law/Appeal/Jurisdiction: Appeal dismissed: Of particular concern in the present case is whether the trial court's order dismissing defendant's petition for a lack of jurisdiction constitutes a final, appealable order. It is a well settled axiom that an appellate court's jurisdiction is limited to appeals from final judgments. It is a general rule that the dismissal of a complaint without prejudice is not final and appealable. In the case at hand, defendant was not prejudiced by the trial court's dismissal of his section 2-1401 petition. The dismissal in this case did not leave him unable to refile and it did not threaten to encroach upon the statutory filing window.  McDade, J.

No. 2015 IL App (3d) 140278    People v. Vari    Filed  1-26-16 (RJC)

Defendant, David Vari, appeals from the trial court's dismissal of his section 2-1401 petition (735 ILCS 5/2-1401 (West 2014). Defendant concedes that he failed to deliver proper service upon the State, but argues that the proper remedy for such a failure is not dismissal of the petition, but quashing of service. We dismiss the appeal for lack of jurisdiction.

3. Criminal Law/MTSS/Attenuation: Affirmed: The State failed to meet its burden in demonstrating that the statements made by the defendant while in custody at the Romeoville police department were sufficiently attenuated from the taint of illegal arrest. All four of the factors that are to be consideration in attenuation favor the defendant. Holdridge, J.

No. 2015 IL App (3d) 140833   People v. Gempel    Filed  1-26-16 (RJC)

The State charged the defendant, Bruce Gempel, by indictment with two counts of first degree murder (720 ILCS 5/9-1(a)(1), (2) (West 2012)), residential arson (720 ILCS 5/20-1 (West 2012)), and concealment of a homicidal death (720 ILCS 5/9-3.4(a) (West 2012)) in
connection with the death of his neighbor, Dorothy Dumyahn. During the pretrial motion stage, the defendant moved to suppress statements he made to police while in custody. Specifically, the defendant argued the police obtained his statements as a product of an illegal arrest. Following a hearing, the court granted the defendant's motion to suppress. In turn, the State requested an evidentiary hearing to establish the statements sufficiently attenuated from the illegal arrest to allow their admission at trial. The court allowed the State's request, but after hearing the evidence and arguments, found that the State failed to meet its burden in proving attenuation. Therefore, the circuit court barred the admission of the suppressed statements at the defendant's upcoming trial. The State filed a certificate of
impairment.

4. Reckless Homicide/Sentencing/Periodic Imprisonmetn: Affirmed: In this appeal, the issue is whether the trial court's imposition of a term of periodic imprisonment with release for work, treatment, and the birth of defendant's child can be
equally compared to participation in a work-release program as contemplated by statute. Section 5-7-1 of the Unified Code, the statute governing the terms of periodic imprisonment.  Because the record does not indicate defendant's employment was comparable to a county work-release program, his 18-month periodic imprisonment sentence is valid. Indeed, there is a difference between a work-release program and being released to work. There is nothing in the record that suggests that the trial court contemplated defendant's participation in a program comparable to the work- and day-release programs provided by the Illinois Department of Corrections. Appleton, J.

No. 2015 IL App (4th) 150215    People v. Clendenny    Filed  1-26-16 (RJC)

Pursuant to a partially negotiated plea agreement, defendant, Randall T. Clendenny, pleaded guilty to reckless homicide. The trial court sentenced defendant to 30 months' probation, including 18 months' periodic imprisonment as a condition of his probation. Defendant appeals, arguing his sentence is void as excessive because the allowable maximum term of periodic imprisonment under the governing statute was 12 months. We disagree and affirm.

10 Supreme Court Cases Posted 1-22-16

1. Criminal Law: Reversed and remanded:   On remand to the Illinois Supreme Court, it ruled that the circuit court had erred in entering its suppression order because, where a traffic stop is lawfully initiated, concerns for officer safety entitle the officer to know the identity of the driver with whom he is interacting. Such permissible inquiries include warrant and criminal history checks, as well as requests for a driver’s license. Although this officer’s original suspicion that the driver was subject to arrest had vanished after he viewed that individual, the officer could still make the ordinary inquiries which are incident to a stop, such as a license request. The interest in officer safety permits a driver’s license request of a driver who is lawfully stopped. Such an ordinary inquiry is part of the stop’s mission and does not prolong the stop for purposes of the fourth amendment. Thus, a driver’s license request of a lawfully stopped driver is permissible irrespective of whether that request directly relates to the purpose of the stop. This officer’s request here for the defendant’s license did not violate the fourth amendment by prolonging the stop. The lower courts’ original rulings approving of suppression were reversed, and the cause was remanded to the circuit court for further proceedings.  CHIEF JUSTICE GARMAN delivered the judgment of the court, with opinion. Justices Freeman, Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL 115769    People v. Cummings    Filed  1-22-16 (RJC)

 

On January 27, 2011, this defendant was driving a van whose registered owner was a woman named Pearlene Chattic. She was the subject of an outstanding arrest warrant, and, because of this, the defendant was stopped by a Sterling police officer. Upon approaching the van, the officer could see that the driver was not a woman, and, thus, could not have been Chattic. Nevertheless, the defendant’s driver’s license was asked for and he did not have one. He was cited for driving on a suspended license. When brought to trial in the circuit court of Whiteside County, he filed a motion to suppress on fourth amendment grounds and was successful, but the State did not agree and appealed. The appellate court affirmed, as did the Illinois Supreme Court in 2014.  Contesting the suppression, the State sought certiorari to the United States Supreme Court, which remanded the cause for consideration in light of its 2015 decision in Rodriguez v. United States. That decision defined the mission of a stop as both addressing the traffic violation which warrants it and also attending to related traffic concerns. It held that, in view of concerns for officers’ safety, they may be permitted to make ordinary inquiries incident to a traffic stop, such as asking for a driver’s license. However, a bright line was also drawn against using inquiries outside of the mission of a stop to prolong it without the presence of the reasonable suspicion ordinarily required to justify detaining an individual.

2. Criminal Law: Appellate court judgment vacated. Cause remanded: In this decision, the supreme court said that the general principles governing the interpretation of the provision under which the defendant was charged are well-settled. It quoted from case law which states that “where an act is made criminal, with exceptions embraced in the enacting clause creating the offense, so as to be descriptive of it, the People must allege and prove that the defendant is not within the exceptions so as to show that the precise crime has been committed.***[W]here the exception is descriptive of the offense it must be negatived”***but if it “merely withdraws certain acts or certain persons from the operation of the statute it need not be negatived” and is merely a matter of defense. The supreme court said that this language makes clear that, in determining whether an exception is an element to be proved, it must be determined generally whether the legislature intended the exception to be descriptive of the offense or only to withdraw, or exempt, certain acts or persons from the operation of the statute.  Section 24-2 of the Criminal Code of 2012, entitled “Exemptions,” is a clear statement from the General Assembly indicating its intent to withdraw, or exempt, invitees from the reach of the provision under which the defendant was charged. The supreme court said that the plain language of section 24-2 establishes that the status of invitee was intended by the General Assembly to be an exemption to the offense of aggravated unlawful use of a weapon, with it being incumbent on the defendant to prove his entitlement to the exemption, and the State having no obligation to prove that he was not an invitee. The appellate court had erred in holding otherwise. It had relied on case law which did not involve section 24-2, whose language the supreme court did not feel free to ignore. The appellate court’s judgment was vacated, but, because it had not addressed all of the issues raised in the defendant’s appeal, the cause was remanded to it so that it could do so. 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.

No. 2015 IL 117846    People v. Tolbert    Filed  1-22-16 (RJC)

  

This defendant was arrested on April 7, 2012, after Chicago police were called to a disturbance at a home on South Seeley Avenue, which was not where he resided. He was 17 years old at the time. A loaded, black Ruger .9-millimeter pistol was found on the front porch, and Tolbert admitted that he owned it and had placed it there.  Tolbert was charged under the Criminal Code of 2012 with aggravated unlawful use of a weapon based on possessing a handgun while under 21 years of age. Criminal liability can be avoided under this provision if the firearm was carried while “on the land or in the legal dwelling of another person as an invitee with that person’s permission,” as provided in the statute. A conviction was entered in a Cook County bench trial.

At issue in this appeal is whether not being an invitee is an element of the offense, which the State must plead and prove, or whether being an invitee is an exemption, which must be pled and proved in defense. The Illinois Supreme Court held here that it is an exemption. The State’s information had not alleged that the defendant was not an invitee. The appellate court, ruling that this was an offense element, found the charging instrument fatally defective and reversed the conviction. The State appealed.

3. Criminal Law: Appellate court judgment affirmed. Circuit court judgment reversed: At issue in this appeal is whether not being an invitee is an element of the offense, which the State must plead and prove, or whether being an invitee is an exemption, which must be pled and proved in defense. The Illinois Supreme Court held here that it is an exemption. The State’s information had not alleged that the defendant was not an invitee. The appellate court, ruling that this was an offense element, found the charging instrument fatally defective and reversed the conviction. The State appealed.. 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.

No. 2015 IL 117911   People v. Chambers    Filed  1-22-16 (RJC)

  

This defendant was arrested on April 7, 2012, after Chicago police were called to a disturbance at a home on South Seeley Avenue, which was not where he resided. He was 17 years old at the time. A loaded, black Ruger .9-millimeter pistol was found on the front porch, and Tolbert admitted that he owned it and had placed it there.  Tolbert was charged under the Criminal Code of 2012 with aggravated unlawful use of a weapon based on possessing a handgun while under 21 years of age. Criminal liability can be avoided under this provision if the firearm was carried while “on the land or in the legal dwelling of another person as an invitee with that person’s permission,” as provided in the statute. A conviction was entered in a Cook County bench trial.   

4. Wrongful Death/"Public Duty"/Immunity: Reversed and remanded: The common law public duty rule provides that local governmental entities owe no duty of care to individual members of the general public to provide adequate government services, such as police and fire protection. Sovereign immunity has been abolished in Illinois, but statutory tort immunities have been enacted. Some statutes allow recovery against a public entity in certain cases involving willful and wanton misconduct. Up until now, the supreme court has held that the public duty rule survived the abolition of sovereign immunity and the passage of the Tort Immunity Act. However, pointing out that duty and immunity are separate issues, the supreme court said here that the time has come to depart from stare decisis and address the continued viability of the public duty rule in Illinois. The court abolished the rule, as well as its special duty exception, finding that application of the rule is incompatible with the legislature’s grant of limited immunity in cases of willful and wanton misconduct and that the rule has caused jurisprudence to become muddled and inconsistent. The underlying purposes of the public duty rule are better served by application of conventional tort principles and the immunity afforded by statutes than by a rule that precludes a finding of duty on the basis of the defendant’s status as a public entity. If the legislature determines that public policy so requires, it may codify the public duty rule, but the supreme court deferred to the legislature in determining public policy. JUSTICE KILBRIDE delivered the judgment of the court, with opinion. Justice Burke concurred in the judgment and opinion. Justice Freeman specially concurred, with opinion, joined by Justice Theis. Justice Thomas dissented, with opinion, joined by Chief Justice Garman and Justice Karmeier.

No. 2015 IL 117952    Coleman v. East Joliet Fire Protection District    Filed  1-22-16 (RJC)

  
On June 7, 2008, the decedent here, a 58-year-old woman who lived in the unincorporated Sugar Creek area of Will County, placed a 911 call for medical help, giving her address and saying that she could not breathe and needed an ambulance. This was the last telephone communication with her, so that no further details as to her medical condition were ever obtained. Return calls to her telephone number yielded only a busy signal. There was initial confusion as to the decedent’s correct address, and the crews which did arrive found the house locked, with no response from inside. Neighbors were calling 911, saying that first responders had left the scene without doing anything. No one forced their way in. Finally, 41 minutes after the initial 911 call, the decedent’s husband arrived and opened the home, where his wife was discovered, unresponsive. She was transported to a hospital, where she was pronounced dead of cardiac arrest.  A wrongful death and survival action was filed in the circuit court of Will County, alleging both negligence and willful and wanton conduct. Numerous defendants were joined, including first responders, communications systems, ambulance services, and the East Joliet Fire Protection District, the first named defendant here. It was alleged that the defendants had deprived the decedent of a chance to survive and had caused her pain and suffering. A motion to dismiss was granted in part, the plaintiff having conceded that the negligence counts could be dismissed on the basis of immunity. Matters proceeded through discovery, after which the circuit court granted summary judgment, under the “public duty” rule, in favor of all defendants on the willful and wanton counts, holding that no “special duty” was owed. It did not reach the issue of immunity. The appellate court affirmed. Both the circuit and appellate courts were reversed, and the cause was remanded to the circuit court for its determination as to whether defendants may be held liable for willful and wanton conduct as alleged in the complaint.

5. Criminal Law/Postconviction petition: Appellate court judgment affirmed. Circuit court judgment affirmed.:  Reasoning differently than the appellate court, the supreme court nevertheless affirmed it. Although no request for leave to file the instant petition had initially been made, the supreme court said that the trial court still had the authority to consider whether the petition should be docketed for second-stage proceedings, as was done here. The second stage is not the point at which credibility determinations are involved (this is for the third stage), and, in any event, the trial judge’s opinion as to Bingham’s credibility at May’s 2007 evidentiary hearing should not be considered on review of this matter. Nevertheless, the result is the same. At the second stage, Sanders had the burden of making a substantial showing of a claim of actual innocence, and he failed to carry this burden. The last postconviction petition was properly dismissed at the second stage.   CHIEF JUSTICE GARMAN delivered the judgment of the court, with opinion. Justices Freeman, Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL 118123    People v. Sanders    Filed  1-22-16 (RJC)

 

In April 1992, Jonas Cooks was dragged away from a Chicago home where there had been a party and shot to death in an abandoned building. A Cook County jury convicted McClain Sanders, the petitioner here, of murder and aggravated kidnapping, and he received concurrent terms of 60 and 15 years. Three other individuals were tried separately and also convicted.  At Sanders’ trial, Gary Bingham testified that he was in partnership selling cocaine with Sanders and another man named Aaron May, and that the three of them had gone to the home, seeking a refund from the victim for selling underweight cocaine. Bingham testified that the three took the victim to an abandoned building, where Sanders shot him twice. When he gave this testimony, Bingham had already been convicted in connection with the murder. Sanders testified in his own defense, presenting an alibi involving his girlfriend. After his conviction, he took a direct appeal, and the appellate court affirmed. He began filing postconviction petitions in 1997, and the first was summarily dismissed, with the appellate court affirming. He filed another postconviction petition in 1999, complaining of the use of allegedly perjured testimony from Bingham. Meanwhile, May, who had been convicted separately, had initiated proceedings making similar allegations, and a joint evidentiary hearing was held in 2007, with Bingham testifying in recantation of his earlier implication of both Sanders and May, and stating that he acted alone. The trial judge at that joint evidentiary hearing was the same judge who presided over the successive postconviction proceedings in this case. He found Bingham’s testimony at that hearing to be “very incredible.”

In 2010, Sanders filed the successive postconviction petition which is at issue here, alleging newly discovered evidence of actual innocence. He presented affidavits of individuals who said they had heard Bingham take full responsibility for the offense, and he attached transcripts of the 2007 evidentiary hearing. Despite the absence of any motion for leave to file a successive petition as required by statute, the circuit court judge allowed the petition to be filed, and he advanced it to the second stage before dismissing it. The appellate court affirmed, and Sanders appealed to the supreme court.

6. Discovery/Privilege: Appellate court judgment affirmed. Cause remanded:  In this decision, the supreme court said that the use of the language of confidentiality does not equate with the granting of a statutory privilege by the legislature. When the General Assembly has wanted to create a statutory privilege, it has done so expressly. The supreme court said that these items were highly relevant, and that the court could not see how a cause of action for negligent credentialing could proceed without this information. The fact that these same items must be reported under a federal statute which contains confidentiality language does not call for a different result.  The appellate court was affirmed, and the defendant hospitals must comply with the circuit court’s discovery order to produce Group Exhibit F, as modified by the appellate court. The cause was remanded to the circuit court for further proceedings. 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.

No. 2015 IL 118217    Klaine v. Southern Illinois Hospital Services    Filed  1-22-16 (RJC)

 

The appeals in this Williamson County case concern a discovery order in a medical malpractice action for the alleged negligent credentialing of a doctor. No trial has yet occurred. The plaintiffs served discovery requests on the defendant hospitals. Some production took place, but other documents were listed in a privilege log as protected by statute from discovery in Illinois. Only one group of documents is at issue in this appeal. It is designated as “Group Exhibit F,” and it consists of the involved doctor’s three applications, from 2009, 2010 and 2011, for staff privileges at the defendant hospitals. The defense relied on Illinois’ statutory language in the Credentials Act, which refers to such materials as “confidential,” but the trial judge in the circuit court ruled that there was no protection from discovery. When the matter reached the appellate court, that reviewing body said that some redactions should be made, but it otherwise affirmed the results below. The defense continued its challenge to the discovery of these items, and it appealed to the supreme court.

7. Criminal Law/Sentencing: Appellate court judgment affirmed:  In this decision, the supreme court did not agree with the appellate court’s reasoning, but did agree with the action it had taken, and its judgment was affirmed. The dispute in this case involves the construction of the interaction of sections of both the Illinois Controlled Substances Act and the Unified Code of Corrections. The provision from the drug statute which is at issue here was enacted earlier. The supreme court said here that the competing constructions given to these statutes by both sides in this case are both reasonable, and that the earlier-enacted drug statute is now ambiguous as to what it implies about sentencing. Because it cannot be determined with certainty what the legislature intended as to the question at issue here, it is appropriate to invoke the rule of lenity, which favors the accused. The court said that the drug statute cannot be applied to double the defendant’s enhanced Class X potential maximum sentence of 30 years to reach a total of 60 years.  The motion to withdraw the guilty plea should have been granted. The legislature is encouraged to revisit this drug provision to clarify the extent of its application.  JUSTICE FREEMAN delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL 118375    People v. Williams    Filed  1-22-16 (RJC)

 

This Tazewell County defendant was brought to trial in 2012 on a Class 2 felony charge of unlawful delivery of less than one gram of cocaine. The circuit court admonished him that, in view of his criminal record, the maximum sentence he could receive was 60 years. He negotiated with the State and pled guilty in return for a sentencing cap of 25 years, which was what he was sentenced to. Later, he moved to withdraw his guilty plea, arguing that the admonishment as to 60 years was what had induced him to agree to 25 years, and that the admonition as to 60 years was incorrect. His motion to withdraw his plea was denied by the trial court, but the appellate court reversed and remanded, saying that the motion to withdraw the guilty plea should have been granted.