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

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4 Appellate Cases Posted 5-22-15 

1. Atty. Fees & Costs: Affirmed: The sole issue on appeal is whether the award of attorney fees and costs was barred by the doctrine of sovereign immunity. Sovereign immunity does not bar the award of attorney fees and costs. Hall, J.

No. 2015 IL App (1st) 130267    Grey v. Hasbrouck    Filed 5-22-15 (RJC)

The defendant, La Marr, Hasbrouck, M.D., State Registrar of Vital Records, appeals an order of the circuit court of Cook County awarding attorney fees and costs to the plaintiffs, Lauren Gray, Victor Williams and Nicholas Guarino, in conjunction with the entry of a consent decree.

2. Pension/Disability Benefits: Decision of the Board confirmed; circuit court affirmed: Under the unambiguous language of the second paragraph of section 5-227, a police officer who is convicted of any felony while receiving disability benefits forfeits his benefits under the Code, regardless of whether the felony was related to his service as a police officer. Therefore, the Board's denial of the plaintiff's application for the reinstatement of his disability benefit was proper. The plaintiff's argument that he did not receive a meaningful hearing is not supported by the record. Section 5-227 does not deny the plaintiff his constitutional right to equal protection. As a police officer receiving disability benefits, the plaintiff is not similarly situated to an individual retired from the police force. The forfeiture of benefits required of police officers receiving disability benefits upon conviction of any felony without requiring that the felony relate to, arise out of or in connection with the officer's police service is rationally related to and furthers the purpose of section 5-227. Hall, J.

No. 2015 IL App (1st) 132182   Majid v. The Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago    Filed 5-22-15 (RJC)

The plaintiff, Nail Majid, appeals from an order of the circuit court of Cook County affirming the decision of the defendant, the Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago (the Board), terminating the plaintiff's disability benefit. On appeal, the plaintiff contends that: (1) the Board erred when it failed to consider whether the plaintiff's felony conviction arose out of or in connection with his service as a police officer; (2) the hearing in which his disability benefit was terminated violated his right to procedural due process under the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV), and article I, section 2, of the 1970 Illinois Constitution (Ill. Const. 1970, art. I, § 2); and (3) section 5-227 of the Illinois Pension Code (the Code) (40 ILCS 5/5—227 (West 2010)) violated his right to equal protection under the fourteenth amendment to the United States Constitution and article I, section 2, of the 1970 Illinois Constitution.

3. Foreclosure Law/2-1401 Petition: Affirmed: Although the record contains the written memorandum issued by the circuit court disposing of the section 2-1401 petition, without the transcripts or a bystander's report of the April 15, 2014, hearing in this matter, we are unable to review the question of whether the circuit court ruled on defendant's petition in contravention of Laugharn.  Defendant has failed to demonstrate that plaintiff has acted in contravention of the Foreclosure Law.  Also, defendant failed to timely file his objection to the circuit court's jurisdiction as provided in section 15-1505.6 of the Foreclosure Law. Additionally, defendant has failed to establish by a preponderance of the evidence a meritorious defense and that he was duly diligent. Reyes, J with Gordon, J. dissenting.  

No. 2015 IL App (1st) 141272   Wells Fargo Bank, N.A. v. Sanders    Filed 5-22-15 (RJC)

Defendant Phillip Sanders appeals from the circuit court of Cook County's order dismissing his petition brought pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2012)). On appeal, defendant contends that: (1) his petition was not ripe for adjudication under People v. Laugharn, 233 Ill. 2d 318 (2009); (2) the court lacked personal jurisdiction to enter the judgment of foreclosure; and (3) the circuit court erred in dismissing his petition on the merits. Affirmed.

4. Elections/Petitions: Affirmed: Statutes are deemed mandatory if the intent of the legislature directs a certain consequence from noncompliance with the statute. In this instance, the legislature dictated a certain consequence for noncompliance with section 10-4: "No signature
shall be valid or be counted in considering the validity or sufficiency of such petition [for nomination] unless the requirements of this Section are complied with." 10 ILCS 5/10-4 (West 2012). This is a clear statement from the legislature that literal, strict compliance is required. Because the wording of the circulators' affidavits was defective, section 10-4 of the Code mandated that all of the voter signatures and all of the petition sheets be deemed invalid. The objection to the petition sheets was correct and the board acted properly when it sustained the objection in its entirety and held that Zurek's name would not appear on the ballot. McBride, J.

No. 2015 IL App (1st) 150508    Zurek v. Petersen    Filed 5-22-15 (RJC)

Petitioner Ken Zurek and Vicki Vanderhei and Chris Litwin filed nomination papers with the Village of Franklin Park, Cook County, Illinois, in order to appear as candidates for the office of village trustee on ballots printed for the consolidated election occurring on April 7, 2015. Respondent Randall K. Petersen filed an objector's petition contending that none of the voter petition sheets filed in support of the three candidates met the requirement in section 10-4 of the Election Code that each sheet include a sworn statement from the circulator of the petition specifying the date or dates on which the sheet was circulated. 10 ILCS 5/10-4 (West 2012). The candidates then tried to persuade the Franklin Park Municipal Officers Electoral Board (electoral board or board) that it was sufficient for each circulator to have sworn "that all of the signatures on this sheet were signed within the statutory time period for petition circulation." The electoral board rejected this argument and ruled unanimously that the nomination papers were invalid. The candidates sought review in the circuit court of Cook County, which affirmed the board, and then candidate Zurek sought further review by this court.

3 Appellate Cases Posted 5-21-15 

1. Criminal Law/Admonishments/Waiver of counsel:  Reversed and remanded: Detective Lee’s testimony sufficient evidence for the grand jury to infer that a firearm was used in the commission of the robbery and the trial court did not err when it denied defendant’s motion to dismiss the indictment for armed robbery.  The trial court’s failure to substantially comply with Rule 401(a) rendered defendant’s waiver of his right to counsel unknowing and involuntary.  A trial court's admonishments regarding the maximum penalty must be accurate before the court accepts the defendant's waiver of counsel.  Cobbs, J.

No. 2015 IL App (1st) 123496    People v. Wright    Filed 5-21-15 (RJC)

Defendant Eugene Wright was convicted of four counts of armed robbery while armed with a firearm pursuant to section 18-2(a)(2) of the Criminal Code of 1961 (the Code) (720 ILCS 5/18-2(a)(2) (West 2010)), and sentenced to 50 years in prison. On appeal, defendant asserts: (1) his due process rights were violated when the State secured his indictment for armed robbery with misleading testimony; (2) the trial court failed to properly admonish him pursuant to Illinois Supreme Court Rule 401(a) (eff. July 1, 1984); (3) the trial court improperly excluded codefendant’s statement that codefendant committed the crime with a BB gun; (4) the State failed to prove him guilty beyond a reasonable doubt of armed robbery while armed with a firearm; and (5) the trial court erred by failing to instruct the jury on the definition of a firearm. Reversed and remanded.

2. Medical Malpractice/SOL: Affirmed: When she filed her 2010 complaint, the plaintiff had sufficient information to be placed on notice of any injuries and that those injuries were wrongfully caused so as to trigger the running of the statute of limitations. As such, the limitations period expired on December 30, 2012, and her cause of action against the defendants-hematologists filed on April 26, 2013, is time-barred.  Fitzgerald Smith, J.

No. 2015 IL App (1st) 141952   Heredia v. O'Brien   Filed 5-21-15 (RJC)

This is an appeal from the circuit court's order dismissing a medical malpractice action filed by the plaintiff, Gabriella Heredia, against the defendants, two hematologists, Dr. Virginia Caroll O'Brien (hereinafter Dr. O'Brien) and Dr. Hande Tuncer (hereinafter Dr. Tuncer), and their employer, Rush University Medical Center (hereinafter Rush), arising from the plaintiff's hospitalization and treatment at Rush in the spring of 2009. The cause of action was dismissed on the basis that it was not commenced within the two-year statutory limitations period set forth in section 13-212(a) of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/13-212(a) (West 2010)). On appeal, the plaintiff argues that the trial court erred in dismissing her action as untimely because her complaint was filed within two years of the date on which she first learned or should have learned through the exercise of reasonable diligence that her injuries were sustained as a result of the negligence of the hematologists involved in her treatment. Affirmed. 

3. Child Support/Modification: Affirmed in part, reversed in part and remanded: The sole issues presented in this appeal concern the proper interpretation of various statutes relating to the modification of child support orders.  When the trial court entered the parties’ agreed order enrolling the Connecticut judgment for both enforcement and modification, the requirements of section 613 were met and Illinois courts gained the authority to modify that judgment. There is no dispute that the trial court had personal jurisdiction over John, who filed a general appearance in the case while he was still an Illinois resident. Accordingly, the trial court did not err in finding that it had authority to modify the Connecticut judgment. As Connecticut was the issuing state, Connecticut law governs both the availability of the relief Melissa seeks—contribution to college expenses—and the duration of John’s child support obligation. Schostok, J.

No. 2015 IL App (2d) 140847   In re Marriage of Edelman   Filed 5-21-15 (RJC)

In 2010, the circuit court of Lake County entered an agreed order enrolling a foreign judgment—the Connecticut judgment for dissolution of marriage between the petitioner, Melissa Edelman, and the respondent, John Preston—in Lake County, pursuant to Illinois’s version of the Uniform Interstate Family Support Act (Family Support Act) (750 ILCS 22/101 et seq. (West 2012)). In 2013, Melissa filed petitions under Illinois law for contribution to college expenses, to increase child support, and to establish adult child support. The trial court dismissed the petitions on the basis that, under the federal Full Faith and Credit for Child Support Orders Act (Full Faith and Credit Act) (28 U.S.C. § 1738B (2006)), Connecticut law governed any proceedings related to the judgment, and the petitions sought relief that was not available under Connecticut law. Melissa appealed, arguing that the Full Faith and Credit Act did not bar her from seeking relief under Illinois law. We affirm in part, reverse in part, and remand.

10 Supreme Court Cases Posted 5-21-15 

1. Criminal Law/DNA/Expert Testimony: Affirmed:   All of the DNA work at issue in this case was conducted between 1999 and 2001, before the defendant was charged in the current matter. Case law from the United States Supreme Court and the Illinois Supreme Court has developed to say that confrontation is required in a criminal trial where out-of-court statements can be characterized as “testimonial.” The Illinois Supreme Court said that the standard for determining whether a forensic report is testimonial is an objective one as to whether it was made for the purpose of proving guilt at trial. The nontestifying witnesses’ reports made before this defendant was charged in this offense were, thus, not subject to the confrontation requirement because, although they produced a “match,” they were not made in connection with the current prosecution. Even if there was error, the court found that it was harmless beyond a reasonable doubt because the properly admitted evidence overwhelmingly supports the conviction.  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 dissented, with opinion.

No. 2015 IL 113135   People v. Allen   Filed 5-21-15 (RJC)

A Cook County jury convicted this defendant of the March, 1999 aggravated criminal sexual assault of a woman which took place on the south side of Chicago. More than three years after the crime, he was arrested and charged, and his trial began in 2006. He received a life sentence, and the appellate court affirmed. A sexual assault kit had been prepared at the time of the offense, but the victim was a reluctant witness and investigators did not succeed in contacting her again until May of 2002. Meanwhile, in connection with the investigation of an unrelated homicide, police had obtained the defendant’s blood sample. He was later eliminated as a suspect in that other matter, but his blood sample was in the system. In July of 2002, Barner was arrested and charged. The victim identified the defendant from a photo array, a lineup, and at trial.

In subsequent proceedings on appeal, the defendant claimed that his constitutional fifth amendment right to confront witnesses had been violated when the prosecution was allowed to present the testimony of three state experts concerning the DNA laboratory work and conclusions of nontestifying scientists, who were not subject to cross-examination by him. The defendant claimed that this entitled him to a new trial. In this decision, the Illinois Supreme Court disagreed.

2. Criminal Law/Searches: Affirmed: In this decision, the supreme court found that the statute is ambiguous and that the statutory language, itself, does not resolve this dispute. The legislature is encouraged to revisit the statute to clarify to what extent, if any, equipment and accessories which are attached to a vehicle are prohibited. For now, however, the supreme court construed the statute to prohibit only those objects that obstruct the visibility of the plate which are physically connected or attached to the plate itself. This construction of the unclear legislative language provides lenity to a defendant. A recent 2014 decision from the United States Supreme Court in the case of Heien v. North Carolina concerns the problems at issue here. After discussing it, the Illinois Supreme Court said that an objectively reasonable, though mistaken, belief as to a question of law or fact may form the basis for a constitutionally valid stop, so that the issue becomes not the meaning of the statute, but whether police made an objectively reasonable mistake of law which would provide the necessary reasonable suspicion to justify stopping a vehicle. The Illinois Supreme Court held that this was the case here. It was objectively reasonable for the police to believe that the trailer hitch was in violation of the law. Therefore, the vehicle stop initiated here was constitutionally valid. The circuit court’s denial of the motion to suppress was affirmed. The appellate court’s judgment was overturned, and the defendant’s conviction was reinstated.   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 116223    People v. Gaytan   Filed 5-21-15 (RJC)           

In this McLean County case, the Illinois Supreme Court upheld a conviction for unlawful possession of cannabis with intent to deliver imposed on a defendant who was a passenger in a vehicle which was stopped because of what police claimed was an obstructed license plate. He was sentenced to 120 days in jail and 30 months of probation. In September of 2010, two Chenoa policemen in a patrol car on Interstate 55 observed a car whose license plate numbers, one of them testified, could not be completely read because of a ball-type trailer hitch on the back of the vehicle. An officer testified that they were unable to run the license plate number so as to identify the owner but that, after the vehicle was stopped, he walked around to the back of it, and, from that vantage point, the numbers could be fully read. However, in conjunction with the stop, the driver rolled down a window and the odor of cannabis was detected. A search of the car revealed cannabis, which this defendant indicated was his, and he was arrested. A grand jury later indicted him and, after his unsuccessful motion to suppress, he was convicted in a stipulated bench trial. The appellate court reversed, and the State appealed. The defendant had challenged the denial of his motion to suppress by claiming that the police had no “reasonable, articulable suspicion that a crime was being committed” when they initiated the traffic stop, and he submitted a photograph which was taken from a point directly behind the vehicle, from which angle the numbers could be read. (A copy of that photograph is attached to this opinion.) However, neither this nor a grainy squad car video had impressed the trial judge to rule other than he did here. The appellate court held that the trial court had erred in denying the motion to suppress and, on that basis, reversed the conviction. At the time of the events in question, the Vehicle Code stated that every “registration plate shall at all times be *** in a place and position to be clearly visible and shall be maintained in a condition to be clearly legible, free from any materials that would obstruct the visibility of the plate, including, but not limited to, glass covers and plastic covers.” The defendant relied on the specific examples cited in the last part of this language, claiming that what was forbidden could include only items attached to the license plate itself. This was the view taken by the appellate court. The State, however, took the contrary position that obstructing items could be attached to a vehicle itself, such as the trailer hitch at issue here, and that any obstruction, however minor, is prohibited.

3. Rental Housing Support Program: Reversed and remandedIn this decision, the supreme court held that the enactment at issue did not authorize county recorders to retain a percentage of the funds they collected. Rather, it provided for a partial allocation to the State and a separate partial allocation to the county, to be deposited in the county’s general revenue fund. This is consistent with the constitutional requirement that fees collected by county officers “be deposited upon receipt with the treasurer of the [local governmental] unit.” Under the statute, the county is to apply a portion of the fee for administering the surcharge and for “any other lawful expenditures for the operation of the office of the recorder.” In directing deposit with the county treasurer and providing instructions on how the county may spend the amount deposited, the surcharge statute does not allow the recorders to retain that amount or have discretion as to how it is spent. A recorder acts merely as a conduit to the county treasurer. This is neither skimming nor a violation of the “fee office” provision of the constitution.   The circuit court had also made findings of invalidity under the uniformity and due process clauses of the Illinois Constitution. Both of these holdings were rejected by the Illinois Supreme Court in this decision. As to due process, the court said that the legislation meets the rational basis test. As to uniformity, the court said that the theory that those paying this tax cannot necessarily be shown to be obtaining a direct benefit from it is not a grounds for finding lack of uniformity.  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 116226    Marks v. Vanderventer   Filed 5-21-15 (RJC)     

This class action challenges the constitutionality of a section of the Counties Code which calls for the state’s Rental Housing Support Program to be funded by a surcharge collected by county recorders of deeds when they record real estate-related documents. The legislature has stated its purposes for the Rental Housing Support Program. Recognizing the problems created by a lack of affordable housing, the program subsidizes a portion of the rent that many tenants have to pay. It was the intent of this statute to help provide affordable housing to low-income families throughout Illinois.  The Illinois Constitution of 1970 prohibits “fee offices.” The article on Local Government states as follows: “Compensation of officers and employees of units of local government shall not be paid from fees collected. Fees may be collected as provided by law and by ordinance and shall be deposited upon receipt with the treasurer of the unit.” This provision has been held to prevent a local governmental unit from retaining or “skimming off” a portion of taxes collected for another taxing body as a fee for the service of collecting those taxes. The circuit court held the Counties Code section question to be invalid under this constitutional provision. It also ruled that the due process and uniformity clauses of the Illinois Constitution had been violated. Because of these holdings of statutory unconstitutionality, a direct appeal lay to the Illinois Supreme Court. A class of defendants has been certified consisting of the recorders of deeds in each of the counties in the state.  The circuit court’s judgments were reversed.

4. Criminal Law/GPS/Exclusionary Rule: Appellate court affirmed in part and reversed in part. Circuit court affirmed in part and reversed in part. Cause remanded:  In this decision, the Illinois Supreme Court held that the good faith exception to the exclusionary rule is applicable so that the evidence compiled against the defendant as a result of the installation and use of the GPS should not be excluded and a new suppression hearing is not required. In 2009, police acted reasonably in relying on what was, at that time, binding precedent which clearly authorized their conduct in installing and monitoring the GPS device without a warrant. However, after the 2009 Jones decision, law enforcement should be aware of that holding and how it relates to GPS attachment and monitoring. The new trial can therefore go forward, but without the suppression hearing.  Justice Thomas delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Kilbride and Karmeier concurred in the judgment and opinion.  Justice Burke dissented, with opinion, joined by Justices Freeman and Theis.

No. 2015 IL 116799    People v. LeFlore   Filed 5-21-15 (RJC)       

A Kane County jury convicted this defendant of the April 2009 hold-up of a gas station in Aurora, and the circuit court imposed a 20-year prison term for aggravated robbery. He had not been represented by an attorney at trial.  The appellate court reversed his conviction and remanded for a new trial based on the circuit court’s failure to properly admonish him, as required by the Rules of the Illinois Supreme Court, concerning his waiver of counsel. The State now concedes that the defendant must be tried again because of this defect. The instant appeal concerns the circuit court’s denial of his pretrial motion to suppress evidence.  The defendant’s pretrial motion had complained of the use by police of a GPS device which they had secretly installed on the vehicle that he drove and which was used to track his route when he drove it to the scene of the crime. The trial court was of the view that no search had occurred, but, while LeFlore’s appeal was pending in the appellate court, the Supreme Court of the United States held in 2012, in United States v. Jones, that government installation of a GPS device on a vehicle, and its use of that device to monitor the vehicle’s movements, constituted a search under the fourth amendment. The State would later theorize in this appeal that application of the exclusionary rule was precluded here because, in 2009, police had reasonably relied in good faith on existing legal precedent which did not go as far as Jones. That theory was agreed with by the Illinois Supreme Court in this opinion.  Police had received an anonymous tip that LeFlore was committing burglaries and bringing the fruits thereof back to the apartment complex where he lived with his girlfriend, who was the registered owner of a red Kia. He had recently been arrested for fleeing police in that car, on which the GPS device was later secretly placed. He was on mandatory supervised release from prison at the time. Shortly after the offense, a parole search was conducted at the defendant’s residence, during the course of which he arrived in the red Kia. He was taken into custody for driving on a revoked license and confessed to the robbery. The store cashier later picked him out of a photo lineup. The defendant would later claim that all the evidence against him should be suppressed because the GPS placement, done without a warrant, was illegal. The appellate court accepted this argument, ordering a new suppression hearing as well as a new trial.

5. Juvenile/Discharge Hrng./Statements: Affirmed in part and reversed in part. Cause remanded:  In this decision, the Illinois Supreme Court dealt with the two interviews separately. It found the motion to suppress was properly denied as to the first interview because those statements were voluntary. Thus, it disagreed with the appellate court as to the first interview. The supreme court held that the circuit court erred in denying the respondent juvenile’s motion to suppress as to the second interview, in which deception, subterfuge and promises were employed to induce inculpatory statements, rendering them involuntary. However the supreme court disagreed with the scope of the appellate court’s review. The cause was remanded to the appellate court for it to set forth its analysis of the question of harmless error, and other claims of error which it previously did not reach.  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 specially concurred, with opinion.

No. 2015 IL 117341   In re D.L.H.   Filed 5-21-15 (RJC)      

In 2012, in Cahokia, a 14-month-old infant died of head injuries after being left in the company of other children, including this juvenile respondent, who was nine years old at the time. All of the other children were three years old or younger, except for one who was 11. After the death, the State filed a petition against the respondent for adjudication of wardship in the circuit court of St. Clair County. First degree murder was alleged, but the court found the respondent unfit to stand trial based on expert testimony as to his limited intellectual abilities for his age.  Ultimately, the State sought and was granted a “discharge” hearing, a nonjury proceeding which allows one who is unfit for trial to, nevertheless, be acquitted if there is not sufficient evidence to find him guilty beyond a reasonable doubt. Should this not be the case, however, and there is sufficient evidence of guilt, the unfit individual is not found guilty, but is determined to be “not not guilty” and remanded for further treatment. This would contemplate, upon fitness restoration, a trial for murder.  Before the discharge hearing, counsel for the juvenile moved to suppress statements he had made to a police detective in two interviews in the kitchen of his home with his father present. Video recordings had been made of the statements, they were played for the court, and the police detective testified and was cross-examined. Those statements were challenged as involuntary, but the prehearing suppression motion was denied. That denial is disputed here. The discharge hearing did not result in an acquittal, but in a finding of “not not guilty,” with a maximum treatment period specified as five years. The juvenile respondent appealed. The appellate court did not reach all the issues presented, but did reverse and remand, stating that the circuit court’s finding that the statements were voluntary was against the manifest weight of the evidence. It did not reach questions of harmless error or the sufficiency of the evidence to support the “not not guilty” finding. The State appealed. 

6. Criminal Law/Postconviction Petition: Judgments reversed and cause remanded:  In the convicted offender’s appeal to the Illinois Supreme Court, judicial precedent concerning the second stage of postconviction proceedings was at issue. However, the court pointed out that precedent is of limited value on this issue if it arises from proceedings in which a cause is automatically docketed for the second stage because it was not dealt with at the first stage within the time frame required by statute. Here, in contrast, there was no “default” advance to the second stage. The circuit court affirmatively found that the petition was neither frivolous nor patently without merit and an appointed attorney seeking to withdraw has the burden of overcoming this and showing why all of the petitioner’s claims are so lacking in legal and factual support as to compel counsel’s withdrawal from the case. The motion to withdraw filed here failed to meet this standard. Both the circuit and appellate courts were reversed and the cause was remanded for further second stage proceedings, for which new counsel should be appointed, as requested by the petitioner.  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. 2015 IL 117695   People v. Kuehner   Filed 5-21-15 (RJC)    

In 2005, this 17-year-old defendant entered an open guilty plea to attempted first degree murder and home invasion. His 2007 motion to withdraw his plea as not knowing and voluntary because of counsel’s allegedly deficient advice and representation was denied. The circuit court of Sangamon County imposed two consecutive terms of 17½ years in prison, and the appellate court affirmed. In 2009, Kuehner acted pro se and filed a postconviction petition, claiming that he had been denied effective assistance of counsel both in the trial court and in his direct appeal (in which, he alleged, his counsel had failed to challenge his trial attorney’s effectiveness). At the first stage of the postconviction proceeding, the circuit court found that the petition was neither frivolous nor patently without merit and it docketed the matter for second stage proceedings. As provided for by statute, counsel was appointed to represent Kuehner at this second stage. Almost three years later, in 2012, appointed counsel filed a motion to withdraw and a brief in support of that motion. The court allowed the motion to withdraw and also a motion to dismiss filed by the State. Petitioner sought appellate review, but the appellate court affirmed. Postconviction petitioner had several issues, some of which were dealt with in the brief submitted by the attorney in seeking to withdraw. However, other issues were not reached. Family members of the then-17 year old accused (his mother and his aunt) were alleged to have been lied to so as to manipulate them to put pressure on the accused to plead guilty. In connection with that plea, trial counsel was also claimed in the postconviction petition to have lied in connection with the potential sentence. Postconviction counsel, in seeking to withdraw, did not address, analyze, or even mention any of those claims, asserting, with neither explanation nor support, that the petitioner’s postconviction issues were “without merit and unsupportable as a matter of law” and that “no errors committed by *** counsel ***rose to the level of ineffectiveness.” The trial court granted counsel’s motion to withdraw and the State’s motion to dismiss.

7. Civil/2-1401 Petitions: Appellate court judgment reversed. Circuit court judgment reversed. Cause remanded:   The circuit court had expressed its view that equity favored vacating the judgment, but believed that it was constrained by this 2007 decision. In this opinion, the supreme court clarified that earlier decision. The court held here that a prohibition on equitable considerations is limited to situations in which only legal questions are presented. Equitable considerations are appropriate where there are factual disputes. The supreme court reversed the courts below. Without reaching the merits, it called for a remand for further evidentiary hearings under the standards clarified in this decision.       The supreme court said that this case does not present legal issues, which are appropriately reviewed de novo. Rather, it presents multiple questions of fact, which are subject to being proved by a preponderance of the evidence and as to which findings are reviewed for abuse of discretion. Here, the parties disagree as to whether the defendants’ petition sufficiently alleged due diligence and a meritorious defense, as required by statute for this petition, and whether equitable considerations justify relaxing the due diligence requirements. These questions should be resolved by a full and fair evidentiary hearing in the circuit court on remand. This case presents an appropriate circumstance in which traditional equitable standards should be applied by a circuit court, in its discretion, in determining whether to grant relief from the default judgment. Justice Kilbride delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL 117783    Warren County Soil and Water Conservation District v. Walters   Filed 5-21-15 (RJC)      

This dispute arises from the logging of timberland in Warren County. The plaintiff is the Warren County Soil and Water Conservation District. Among the defendants are Steve Walters, an Iowa timber buyer and Robert O’Dell, an Iowa logger. The latter hauled a load of trees from Warren County property owned by a woman who resides in the State of Washington and who contracted with Walters for the logging. The Conservation District later came to believe that it owned the property and filed a suit in 2009 seeking damages. An Illinois attorney for Walters and O’Dell filed a written appearance, but essentially performed no substantive work, and a default judgment for $68,920 was entered against the defendants in June of 2011. In 2012, the circuit court entered an order removing this attorney from the case. Meanwhile, because all notices had been sent to this attorney’s address, the defendants did not learn of his neglect until the circuit court notified them of the default and the attorney’s removal.      Statute permits a final judgment to be vacated within two years of entry if certain procedures are followed and certain criteria are met. This is a modern codification of relief which was once granted in equity. The defendants filed a petition for such relief, expressing the equitable merits of their case, but the circuit and appellate courts ruled that a 2007 decision of the Illinois Supreme Court eliminated a circuit court’s discretion to consider equity in this type of petition. The supreme court held in this decision that such was not the case.

8. Wrongful Death/Suicide: Appellate court judgment reversed. Circuit court judgment affirmed: In this decision, the Illinois Supreme Court adhered to the general rule that suicide is deemed unforeseeable as a matter of law, breaking the chain of causation and, thereby, barring a cause of action for wrongful death. This is true even if intentional infliction of emotional distress is alleged. What an emotional distress plaintiff must do to plead a cause of action for wrongful death by suicide is to go beyond pleading facts which, if proven, would establish that the defendant’s conduct was a cause in fact of the suicide, overcoming application of the general rule that suicide is deemed unforeseeable as a matter of law. In other words, a plaintiff must plead facts demonstrating that the suicide was foreseeable, i.e. that it was a likely result of the defendant’s conduct. It would be a rare case in which a plaintiff could do so, and this is not one of those cases. The allegations here are insufficient to allow plaintiff’s wrongful death action to proceed. The court said that, as a matter of law, this suicide was not a reasonably foreseeable result of the defendant’s alleged conduct in breaking the lease and pressuring the couple to vacate the apartment. Dismissal of this count with prejudice was proper, as was the survival count predicated on it. 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. 2015 IL 117962   Turcios v. The DeBruler Company   Filed 5-21-15 (RJC)  

The defendant in this Lake County wrongful death suit is DeBruler Company, the agent for a Park City development known as Colonial Park Apartments. The plaintiff is Maria Turcios, the special administrator of the estate of her late husband Nelsyn Caceras, who died June 15, 2011. The complaint alleged that the Spanish-speaking couple had entered into a written apartment lease (in Spanish) with the defendant for May 1, 2011, to April 30, 2012. The family, with two children, moved in on May 1. Just 10 days into the lease, a purported 30-day eviction notice was received, with advice that “construction begins June 10.” Subsequent letters offered free rent from June 1 to June 9, and transfer to another unit with free rent for the month of June. $2000 was offered to make the move. Demolition began in early June, with surrounding parts of the building being torn out while the family was still in their apartment. Nelsyn was found dead in the apartment on June 15, with a suicide note. Plaintiff filed suit in the circuit court of Lake County, seeking damages for intentional infliction of emotional distress, wrongful eviction, breach of contract, and wrongful death. A claim under the survival statute was also alleged. Only the latter two claims are at issue here. The wrongful death claim was predicated on suicide, allegedly brought about by the defendant’s infliction of emotional distress. The circuit court dismissed the wrongful death and survival claims with prejudice, finding that “wrongful death via suicide” is not cognizable in Illinois. The defense was not successful on its motion to dismiss the claims for intentional infliction of emotional distress, wrongful eviction, and breach of contract. The appellate court vacated the dismissal and remanded for the circuit court to reconsider whether the emotional distress was a substantial factor in causing the suicide.

9. Health Care Liens: Appellate court judgment reversed. Circuit court judgment affirmed: The Illinois Supreme Court in this opinion overruled this earlier appellate court decision. The supreme court said that nothing in the Act allows a health care lien to be calculated from the net amount of a plaintiff’s recovery after costs and attorney fees are deducted. In the instant litigation, this would improperly shift some of the attorney fees and litigation costs to the hospital.  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. 2015 IL 118143   McVey v. M.L.K. Enterprises, LLC   Filed 5-21-15 (RJC)  

Health care liens are regulated by statute. In this Jackson County case, the supreme court held that, where an injury victim who had settled her circuit court claim filed a petition to adjudicate liens and the only health care lien at issue was that of the treating hospital, the Health Care Services Lien Act did not permit the deduction of attorney fees and costs of litigation prior to calculating the amount to be paid to the health care lienholder. In 2010, plaintiff Alma McVey sustained a foot injury at a restaurant owned by defendant M.L.K. Enterprises. After she filed suit, the matter was settled for $7,500. In the subsequent proceedings on her lien-adjudication petition, it was stipulated that Memorial Hospital of Carbondale’s lien was $2,891.61. There also were attorney fees, and plaintiff would later assert that she had also incurred $846.66 in litigation costs. The trial court refused to deduct attorney fees and costs prior to calculating the amount available to the hospital. That result was affirmed here. The appellate court had reached a different result, following one of its own prior decisions which held that the computation of the amount available to health care providers should not begin until costs associated with bringing the case to trial and securing payment of the judgment had been deducted from the original award.  The appellate court was reversed and the circuit court was affirmed.

10. Juviniel Court Act/Saving Clause: Circuit court judgment reversed and cause remanded: It was reasonable for the legislature to distinguish between offenses committed before and offenses committed after the amendment’s effective date since applying the amendment to offenses committed before the effective date would require those cases to be transferred to the juvenile division and to begin anew. The defendant has not met his burden of establishing an equal protection violation.  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. 2015 IL 118255    People v. Richardson   Filed 5-21-15 (RJC)  

The sole issue on appeal is whether the saving clause in the exclusive jurisdiction provision of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/5-120 (West 2012)) violates the equal protection rights of defendant Jermaine Richardson. The circuit court of Du Page County found the clause violated defendant’s equal protection rights and declared it unconstitutional as applied to him. Pursuant to Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013), the State’s appeal comes directly to this court. We reverse the judgment of the circuit court and remand the cause for further proceedings.           


2 Appellate Cases Posted 5-20-15 

1. Personal Injury/Service/SOL: Affirmed: Mular's complaint asserts a premises liability claim against a property owner governed by the two-year statute of limitations and the trial court properly so ruled.  No "special circumstances" appear of record that would excuse the nearly one year delay between the filing of Mular's complaint and service on Ingram. Mular's 10½-month delay in serving Ingram exhibits a lack of reasonable diligence and the trial court properly exercised its discretion in dismissing her complaint with prejudice. Mason, J.

No. 2015 IL App (1st) 142439   Mular v. Ingram   Filed 5-20-15 (RJC)

Plaintiff-appellant Geraldine Mular appeals the dismissal of her personal injury complaint against defendant-appellee Dawn Ingram arising out of injuries Mular sustained while she was a guest at Ingram's home. The trial court dismissed the complaint based on its finding that Mular failed to exercise reasonable diligence in effecting service on Ingram after the complaint was filed. Because the statute of limitations applicable to Mular's personal injury claim had expired, the complaint was dismissed with prejudice. The trial court further denied Mular leave to amend her complaint to assert a claim for construction negligence to which a longer statute of limitations applies. Finding no abuse of discretion in either ruling, we affirm.

2. Criminal Law/Other Crimes Evidence: Affirmed: The prosecution's disclosure of its intent to seek admission of other-crimes evidence met the requirements of section 115-7.3(d) in that the evidence was timely and adequately disclosed. The judge carefully considered the statutory factors in weighing the probative value of the other crimes evidence against its potential to cause undue prejudice to the defendant. There is no basis to conclude that the court abused its discretion. Chapman,  J.

No. 2015 IL App (5th) 130354    People v. Braddy   Filed 5-20-15 (RJC)

The defendant seeks a new trial on the basis that the trial court improperly granted the State's motion allowing evidence of uncharged sexual assaults allegedly committed by the defendant on his sister 20 years prior to the crimes alleged in this case. He alleges that the State's notice of its intent to introduce this evidence was inadequate because it did not comply with the relevant statute. Alternatively, he argues that the evidence unduly prejudiced him and should not have been allowed because it was too remote in time and too dissimilar from the charged offenses. We affirm.

3 Appellate Cases Posted 5-19-15 

1. Illinois Public Labor Relations Act: Affirmed: In light of all considerations, a one-year grant of limited authority was reasonable and does not make the delegation unconstitutional.The law is rationally related to an important state interest. In addition though, the record reveals that certain members of AFSCME received the benefit of the statute. The Governor was also the one to make the ultimate decisions under the statute so the motivations of the General Assembly are irrelevant. There is no indication in the record that the Governor used the authority granted to him in an arbitrary or capricious manner.  The State has a legitimate interest in the efficiency of state government and a rational basis for treating some top-level managers differently than other managerial-type workers, we find that the statute does not violate the individuals' equal protection rights. Simon, J.

No. 2015 IL App (1st) 133454    AFSCME Council 31 v. The State of Illinois   Filed 5-19-15 (RJC)

This case deals with a statute aimed at increasing efficiency in the state government by reducing collective bargaining unit membership among management-level state employees. Under the authority of that statute, the Governor filed petitions identifying the positions occupied by the individual objectors in these cases (individuals) for exclusion from their collective bargaining units. The Governor's designations were approved by the Illinois Labor Relations Board, thereby excluding the individuals from their collective bargaining units. AFSCME, on behalf of the designated employees, filed this appeal arguing that the statute is unconstitutional. We affirm the decisions of the Illinois Labor Relations Board.

2. Insurance/Duty to Defend: Affirmed: Under the undisputed material facts, West Bend owes Ridgeway a duty to defend. The undisputed facts demonstrate the existence of a “written contract or written agreement” requiring that Ridgeway be named as an additional
insured under the Policy.  Because Ridgeway’s additional-insured coverage under the Policy includes primary coverage as a portion of its total coverage, West Bend has a duty to defend Ridgeway in the underlying action. Birkett, J.

No. 2015 IL App (2d) 140441    West Bend Mutual Insurance Company v. DJW-Ridgeway Building Consultants, Inc.    Filed 5-19-15 (RJC)

Plaintiff, West Bend Mutual Insurance Company (West Bend), appeals the grant of summary judgment in favor of defendant, DJW-Ridgeway Building Consultants, Inc. (Ridgeway), on West Bend’s complaint for a declaratory judgment that it does not owe Ridgeway a duty to undertake its defense in a construction negligence suit.

3. Criminal Law/Guilty Pleas: Vacated and remanded: We conclude that the immigration consequences of defendant's plea were clear and that counsel failed to meet his duty to advise defendant of those consequences. Counsel's deficiencies prejudiced defendant, and that
prejudice was not cured by the court's admonishments. McDade, J. with Holdridge, J. specially concurring.

No. 2015 IL App (3d) 120892    People v. Valdez   Filed 5-19-15 (RJC)

Defendant, Josue Valdez, was a noncitizen who pled guilty to burglary predicated upon theft (720 ILCS 5/19-1(a) (West 2012)). He filed a timely motion to withdraw his guilty plea, claiming his counsel provided him ineffective assistance of counsel by failing to advise him that he would be deported as a result of his plea, in violation of the holding in Padilla v. Kentucky, 559 U.S. 356 (2010). The trial court denied the motion, finding that counsel's advice was deficient but that defendant was not prejudiced because the court admonished defendant that his plea may have adverse immigration consequences. Defendant appeals. We vacate the judgment and remand for further proceedings.

6 Appellate Cases Posted 5-18-15 

1. Fraudulent Transfer Act/Alter Ego: Affirmed in part; vacated and remanded in part: The court, perhaps uncertain whether certain facts and issues were truly identical, selected a proper course of action that allowed objections at trial based on collateral estoppel and shifted the burden depending on which defendant was at issue. Overall, we find that the court correctly denied the application of collateral estoppel before trial.  The conclusion that the transfer of management fees to WSM was fraudulent was not against the manifest weight of the evidence.  Plaintiff failed to establish that Wendy was an alter ego for SCI or WSM. Wendy's involvement in SCI and WSM was marginal at best.  The court properly dismissed the alter ego claims against Wendy at the directed finding stage.  Overall, there was not such a unity of interest and ownership such that the separate personalities of SCI and William, and WSM and William, did not exist. Connors, J.

No. 2015 IL App (1st) 132551   Bank of America v. WS Management, Inc.    Filed 5-18-15 (RJC)

Plaintiff, Bank of America, appeals from orders of the circuit court that declined to find that spouses William Spatz (William) and Wendy Spatz (Wendy) were alter egos of Spatz Centers, Inc. (SCI), and WS Management, Inc. (WSM). Defendants, William, Wendy, SCI, WSM, and Anderson Associates, L.P. (Anderson), cross-appeal, contending: (1) the trial court should have found that certain facts and issues were precluded by collateral estoppel; (2) the trial court erred in finding that defendants violated the Uniform Fraudulent Transfer Act (Fraudulent Transfer Act) (740 ILCS 160/1 et seq. (West 2006)); and (3) the trial court improperly awarded attorney fees to plaintiff. We affirm the court's judgment on the collateral estoppel, Fraudulent Transfer Act, and alter ego claims, and vacate and remand on the issue of plaintiff's attorney fees.

2. Personal Injury/Immunity: Reversed and remanded: The relevant question here is whether the grassy area upon which plaintiff fell was "public property intended or permitted to be used for recreational purposes" within the meaning of section 3-106.  A genuine issue of material fact exists as to whether the property is recreational property for purposes of section 3-106. The facts do not support a claim that the city had actual or constructive knowledge of the allegedly dangerous condition. Although the city's conduct could arguably be characterized as negligent, it did not show an actual or deliberate intention to cause harm or an utter indifference to, or conscious disregard for, the safety of others. Since no genuine issue of material fact exists, the city is entitled to judgment as a matter of law. Harris, J.

No. 2015 IL App (1st) 140679    Fennerty v. City of Chicago    Filed 5-18-15 (RJC)

Plaintiff, Janet Y. Fennerty, appeals the order of the circuit court granting summary judgment in favor of defendant, City of Chicago, on plaintiff's personal injury complaint. On appeal, plaintiff contends the trial court erred in granting summary judgment where (1) the property on which she sustained her injury is not "recreational property" within the meaning of section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-106 (West 2010)); and (2) her allegations raise a genuine issue of material fact regarding whether the city engaged in willful and wanton misconduct. Reversed and remanded for further proceedings.

3. Foreclosure/ Forest Preserve District Board/Purchases: Affirmed: FPD was within its statutory authority to acquire the property in the manner it did and summary judgment in defendants' favor on Counts I and II was proper. Connors, J.

No. 2015 IL App (1st) 141457    Baker v. The Forest of Preserve District of Cook County    Filed 5-18-15 (RJC)

This appeal, filed by taxpayers of Cook County, concerns the statutory authority of the Forest Preserve District of Cook County (FPD) to acquire property in foreclosure by purchasing the mortgage note and subsequently bidding on the property at the foreclosure sale.

4. Criminal Law/Traffic/SOL: Reversed: Where the limitations period has expired, and where in the charging instrument the State expressly alleges that fact plus some exception, the State can no more shift the burden to the defendant than it could as to any other element of the offense. The tolling of the limitations period was an element of the State’s case that it had to prove beyond a reasonable doubt at trial, it failed to do so. Zenoff, J. with Spence, J. specially concurring and with Burke, J. dissenting.

No. 2015 IL App (2d) 140139    People v. Lutter    Filed 5-18-15 (RJC)

Following a bench trial, defendant, Scott Lutter, was found guilty of reckless driving (625 ILCS 5/11-503(a)(1) (West 2012)). He appeals, contending that the information charging him with this offense was filed outside the statute of limitations and that the State failed to prove beyond a reasonable doubt that an exception to the statute of limitations applied. We reverse.

5. Criminal Law/Orders of Protection/Counsel: Reversed and remanded: There is no requirement for a process server to read an entire copy of the order of protection to a respondent. Where, as here, defendant was provided a “short form notification” that complied with the statute, he received adequate notice of the order of protection and its contents. The plenary orders of protection were valid and enforceable.  However, the trial court committed plain and reversible error at both of defendant’s trials by failing to admonish defendant regarding his waiver of counsel in compliance with Rule 401(a). The trial court failed to instruct defendant regarding his waiver of counsel and denied him his right to counsel at both trials.  Also, the trial court excused defendant’s standby counsel prior to jury deliberations, a critical stage in his trial. Such an act was prejudicial and an abuse of discretion because it deprived defendant of any assistance at crucial phases of his trial. Lytton, J. 

No. 2015 IL App (3d) 120376    People v. Brzowski    Filed 5-18-15 (RJC)

Defendant Walter Brzowski was charged with two counts of unlawful violations of an order of protection for sending mail to his two sons. Three months later, he was charged with an additional two counts of unlawful violations of an order of protection for sending mail to his exwife.

Two separate trials were held. Defendant represented himself at both trials. Defendant was convicted of all four charges. He was sentenced to one year in prison on the first two charges of unlawful violations of an order of protection and two concurrent three-year terms of  imprisonment on the latter two charges. Defendant appeals, arguing that (1) he was not proven guilty beyond a reasonable doubt, (2) he was not adequately informed of the contents of the order of protection, (3) the order of protection was invalid, (4) he was not properly instructed regarding his waiver of counsel, (5) he was improperly denied his right to counsel, and (6) the court allowed improper arguments and inadmissible evidence at his trials. We reverse and remand.

6. DUI/Blood Test: Affirmed: A rational trier of fact clearly could have found defendant was under the influence of alcohol, his BAC was over 0.08, and he was driving or in actual physical control of a motor vehicle. The evidence was sufficient to find guilt beyond a reasonable doubt on both DUI charges. Officer, by providing defendant with only the warning to motorist, did not coerce or force defendant to agree to the blood test such that defendant's consent was rendered involuntary. Defendant voluntarily consented to the blood test and clearly had a choice whether to consent to testing.  The consensual blood test conducted in this instance did not violate defendant's fourth-amendment rights and the trial court's denial of defendant's motion to suppress is affirmed. Knecht, J. 

No. 2015 IL App (4th) 140696    People v. Harris    Filed 5-18-15 (RJC)

Following an April 2014 stipulated bench trial, defendant, Jackie V. Harris, was convicted of one count of aggravated driving under the influence (DUI) of alcohol and one count of aggravated driving with a blood alcohol concentration (BAC) of greater than 0.08 in violation of statute.  The trial court sentenced defendant to 13 years' imprisonment. Defendant appeals, arguing (1) the trial court erred in finding defendant guilty beyond a reasonable doubt; (2) the court erred in refusing to suppress evidence illegally seized; and (3) the court abused its discretion in sentencing  defendant to 13 years' imprisonment. Affirmed.

2 Appellate Cases Posted 5-15-15 

1. Wrongful Death/Nursing home/Duty: Reversed and remanded: Countryside owed Marjorie a duty of care. What Countryside should or could have done to protect Marjorie bears on the question of whether Countryside breached its duty. And on the record here, that is a question of fact. The factual determination whether Countryside exercised due care is not amenable to artificial and arbitrary rules that insulate Countryside from liability for anything other than negligence in selecting a transportation service. Burke, J.

No. 2015 IL App (2d) 140908    Stearns v. Ridge Ambulance Service, Inc.    Filed 5-15-15 (RJC)

Plaintiff, Scott Stearns, as executor of the estate of Marjorie Stearns, deceased (Marjorie), filed a multi-count complaint under the Wrongful Death Act against Ridge Ambulance Service, Inc. (Ridge), Jerry Brooks, and Countryside Care Centre, Inc. (Countryside). Marjorie, who resided in a nursing home operated by Countryside, died as a result of injuries sustained while Ridge transported her back to the nursing home following treatment at an offsite dialysis center. Brooks, who was an employee of Ridge, was driving the medical transport vehicle (medi-van) in which Marjorie’s injuries occurred. Countryside’s successful motion for summary judgment on the claims against it gives rise to this appeal under Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). We reverse and remand.

2. Dedication of Property: Affirmed: Here, Republic Bank executed and recorded mortgage releases on lots shown on the plats for each subdivision. The releases specifically referred to the lots by the lot numbers shown on the plats. By executing and recording these releases, Republic Bank impliedly consented to the entire plats, including the streets and outlots shown thereon.  Once Republic Bank executed the mortgage releases, it could no longer revoke its assent to the dedication of the streets and outlots set forth in the plat. Republic Bank cannot now deny the validity of the dedication of the streets and common areas shown on the plats, and the trial court properly dismissed Republic Bank’s complaints seeking foreclosure of that property. Lytton, J. with Carter, J. dissenting. .

No. 2015 IL App (3d) 130379    Republic Bank of Chicago v. Village of Manhattan     Filed 5-15-15 (RJC)

Plaintiff Republic Bank of Chicago filed two separate complaints against multiple defendants to foreclose on roads and outlots contained in two failed subdivisions located in the Village of Manhattan (Village). The Village filed motions to dismiss the complaints, arguing that the roads and common areas had been dedicated to the Village. The trial court granted the Village’s motions to dismiss. On appeal, Republic Bank argues that (1) the roads and common areas were not properly dedicated to the Village, and (2) even if they were properly dedicated, Republic Bank is still entitled to foreclose on them. We affirm.

3 Appellate Cases Posted 5-14-15 

1. Domestic Relations/Military Pensions/Jurisdiction: Vacated and remanded: The FUSFSPA applied to the circuit court's actions in this case and that the trial court erred in determining that DeAngelo consented to personal jurisdiction.  In order to divide DeAngelo's military pension, the circuit court was required to have jurisdiction under section 1408(c)(4) of FUSFSPA. The circuit court erred in concluding that DeAngelo had consented to its jurisdiction by raising a substantive issue after his challenge to the court's personal jurisdiction. Ellis, J.

No. 2015 IL App (1st) 132345   In re Marriage of Robinson   Filed 5-14-15 (RJC)

In this appeal, we are called upon to address the applicability of the Federal Uniformed Services Former Spouses' Protection Act (FUSFSPA) (10 U.S.C. § 1408 (2006)) to the modification of an out-of-state divorce judgment dividing a former military member's pension. Petitioner Maleta Robinson (Maleta) and respondent DeAngelo M. Willis (DeAngelo), a former member of the United States Marine Corps, divorced in Michigan in 2009. As part of the consent judgment entered by the Michigan court, Maleta received 25% of DeAngelo's military pension. Maleta then moved to Illinois and sought to register the Michigan judgment in Cook County. After DeAngelo did not appear in Cook County, the circuit court registered the Michigan order and entered an order dividing DeAngelo's military retirement pay. DeAngelo filed a motion to vacate that order, alleging that the Illinois circuit court lacked personal jurisdiction over him. The circuit court denied DeAngelo's motion and entered another order dividing DeAngelo's pension. DeAngelo appeals, asserting that the Illinois circuit court lacked personal jurisdiction to divide his pension under FUSFSPA, which empowers state courts to divide military retirement pay in divorce proceedings.  We vacate the trial court's order dividing DeAngelo's military pension and remand for an evidentiary hearing to determine whether DeAngelo was a resident or domiciliary of Illinois under FUSFSPA.

2. Injunctions: Affirmed: An association’s bylaw cannot violate one’s constitutional rights. Thus, as the plaintiff’s equal-protection rights were at issue, the trial court was not obligated to defer to the IHSA’s judgment in the amendment of bylaw 3.034.3. Schostok, J.

No. 2015 IL App (2d) 141201    Makindu v. Illinois High School Association   Filed 5-14-15 (RJC)

The instant controversy arose after the defendant, the Illinois High School Association (IHSA), amended one of its bylaws, which had the effect of preventing the plaintiff, Rodrigue Ceda Makindu, from participating on his high school’s basketball team. The plaintiff filed a complaint and sought a preliminary injunction in the circuit court of Kane County, asserting that the IHSA’s amended bylaw violated his right to equal protection. The trial court granted the plaintiff’s motion for a preliminary injunction, and the IHSA appeals from that order. Affirmed.

3. Criminal Law/Search and Seizure/PC: Reversed and remanded: Giving the required deference to the issuing judge's conclusions, Judge Klaus could have reasonably concluded, based on the totality of the facts presented and the reasonable inferences drawn therefrom, that defendant violated the law and evidence of the crime committed, i.e., the firearm, could be found inside defendant's residence, Apartment 5.  The Apartment 5 complaint and affidavit, along with the vehicle complaint and affidavit, afforded a substantial basis from which the issuing judge could find probable cause existed to search Apartment 5. White, J. with Holder, J. dissenting.

No. 2015 IL App (4th) 140176   People v. Pettis   Filed 5-14-15 (RJC)

The instant controversy arose after the defendant, the Illinois High School Association (IHSA), amended one of its bylaws, which had the effect of preventing the plaintiff, Rodrigue Ceda Makindu, from participating on his high school’s basketball team. The plaintiff filed a complaint and sought a preliminary injunction in the circuit court of Kane County, asserting that the IHSA’s amended bylaw violated his right to equal protection. The trial court granted the plaintiff’s motion for a preliminary injunction, and the IHSA appeals from that order. Affirmed.

5 Appellate Cases Posted 5-13-15 

1. Real Estate Tax Sale: Affirmed: Trial court properly denied owners' 2-1401 petition seeking relief from tax deed sale, where record established that tax purchaser's counsel's representation to trial court to effect that "it had sent all required notices" did not, under circumstances, constitute a fraudulent representation to court that owners had been formally served, and circumstances of attempts to serve homeowners were such that homeowners had actual notice of tax sale. Hyman, J.

No. 2015 IL App (1st) 133693  In re Application of the County Treasurer  Filed 5-13-15 (TJJ)

The circuit court of Cook County granted Community Partners, LLC, a tax deed to property owned and occupied by Jose and Minerva Negron. (FNA Cardinal 09, LLC, had obtained a certificate of purchase and assigned it to  Community Partners.) Despite FNA's attempts at service, the Negrons never received notice of the tax deed proceeding, and they, along with TCF National Bank, which held a mortgage on the property and was served with notice,  filed a petition to vacate the order under section 2-1401 of the Code of Civil Procedure. The petition alleged the tax deed was procured through fraud under section 22-45 of the Property Tax Code, constituted a taking in violation of  their constitutional rights to due process under article IX, section 8 of the Illinois Constitution (Ill. Const. 1970, art. IX, § 8), and was an illegal eviction under the forcible entry and detainer provisions of the Code. We affirm. The trial court did not err in dismissing the section 2-1401 petition, because no grounds existed for a fraud finding as nothing in the record suggests Community Partners acted with the intent to deceive the appellants. Moreover, the trial judge  stated that when he entered the order granting the tax deed, he knew the Negrons were living in the house and had not been personally served with notice of the tax sale. FNA also did not violate the Negrons' due process rights  because, although they were not personally served, the notice was reasonably calculated, under the circumstances, to apprise them of the tax deed proceeding and afforded them an opportunity to present their objections.

2. Medical Insurance Benefits: Affirmed: Trial court properly granted summary judgment to defendant union health and welfare fund on plaintiff medical provider's claim that it was entitled to additional payments based on defendant's oral promise to pay higher prices for medical procedures provided by plaintiff to defendant's members, where plaintiff failed to present evidence of an "unambiguius promise" to pay the disputed claims, a necessary element in plaintiff's promissory estoppel claim. Lavin, J.

No. 2015 IL App (1st) 141690  Centro Medico Panamericano, Ltd v. Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity  Filed 5-13-15 (TJJ)

This interlocutory appeal arises from the trial court's order granting summary judgment in an insurance coverage lawsuit to defendant Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General  Laborers' District Council of Chicago and Vicinity. On appeal, plaintiff Centro Medico Panamericano, Ltd., an out-patient surgical center, contends that the trial court erroneously granted defendant's motion for summary judgment  because defendant's service representatives made plaintiff an oral unambiguous promise about the extent of insurance coverage. Plaintiff also contends that the trial court erred in concluding that the Employee Retirement Income  Security Act of 1974 (29 U.S.C. § 18 (2000) (ERISA)), preempted plaintiff's claim for promissory estoppel. In addition, plaintiff contends that the trial court erred by considering inadmissible hearsay and failing to grant plaintiff's  Illinois Supreme Court Rule 191(a). We affirm.

3. Election Law: Affirmed: Candidate's 1985 Indiana conviction for forgery constituted an "infamous crime" which prohibited him from being a candidate for election to high school school board, and county electoral board properly removed candidate's name from ballot. Lavin, J.

No. 2015 IL App (1st) 150568  Williams v. Cook County Officers Electoral Board  Filed 5-13-15 (TJJ)

This appeal arises from the trial court's order denying petitioner Kenneth Williams' petition for judicial review. On appeal, petitioner first contends that he is statutorily qualified to seek and hold public office under the Election Code  and School Code. Petitioner also contends that respondent, the Cook County Officers Electoral Board (Electoral Board), prematurely removed petitioner's name from the ballot because he still had time to be pardoned before the  election. Petitioner next contends that the hearing officer and Electoral Board exceeded their authority by amending and expanding the three objections, comingling arguments, going beyond the scope of the legal question at issue, and  failing to conduct an evidentiary hearing. In addition, petitioner contends that the Electoral Board failed to undergo a choice of law analysis and properly apply Indiana law governing the expungement of Indiana convictions. Finally,  petitioner contends his due process rights were violated by Anita Alvarez's participation in the Electoral Board process. We affirm.

4. Insurance Coverage/Unsolicited Faxes: Affirmed in part and reversed in part: Under choice of law, Pennsylvania law applied in class action relating to unsolicited mass faxes, and insurance company had no obligation to indemnify or insure defendant for issuing faxes and trial court order that insurance company was liable under policy reversed. McLaren, J.

No. 2015 IL App (2d) 121276-B  G.M. Sign, Inc. v. Pennswood Partners, Inc.  Filed 5-13-15 (TJJ)

G.M. Sign, a recipient of unsolicited faxed advertisements, with its principal place of business in Round Lake, Illinois, filed a class action complaint against Pennswood Partners (Pennswood), a Pennsylvania corporation with its  principal and only place of business in Pennsylvania. Pennswood’s insurers, Maryland Casualty Company (Maryland Casualty) and Assurance Company of America (Assurance) (collectively, Zurich) denied Pennswood’s tender of its  defense. Maryland Casualty, a Maryland corporation with its principal place of business in Illinois, and Assurance, a New York corporation with its principal place of business also in Illinois, are underwriting insurance companies used by the Zurich Insurance Group’s small business unit to issue insurance policies. Subsequently, G.M. Sign and Pennswood settled their lawsuit for $8 million. Zurich filed a declaratory judgment action against Pennswood and G.M. Sign, seeking a declaration that their insurance policies did not provide coverage to Pennswood for the underlying lawsuit. The parties filed cross-motions for summary judgment. Applying Illinois law, the trial court granted summary  judgment in favor of Pennswood and G.M. Sign and against Zurich, determining that Zurich had a duty to defend and indemnify Pennswood and that the settlement was reasonable. The trial court entered judgment in favor of G.M.  Sign in the amount of $8 million and denied Pennswood and G.M. Sign’s request for accrued postsettlement interest. On appeal Zurich argues: (1) Zurich had no duty to defend or indemnify Pennswood in the underlying action under  Pennsylvania law; (2) Illinois courts are vested with the discretion to consider federal courts’ predictions in their conflict-of-law analysis; and (3) in an insurance coverage case, a single state’s law should be applied to the interpretation of an insurance policy. Pennswood and G.M. Sign argue that the trial court erred by denying their request for accrued postsettlement interest. We vacate our original opinion and determine that our reconsideration in light of  Bridgeview does not change the result. We reverse in part and affirm in part.

5. Criminal Law: Affirmed: Defendant not eligible for supervision in connection with charge of driving while license revoked, where prior "conviction" was a bond forfeiture, which constitutes a "conviction" under the Vehicle Code, and 10-year period relating to prior conviction was computed from date of prior conviction to date of new charge, not date of sentencing on new charge, and defendant therefore not entitiled to new sentencing hearing. McDare, J.

No. 2015 IL App (3d) 130426  People v. Scarbrough  Filed 5-13-15 (TJJ)

The defendant, Jamar Scarbrough, entered a blind plea of guilty to driving while his license was revoked (625 ILCS 5/6-303(a) (West 2012)) and to obstructing identification (720 ILCS 5/31-4.5(a)(2) (West 2012)). The circuit court  sentenced him to 12 months of conditional discharge and to 30 days in the Will County jail, with credit for 25 days served. On appeal, the defendant argues that he is entitled to a new sentencing hearing because the court erred when it found that: (1) he was ineligible for court supervision; and (2) he was required to serve a minimum of 30 days in jail. Alternatively, the defendant argues that he is entitled to a remand or new postplea proceedings because defense  counsel failed to comply with Illinois Supreme Court Rule 604(d) (eff. July 1, 2006). We affirm.

2 Appellate Cases Posted 5-12-15

1. Criminal Law: Affirmed: Defendant's sixth amendment right to counsel had not attached at time of defendant's arrest in Nevada on Cook County warrant for armed robbery and defendant therefore had no right to counsel at lineup held in Chicago after defendant's return to Chicago; defense counsel not ineffective for failing to object to evidence of other crimes and for failing to object to evidence that defendant refused to participate in lineup. Pierce, J.

No. 2015 IL App (1st) 130171  People v. Lewis  Filed 5-12-15 (TJJ)

Following a jury trial, defendant Samuel Lewis was convicted of armed robbery and unlawful vehicular invasion and was sentenced to concurrent terms of 35 years' and 9 years' imprisonment. On appeal, defendant argues that the trial  court erred in denying his motion to suppress identification because his sixth amendment right to counsel had attached when he was arrested in Nevada on a Cook County arrest warrant and brought before a Nevada court for  extradition proceedings. Defendant also argues that he received ineffective assistance of trial counsel when trial counsel: (1) failed to object to evidence of other crimes; (2) introduced a photograph of defendant from an unrelated  arrest; (3) failed to object to the State’s emphasis on defendant’s refusal to participate in a lineup; and (4) made an analogy in closing argument that compared reasonable doubt to a football game. For the following reasons, we affirm  the judgment of the circuit court.

2. Criminal Law: Affirmed in part, and reversed in part: Police had reasonable, articulable suspicion to detain defendant temporarily following report of home invasion committed minutes earlier, where defendant matched general description of offender, and evidence sufficient to prove defendant guilty beyond a reasonable doubt despite claim that only two of four witnesses identified defendant, but conviction for home invasion while armed with a dangerous weapon other than a firearm reversed, as that uncharged offense is not a lesser included offense of the charged offense of home invasion while armed with a firearm. Liu, J.

No. 2015 IL App (1st) 131872  People v. Booker  Filed 5-12-15 (TJJ)

Following a bench trial, defendant, James Booker, was convicted of home invasion while armed with a dangerous weapon, robbery, attempted robbery, and unlawful restraint. At sentencing, the court merged defendant's unlawful  restraint convictions into the home invasion counts and sentenced defendant to concurrent prison terms totaling 15 years. On appeal, defendant contends that: (1) the State failed to establish beyond a reasonable doubt that he committed the offenses because only two of the four witnesses identified him as the perpetrator; (2) the trial court erred in denying his motion to quash and suppress because the police lacked reasonable suspicion when they detained  him; (3) he was denied due process when he was convicted of an uncharged offense which was not a lesser-included offense of any of the crimes with which he was charged; (4) the 15-year sentence imposed for his four home invasion convictions is excessive; (5) three of his home invasion convictions must be vacated under the one-act, one-crime doctrine; and (6) the mittimus must be corrected to reflect the proper sentence of three years for his attempted robbery  conviction. We affirm in part and reverse in part.

4 Appellate Cases Posted 5-11-15 

1. Criminal Law/Postconviction petition: Reversed and remanded The trial court erred when it summarily dismissed defendant’s pro se postconviction petition in the first stage because Jemal’s affidavit is newly discovered evidence, and the defendant’s due process rights were not violated since defendant’s term of MSR was imposed by operation of law. Gordon, J. with Palmer, J. specially concurring. 

No. 2015 IL App (1st) 120089    People v. Ross   Filed 5-11-15 (RJC)

Following a bench trial, defendant Jermaine Ross was convicted of being an armed habitual criminal and sentenced to 80 months' in the Illinois Department of Corrections (IDOC). We affirmed on direct appeal, where we found that the evidence was sufficient to show that the defendant had constructive possession of a handgun found in plain view behind the driver's seat of a vehicle he had been driving which supported a conviction for being an armed habitual criminal. People v. Ross, 407 Ill. App. 3d 931 (2011). Defendant now appeals from the summary dismissal of his pro se postconviction petition at the first stage, contending that he raised two claims of  arguable merit.1 First, he contends that he was actually innocent based on an affidavit from his son who claims that the son actually committed the offense, or that trial counsel was ineffective for not properly presenting the son's affidavit into evidence or for not raising it. Second, he contends that IDOC increased his sentence without authority by imposing a three-year term of mandatory supervised release (MSR) not imposed by the trial court. Reversed and remanded.

2. Criminal Law/Apprendi: Affirmed and mittimus corrected The fact at issue in the instant case – whether defendant was armed with a firearm – was not submitted to the jury as an aggravating factor for felony murder. Therefore, the trial court erred in imposing the 15-year firearm enhancement. Nevertheless, the trial court's error was harmless.  An Apprendi error is harmless when it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. More specifically, the failure to instruct the jury on an element is harmless when the evidence in support of the omitted element is uncontested and overwhelming. Cunningham, J.  

No. 2015 IL App (1st) 130500   People v. Walker   Filed 5-11-15 (RJC)

Following a jury trial, defendant Alonzo Walker was convicted of first degree murder and sentenced to 42 years in prison. On appeal, defendant contends that because the jury was not asked to make any findings regarding his possession or discharge of a firearm, the trial court erred in imposing a 15-year firearm enhancement. Defendant further contends that the mittimus must be corrected to reflect the number of days he spent in presentence custody. We affirm defendant's conviction and sentence and order correction of the mittimus.

3. Unemployment benefits: Reversed: Given that evidence, the Board's decision that Weinberg was not eligible for unemployment benefits due to his partnership status was not clearly erroneous. Cunningham, J.

No. 2015 IL App (1st) 140490   Weinberg v. The Department of Employment Security   Filed 5-11-15 (RJC)

This appeal involves the decision of the Board of Review (the Board) of the Department of Employment Security (the Department) finding Adam Weinberg ineligible for unemployment benefits because he was a partner in William Blair and Company (WBC). The Board found that Weinberg could not receive unemployment benefits because his compensation as a partner did not constitute wages as defined by section 500(E) of the Unemployment Insurance Act (the Act) (820 ILCS 405/500(E) (West 2010)). The circuit court reversed the Board's decision, finding that a portion of Weinberg's income constituted wages. On appeal, the Department contends the evidence established Weinberg's status as a partner, thus making him ineligible for benefits. We affirm the decision of the Board.

4. Criminal Law: Reversed: The officer did not effectuate a seizure of defendant until after he had reasonable, articulable suspicion of criminal activity. The court properly denied defendant’s motion to suppress. There is no inference that the gun was uncased based on defendant’s decision not to present evidence that the gun was cased. Based on the State’s failure to prove each element beyond a reasonable doubt, the defendant’s conviction are reversed. Schmidt, J.

No. 2015 IL App (3d) 130429   People v. Irby   Filed 5-11-15 (RJC)

Following a stipulated bench trial, the court found defendant, Joshua Irby, guilty of aggravated unlawful use of a weapon and sentenced him to six years’ imprisonment followed by three years’ mandatory supervised release. In a separate order, the court ordered defendant to pay $100 Violent Crime Victims Assistance Fund assessment and $20 Crime Stoppers assessment. Three months later, the clerk issued two separate payment sheets, each totaling $677.50 in assessments. The clerk did not apply the statutory $5 per diem credit to the assessments. Defendant appeals, arguing that: (1) the court erred in denying his motion to suppress; (2) the State failed to present sufficient evidence to support a guilty finding beyond a reasonable doubt; and (3) the clerk of the circuit court erred in imposing monetary fines and fees against defendant. Reversed.

1 Supreme Court Case Posted 5-08-15 

1. Pensions/Contractual relationships/Constitution: Affirmed:  The pension protection clause states that “[m]embership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.” Although it was argued in defense of the statute that the current financial emergencies of the State of Illinois justify this measure as an exercise of police power as a matter of reserved state sovereignty, the supreme court noted in this decision that the State’s financial problems were also a concern when the Constitution of 1970 was enacted and, in fact, drove the inclusion of the pension protection clause at that time. The legislature cannot exercise a higher power than that given by the state constitution itself. This outcome is supported by years of legal precedent, as well as by Kanerva v. Weems, which, in July of 2014, announced the supreme court’s ruling that the constitutional pension protection clause prohibited a statutory reduction in health care premium subsidies under State retirement systems.  Even vendors to whom the State owes money because of the financial crisis are entitled to interest on their unpaid bills. What the General Assembly has done is to force retirees, alone, to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. No effort was made to distribute this financial burden evenly among Illinoisans. A temporary increase in the rate of income tax, allowing for additional revenue, was recently allowed by the legislature to lapse. It cannot be said that there are no alternative remedies available to address these financial difficulties.  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. 2015 IL 118585    In re Pension Reform Litigation   Filed 5-08-15 (RJC)

In the fall of 2013, the General Assembly enacted a statute amending the Illinois Pension Code to reduce the retirement annuity benefits of individuals who first became members of four of the State of Illinois’ pension systems prior to January 1, 2011. That enactment became effective on June 1, 2014. It was challenged in five separate actions which were consolidated in the circuit court of Sangamon County. That court declared the statute to be unconstitutional in its entirety as a violation of the pension protection clause of the Illinois Constitution of 1970, and enforcement of the statute was permanently enjoined. The circuit court stated that “the State of Illinois made a constitutionally protected promise to its employees concerning their pension benefits. Under established and uncontroverted Illinois law, the State of Illinois cannot break that promise.” Appeal of this statutory invalidation lay directly to the Illinois Supreme Court.

4 Appellate Cases Posted 5-08-15 

1. Admin. Review/Traffic signals: Circuit court reversed. Administrative agency's decision affirmed and reinstated The undisputed photographic and video evidence revealed that plaintiff's vehicle entered the intersection after the traffic signal turned red. This evidence was prima facie evidence of a red-light traffic violation. While plaintiff attempted to rebut this prima facie case with Fagel's expert testimony, the ALJ apparently did not find the testimony to be reliable.   Hall, J.

No. 2015 IL App (1st) 130272    Gernaga v. City of Chicago   Filed 5-08-15 (RJC)

This appeal arises from administrative review of a decision by the City of Chicago's department of administrative hearings (DOAH). Plaintiff, Mr. Bohdan Gernaga, sought administrative review of a decision issued by the DOAH finding him liable for violating section 9-102-020(a) of the Chicago Municipal Code (Municipal Code) (Chicago Municipal Code § 9-102-020(a) (added July 9, 2003)), for entering an intersection against a red traffic light.

2. Class Actions: Affirmed; cause remanded Plaintiff has a list of every fax number to which defendant's faxes were sent, showing exactly when they were sent. Therefore, the class is sufficiently ascertainable.The trial court did not abuse its discretion in finding that both the class representative and class counsel would adequately represent the class.   Hall, J.

No. 2015 IL App (1st) 131465   CE Design Ltd. v. C&T Pizza, Inc.   Filed 5-08-15 (RJC)

In this interlocutory appeal, defendant C&T Pizza, Inc., appeals a circuit court order granting plaintiff CE Design Ltd., class certification in an action alleging, inter alia, violation of the federal Telephone Consumer Protection Act (TCPA) (47 U.S.C. § 227(b)(1)(C) (2006)), which makes it unlawful to "use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement." Defendant raises several arguments as to why it believes the circuit court abused its discretion in certifying the class.

3. Insurance/Duty to Defend: Affirmed The trial court properly entered summary judgment in Erie’s favor where the Microsoft complaint did not allege an “advertising injury” under the terms of the insurance policy. Gordon, J.

No. 2015 IL App (1st) 142508    Erie Insurance Exchange v. Compeve Corporation   Filed 5-08-15 (RJC)


Defendants, Compeve Corporation (Compeve) and Slava Packovskis, appeal from the trial court’s entry of summary judgment in favor of plaintiff Erie Insurance Exchange (Erie). The trial court found that Erie had no duty to defend defendants in a lawsuit filed against them by Microsoft Corporation (Microsoft), which alleged that defendants violated Microsoft’s intellectual property rights by selling computers loaded with unauthorized copies of Microsoft’s software. Affirmed.

4. Abuse and Neglect/DCFS: Reversed in part; vacated in part; and remandedThe court's finding that Oscar was fit and able to parent Marianna and returning Marianna to Oscar's custody was against the manifest weight of the evidence. The State agrees  that the circuit court's finding that Oscar was fit and able to parent Marianna was against the manifest weight of the evidence.  Oscar has not made sufficient progress in therapy to deal with his difficulties parenting Marianna and therefore was not fit or able to parent Marianna. McBride, J.

No. 2015 IL App (1st) 142897   In re Marianna F.-M.   Filed 5-08-15 (RJC)


Respondent Oscar F. is the natural father of the minor Marianna F.-M. In May 2014, Marianna was placed in the custody of the Illinois Department of Children and Family Services (DCFS). After a September 2014 adjudicatory hearing, the circuit court found that Marianna was abused and neglected and that Oscar was the perpetrator of the abuse and neglect. The court held a dispositional hearing the same day. At the conclusion of the hearing, the court found Oscar fit, willing, and able to parent Marianna and returned Marianna home to Oscar under an order of protective supervision. The Cook County public guardian, Marianna's court-appointed attorney and guardian ad litem, filed a timely notice of appeal from the court's dispositional orders. For the following reasons, we reverse the court's order returning Marianna home, vacate the order of protection, and remand for further proceedings.

1 Appellate Cases Posted 5-07-15 

1. Illinois Unemployment Insurance Act: Affirmed:  No clear error in the Department's determination that the window washers were employees rather than independent contractors during the audit period of 2006, 2007, and 2008.  Because McMahon failed to satisfy its burden under section 212(B), the Director's finding that the workers were employees of McMahon, and not independent contractors, was not clearly erroneous.   Fitzgerald Smith, J.

No. 2015 IL App (1st) 133227    L.A. McMahon Building Maintenance, Inc.   Filed 5-07-15 (RJC)

Plaintiff L.A. McMahon Window Washing (McMahon) sought administrative review in the circuit court of Cook County of a decision by defendants Illinois Department of Employment Security (IDES) and its director, Jay Rowell (the Director) (together, the Department), which affirmed the decision of IDES that window washers who performed services for McMahon were employees for purposes of the Illinois Unemployment Insurance Act (the Act) (820 ILCS 405/212 (West 2010)). Pursuant to an audit and a fact-finding hearing, the Department determined that McMahon failed to establish that the exemptions from "employment" in section 212 of the Act apply to the workers in question. The circuit court upheld the Director's decision. McMahon appeals, contending the Director and the circuit court erred in their determination that the McMahon workers were "employees" and not "independent contractors" under section 212 of the Act. Affirmed.

5 Appellate Cases Posted 5-06-15 

1. Class Action/Decertification of Class: Affirmed:  The trial court correctly decertified the chiropractors' class action suit regarding patient billing.   Moore, J.

No. 2015 IL App (5th) 130402    Bemis v. Employers Mutual Casualty Company  Filed 5-06-15 (JMC)

The case involves decertification of a class in a class action suit filed by Bemis & Associates, Chiropractors, against Employers Mutual and EMC Property & Casualty.  The appellate court decertified the class in light of its decision in Coy Chiropractic Health Center, Inc. v. Travelers Casualty & Surety Co., 409 Ill. App. 3d 1114 (2011).  The class action was based on allegations the Bemis had contracted to accept discounted reimbursements from payor insurance companies, health care plans, or claims administrators with whom two of its insurers had contracted.  Bemis alleged that its bills were discounted without steering patients to him because the insurers did not offer financial incentives to its insureds for utilizing Bemis as their provider.

2. Criminal Law: Jury Waiver: Affirmed:  Defendant's jury waiver comported with all Supreme Court rules governing waiver of right to jury. Pope, J.

No. 2015 IL App (3rd) 130525  People v. Hollahan    Filed 5-06-15 (JMC)

Hollahan appealed his convictions of two counts of domestic battery, arguing that the trial court held a bench trial without obtaining a proper jury waiver.

3. Criminal Law: Motion to Suppress Confession/Fitness of Minor to Stand Trial/Sentencing of Minor: Affirmed as modified: The totality of circumstance supported trial judge's denial of motion to suppress. The trial judge did not err in failing to hold fitness hearing.  Schmidt, J.

No. 2015 IL App (3rd) 130190 People v. Edwards   Filed 5-06-15 (JMC)

Following a stipulated bench trial, Edwards was convicted of first-degree murder and attempted murder.  Prior to trial, defendant filed a motion to suppress, claiming his confession to police was involuntary based on the fact that he was 17 years old at the time, had a fifth grade reading level, suffered from various mental disorders, and that the investigating officers did not allow him to speak to his mother or another concerned adult despite his request to do so. The trial court denied the motion.  Issues: (1) did the trial court err in denying Edward’s motion to suppress where defendant was 17 years old at the time of the arrest, had a limited education, and did not have contact with a parent or concerned adult; (2) did the trial court err when it failed to hold the statutorily required fitness hearing after it found a bona fide doubt of fitness to stand trial; (3) was the 90-year sentence is unconstitutional under Miller v. Alabama, 567 U.S. ____, 132 S. Ct. 2455 (2012), prohibiting offenders under the age of 18 from mandatory life sentences; and (4) was Edwards entitled to an additional day of presentence incarceration credit.  Held: no.

4. Criminal Law/Juvenile Court Act: Affirmed:  At issue was the constitutionality of the automatic transfer of juveniles to adult criminal court provisions. Constitutionality upheld.  Schostock, J.

No. 2015 IL App (2nd) 120471 People v. Reyes   Filed 5-06-15 (JMC)

Reyes, a minor, was convicted of one count of first-degree murder and two counts of attempted murder with a firearm and sentenced to 97 years’ imprisonment. Issues: (1) is the automatic transfer statute of the Juvenile Court Act of 1987 (also known as the excluded jurisdiction statute), which requires that certain juveniles be tried and sentenced as adults, is unconstitutional; and (2) given Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), is the Illinois statutory sentencing scheme is unconstitutional as applied to him.  Held: no.


5. Insurance Law: Reversed and Remanded: At issue is whether a wind shear satisfied "physical contact" provisions of the insurance contract at issue. Summary judgment for insured improper as wind shear was not "physical contact."  Lavin, J.

No. 2015 IL App (1st) 141521 State Farm Mutual Automobile Insurance Company v. Benedetto  Filed 5-06-15 (JMC)

Issue: was wind shear physical contact under State Farm’s motor vehicle insurance policy's uninsured motorist provision and Illinois law.  Held: no.  Summary judgment for insured therefore vacated.

1 Appellate Cases Posted 5-05-15 

1. Domestic Relations: Paternity/Child Support/Section 2-1401: Affirmed:  The trial court correctly granted dismissed mother's section 2-1401 motion seeking to void 1997 paternity judgment. Cunningham, J.

No. 2015 IL App (1st) 133382 Cavitt v. Repel   Filed 5-04-15 (JMC)

The trial judge granted Repel’s motion to dismiss a "petition to void" filed by Cavitt to vacate a 1997 judgment for child support, pursuant to section 2-1401 of the Illinois Code of Civil Procedure and imposed on Cavitt attorney fees and costs.  Issues: (1) did the court err in dismissing the section 2-1401 petition without conducting an evidentiary hearing; and (2) did the court err in imposing a total of $31,977.83 in attorney fees and costs.  Held: no.

2 Appellate Cases Posted 5-04-15 

1. Constitutional Law: Reversed and Remanded:  At issue was the constitutionality of municipality fees related to towing and impounding vehiccles. Complaint alleged sufficient facts to withstand the City's motion to dismiss.  Chapman, J.

No. 2015 IL App (5th) 130544  Carter v. The City of Alton    Filed 5-04-15 (JMC)

The case involved municipal ordinances in four Illinois communities which allowed local police departments to charge vehicle owners an "administrative fee" when their vehicles are towed and impounded.  Issue: do the fees comport with the requirements of substantive due process?  Plaintiffs appealed from dismissal of their complaints.  The appellate court noted that all four cases turn, in part, on the distinction between a fee and a fine.  Defendants argued that the fees are rationally related to their interest in recouping the costs associated with DUI arrests and the towing and impoundment of vehicles as a result of such arrests.  The appellate court noted that it was not reaching that ultimate question.  It simply determined that the complaints survived the motion to dismiss.

2. Criminal Law: Ineffective Assistance of Trial Counsel/Admissibility of Witness Statements: Affirmed:   Cunningham, J.

No. 2015 IL App (1st) 131362 People v. McLaurin   Filed 5-04-15 (JMC)

McLaurin was convicted of first-degree murder.  Issues: (1) was McLaurin’s trial lawyer ineffective because he failed to secure the testimony of an eyewitness under the Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings; (2) was his lawyer ineffective for failing to object to the admission of, and failing to request the redaction of, inadmissible statements in a State’s witness prior written statement and grand jury testimony; (3) did the trial court abuse its discretion when it allowed the jury to receive and review a portion of that witness’ prior written statement that contained other-crimes evidence disclosing that the defendant "carries different types of guns"; and (4) did the trial court fail to comply with Illinois Supreme Court Rule 431(b) because it did not "provide each juror an opportunity to respond" to specific questions regarding the Zehr principles.  Held: no.

6 Appellate Cases Posted 5-01-15 

1. Criminal Law: Affirmed:  The trial court committed reversible error in allowing the State to rebut defendant's pro se allegations by its questioning of defense counsel during the hearing. We point out that the trial court did not have the benefit of the lessons of Jolly at the time it made its decision. We make no finding as to whether the issues raised by defendant in his pro se motion had merit or required the appointment of new counsel.Upon reconsideration, we find that Jolly changes our original decision. We, therefore, affirm the convictions and remand for sentencing on the aggravated battery conviction and for a new preliminary Krankel hearing, with directions.  Palmer, J.

No. 2015 IL App (1st) 111925-B    People v. Flemming   Filed 5-01-15 (RC)

Following a bench trial, the trial court found defendant Ron Flemming guilty of second degree murder and aggravated battery and sentenced him to 20 years' imprisonment. On appeal, defendant argues that the court erred in (1) finding him guilty of second degree murder where the State failed to disprove he acted in self-defense, (2) finding him guilty of aggravated battery and (3) failing to conduct an adequate inquiry regarding his pro se ineffective assistance claim.  In People v. Flemming, 2014 IL App (1st) 111925, filed August 15, 2014, we affirmed the convictions and remanded for sentencing on the aggravated battery conviction. On April 21, 2015, pursuant to Illinois Supreme Court supervisory order, we vacated our opinion in order to reconsider it in light of People v. Jolly, 2014 IL 117142, to determine whether a different result is warranted. People v. Flemming, No. 118371 (Jan. 28, 2015) (supervisory order). Affirmed.

2. Admin. Review/Dangerous Animals: Affirmed:  In this case, section 7-12-050 of the Code authorizes the executive director of DACC to determine whether a particular animal "is a dangerous animal," rather than whether it was a dangerous animal at one specific moment in the past. The determination of whether an animal is a "dangerous animal," therefore, depends on all of this animal’s behaviors rather than the animal's behavior in one particular instance. the focus of the administrative hearing was on the incident between plaintiff's dogs and Young's pit bull, and the evidence about that incident was sufficient to uphold the ALJ's determination that all three of plaintiff's dogs were dangerous animals.  Palmer, J.

No. 2015 IL App (1st) 131735   Wortham v. The City of Chicago Department of Administrative Hearings   Filed 5-01-15 (RC)

This is an administrative review action. Following a hearing, the City of Chicago department of administrative hearings (the Department) found that three Rottweilers owned by plaintiff, Charlette Wortham, were "dangerous animals" under section 7-12-020 of Municipal Code of Chicago (the Code) (Chicago Municipal Code § 7-12-020 (amended Nov. 19, 2008). Under that section, a dangerous animal is "any animal which bites, inflicts injury on, kills or otherwise attacks a human being or domestic animal without provocation on any public or private property." Id. Plaintiff sought administrative review in the circuit court of Cook County, which affirmed the Department’s judgment. Plaintiff now appeals.

3. Implied Warranty of Habitability: Reversed and remanded: The implied warranty of habitability protecting the original purchaser of a new home extends to subsequent purchasers.In sum, (a) defendants failed to meet their burden to show plaintiff knowingly waived the implied warranty of habitability, (b) the "successor and assign" provision in Lubeck's waiver agreement does not bind plaintiff and (c) the "as is" rider agreement does not bind plaintiff to Lubeck's waiver of the implied warranty of habitability. The trial court's holding that Lubeck's waiver of the implied warranty of habitability is binding on plaintiff is reversed and its finding in favor of defendants.  Palmer, J.

No. 2015 IL App (1st) 140171    Fattah v. Bim   Filed 5-01-15 (RC)

The patio on plaintiff John Fattah's single-family home collapsed four months after he moved in. Plaintiff had bought the house "as is" from its original purchaser, who had waived the implied warranty of habitability on the house when she purchased it new three years earlier. Plaintiff filed suit against defendants Mirek and Alina Bim, the developers of the house, alleging breach of the implied warranty of habitability. The circuit court held for defendants, finding that the original purchaser's waiver of the implied warranty of habitability bound plaintiff. On appeal, plaintiff argues: (1) the original purchaser's waiver of the implied warranty of habitability does not bind plaintiff, a subsequent purchaser who had no knowledge of the waiver, and (2) it is irrelevant that plaintiff purchased the house from the original purchaser "as is." Defendants have not filed a brief in response but we may consider the case on plaintiff's brief alone pursuant to First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976). We reverse and remand.

4. Workers’ Compensation: Affirmed in part and reversed in part; Commission decision reinstated as modified: In conjunction with deciding claimant’s petition for penalties and attorney fees, the Commission had jurisdiction to interpret the settlement contract.  The Commission correctly concluded that respondent is liable for the reimbursement of the overpayment of long-term disability payments made to claimant by CIGNA. The Commission erred in finding that it lacked jurisdiction to consider the issue of penalties and attorney fees.  Hudson, J.

No. 2015 IL App (1st) 130984WC    Loyola University of Chicago v. Illinois Workers Compensation Commisssion   Filed 5-01-15 (RC)

Claimant, Anne Mikesh, appeals from the judgment of the circuit court of Cook County finding that the Illinois Workers’ Compensation Commission (Commission) did not have jurisdiction to construe the settlement contract entered into by her and respondent, Loyola University of Chicago. For the reasons set forth below, we affirm the judgment of the circuit court in part, reverse in part, and reinstate the decision of the Commission as modified.

5. Workers’ Compensation: Affirmed: The evidence establishes that there are factors that weigh both in favor of and against a finding that claimant was an employee of respondent. However, it was the Commission’s province to determine claimant’s employment status.  Ultimately, the Commission concluded that an employment relationship existed between claimant and respondent. Based on an analysis of the relevant factors, and in light of the totality of the circumstances, we find that a conclusion opposite that of the Commission is not clearly apparent. Thus, we reject respondent’s argument that the Commission’s determination that an employment relationship existed between respondent and claimant at the time of the latter’s injury is against the manifest weight of the evidence. Hudson, J. with Holdridge, J. dissenting.

No. 2015 IL App (1st) 133985WC    Steel & Machinery Transportation, Inc. v. Illinois Workers Compensation Commisssion   Filed 5-01-15 (RC)

Respondent, Steel & Machinery Transportation, Inc., appeals from the judgment of the circuit court of Cook County confirming a decision of the Illinois Workers’ Compensation Commission (Commission) awarding benefits to claimant, Radomir Cvetkovski, pursuant to the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2004)). On appeal, respondent argues that the Commission erred in finding that an employer-employee relationship existed between it and claimant. We affirm.

6. Workers’ Compensation: Reversed, Commission's decision vacated, and cause remanded: Benefits which accrued up to the date of death are payable to the employee's estate. In this case, Ms. Nash's estate seeks only those PPD benefits that had accrued and were payable, due, and owing to Ms. Nash prior to her death. It does not seek future installment payments that would have accrued and become payable to Ms. Nash on some future date had she survived. Holdridge, J.

No. 2015 IL App (4th) 140028WC    Bell v. Illinois Workers Compensation Commisssion   Filed 5-01-15 (RC)

Mary J. Nash filed an application for adjustment of claim under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2008)), seeking benefits for injuries she sustained while she was working for Dan Pilson Auto Center (employer). Prior to the arbitration hearing, Ms. Nash died of causes unrelated to her work accident. Janet K. Bell, Ms. Nash's sister and the administrator of her estate (claimant), filed an amended application for adjustment of claim substituting herself as the claimant. After conducting a hearing, an arbitrator awarded temporary total disability (TTD) benefits and medical expenses and found that the claimant had sustained a permanent partial disability from her work injury. However, the arbitrator ruled that any permanent partial disability (PPD) benefits that had accrued prior to Ms. Nash's death abated with her death, and declined to award any such benefits to her estate. The claimant appealed the arbitrator's decision to the Illinois Workers' Compensation Commission (the Commission). The Commission unanimously affirmed and adopted the arbitrator's decision. The claimant then sought judicial review of the Commission's decision in the circuit court of Coles County, which confirmed the Commission's ruling. This appeal followed.