Illinois Supreme and Appellate Court Case Summaries

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

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4 Supreme Court Cases Posted 9-18-14

1. Criminal Law/ Postconviction Petition: Affirmed: Although not entirely agreeing with the reasoning of the appellate court, the Illinois Supreme Court agreed with the result which it had reached and affirmed it. The judge’s order of dismissal had been signed and dated on the ninetieth day after the petition was filed, but the order was not filed by the clerk until the ninety-first day. In this decision, the supreme court held that “entering” a judgment means placing it of record and not merely having it signed by the judge. This is significant for starting the time for appeal and is consistent with the Supreme Court Rules. Because no valid first-stage judgment was entered, petitioner Perez was entitled to have the matter advance to the second stage of postconviction proceedings, and the appellate court was affirmed. 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. 2014 IL 115927    People v. Perez     Filed 9-18-14 (RJC)

This postconviction case comes from Kane County, where a jury convicted the defendant of first degree murder in 2007. He received a 60-year sentence and the appellate court affirmed. In 2010, Perez sought postconviction relief, but only the first stage of the postconviction proceeding took place. The circuit court found the petition “frivolous and patently without merit” and dismissed it. The offender appealed, contending that the dismissal was invalid because it was not entered within the 90 days required by statute (the Post-Conviction Hearing Act). The appellate court reversed and remanded so that the matter could advance to the second stage of postconviction proceedings.

2. Easements/Trespass: Reversed and remanded: Affirmed: In this decision, the Illinois Supreme Court rejected the results reached below. It said that the appellate court had erred in following a line of First District cases which are contrary to precedent that has been developing in the supreme court since 1907.  The supreme court noted that the facts in this case are not in dispute and that the origin of the way across the disputed northwest corner has not been shown by the evidence. The court said that the exclusivity and adversity elements necessary for a prescriptive easement have been established. It rejected the theory that Nationwide and its predecessors in title had to be dispossessed in the sense of being altogether deprived of their use for the land before a prescriptive easement could be found. The court said that this case presents a number of factors which, combined, show that defendants’ use was continuously adverse and under a claim of right for the duration of the 20-year prescriptive period. Both Mayworm and the Pobudas asserted that they acted under a claim of right. It would appear that the owners of the land would not have acquiesced in use of the northwest corner when they also felt that the users had a right which could not be defeated. Several cases on which the appellate court had relied in reaching its erroneous conclusion are overruled here.  The granting of partial summary judgment to plaintiff Nationwide and the denial of the defendants’ motion for summary judgment on this issue were both improper and the cause was remanded to the circuit court for further proceedings. 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. 2014 IL 116717   Nationwide Financial, L.P. v. Pobuda     Filed 9-18-14 (RJC)

In 2008, plaintiff Nationwide Financial became the owner of the Cook County parcel of land commonly known as 275 Donlea Road in Barrington Hills. The previous owner of the land had been Mary Jane Burton, from 1969 through 2008. Immediately adjacent to this property to the west is 281 Donlea Road, which defendants Michael and Laura Pobuda have owned since 1986. Their predecessor in title was Mary Ann Mayworm, from 1971 through 1986. Neither of these addresses fronts directly on east-and-west-running Donlea Road, and both would be landlocked but for a long gravel road which represents utility easements and which runs south from Donlea Road over other land to reach them. These easement grants are not at issue here. Nationwide filed a suit in the circuit court of Cook County, accusing defendant owners of the adjacent property of wrongful trespass on the northwest corner of plaintiff’s land, which was being used by defendants to reach the gravel road because their access to that road was blocked by utility installations and mature trees. Defendants and their predecessors in title had been going around these blockages and onto this corner of plaintiffs’ land to reach the gravel road for over 20 years. The defendants counterclaimed, saying they were entitled to a prescriptive easement to travel over the disputed northwest corner. Both sides sought summary judgment on the issue here, and the circuit court ruled for Nationwide, denying defendants’ motion for summary judgment. The appellate court affirmed.

3. Nursing Homes/Admin. Review: Remanded: In this decision, the Illinois Supreme Court held that the appellate court was correct in finding that venue was improper in Sangamon County and in ruling that this defect was not jurisdictional. However, the appellate court was incorrect in failing to reach the merits, in vacating the circuit court judgment, and in remanding for transfer to Cook County. This would be a waste of judicial resources. The cause was remanded to the Appellate Court, First District, for its consideration of the merits. 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. 2014 IL 116927    People v. Perez     Filed 9-18-14 (RJC)

The plaintiff in this case is a resident of Holy Family Villa, a skilled nursing facility in Palos Park in Cook County. In 2012, the nursing home gave notice that plaintiff should be transferred or discharged for failure to pay what she owed. An administrative law judge for the Illinois Department of Public Health held a hearing at the nursing home and approved the transfer or discharge, with the Department’s final order being mailed from Springfield in Sangamon County.  The plaintiff sought administrative review in Sangamon County, although the nursing home contended that Cook County was the proper venue. The Sangamon County circuit court disagreed as to venue.  It went ahead and upheld the order for transfer or discharge. On review, the Appellate Court, Fourth District, determined that Sangamon County was not the proper venue, but it did not find this to be a jurisdictional defect. It then vacated the circuit court judgment and remanded the cause for a transfer to Cook County. It did not reach the merits.

4. Negligence/Slip & Fally: Reversed: In this decision, the Illinois Supreme Court affirmed the circuit court’s holding that the plaintiff, merely by focusing her attention elsewhere, was not entitled to the distraction exception and that defendant city therefore had no duty to remedy the defect. The appellate court was reversed. Justice Theis delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Burke concurred in the judgment and opinion.

No. 2014 IL 116998    Bruns v. City of Centralia     Filed 9-18-14 (RJC)

This slip-and-fall negligence case comes from Centralia in Marion County. The plaintiff was nearly 80 years old in 2012 when she fell and injured herself in front of an eye clinic which she had visited several times before. She stubbed her toe on a crack in the concrete which ran from the street where she had parked her car to the main sidewalk in front of the clinic. She conceded that she had noticed the defect before, but claimed that, on this occasion, she was distracted because she was looking toward the clinic’s front door and its steps. Thus, her attorneys argued that she was entitled to a “distraction exception” to the usual common law rule that there is no duty to protect against potentially dangerous conditions that are “open and obvious.” The trial court did not agree with the plaintiff and awarded summary judgment to defendant City of Centralia. The fact that the defect was open and obvious was conceded by both sides. The appellate court found the distraction exception applicable and reversed, ruling that the case should go to the jury. The City appealed.

3 Appellate Case Posted 9-17-14

1. Sexually Violent Persons Commitment Act: Affirmed: The Act provides different guidelines for the timeliness of jury demands. The Act requires that a respondent request a jury trial within 10 days of the probable cause hearing. Respondent did not do that. Therefore, he has no statutory right to a jury trial. Jorgensen, J.

No. 2014 IL App (3d) 131139    In re: Commitment of Mitchel  Filed 9-17-14 (RJC)

In September 2013, following a bench trial, the court found respondent, Paul Mitchell, to be a sexually violent person pursuant to the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2010)). The court committed respondent to a secure facility for treatment. Respondent appeals, arguing that the court improperly denied his late jury demand and that, therefore, he is entitled to a new trial. Respondent concedes that he has no constitutional right to a jury trial, and he makes no argument concerning the trial court’s discretionary powers. Rather, he argues only that, where his request was “promptly” made after the State withdrew its own jury demand, section 2-1105(a) of the Code of Civil Procedure (Code) statutorily entitles him to a jury trial. 735 ILCS 5/2-1105(a) (West 2010).

2. Domestic Relations/Fees: Affirmed: Petitioner’s only contention in this appeal is that the trial court erred in denying her petition for attorney fees. Petitioner is not entitled to attorney fees based on the prevailing party provision. The language of section 502(b) does not bind the trial court to the settlement agreement for issues involving the care and custody of minors. 750 ILCS 5/502(b) (West 2010).  In addition, we reject petitioner’s assertion that the trial court erred as a matter of law in its interpretation of the prevailing-party provision. Rather, whether and in what amount to award attorney fees was within the trial court’s discretion and its decision will not be disturbed on review absent an abuse of that discretion. Because the trial court could have concluded that neither party “prevailed,” its determination to offset the attorney fees in their entirety between both parties and to make each party responsible
for his or her own attorney fees was not an abuse of discretion. Hutchinson, J

No. 2014 IL App (2d) 130862    In re: Marraige of Linta   Filed 9-17-14 (RJC)

In 2011, a Nevada court entered a judgment that dissolved the marriage between petitioner, Tara Linta, and respondent, Warren Linta. The dissolution judgment incorporated a marital settlement agreement, which contained a prevailing-party provision with respect to attorney fees (prevailing-party provision). Thereafter, the parties and their minor children relocated to Illinois and the Nevada judgment was registered as an Illinois judgment. Following various petitions brought by both parties, the trial court denied petitioner’s request for attorney fees pursuant to the prevailing-party provision. Petitioner now appeals, contending that the trial court erred in denying her request for fees. We affirm.

3. Mental Health/ Involuntary Commitment Act: Vacated:  The "public interest" exception applies to respondent's claim.  the respondent received ineffective assistance of counsel because respondent was recommitted, without objection from counsel, pursuant to a petition in clear violation of section 3-813. The eight-day delay constitutes prejudice because it is inconsistent with the Code's purpose to ensure periodic review of involuntary commitment cases. Holder White, J.

No. 2014 IL App (4th) 130399    In re: Jessica H.  Filed 9-17-14 (RJC)

In September 2012, the trial court found respondent, Jessica H., subject to involuntary commitment, committing her for 90 days. In December 2012, respondent was recommitted pursuant to an order expiring on March 21, 2013. On March 29, 2013, a third recommitment petition was filed. Following a hearing, the court granted the petition, committing respondent for 180 days. Respondent appeals, arguing that although her claim is moot, it fits within two recognized exceptions to the mootness doctrine. On the merits, she argues this court should reverse the trial court's recommitment order because the recommitment petition was untimely and because respondent received ineffective assistance of counsel due to counsel's failure to object to the untimely petition. The State concedes two recognized exceptions to the mootness doctrine apply and concedes respondent received ineffective assistance of counsel.  The trial court's order. is vacated.

1 Appellate Case Posted 9-16-14

1. Sovereign ImmunityDuty/Jury instructions: Affirmed: "The duty plaintiff alleged defendant breached was not owed to plaintiff independent of his state law employment." Sovereign immunity applies in this case for the same reasons. A contrary ruling would interfere with Illinois Gaming Board’s ability to enforce the Riverboat Gambling Act and with its agents' ability to perform their jobs as prescribed by state law.  Also, the instructions given by the trial court fairly, fully, and comprehensively apprised the jury of the relevant legal principles pertaining to probable cause.5 The court's refusal to give the instruction tendered by Grainger neither misled the jury nor prejudiced Grainger. Thus, there was no abuse of discretion by the trial court. Holdridge, J.

No. 2014 IL App (3d) 130029    Grainger v. Harrah's Casino   Filed 9-16 -14 (RJC)

The plaintiff, Don Grainger, brought an action for false imprisonment and intentional infliction of emotional distress against defendants William Lynch, an Illinois Gaming Board agent, Harrah's Casino d/b/a/ Joliet Harrah's Casino (Harrah's), and Jason Glickman, the security supervisor at Harrah's. The action arose out of an incident in which Lynch briefly handcuffed and detained Grainger and turned him over to the Joliet police after Grainger presented what appeared to be an altered driver's license to Harrah's personnel when attempting to collect a jackpot he had won at a slot machine. The trial court granted summary judgment in favor of Lynch on sovereign immunity grounds and denied Glickman and Harrah's motion for summary judgment. The case was tried against defendants Glickman and Harrah's on Grainger's false imprisonment claim only. The jury returned a verdict in favor of the defendants. Grainger appeals the trial court's grant of summary judgment in favor of Lynch on sovereign immunity grounds. He also appeals the trial court's orders entering judgment in favor of Glickman and Harrah's and denying his motion for a new trial, arguing that the trial court caused severe prejudice to Grainger by erroneously refusing a jury instruction that Grainger had tendered on probable cause. Specifically, Grainger argues that the jury should have been instructed that, in order to have probable cause to restrain someone, security personnel must pursue "reasonable avenues of investigation."

2 Appellate Cases Posted 9-15-14

1. Criminal Law:  Affirmed in part and reversed in part; cause remanded for resentencing.: After carefully considering Easley, we hold that under the unique facts of this case, a different result is not warranted. Section 24-1.1(e) of the Criminal Code of 1961 lists the classification and possible sentences for unlawful use of a weapon by a felon violations. 720 ILCS 5/24-1.1(e) (West 2010). Defendant's Wisconsin felony conviction for delivery of a controlled substance is not listed as an elevated classification under section 24-1.1(e). 720 ILCS 5/24-1.1(e) (West 2010). Therefore, the State needed to provide defendant here, unlike the defendant in Easley, with notice pursuant to section 111-3(c) of the Code of Criminal Procedure in order to enhance the classification of the offense by using another one of defendant's felony convictions not stated in the charging instrument. 725 ILCS 5/111-3(c) (West 2010). The State, however, failed to do so. Therefore, on remand, defendant's conviction should be classified as a Class 3 felony.  Harris, J.

No. 2014 IL App (1st) 110959-B   People v. Whalum   Filed 9-15 -14 (RJC)

This cause comes before us on remand from our supreme court to determine whether a different result is warranted in our December 24, 2012, decision in People v. Whalum, 2012 IL App (1st) 110959, in light of its March 20, 2014, decision in People v. Easley, 2014 IL 115581. People v. Whalum, 2014 IL 115582. We held that the State failed to give defendant notice pursuant to section 111-3(c) of the Code of Criminal Procedure of 1963 of its intent to seek an increase in the classification of defendant's conviction for unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a), (e) (West 2010)) from a Class 3 offense to a Class 2 offense. Whalum, 2012 IL App (1st) 110959, ¶ 37.  In this case, a jury convicted defendant, Damian Whalum, of unlawful use of a weapon by a felon. 720 ILCS 5/24-1.1(a), (e) (West 2010). The underlying felony, as put forth in the
State's charging instrument, was defendant's felony conviction for "delivery of a controlled substance *** under the laws of the State of Wisconsin."

2. Tort/PI/Agency: Affirmed: Plaintiff proved circumstances that gave rise to a duty owed by Imo's to plaintiff in this case.  Regardless of whether Imo's had an affirmative duty to protect plaintiff from the negligent acts of third persons, Imo's voluntarily undertook a duty when it set a mandatory safety policy for driver's qualifications and then failed to monitor Bethalto for compliance with its own policy. The evidence adduced at trial was sufficient to support the jury's finding on agency. The existence of an agency relationship was genuinely disputed and properly a question to be decided by the jury and not prior to trial. Chapman, J. with Spomer, J. dissenting. 

No. 2014 IL App (5th) 120245   Bruntjen v. Bethalto Pizza, LLC    Filed 9-15 -14 (RJC)

The defendants, Bethalto Pizza, LLC, doing business as Imo's Pizza (Bethalto), and Imo's Franchising, Inc. (Imo's), appeal the December 13, 2011, judgment entered by the circuit court of Madison County after a jury verdict in favor of the plaintiff, Matthew Bruntjen, in the amount of $2,284,500.68, for damages he sustained in an automobile accident. The defendants' posttrial motions were denied on May 18, 2012. The defendants raise a number of issues on appeal. We affirm.

3 Appellate Cases Posted 9-12-14

1.  Parentage: Reversed and Remanded:   In Illinois, "civil cases generally require the lesser 'preponderance' standard of proof."   Nevertheless, the legislature may choose to impose a more exacting standard via statute. Absent a statutorily assigned evidentiary standard, the preponderance standard shall apply.  Application of the improper evidentiary standard amounts to reversible error.  A removal petition is not a petition to modify custody under section 610 of the Marriage Act. Reyes, J.

No. 2014 IL App (1st) 141214 In re Parentage of Rogan M.  Filed 9-12 -14 (LJD)

Pettioner appeals the denail of her petition to remove her minor child from Illinois to California. On appeal, Keisha argues: (1) the trial court applied the improper evidentiary standard; and (2) the trial court's finding that removal was not in the child's best interests was against the manifest weight of the evidence. For the following reasons, we reverse and remand.

2. Post Conviction Petition: Affirmed: Generally, the Act contemplates the filing of only one petition.  Successive petitions are disfavored and, therefore, to proceed on a successive petition a petitioner must first obtain leave of court by either asserting actual innocence or satisfying the cause-and-prejudice test.   To demonstrate cause, a defendant must identify "an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings."   To establish prejudice, a defendant must demonstrate "that the claim not raised *** so infected the trial that the resulting conviction or sentence violated due process."  Reyes, J., concurred in by Lampkin, J.

No. 2014 IL App (1st) 113570  People v. Wilson Filed 9-12 -14 (LJD)

Defendant contends the circuit court erred in summarily dismissing his second pro se petition. Wilson argues: (1) his second pro se petition was not a successive petition because he only sought to reinstate his right to a direct appeal in his initial petition; and (2) the second pro se petition set forth the gist of an arguable claim that his appellate counsel was ineffective for failing to raise an issue on direct appeal concerning the improper closing argument by the Cook assistant State Attorney’s (ASA). Defendant Rayvonne Wilson appeals from an order of the circuit court of Cook County County  For the reasons that follow, we affirm.

3.  Medical Negligence: Reversed and Remanded: A party is entitled to have the jury instructed on his or her theory of the case, and the failure to do so may require a new trial. Contradictory instructions on an essential element can not be cured by another instruction that was correct because the jury would be forced to determine which instruction was correct. A faulty jury instruction does not require reversal unless the error results in serious prejudice to the party's right to a fair trial.   In determining whether a party has been prejudiced, we consider whether the instructions, taken as a whole, were sufficiently clear so as not to mislead the jury.  Hall, J. concurred in by Lampkin, J.

No. 2014 IL App (1st) 121593  Doe v. The University of Chicago Medical Center  Filed 9-12 -14 (LJD)

The plaintiff, Jane Doe, filed a medical malpractice lawsuit against the defendants, the University of Chicago Medical Center (the UCMC) and James Richard Thistlethwaite, Jr., M.D. Prior to trial, the plaintiff voluntarily dismissed Dr. Thistlethwaite from the lawsuit. Following a jury trial, a judgment was entered in favor of the UCMC and against the plaintiff. The trial court denied the plaintiff's motion for a new trial. The plaintiff appeals. For the reasons set forth below, we reverse the judgment of the trial court and remand this case for a new trial.

1 Appellate Case Posted 9-11-14

1. Collateral Estoppel: Affirmed: In this case, the Appellate court analyzed and discussed the argument of the plaintiffs why the Federal District case decided in Pennsyvania did not bar the claim that the Insurance carrier still owed indemnity under the policy.  It is a good analysis of diversity law and whether the federal courts must apply local or federal law.  Under the Erie doctrine, the federal district court was not required to follow the Pennsylvania law that would have required joining plaintiffs to the dispute, and the applicable federal law did not require joinder. The “same parties” requirement under section 2-619(a)(3) likewise does not require that the parties be identical, only that their interests be sufficiently similar. Spence, J.

No. 2014 IL App (2nd) 131058  Pace Communications Services Corporation Filed 9-11 -14 (LJD)

Pace Communications Services Corporation and Tunica Pharmacy, Inc., represented a class of similarly situated persons (collectively, plaintiffs) in a class action (the class action) against Express Products, Inc. (Express), for, among other allegations, violations of the Telephone Consumer Protection Act of 1991 (TCPA) (47 U.S.C. § 227 (2000)). Cumberland Mutual Fire Insurance Company (Cumberland) was one of Express’s insurers. While plaintiffs were litigating the class action in the circuit court of Lake County, Cumberland sought in the United States District Court for the Eastern District of Pennsylvania a declaration that it had no duty to defend or indemnify Express (the federal action). Plaintiffs and Express settled the class action in 2009 for about $8 million, with plaintiffs agreeing to pursue the judgment not from Express but only from Express’s insurers. Accordingly, plaintiffs filed under section 2-1402 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1402 (West 2010)) a citation to discover Cumberland’s assets (the citation proceeding) in an effort to recover the judgment. In September 2011, while the citation proceeding was still pending, the district court found that Cumberland did not have a duty to defend or indemnify Express. Plaintiffs moved for summary judgment in the citation proceeding, and Cumberland moved to dismiss based on the declaratory judgment. The circuit court denied plaintiffs’ motion for summary judgment and granted Cumberland’s motion to dismiss, finding that the declaratory judgment precluded relitigating whether Cumberland had a duty to indemnify Express. Plaintiffs appeal from the dismissal of the citation proceeding, and for the reasons set forth herein, we affirm.

4 Appellate Cases Posted 9-10-14

1.  Foreclosure: Affirmed: The justice provision under section 15-1508(b)(iv) acts as a safety valve to allow the court to vacate the judicial sale and, in rare cases, the underlying judgment, based on traditional equitable principles. An interested party seeking to oppose the judicial sale bears the burden of proving that sufficient grounds exist to disapprove a judicial sale. This standard requires both a meritorious defense to the underlying judgment and proof that justice was not otherwise done because the lender, through fraud or misrepresentation, prevented the borrower from raising his meritorious defenses to the complaint at an earlier time in the proceedings, or the borrower has equitable defenses that reveal he was otherwise prevented from protecting his property interests. The provisions of section 15-1508 confer on circuit courts broad discretion in approving or disapproving judicial sales, and as a result, a court's decision to confirm or reject a judicial sale under the statute will not be disturbed absent an abuse of that discretion.  The purpose of the Act is to "protect consumers against debt collection abuse." 225 ILCS 425/1a (West 2012). It broadly bars any "collection agency" from operating in this state, engaging in the business of debt collection, or exercising its right to collect without first registering under the Act. The Act defines a "collection agency" or "debt collector" as "any person who, in the ordinary course of business, regularly, on behalf of himself or herself or others, engages in debt collection." Lavin, J.

No. 2014 IL App (1st) 131387 Deutsche Bank National Trust v. Cichosz Filed 9-10 -14 (LJD)

under the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1101 et seq. (West 2012)), seeking foreclosure on property owned by defendants' Anna Cichosz and Maciej Reng (defendants).1 The trial court granted Deutsche Bank summary judgment, and subsequently confirmed the sale and distribution of defendants' property. Defendants' timely appeal argues that all orders relating to the judgment of foreclosure are void because the original plaintiff and mortgagee, Mortgage Electronic Registration Systems, Inc. (MERS), operated as an unregistered "debt collection agency" under the Collection Agency Act (Act) (225 ILCS 425/1 et seq. (West 2012)), thereby nullifying the original complaint. We affirm.

2.  Administrative Review: Circuit Court Reversed, Agency Affirmed: In administrative review cases, we review the decision of the administrative agency, not the decision of the circuit court.   “[T]he applicable standard of review depends on whether the question presented is one of fact, one of law, or a mixed question of fact and law.”  Even if the administrative decision is determined to be correct under the foregoing standards of review, the discipline imposed by the agency may still be reversed if it is found to constitute an abuse of discretion.  A sanction will be found to be an abuse of discretion if it is arbitrary and capricious, or if the sanction is overly harsh in view of the mitigating circumstances. Misrepresentation in applying for licensure and discipline by another state are both violations under the Medical Practice Act. 225 ILCS 60/22(A)(9), (A)(12) (West 2010) (grounds for disciplinary action include “[f]raud or misrepresentation in applying for, or procuring, a license under this Act” and “[d]isciplinary action of another state or jurisdiction against a license or other authorization to practice as a medical doctor”). The Medical Practice Act allows for the Department to revoke, suspend, or take any other disciplinary action it deems proper for such violations.  Mason, J.

No. 2014 IL App (1st) 130959 Kazmi v. The Department of Financial and Professional Regulation    Filed 9-10 -14 (LJD)

Defendants-appellants, the Illinois Department of Financial and Professional Regulation and Jay Stewart, Division Director for the Division of Professional Regulation, appeal from an order of the circuit court of Cook County affirming a decision of the Department indefinitely suspending the medical license of Dr. Syed Kazmi for a minimum of nine months. Prior to this decision, the Department revoked Dr. Kazmi’s license for violations of the Medical Practice Act of 1987 (225 ILCS 60/22(A) (West 2010)), resulting from false statements made in his application for his medical license, and discipline he received from a sister state for making false statements on an application for licensure there. The circuit court reversed the Department’s initial revocation, deeming it to be too harsh in light of mitigating circumstances. Two subsequent suspensions, of progressively shorter periods, were similarly deemed too harsh by the circuit court before the nine-month suspension was affirmed. The Department claims that the revocation of Dr. Kazmi’s license was not an abuse of discretion given the nature of Dr. Kazmi’s violations. We agree and reverse the order of the circuit court and confirm the Department’s original revocation order.

3.  Criminal Law: Affirmed: In reviewing the sufficiency of the evidence to sustain a conviction on appeal, the court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We will not substitute our judgment for that of the trier of fact on the weight to be given the evidence or the credibility of the witnesses.  The trier of fact must “resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”  In evaluating the reliability of an eyewitness identification, Illinois courts rely on the five factors which include: (1) the witness's opportunity to view the criminal at the time of the offense; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness when first identifying the defendant as the criminal and (5) the length of time between the crime and the initial identification. Hyman, J.

No. 2014 IL App (1st) 113536 People v. Petermon  Filed 9-10 -14 (LJD)

Defendant Timothy Petermon shot and injured one man and shot at an off-duty police officer who came on the scene and was attempting to make an arrest. Petermon seeks to reverse his convictions for attempted first degree murder, aggravated discharge of a firearm, and aggravated battery, contending reasonable doubt exists. We affirm, as modified. The credibility of the eyewitnesses was a matter for the trier of fact to decide, and their testimony linking him to the shooting supported Petermon's conviction. Further, the trial court did not err in finding Petermon had the requisite intent to kill the off-duty police officer when he shot at him, even though he did not hit him despite his close proximity. Regarding the one-act, one-crime rule, the State concedes and we agree, the mittimus should be corrected to reflect two convictions for attempted first degree murder and the aggravated discharge of a firearm and aggravated battery convictions and sentences should be vacated.

4.  Insurance Law: Affirmed: In construing an insurance policy, a court’s primary task is to ascertain the intent of the parties as expressed in their agreement.  Courts construe a policy as a whole with due regard to the risk undertaken, the subject matter that is insured, and the purpose of the entire policy.  If terms in a policy are unambiguous, courts afford them their plain, ordinary, and popular meaning. Wilson, 237 Ill. 2d at 455-56. If terms are ambiguous, they will be strictly construed against the insurer.  The elements of a malicious-prosecution claim under Illinois law are well established.  The elements are (1) the commencement of judicial proceedings by the defendant, (2) a lack of probable cause for the proceedings, (3) malice in instituting the proceedings, (4) termination of the prosecution in the plaintiff’s favor, and (5) damage or injury to the plaintiff.  Because no other Illinois court has addressed the issue of which occurrence triggers insurance coverage of a malicious-prosecution claim, we look to out-of-state authority for guidance. Most courts that have addressed the issue have held that the commencement of a malicious prosecution is the event that triggers insurance coverage. Zenoff, J.

No. 2014 IL App (2nd) 131312 St. Paul Fire and Marine Insurance Company v. The City of Zion  Filed 9-10 -14 (LJD)

The issue in this appeal is whether a malicious-prosecution claim filed by Jerry Hobbs III against the City of Zion and its police officer Kevin Harris triggered coverage under an insurance policy that St. Paul Fire and Marine Insurance Company issued to Zion.  Resolution of this issue depends upon whether the occurrence triggering coverage under the policy is the commencement of the alleged malicious prosecution or its termination in favor of the accused. We hold that, under the unambiguous language of the policy, the occurrence triggering coverage is the commencement of the alleged malicious prosecution. Here, that occurrence took place outside the policy period. Therefore, we affirm the grant of summary judgment in St. Paul’s favor.

2 Appellate Cases Posted 9-9-14

1.  Insurance Law: Affirmed:  Under Illinois law, "[a]n insurer that believes an insured is not covered under a policy cannot simply refuse to defend the insured."  Instead, it must either: (1) defend the suit under a reservation of rights, or (2) seek a declaratory judgment that there is no coverage.  If the insurer fails to take either of these steps and is later found to have wrongfully denied coverage, the insurer is estopped from raising policy defenses to coverage. [The] roots [of estoppel] lie in the theory that because the insurer breached one of its duties under the contract of insurance (of which the putative insured is an intended third-party beneficiary), the insurer cannot later turn around and enforce another clause of the contract, to its complete protection."Liu, J.

No. 2014 IL App (1st) 133931  Mt. Hawley Insurance Company v. Certain Underwriters at Lloyd's, London Filed 9-9 -14 (LJD)

This appeal concerns an insurance dispute be tween Mt. Hawley Insurance Company (Mt. Hawley), and defendant, Certain Underwriters at Lloyd's London (Underwriters). Mt. Hawley brought a declaratory judgment action against Underwriters, seeking a declaration that Underwriters owed a duty to defend and indemnify certain parties named as defendants in a personal injury suit, as additional insureds under a commercial general liability (CGL) policy issued by Underwriters. Cross-motions for summary judgment were subsequently filed by the parties. The circuit court entered summary judgment in favor of Mt. Hawley, finding that, as a matter of law, Underwriters was estopped from raising a policy defense to coverage after it refused to defend its additional insureds under a reservation of rights or to seek a declaratory judgment on coverage. On appeal, Underwriters argues that the circuit court erred in its ruling, because under the vicarious liability doctrine, liability cannot be imposed on Underwriters for its additional insureds, where the named insured was found not liable and awarded summary judgment in the underlying negligence suit. Underwriters also contends that its vicarious liability defense is not a "policy defense" for purposes of the estoppel doctrine in this case. For the following reasons, we affirm.

2. Appelate Procedure/Juvenile Court/Abuse and Neglect: Reversed and Remanded: The filing of a notice of appeal transfers jurisdiction from the trial court to the appellate court instanterHowever, the trial court retains jurisdiction on matters collateral or supplemental to the judgment.  '[C]ollateral or supplemental matters include those lying outside the issues in the appeal or arising subsequent to delivery of the judgment appealed from. Pointedly, orders entered after the filing of the notice of appeal are valid if the substantive issues on appeal are not altered so as to present a new case to the reviewing court. Supreme Court Rule 329 (eff. Jan. 1, 2006) " 'provides that a party may supplement the record on appeal to include omissions, correct errors, and settle controversies as to whether the record accurately reflects what occurred in the trial court.  However, the record on appeal can be supplemented only with evidence actually before the trial court.  If a court fails to provide notice as required by section 1912 of the ICWA, "the proper remedy is to reverse the trial court's orders concerning foster care placement or termination of parental rights and begin the proceedings anew in compliance with the requirements of the [ICWA]."The statutory rights of the Tribe cannot be waived or forfeited by a parent and it is the court's responsibility to make such a finding if presented with sufficient evidence that the minors are likely "Indian children."  Under the Act, a man is presumed to be a child's father if the child was born during his marriage to the mother.  The only way to disturb this presumption of paternity would be to file "[a]n action to declare the non-existence of the parent and child relationship." 750 ILCS 45/7(b) (West 2010). Such an action may only be brought by the child, the natural mother, or the presumed father, and then, only by verified complaint. McDade, J., special concurrence by Wright, J,

No. 2014 IL App (3rd) 140172   In re N.L. Filed 9-9 -14 (LJD)

The trial court found Dwight L., respondent-father, to be an unfit parent and terminated his parental rights with respect to the minor M.L. The trial court also found Dwight to be an unfit parent with respect to N.L., but terminated his legal relationship with N.L. based on a previous showing that he is not the biological father of N.L. The issues on appeal are (1) whether the trial court erred in allowing the State to supplement the record on appeal; (2) whether the trial court failed to adhere to the requirements of Indian Child Welfare Act (ICWA) (25 U.S.C. §1911 to 1914 (2006)) with respect to M.L. and N.L.; (3) whether the trial court exceeded its authority in finding that Dwight no longer retained a legal relationship with N.L.; and (4) whether Dwight was deprived of effective counsel due to a per se conflict of interest. For reasons that follow, we reverse and remand for proceedings in accord with this order.

1 Appellate Case Posted 9-8-14

1.  Expert Tesitimony: Reversed and Remanded:  A criminal defendant's right to due process and a fundamentally fair trial includes the right to present witnesses on his or her own behalf.  In Illinois, generally, an individual will be permitted to testify as an expert if his experience and qualifications afford him knowledge which is not common to lay persons and where such testimony will aid the trier of fact in reaching its conclusion." Expert testimony addressing matters of common knowledge are not admissible "unless the subject is difficult to understand and explain. Trial courts should carefully scrutinize the proffered testimony to determine its relevance–that is, whether there is a logical connection between the testimony and the facts of the case. Relevant and probative testimony should be admitted, whereas misleading or confusing testimony should not be admitted.  When determining the reliability of an expert witness, the trial judge is given broad discretion.  Harris, J.

No. 2014 IL App (1st) 121880  People v. Lerma Filed 9-8-14 (LJD)

A jury convicted the defendant of discharging the firearm that caused death, and aggravated discharge of a weapon in connection with the May 3, 2008, murder of Jason Gill. The only living eyewitness to the shooting, Lydia Clark, identified defendant. At issue is whether the circuit court abused its discretion when it denied defendant's motion to allow Dr. Loftus to testify regarding eyewitness identification testimony. We hold the circuit court abused its discretion because it did not carefully consider or scrutinize Dr. Loftus's anticipated testimony before denying defendant's motion.

5  Appellate Cases Posted 9-5-14

1.  Tort Immunity: Reversed and remnded: The purpose of summary judgment is not to try an issue of fact but *** to determine whether a triable issue of fact exists.  To withstand a summary judgment motion, the nonmoving party need not prove his case at this preliminary stage but must present some factual basis that would support his claim.  A municipality owes a duty of care only to those who are both intended and permitted users of municipal property.  "[A]n intended user of property is, by definition, also a permitted user; a permitted user of property, however, is not necessarily an intended user."  To determine whether plaintiff was an intended user of property, we look to the property itself to determine its intended use.  Publication of ordinances is necessary so that the public can be informed of the contents of ordinances.   Gordon, J.

No. 2014 IL App (1st) 132122  Bowman v. The Chicago Park District Filed 9-5-14 (LJD)

Plaintiff Artenia Bowman, individually and as mother and next friend of Cheneka Ross, a minor, filed suit in the circuit court of Cook County against the Chicago Park District (CPD) alleging willful and wanton conduct for failing, for almost a year, to repair a damaged slide. Plaintiff’s daughter, Cheneka Ross, age 13, was going down a slide on April 21, 2011, when her foot became caught in a hole in the plastic at the bottom of the slide, resulting in a fractured ankle. Defendant CPD owns the property and maintains the playground equipment, including the slide.  For the following reasons, we find the trial court erred in granting summary judgment on the basis that Cheneka was not the intended user of the slide and reverse. We remand for the trial court to decide whether the slide’s condition was open and obvious and whether CPD’s failure to repair the slide after being notified was willful and wanton conduct.

2.  Civil Procedure: Reversed and remanded:The correctness of a discovery order may be tested through contempt proceedings.  Normally, the standard of review of contempt orders in such cases is an abuse of discretion. Section 25(e) requires the county to pay for both the examination by and the participation of the appointed expert at a hearing. It does not state that the court-appointed expert or professional expert must then testify at the hearing, only that the expert will be compensated if he or she participates at the hearing. "A court may not depart from the plain language of the statute and read into it exceptions, limitations, or conditions that are not consistent with the express legislative intent." Hall, J.

No. 2014 IL App (1st) 123105  People v. Coyne Filed 9-5-14 (LJD)

This is an interlocutory appeal pursuant to Illinois Supreme Court Rule 304(b)(5) (eff. Feb. 26, 2010). The defendant, attorney Daniel T. Coyne (attorney Coyne), was held in direct civil contempt for refusing to comply with the discovery orders of the circuit court of Cook County, which required him to turn over to the State his nontestifying expert witness's reports. On appeal, attorney Coyne contends that: (1) the civil discovery rules do not require disclosure of a nontestifying expert's report; (2) the attorney-client privilege bars the disclosure of the expert's report; (3) the  ork-product privilege bars the disclosure of the expert's report; (4) requiring disclosure of the expert's report violates the due process clause of the United States Constitution; (5) requiring disclosure of the expert's report violates the equal protection clause of the United States Constitution; and  6) even if this court affirms the circuit court's decision, the finding of contempt and the $100 fine imposed on attorney Coyne should be vacated.

3.  Civil Procedure/Agency: Affirmed in part and Reversed in part: A motion to dismiss pursuant to section 2-615 attacks the legal sufficiency of the complaint.  A court reviewing an order granting a section 2-615 motion takes all well-pled facts as true.  On review of a section 2-615 dismissal, the court must determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, sufficiently set forth a cause of action on which relief may be granted.  Under the theory of respondeat superior, "an employer can be liable for the torts of his employee when those torts are committed within the scope of the employment."  Under respondeat superior, an employer's vicarious liability extends to the negligent, willful, malicious or even criminal acts of its employees, when those acts are committed within the scope of employment. To succeed in an action for negligent supervision, a plaintiff must plead and prove that the employer knew or should have known that its employee had a particular unfitness for his position so as to create a danger of harm to third persons and that the employer's failure to safeguard the plaintiff against this particular fitness proximately caused the plaintiff's injury. Palmer, J.

No. 2014 IL App (1st) 132397   Dennis v. Pace Suburban Bus Service Filed 9-5-14 (LJD)

Plaintiff brought this action to recover damages for injuries she sustained when she was allegedly sexually assaulted by defendant Jeffrey Moore (Moore), a bus driver employed by Pace. Plaintiff asserted claims against Moore and Pace. Pace filed a motion to dismiss counts I through III, all of which were directed solely at Pace. The circuit court granted Pace's motion and dismissed those counts with prejudice. In her third amended complaint, plaintiff first asserted a claim for "battery (sexual assault)" against Pace under a theory of respondeat superior and alleged the following facts.

4. FELA: Affirmed: Questions concerning the admission of evidence at trial are left to the sound discretion of the trial court, and we will not reverse the trial court absent an abuse of that discretion. Matthews v. Avalon Petroleum Co., 375 Ill. App. 3d 1, 9 (2007) (citing Brax v. Kennedy, 363 Ill. App. 3d 343, 355 (2005)). This same deferential standard also applies to a trial court's decision on a motion in limine.  Courts retain broad discretion in making evidentiary rulings and may properly exclude evidence of limited probative value. A denial of a motion in limine does not preserve an objection to disputed evidence later introduced at trial. Once an objection to an evidence deposition is ruled upon by the trial court the objecting party must object again when the testimony is read to the jury in order to preserve the objection for appellate review.  A controlled expert witness defined as "a person giving expert testimony who is the party, the party's current employee, or the party's retained expert."  A treating physician is considered a Rule 213(f)(2) independent expert witness." Although a party has a continuing duty to supplement or amend any prior interrogatory answer when new information becomes known to that party, "[i]nformation disclosed in a discovery deposition need not be later specifically identified in a Rule 213(f) answer." Lampkin, J.

No. 2014 IL App (1st) 132105  Roach v. Union Pacific Railroad Filed 9-5-14 (LJD)

This suit was brought by plaintiff Priscilla Roach, the wife of decedent Clarence Roach, as the special administrator of his estate, against his former employer, defendant Union Pacific Railroad. The suit alleges that Clarence's death was the result of injuries that he sustained while working at a Union Pacific rail yard, and it brings survival and wrongful death claims. On February 7, 2013, a jury returned a verdict in favor of plaintiff, awarding her a total of $1,589,000 in damages. Defendant filed a posttrial motion for a new trial or, in the alternative, for an order reducing the jury's award of $180,000 for lost earnings to $63,561.67. Plaintiff also filed a posttrial motion for costs. On March 23, 2013, the trial court denied defendant's motion and granted plaintiff's motion in part, awarding her $2,906.01 in costs which defendant does not challenge on appeal. For the reasons that follow, we affirm.

5.  Medical Negligence: Affirmed:  The existence of a duty under a particular set of circumstances is a question of law for the court to decide." "Absent a duty, 'no recovery by the plaintiff is possible as a matter of law.' " When determining whether a legal duty exists, a court must "ask whether a plaintiff and a defendant stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff." The 'relationship' referred to in this context acts as a shorthand description for the sum of four factors: (1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing that burden on the defendant.   Any analysis of the duty element turns on the policy considerations inherent in the above factors, and the weight accorded each of the factors depends on the circumstances of the particular case.   Case discusses the policy considerations why a third party can not sue a psychiatrist for negligence in treatment of a patient who harms that third party. Schwarm, J.

No. 2014 IL App (5th) 130207   Sherer v. Sarma   Filed 9-5-14 (LJD)

In the circuit court of Montgomery County, the plaintiff, Janice Sherer, individually and as administrator of the estate of her deceased daughter, Sara Sherer Ott, brought wrongful death and survival actions against the defendant, Jay Sarma, M.D., alleging that Sarma had been negligent in her care and treatment of Sara and Sara's husband, Jacob Ott. The plaintiff appeals from the circuit court's order granting Sarma's motion for summary judgment on all counts against her. For the reasons that follow, we affirm.

2  Appellate Cases Posted 9-4-14

1.  Mental Health: Affirmed in part and reversed in part: There are three exceptions to the mootness doctrine which are the same three invoked by the respondent herein. Those exceptions are: (1) the public interest exception; (2) the "capable of repetition yet avoiding review" exception; and (3) the collateral consequences exception. We find that the "capable of repetition yet avoiding review" exception dictates appellate review of this matter is appropriate.   The "capable of repetition yet avoiding review" exception has two elements. First, the challenged action must be of a duration too short to be fully litigated prior to its cessation.  Second, there must be a reasonable expectation that the same complaining party would be subjected to the same action again.   Schmidt, J.

No. 2014 IL App (3rd) 130814    In re E.F.    Filed 9-4-14 (LJD)

The State filed both a petition seeking to involuntarily commit respondent, E.F., to a treatment facility for inpatient mental health treatment and a petition for the administration of psychotropic medication. In a single order, the circuit court of La Salle County granted both petitions. Respondent appeals from the order, claiming, inter alia, that the trial court failed to conduct the necessary hearings as prescribed by statute prior to ordering the administration of psychotropic medication. Respondent further claims the State failed to provide him proper written notice of the risks and  benefits of medications it sought to administer to him or  alternatives to such treatment. Respondent also argues the court's order fails to properly identify which medications, and their corresponding dosages the State is authorized to administer to him.

2.  Reimburemnt of Prison Costs:Affirmed:  Under the Unified Code, the State has the right to seek reimbursement from prisoners for the cost of their incarceration. 730 ILCS 5/3-7-6(a) (West 2012). Our supreme court has noted "section 3-7-6(a) creates a broad liability for all committed persons to reimburse the Department [of Corrections]."  When the state succeeds in obtaining a judgment against a person for the costs of his or her incarceration, the assets it can reach to satisfy that judgment are extensive."  Preattachment notice and hearing in this context would enable the prisoner to conceal, transfer, or otherwise dispose of the assets subject to garnishment prior to a final judgment. See Mitchell, 416 U.S. at 609 (stating "[t]he danger of destruction or alienation cannot be guarded against if notice and a hearing before seizure are supplied"); postponing notice and hearing until attachment has occurred generally serves a creditor's interest in preventing the waste or concealment of a debtor's assets"). The opportunity to conceal funds is heightened in the digital age, where assets can be transferred anywhere in the world at the click of a mouse.  Instead, it preserves the status quo until such time as the action can be adjudicated. Turner, J.

No. 2014 IL App (4th) 130700   The People of the State of Illinois ex rel. The Director of the Department of Corrections v. Melton   Filed 9-4-14 (LJD)

In February 2013, plaintiff, the People of the State of Illinois ex rel. the Director of the Department of Corrections (hereinafter, the State), filed a complaint against defendant, Johnnie Melton, for reimbursement of costs incurred by his incarceration. In May 2013, the trial court found the State  as entitled to judgment in the amount of $19,925.89. In June 2013, defendant filed a pro se motion to reconsider, which the court denied.  2 On appeal, defendant argues he was denied his right to due process and the effective assistance of counsel. We affirm.

5 Appellate Cases Posted 9-3-14

1. Insurance Coverage: Affirmed: The "Trucker—Insurance for Non-Trucking Use" endorsement applies, and Argonaut has no duty to defend or indemnify Morales. Hyman, J. with Mason, J. dissenting. 

No. 2014 IL App (1st) 130745    Argonaut Midwest Insurance Company v. Morales    Filed 9-3-14 (RJC)

This case involves cross motions for summary judgment on issues involving insurance coverage of a trucking accident. Appellants-Defendants Gabriel Morales, Land Truck, Inc., and Insurance Company of the State of Pennsylvania, Inc., appeal the trial court's summary judgment order in favor of plaintiff Argonaut Midwest Insurance Company, which held that Argonaut's policy did not cover the accident. Appellants raise two issues on appeal: (i) whether coverage is excluded under the "Trucker—Insurance for Non-Trucking Use" endorsement; and (ii) whether Land Truck is entitled to a defense under the policy.

2. Zoning/School Districts: Affirmed:  Statutory interpretation leads to the conclusion that local school boards and school districts are subject to the zoning code of the municipality in which they reside. Specifically, the Board was properly subject to the City’s zoning ordinances. Birkett, J.  

No. 2014 IL App (2d) 140098   Gurba v. Community High School District No. 155    Filed 9-3-14 (RJC)

The plaintiffs here are Jeff Gurba, the Louis A. Bianchi Revocable Trust, and the Jean M. Bianchi Revocable Trust, property owners whose land is adjacent to the Crystal Lake South High School football stadium. The defendants are Community High School District No. 155 (the District), which is responsible for, among other things, the physical plant of Crystal Lake South, and the Board of Education of Community High School District No. 155 (the Board). Plaintiffs objected to the District’s decision to build bleachers that violated the zoning and stormwater ordinances of the City of Crystal Lake (the City) by being too big, too high, and too close to the property line. The complaint spawned a third-party action filed by the Board against the City and Leslie Schermerhorn, in her capacity as the McHenry County regional superintendent of schools (the Superintendent). In short, the Board decided to reconstruct and relocate the home bleachers, but it did notify the City or comply with the City’s zoning ordinances, under which the Board would have been required to obtain a variance or special-use permit. The trial court held that the Board was subject to the City’s zoning and stormwater ordinances, and the Board appeals, contending that the court’s ruling represented an unconstitutional infringement on the Board’s and the Superintendent’s power. We disagree and affirm.

3. Tax Appeals: Affirmed:  At issue in this case is whether tax appeals sent to the Board are timely when deposited with a third-party commercial carrier on the due date for filing an appeal of a property tax assessment. Until the Board extends its filing rules to apply the mailbox rule to third-party commercial carriers, appeals sent by any other means must be actually received on or before the due date. The mailbox rule does not apply in this case. McLaren, J.  

No. 2014 IL App (2d) 140164    BLTREJV3 Chicago, LLC v. The Kane County Board of Review    Filed 9-3-14 (RJC)

Petitioners, BLTREJV3 Chicago, LLC, and Five Ten Illinois III, LLC, appeal from the trial court’s denial of their petition for declaratory judgment and interlocutory injunctive relief and its grant of the motion for judgment on the pleadings by respondent, the Kane County Board of Review (Board). Affirmed.

4. Juvenile/Abuse & Neglect: Affirmed:  In the instant case, after reviewing the record thoroughly,  the trial court did not err in finding that Christine was dispositionally unfit. In reaching that conclusion, the trial court noted the progress that Christine had made and commended her for it. The trial court ultimately determined, however, that enough progress had not been made by Christine that would allow the trial court to find that Christine was dispositionally fit. More specifically, the trial court noted that it still had safety concerns over placing the children with Christine or Robert. Based upon the record and the trial court's specific finding,  the trial court's determination of parental unfitness was not against the manifest weight of the evidence as to Christine. Carter, J. with McDade, J. specially concurring.   

No. 2014 IL App (3d) 130256    In re An W.    Filed 9-3-14 (RJC)

The State filed juvenile petitions alleging that the minor children, An.W., As.W., L.G., and E.J., were neglected and/or abused and seeking to make the children wards of the court. After hearings, the trial court found that the children were neglected and/or abused and that the children's parents, Christine W. and Robert G., were dispositionally unfit. The children were made wards of the court and the Department of Children and Family Services (DCFS) was named the children's guardian. Christine and Robert appeal, challenging both the finding of neglect and/or abuse and the determination of parental unfitness.  Affirmed.

5. Criminal/Pleas: Affirmed:  Considering that defendant's 12-year sentence was within statutory limits and that the circuit court is in a superior position to make an appropriate determination as to the length of punishment, the circuit court's 12-year sentence was not an abuse of discretion. This was an open plea case, as both the State and defendant acknowledged.  As such, defendant was not required to file a motion to withdraw the plea and vacate the judgment prior to challenging his sentence. Goldenhersh, J.    

No. 2014 IL App (5th) 120161    People v. Gooch    Filed 9-3-14 (RJC)

Defendant, Kip D. Gooch, was charged by the circuit court with criminal sexual assault after he knowingly committed acts of sexual penetration with his daughter, a minor. Defendant's criminal sexual assaults of his daughter stretched over a period of eight years, and defendant's daughter was a minor at the time of each attack. Criminal sexual assault is a Class 1 felony that carries a sentence of 4 to 15 years' incarceration. 720 ILCS 5/12-13 (West 2010). The circuit court sentenced defendant to 12 years in the Illinois Department of Corrections. After his sentencing, defendant filed a motion to reconsider the sentence, which the circuit court denied. Defendant filed a timely notice of appeal.  On appeal, defendant raises the issue as to whether the circuit court abused its discretion when it sentenced defendant to 12 years in the Illinois Department of Corrections, alleging that 12 years was an excessive sentence after defendant had cooperated with law enforcement and entered a voluntary plea of guilty. The State asserts that the sentence was not an abuse of the circuit court's discretion. The State also alleges that defendant entered into a partially negotiated guilty plea rather than an open plea, and, therefore, defendant was required to file a motion to withdraw guilty plea before appealing his sentence. We affirm defendant's sentence and deny the State's position arguing a partially negotiated guilty plea.

5 Appellate Cases Posted 9-2-14

1. Insurance Coverage/Condominiums: Certified question answered: Condominium Act does not place a duty upon an insurer to ensure that a policy issued to a condominium association provides sufficient coverage for "full insurable replacement" of a loss from a fire, nor does the Act establish a cause of action for such a claim against the insurer. Burke, J.

No. 2014 IL App (2d) 131311  Royal Glen Condominium Association v. S.T. Neswold and Associates, Inc.  Filed 9-2-14 (TJJ)

This interlocutory appeal presents three certified questions regarding a suit by plaintiff, the Royal Glen Condominium Association, against defendant, S.T. Neswold & Associates, Inc., pursuant to section 12 of the Condominium Property Act (Condo Act)  (765 ILCS 605/12 (West 2010)). We answer the first certified question in the negative. Specifically, we find that section 12 does not impose on an insurance producer a duty giving rise to a statutory cause of action against that insurance producer. Our  answer to the first certified question is dispositive of the remaining two certified questions.

2. Criminal Law: Affirmed: Trial court properly granted defendant's motion to suppress evidence in case where police officer stopped defendant's car at 3:40 p.m. for a broken taillight, leading to the recovery of cocaine, where statute governing taillights required only that they be properly operable from "sunset to sunrise," and trial court was within its discretion to deny State's motion to re-open its case-in-chief seeking to put forth an alternate basis in support of the efficacy of the stop. Schostok, J.

No. 2014 IL App (2d) 130968  People v. Gonzalez-Carrera  Filed 9-2-14 (TJJ)

The State appeals the judgment of the circuit court of Du Page County granting defendant Jesus Gonzalez-Carrera’s motion to suppress evidence found in his vehicle pursuant to a traffic stop and denying the State’s motion to reopen the proofs. Because the  State failed to establish a valid basis for the traffic stop and because the trial court did not abuse its discretion in denying the motion to reopen the proofs, we affirm.

3. Negligence Law/Construction: Reversed and remanded: Trial court grant of summary judgment to general contractor in personal injury action filed by construction worker injured  in workplace accident was error, where general contractor was purportedly aware of general clutter and condition of that part of the premises, and facts showed that general contractor retained sufficient control of premises so as to have a duty to care for the premises. Palmer, J.

No. 2014 IL App (1st) 123170  Lederer v. Executive Construction, Inc.  Filed 8-29-14 (TJJ)

Plaintiff, Roger Lederer, appeals the circuit court's July 26, 2012, grant of summary judgment in favor of defendant-appellee Executive Construction, Inc. (Executive). On appeal, Lederer contends that the circuit court erred in granting summary judgment  because section 414 of the Restatement (Second) of Torts (Restatement (Second) of Torts § 414 (1965)) established a duty of reasonable care in the present case. Plaintiff argues that the undisputed facts established, as a matter of law, that the degree of  control Executive exercised over the construction project imposed a duty of reasonable care upon Executive. Plaintiff also argues that, as a matter of law, a duty of reasonable care was imposed upon Executive as it had notice of the dangerous condition. For the reasons that follow, we reverse the circuit court's ruling and remand for further proceedings.

4. Mortgage Foreclosure: Affirmed: Mortgage foreclosure action not subject to dismissal for plaintiff's failure to plead and prove assignment of note from previous mortgagee, as Uniform Commercial Code provides only that the party holding the note (including one secured by a mortgage) may maintain an action for the note's proceeds, and defendant not entitled to vacature of default judgment where defendant was not diligent. Gordon, J.

No. 2014 IL App (1st) 132340  CitiMortgage, Inc. v. Moran  Filed 8-29-14 (TJJ)

CitiMortgage, Inc., filed a complaint against John B. Moran (Moran)1, John J. Reid III, and Camille Reid, seeking to foreclose a mortgage after they failed to make payments due on a note given in exchange for a loan from Union Federal Bank of  Indianapolis (Bank). Basically, Moran argues that CitiMortgage did not produce a valid assignment of the note and mortgage, and claims that the trial court: (1) “lacked the discretion to enter an order of default against Moran when Moran had a pending motion to dismiss”; (2) erred by not vacating the order of default; and (3) erroneously confirmed the sale and refused to vacate the confirmation of the sale. For the following reasons, we affirm.

5. Insurance Coverage/"Blast faxes": Reversed and remanded: Trial court erred in concluding that insurer had duty to indemnify insured in connection with class action relating to "blast faxes" sent by insured, where plaintiff in class action amended complaint at 11th hour to seek to take allegations against insured out of applicable policy exclusion relating to violations of Telephone Consumer Protection Act. Zenoff, J.

No. 2014 IL App (2d) 130593  G.M. Sign, Inc. v. State Farm Fire and Casualty Co.  Filed 5-2-14 (TJJ)

This is a declaratory judgment action involving a dispute over insurance coverage for a blast-fax case. The question is whether defendant State Farm Fire and Casualty Company’s policy exclusion (hereinafter Endorsement FE-6655) applied to the amended  complaint in the underlying litigation. If Endorsement FE-6655 applied, then State Farm’s duty to defend was never triggered. The circuit court of Lake County ruled that State Farm had a duty to defend and to indemnify. After modifying our  opinion upon denial of plaintiff G.M. Sign, Inc.’s petition for rehearing, we reverse and remand with directions to enter judgment in State Farm’s favor.

1 Appellate Case Posted 8-29-14

1.  ADministrative Review: Affirmed:  There are three types of questions that a court may encounter on administrative review of an agency decision: questions of fact, questions of law, and mixed questions of law and fact.  Consequently, "The applicable standard of review depends upon whether the question presented is one of fact, one of law, or a mixed question of fact and law." The Administrative Review Law provides that judicial review of an administrative agency decision shall extend to all questions of law and fact presented by the entire record before the court.  Further, "[t]he findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct." Id. In examining an administrative agency's findings of fact, we do not weigh the evidence or substitute our judgment for that of the agency. "Instead, a reviewing court is limited to ascertaining whether such findings of fact are against the manifest weight of the evidence."  The clearly erroneous standard of review lies between the manifest weight of the evidence standard and the de novo standard, and as such, it grants some deference to the agency's decision."  Section 4 of the Statute on Stautes, 5 ILCS 70/4, is a "clear legislative directive as to the temporal reach of statutory amendments and repeals when none is otherwise specified: those that are procedural may be applied retroactively, while those that are substantive may not."  The amended version of the code is prospective only.    Reyes, J., dissent by Lampkin, J.

No. 2014 IL App (1st) 132315  White v. The Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago Filed 8-29-14 (TJJ)

Defendant, the Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago (Board), appeals from the circuit court of Cook County's order reversing the Board's denial of plaintiff Harriet Davis White's (White) petition for prior service credit for her previous employment with the City of Chicago. On appeal, the Board argues the circuit court erred in reversing the Board's determination for two reasons: (1) the amended version of section 5-214(b) of the Illinois Pension Code (Pension Code) (40 ILCS 5/5-214(b) (West 2012)) retroactively applied to  hite's claim and, therefore, White could not receive pension service credit for her prior employment with the office of the corporation counsel; and (2) White's position as an administrative assistant II/police aide (police aide) for the City of Chicago police department did not qualify for prior service credit pursuant to section 5-214(c) of the Pension Code (40 ILCS 5/5-214(c) (West 2010)) because White's duties did not constitute "investigative work." For the reasons that follow, the judgment of the circuit court of Cook County is affirmed and the cause is remanded for further proceedings consistent with this opinion.