Illinois Supreme and Appellate Court Case Summaries

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

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5 Appellate Case Posted 11-5-14

1.  Insurance Law: Affirmed: Clear and unambiguous policy terms will be given their plain and ordinary meaning, and the policy will be applied as written, unless it contravenes public policy.  If the terms are susceptible to more than one meaning, the policy is ambiguous and will be strictly construed against the insurer that drafted it.  n construing the drafter's language, we must interpret the policy as a whole, considering the type of insurance purchased, the nature of the risks involved and the contract's overall purpose. Provisions that limit or exclude coverage will be interpreted liberally in the insured's favor and against the insurer.   Lytton, J. special concurrence by Wright, J.

No. 2014 IL App (3rd) 130655   Bowers v. General Casualty Insurance Co.    Filed 11-5-14 (LJD)

Plaintiffs, Marilyn and Robert Bowers, filed a complaint against defendant, General Casualty Insurance Company, seeking a declaratory judgment that their underinsured motorist (UIM) coverage for three vehicles was not limited to one vehicle. The trial court granted summary judgment in plaintiffs’ favor, finding that the $250,000 UIM limit for each vehicle could be aggregated, or stacked, to arrive at a maximum coverage limit of $750,000. General Casualty appeals, claiming that the provisions of the policy are unambiguous and prohibit stacking of UIM coverage. We affirm.

2.  Criminal Law: Affirmed, Mittimus Corrected:  The standard of review on a challenge to the sufficiency of the evidence involves, first, viewing the evidence in the light most favorable to the prosecution, and then determining whether any rational fact finder could find the essential elements of the offense beyond a reasonable doubt.  To be legally accountable for the conduct of another, either before or during the commission of the offense, a person with the intent to promote or facilitate the commission of the offense must aid, abet, or attempt to aid another in planning or committing the offense.  To prove defendant had the requisite intent, the State has to show either defendant shared the criminal intent of the principal or the existence of a common criminal design. Words of agreement are not necessary to establish a common purpose to commit a crime, but rather, the common design may be inferred from the circumstances surrounding the perpetration of the unlawful conduct. Under the common design rule, where two or more persons engage in a common criminal design of agreement, any acts in furtherance committed by one party are considered to be the acts of all parties to the common design and all are equally responsible for the consequences.  Hyman, J.

No. 2014 IL App (1st) 120701   People v. Johnson    Filed 11-5-14 (LJD)

After a bench trial, the trial court convicted defendant Travell Johnson of two counts of attempted first degree murder, one count of aggravated discharge of a firearm, and one count of aggravated battery with a firearm, and sentenced him to concurrent, respective terms of 21, 21, 4, and 6 years' imprisonment. On appeal, Johnson challenges the sufficiency of the evidence to hold him accountable for the attempted first degree murder of Gary Riley and for aggravated discharge of a firearm. He further contends that his mittimus should be corrected to accurately reflect the offenses of which he was convicted and that all but his two convictions for attempted first degree murder must be vacated under the one-act, one-crime doctrine. We affirm Johnson's convictions—the State proved his guilt beyond a reasonable doubt on the basis of accountability under the common design rule. But, we vacate under the one-act, one-crime doctrine his convictions for aggravated discharge of a firearm and aggravated battery with a firearm and correct the mittimus to reflect two convictions for attempted first degree murder.

3.  Criminal Law: Affirmed, Mittimus Corrected:Jury instructions must plainly set out the applicable law, and not be misleading or confusing. When a jury does not receive proper guidance though instructions, it cannot perform its constitutional functions and thereby violates a defendant’s right to a fair trial. Reversal is required when an instructional error “creates a serious risk that the jurors incorrectly convicted the defendant because they did not understand the applicable law, so as to severely threaten the fairness of the trial.”  Where jury instructions are unclear or ambiguous, a reviewing court can look to the opening statements and closing arguments for clarification. Generally, we will not review jury instruction error when the defendant has neither objected to the instruction, nor offered "an alternative instruction at trial and does not raise the instruction issue in a posttrial motion."  Illinois Supreme Court Rule 451(c) provides a limited exception, which states that criminal jury instructions containing substantial defects “are not waived by failure to make timely objections thereto if the interests of justice require.”  A defendant is denied effective assistance of counsel when counsel’s performance falls below an objective standard of reasonableness and a reasonable probability exists that, but for counsel's performance, the trial would have turned out differently.  Hyman, J.

No. 2014 IL App (1st) 130076  People v. Valadovinos Filed 11-5-14 (LJD)

A jury convicted defendant, Ignacio Valadovinos, of attempted first degree murder while personally discharging a firearm (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2010)) in a shooting outside a bar at 25th Street and California Avenue. Valadovinos fired five gunshots toward Ernesto Fernandez and sped off, leading to a car chase and foot pursuit by Chicago police officers.  We affirm Valadovinos’s conviction and sentence, and instruct the circuit clerk to correct the mittimus.

4.  Garnishment: Affirmed: Section 2-1402 of the Code, (Citation to Discover Assets) provides judgment creditor. To that end, this statute provides a circuit court with broad powers to compel parties to satisfy a judgment with discovered assets.  The most reliable indicator of such intent is a statute's plain language.  As a result, we cannot add limitations, exceptions, or conditions under the guise of statutory construction. Subsection 2- 1402(j) provides that an asset which is exempt from levy is also exempt from delivery and sale, i.e. turnover.  The court extensively discussed whether a foreign corporation stock could be levied in Illinois and discussed the UCC and the Code of Civil Procedure.  Lavin, J.

No. 2014 IL App (1st) 133575  Wells Fargo Bank Minnesota, NA v. Envirobusiness, Inc. Filed 11-5-14 (LJD)

This interlocutory appeal arises from supplemental proceedings filed by Wells Fargo Bank Minnesota, N.A. (Wells Fargo), to enforce a monetary judgment against Craig Walker. In those proceedings, commenced pursuant to section 2-1402 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1402 (West 2012)), the circuit court ordered Walker to turn over certain stock to Wells Fargo. On appeal, Walker asserts that the circuit court erred by ordering him to turn over stock in non-Illinois corporations and by denying his request to stay the enforcement of the turnover order. We affirm.

5.  Eployment Law: Affirmed: In order to support a claim for retaliatory discharge under Illinois law, a plaintiff must demonstrate that (1) she was discharged from her job, (2) the discharge was in retaliation for her activities, and (3) the discharge violates a clearly mandated public policy of this state.  The term "clearly mandated public policy" has "no precise definition."  However, our supreme court has held that "public policy concerns what is right and just and what affects the citizens of the State collectively."   In addition, the court has held that what is "clearly mandated" as public policy "is to be found in the State's constitution and statutes and, when they are silent, in its judicial decisions." Claims of retaliatory discharge have been recognized in instances where an employee has been discharged in retaliation for filing a workers' compensation claim, reporting illegal or improper conduct, or refusing to work in conditions that are hazardous or violate federal safety standards.  Reporting illegal or improper conduct is protected regardless of whether the conduct is alleged to violate state or federal law. It is also protected regardless of whether the improper conduct is reported to authorities within the company or to outside authorities. Significant gaps in time between a plaintiff's activity and termination do not automatically defeat a claim that the termination was retaliatory. Chapman, J.

No. 2014 IL App (1st) 130319  Flick v. Southern Illinois Healthcare, NFP   Filed 11-5-14 (LJD)

The plaintiff, Cindy Flick, worked for the defendant, Southern Illinois Healthcare, NFP, as the director of its medical laboratories. Shortly after raising concerns about one laboratory's compliance with federal regulations, the plaintiff was presented with a severance agreement. She chose not to resign, and her supervisor did not terminate her employment at that time. Two years later, however, the plaintiff was again presented with a severance agreement. This time, she was terminated after refusing to accept the agreement. The plaintiff filed a suit alleging retaliatory discharge. The court granted the
defendant's motion for summary judgment, finding that the plaintiff failed to present any 1evidence to establish a causal connection between her raising concerns and her termination. The primary basis for the court's ruling was a gap of nearly two years between the time she raised those concerns and the time she was fired. The plaintiff appeals, arguing that genuine issues of material fact remained regarding the causation issue. We affirm.

4 Appellate Case Posted 11-4-14

1. Election Law/Referendum: Reversed in part and affirmed in part: In sum: (1) that the board had standing to file a brief as a nominal defendant; (2) that the three members of the board be replaced by public members for consideration of the referendum question since it is not "practicable" for them to rule on a question that is "in relation" to their own candidacy; and (3) that, even though consideration of the referendum question, the objectors' petition and the objections to the objectors' petition cannot be completed in time to place the question on the November 4, 2014, ballot, we may still consider the issue pursuant to the public interest exception to the mootness doctrine. Gordon, J.  

No. 2014 IL App (1st) 142618    Zurek v. Franklin Park Officers Electoral Board    Filed 11-4-14 (RJC)

Petitioner Ken Zurek and others collected over 700 signatures for the purpose of placing on the ballot the question of whether there should be term limits for Franklin Park village officials. Respondents Randall Petersen and Robert Godlewski filed objections, and the Franklin Park Electoral Board sustained their objections and refused to place the question on the ballot. The circuit court affirmed. Reversed and remanded.

2. DUI/Implied Consent: Affirmed: Defendant has failed to establish his constitutional rights were violated. Defendant withdrew his consent after his arrest. As a result, there was no warrantless, nonconsensual search. Thus, defendant's fourth-amendment rights could not have been violated. Also, a statute is only facially unconstitutional if the statute can never be constitutionally applied. Because the implied-consent statute allowed defendant to refuse the police officer's request to take the warrantless chemical breath test, we cannot find the statute
facially unconstitutional. Pope, J.  

No. 2014 IL App (4th) 130346    People v. Gaede    Filed 11-4-14 (RJC)

In January 2013, a jury found defendant, Christopher M. Gaede, guilty of driving under the influence (625 ILCS 5/11-501(a)(2) (West 2012)). In March 2013, the trial court sentenced defendant to 24 months' court supervision. Defendant appeals, arguing he is entitled to a new trial because the implied-consent statute (625 ILCS 5/11-501.1(a) (West 2012)) is facially unconstitutional and also unconstitutionally punishes individuals who assert their fourthamendment (U.S. Const., amend. IV) right to refuse to consent to chemical analysis. We affirm.

3. Illinois Medical Practice Act of 1987: Affirmed: The Director's factual findings are not against the manifest weight of the evidence. Accordingly, the determination regarding the legal effect of the facts, that based on his conduct plaintiff violated the Act, was not clearly erroneous. The purpose of the Act is to “protect the public health and welfare from those not qualified to practice medicine.” The Director in this case found that Parikh abused his position of trust as a physician and took advantage of his patient. In addition, the Director found that Parikh's actions served no  medical purpose. Clearly, this is the type of conduct subject to disciplinary regulation that the statute contemplates. Therefore, a one year mandatory suspension with an indefinite duration thereafter is not an unreasonable or arbitrary penalty, nor is it unrelated to the statute, where Parikh can petition to restore his license one year from the date of the Director's order. Pierce, J.  

No. 2014 IL App (1st) 123319    Parikh v. Division of Professional Regulation of the Department of Financial & Professional Regulation    Filed 11-4-14 (RJC)

Appellant, Mahesh Parikh, M.D., a neurologist, appeals an order of administrative proceeding where the Director of the Division of Professional Regulation (Director) ordered that his medical license be indefinitely suspended for a minimum of one year. Parikh argues: (1) the Director does not have the authority under the Illinois Medical Practice Act of 1987 (225 ILCS 60/1 et seq. (West 2010)) to make factual finding and credibility determinations contrary to those made by the Medical Disciplinary Board of the Department (Board); (2) the Director's findings were against the manifest weight of the evidence; (3) the Director's finding on the legal effect of the facts is clearly erroneous; and (4) the Director abused his discretion by indefinitely suspending Parikh's medical license for a least a year. For the following reasons, we affirm the decision of the Director acting on behalf of the Illinois Department of Financial and Professional Regulation (Department).

4.Releases/Stlmnt. Agrmnts./Appeals: Appeal dismissed: The contested issue raised in this appeal is moot since another identical order is binding on Souad in the probate action requiring the voluntary dismissal of the case at bar, with prejudice. The doctrine of release of errors now estops Souad from attempting to obtain a reversal of the order dismissing her chancery lawsuit, case No. 12-CH-95, since she has accepted the benefits of a similar order enforcing the very same global release and settlement agreement in the probate action.  Accordingly, since the doctrine of mootness and the doctrine of release of errors require a dismissal of this appeal, we find it unnecessary to address whether the additional principles of collateral estoppel, res judicata, and freedom of speech have any application in this matter. Wright, J.  

No. 2014 IL App (3d) 130792    Ghantous v. Ghantous    Filed 11-4-14 (RJC)

The controversy in the case at bar was one of five lawsuits simultaneously pending in the Peoria County circuit court involving disputes between plaintiff Souad Ghantous (Souad) and/or her children. Defendant Leo Ghantous (Leo) is a party in all five cases and Souad is either  named as a party plaintiff or beneficiary in two cases, namely, the instant chancery case, case No. 12-CH-95 and a pending probate case, case No. 10-P-100. Souad appeals the order denying her request to reconsider the entry of the order enforcing the global release and settlement agreement in case No. 12-CH-95, alone. The same order enforcing the global release and settlement agreement has not been challenged in the other four cases and remains binding on all parties to the agreement, including Souad. Consequently, we are unable to effectuate the relief requested by Souad and dismiss the appeal according to the doctrine of mootness and the doctrine of release of errors.

1 Appellate Case Posted 11-3-14

1. Insurance: Reversed in part and affirmed in part: The question is: when injured insureds are not wholly covered by a negligent driver's insurance policy limits, does the rental car company or the insureds' underinsured motorist coverage pay the shortfall? We conclude that it would contravene public policy to construe Safeway's policy to mean that a rental car company's liability pursuant to the financial responsibility statute applies before Safeway's obligations under the underinsured motorist provision.  Safeway's underinsurance motorist coverage is triggered, we need not address the Hadarys' second issue: whether Safeway waived any right to insist upon exhaustion of Hertz's policy.  Also, because Safeway's underinsured motorist provision applies before the financial responsibility liability of Hertz, Safeway is obligated to comply with the process for handling underinsured motorist claims set out in its policy: "the amount thereof, shall be made by agreement between the insured or such representative and the Company or, if they fail to agree, by arbitration."Connors, J.  

No. 2014 IL App (1st) 132554    Safeway Insurance Co. v. Hadary    Filed 11-3-14 (RJC)

Defendants Jeffrey Hadary and Stephanie Hadary (the Hadarys) appeal the granting of partial summary judgment in favor of plaintiff, Safeway Insurance Company (Safeway). Hertz Corporation (Hertz) is not a party to the appeal.