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

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7 Supreme Court Case Posted 3-19-15

1. Elections/Petitions: Affirmed and remanded: In this decision, the supreme court said that the Code of Civil Procedure and the Insurance Code are properly construed together to provide that a “captive agent” for an insurance company, such as the agent here, has a duty to exercise ordinary care and skill in procuring the specific insurance coverage requested by a customer, and that such a duty was applicable under the facts of this case.  The best evidence of the legislature’s intent in using the term “insurance producer” is the statutory definition in section 500-10 of the Insurance Code. When read together with that definition, section 2-2201 provides that a person required to be licensed to sell insurance has a duty to exercise ordinary care and skill in renewing, procuring, binding, or placing coverage requested by the insured or proposed insured. The type of motion to dismiss made by defendant insurer required that all well-pled allegations of the complaint be taken as true. The complaint alleged that defendant insurer required plaintiff insured to add his fiancée as an additional driver on the policy. The declarations page notation of “female, 30-64” indicates that the insured actually requested the extension of coverage to his fiancée. Taken as true, the complaint thus alleged that a specific request for coverage was made. The complaint fit within the specific statutory language requiring insurance producers to “exercise ordinary care and skill in *** procuring *** the coverage requested by the insured.” The insurance company was liable under the doctrine of respondeat superior, and the complaint should not have been dismissed. Further proceedings are to take place in the circuit court. 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 117021    Skaperdas v. Country Casualty Insurance Company   Filed 3-19-15 (RJC)


In 2006, defendant Country Casualty Insurance Company, through its agent, issued an automobile insurance policy to the plaintiff here. His fiancée was subsequently involved in an accident in 2008 while driving one of his vehicles. Defendant insurer covered the loss, but required the insured to change his policy to include the fiancée as an additional driver. The insured met with the defendant’s agent to request coverage for her under the insurance policy. What the agent did was add the term “female, 30-64” to the declarations page, without including the woman as a named insured and with the original insured identified as the only named insured. The fiancée’s son was subsequently injured on his bicycle in 2009 by a driver whose uninsured-motorist coverage was insufficient to cover all of the victim’s medical expenses, and coverage under the Country Casualty policy was sought. Coverage was denied on the grounds that neither the mother nor the son were listed as a named insured. This suit was filed to obtain coverage, but the circuit court of Champaign County dismissed it. The appellate court, however, reversed and remanded for further proceedings. The Illinois Supreme Court, in this decision, affirmed the appellate court.

2. EPA/Injunctive relief: Appellate court judgment affirmed in part and reversed in part: Supreme court held that the 2004 amendment cannot be applied retroactively as the appellate court had allowed. The supreme court said that statutory amendments which are procedural in nature may be applied retroactively, but those which are substantive may not be, and that the amendment at issue here is substantive in creating a new type of liability—a mandatory injunction—which was not available under the prior statute. The circuit court had erred, as had the appellate court in affirming, and the mandatory injunction issued below was vacated.  The appellate court acted properly in affirming the penalty imposed. the circuit court’s ruling that Janice’s involvement in site operations was sufficiently demonstrated by her authorization of contracts for dumping at the site was not against the manifest weight of the evidence. Therefore, we affirm the circuit court’s judgment regarding Janice’s liability and the penalty imposed. 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 117193    People ex rel. Madigan v. J.T. Einoder, Inc.   Filed 3-19-15 (RJC)


This Cook County environmental litigation involves a 40-acre landfill site near the intersection of Routes 30 and 83 in unincorporated Lynwood. It operated between 1995 and 2003. In 2000, the Attorney General filed a circuit court complaint alleging violations of the Environmental Protection Act, only some of which are at issue in this appeal. After several years of litigation, the circuit court concluded a bench trial in which it found in favor of the State on five counts alleging that the defendants had acted illegally. The court ordered mandatory injunctive relief in the form of removal of the waste above grade, and it assessed fines against various individual and corporate defendants. The appellate court affirmed. A 90-foot-high mound covered with vegetation now occupies the area.  In 2004, after the operations at issue at the site had ceased, the legislature amended the Act to permit mandatory injunctive relief to require such actions as may be necessary to address violations of the Act. The language previously in effect had been construed to mean that the only injunctive relief available was prohibitory, that is, to restrain future violations of the Act. When this cause reached the appellate court, that reviewing body held that mandatory injunctive relief was proper under this amended statute because the enactment could be applied retroactively.

There was also a challenge on appeal to the personal liability imposed by the circuit court on Janice Einoder, the principal owner and president of J.T. Einoder, Inc., one of the corporate defendants here. This was ultimately held to amount to $27,300, predicated on her violation of the Act by operating a waste disposal facility and depositing clean construction and demotion debris without a permit. It was claimed in defense that the finding was against the manifest weight of the evidence. However, she signed over 250 contracts authorizing various companies and individuals to dump general construction and demolition debris and clean construction and demolition debris at the site. On many of these occasions, she was aware that the landfill had been cited for violating the Act, and she had already participated in discussions with the Illinois Environmental Protection Agency concerning violation notices. The appellate court acted properly in affirming the penalty imposed.

3. Wrongful Death/Medical Studies Act: Affirmed: The question at issue is whether a new privilege for self-critical analysis or peer-review should be recognized in Illinois so as to preclude the disclosure sought. The appellate court deferred this question to the legislature as a matter of public policy.  In Illinois, the Medical Studies Act has a specific provision protecting hospital documents related to quality control from discovery. However, the supreme court noted that this occurs in a different context and took the view that the privilege should not be judicially extended. The Medical Studies Act, by its very terms does not apply to institutions such as One Hope. The legislature could have extended a quality-control privilege to a myriad of scenarios involving all kinds of public and private entities on the rationale that internal review might be beneficial. However, the legislature’s approach has been targeted and narrow, evincing an intent to limit rather than extend the scope of the privilege. Although the Child Death Review Team Act limits public access to information developed under that statute, it specifically states that it does not apply where a minor’s attorney seeks records concerning services provided by the DCFS. Relevant legislative acts and omissions evince a public policy determination by the General Assembly that the type of information sought in
discovery here is not subject to a “self-critical analysis privilege” that would protect it from disclosure. As the appellate court concluded: “Absent the privilege, there is no dispute that the priority review report is discoverable, as it may contain information admissible at trial or lead to such information.” 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 117200    Harris v. One Hope United, Inc.   Filed 3-19-15 (RJC)

Cook County Public Guardian Robert F. Harris is the plaintiff in this case, and defendant One Hope United is a corporation which contracts with the Illinois Department of Children and Family Services to provide services aimed at keeping troubled families together. This wrongful death action seeking damages was filed based on the 2010 death of a seven-month-old who drowned when left unattended while being bathed. Her death occurred while her family was participating in one of the corporate defendant’s programs. One of the corporate defendant’s employees and the victim’s mother were also sued.  This appeal arises from pretrial discovery. Plaintiff sought access to a “priority review” report generated in connection with the death by the corporate defendant’s “continuous quality review department.” That department considers whether the services furnished are professionally sound, identifies gaps in service delivery, and evaluates outcomes. Discovery was resisted and was then refused despite a finding of contempt.  In this decision, the Illinois Supreme Court affirmed.

4. Public Accounting Act/Privilege: Appellate court judgment affirmed; Circuit court judgment affirmed; Cause remanded.: The supreme court said that the statutory accountant’s privilege at issue here belongs to the accountant and not to the client, and may be asserted or waived by him. It is not part of a legislatively created body of evidentiary privileges, but is tied to the legislative scheme enacted to regulate the accounting profession. This statute was not intended to function purely as an evidentiary rule.  The supreme court also said that the common law “testamentary exception” to the common law doctrine of attorney-client privilege may not be used to defeat the accountant privilege of the Public Accounting Act. The creation of such an exception to the Act is for the legislature. The supreme court therefore rejected the public policy argument that accounting and law should be treated similarly in the context of a will contest. In this case, the same information whose production is now resisted by the accounting firm had previously been provided to the personal representative of the Krugers’ estates. This was a waiver of the statutory privilege, and calls for the same information to be disclosed to Brunton. Further proceedings are to take place in the circuit court.  Chief Justice Garman delivered the judgment of the court, with opinion. Justices Freeman, Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL 117663   Brunton v. Kruger    Filed 3-19-15 (RJC) 

 A will contest is ongoing in the circuit court of McLean County. This appeal involves a discovery dispute within that litigation. The appellant here is attorney Matthew Tibble, who represents the Striegel accounting firm, from which information concerning the estate is sought. The named plaintiff in the underlying litigation, June Brunton, was not named a beneficiary of the trusts and “pour over” wills of her late parents. She named as defendant her brother, Robert Kruger, and other family members, alleging undue influence and also her late mother’s diminished capacity at the time the trust documents were executed.  The decedents had consulted with the Striegel accounting firm during their estate planning process and provided it with confidential information, including information about their family, income, assets, and estate planning goals. Estate planning information was then provided by the accounting firm to the now-deceased lawyer who prepaid the wills and trusts.  In the underlying will contest, Brunton made discovery requests of the accounting firm with which appellant, its counsel, refused to comply, relying on the statutory accountant’s privilege found in the Illinois Public Accounting Act. The circuit court ordered the release of the documents and the appellate court affirmed. In this decision, the Illinois Supreme Court also affirmed, but relied on different reasoning than was articulated below.

5. Negligence/Malfeasance/Public Official: Appellate court judgment affirmed in part and reversed in part. Circuit court judgment affirmed as modified in part and reversed in part. Cause remanded with instructions: The supreme court noted that a public official can be liable in negligence for malfeasance in acts which are ministerial, but not if they are discretionary. In this decision, the supreme court addressed the question of whether the plaintiff had stated a cause of action for negligence, which is what he pleaded by alleging a common law negligence claim for breach of a ministerial duty. The supreme court said that, because the plaintiff did not assert a statutory cause of action in his complaint, the question of whether a private right of action could be implied from the applicable statutory provisions was not properly before it.  As to the sheriff, the supreme court said that the plaintiff stated a cause of action for negligence when he pled that statute imposes a ministerial duty on the sheriff to transmit to the clerk the accurate number of days that the plaintiff had been in custody, and when he pled that a negligent breach of that duty directly and proximately caused him to be wrongfully incarcerated for over four months. Therefore, the appellate court acted properly in holding that the trial court erred in granting the motion to dismiss as to the sheriff. The appellate court was affirmed in this regard. As to the clerk, the supreme court said that the duties imposed by statute are merely ministerial and call for the clerk to transmit, to the place of confinement, the correct number of days as given to him, without any duty to verify the accuracy of that number. Since the complaint alleged such a duty to verify, the count against the clerk was properly dismissed. However, the supreme court held in this decision that this dismissal should be without prejudice in view of the fact that there has not yet been any discovery. It is not known yet if the sheriff forwarded the wrong number of days to the clerk, and the clerk merely passed that information along, or if the sheriff forwarded the correct number of days to the clerk and the clerk forwarded the wrong number of days to the Department of Corrections. The plaintiff conceded that, if the clerk did indeed forward the number of days provided by the sheriff, there would be no breach of statutory duty by the clerk. Since this question could easily be addressed by making a minor adjustment to the claim already filed, the supreme court held that the count against the clerk was properly dismissed, but the dismissal should be without prejudice. The supreme court modified the circuit court’s judgment to so provide.  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 117811    Cowper v. Nyberg    Filed 3-19-15 (RJC) 

This lawsuit seeking a damage award comes from Saline County. The defendants are the Sheriff of Saline County and the Clerk of the Saline County Circuit Court. On May 12, 2011, plaintiff Cowper pled guilty to retail theft and, after sentencing, was transported to the Department of Corrections on June 2, 2011. He subsequently complained that his credit for time served had not been properly calculated, and he was released on October 16, 2011. In January of 2012, he filed a negligence complaint against the defendants, claiming wrongful incarceration for over four months and seeking damages in excess of $50,000. The State conceded that there had been a mistake as to the number of days, but a dismissal was entered in the circuit court. Cowper appealed to the appellate court.   Both the circuit and the appellate court focused primarily on whether a private right of action is implied by statute, even though plaintiff Cowper had pled common law negligence, rather than a statutory cause of action. The Illinois Supreme Court would later say that this was error. However, the appellate court overturned the dismissal of the complaint, and remanded for further proceedings on what it characterized as Cowper’s statutory claim. The appellate court took the position that Cowper did not have a common law negligence action. The defendants appealed to the Illinois Supreme Court.

6. Parentage/Custody/Adoption: Appellate court judgment affirmed in part and reversed in part. Circuit court judgment affirmed: In the decision announced today, the supreme court held that this recent 2013 decision is limited to the inheritance context and does not apply to child custody. Justice Freeman delivered the judgment of the court, with opinion.  Chief Justice Garman and Justices Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL 117904     In re Parentage of Scarlett Z.-D.    Filed 3-19-15 (RJC) 

In Elmhurst, a couple who were not married and the woman’s adopted daughter lived together as a family unit between 2004 and 2008, when the woman moved out, taking the girl, who was then nine years old, with her. Previously, the couple had been engaged to be married. The woman had been born in Slovakia, and, on a return visit there, met an orphanage resident who she wanted to adopt. The man who was her partner would not have been permitted to participate in the adoption under Slovakian law because he was neither a Slovakian national nor married to the adopting mother. He was supportive of the adoption, but did not acquire recognition as the girl’s father by domesticating the Slovakian adoption in Illinois, by seeking to adopt the girl under Illinois law, or by other statutory means.  The man initiated proceedings in the circuit court of Du Page County shortly after the woman moved out, and his second amended petition, filed in 2009, framed the instant proceedings. He sought a declaration of parentage, custody, visitation and child support.  Before trial, the woman filed motions to dismiss for lack of standing. Her motions as to four common law contract claims were granted, i.e., an oral agreement to be equal parents, promissory estoppel, implied contract in fact, and implied contract at law. The cause proceeded to a trial at which the circuit court denied the man’s remaining claims for relief, concluding that he lacked standing and was not subject to paying child support.  The appellate court initially affirmed the decision in the woman’s favor, but later remanded for factual findings on a theory of equitable adoption, based on a recent Illinois Supreme Court case announced in 2013.  The original circuit court decision was affirmed.

7. Custody: Appellate court judgment affirmed: In bringing her challenge, the mother had complained of noncompliance with the uniform act. However, the supreme court said that subject matter jurisdiction is given by the Illinois Constitution of 1970, not by compliance with statutory terms. Regardless of whether the circuit court should have proceeded to consider the custody issue on the merits in this case, it had subject matter jurisdiction to entertain McCormick’s complaint and to enter its February 8, 2010, “judgment of parentage, custody [and] related matters.” The circuit court therefore erred in vacating that order as void for lack of subject matter jurisdiction four years later and retroactively dismissing McCormick’s complaint with prejudice. There was no lack of subject matter jurisdiction when the circuit court of Champaign County entered its original judgment in 2010.  It should not have been vacated as void, nor should the father’s pleading have been retroactively dismissed with prejudice four years later.  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 118230    McCormick v. Robertson   Filed 3-19-15 (RJC)

This Champaign County custody case was initially brought in 2010 by a father who lived there. The mother lived in Missouri, where the child had been born in 2009. The mother filed a written appearance and submitted to the circuit court’s jurisdiction. A judgment was entered on a joint parenting arrangement that was agreed to. In 2012, the mother moved with her parents to Las Vegas, Nevada, taking the child with her. In 2013, the father returned to the circuit court of Champaign County, claiming that the terms of the original 2010 order had been violated as to visitation and other matters.  The mother began new proceedings in Nevada, asserting that the 2010 order entered in Illinois was void for lack of subject matter jurisdiction over the controversy. In 2014, the Nevada and Champaign County judges conferred by phone and agreed that Nevada was now the “home state” of the child under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), which is now part of the Illlinois statutes.  The circuit court of Champaign County subsequently vacated the original 2010 judgment for lack of subject matter jurisdiction. The appellate court did not agree, and the Illinois Supreme Court, in this decision took the same view.   

 1 Supreme Court Case Posted 3-16-15

1. Elections/Petitions: Reversed and remanded with directions: Here, the candidate failed to meet a threshold requirement completely. While the signature requirement may have been aimed at showing candidate initiative and minimum voter appeal, showing candidate initiative and minimum voter appeal is not, itself, the standard. As we have explained, the clear and unambiguous standard adopted by the General Assembly requires compliance with a specific numerical threshold determined according to a specific mathematical formula. A candidate either meets that minimum threshold or does not. There is no close enough.  Substantial compliance is not a valid justification for deviating from the clear and unambiguous minimum signature threshold set by the legislature. 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 118929    Jackson-Hicks v. The East St. Louis Board of Election Commissioners   Filed 3-16-15 (RJC)

The question presented by this appeal is whether a candidate for municipal office is entitled to have his or her name placed on the ballot if the governing election board has properly calculated and announced the minimum number of valid signatures required by statute to support the candidate’s nominating petition, but the candidate’s petition falls short of that legally-mandated threshold. The election board in this case determined that Illinois law requires only substantial compliance with the numerical signature requirement and that the candidate whose eligibility is being challenged here had come close enough to the minimum requirement to permit his name to be placed before the voters. On judicial review of the board’s decision, the circuit and appellate courts affirmed. We reverse the decision of the board and remand to the circuit court with directions.

5 Appellate Cases Posted 3-18-15

1. FELA/JNOV/MFNT: Affirmed:None of the claimed errors warrants judgment notwithstanding the verdict (QTS) or a new trial (Williams).  BNSF has not established that its notice was reasonable as a matter of law and the trial court did not err in denying BNSF's motion for a directed verdict on the issue of indemnification.  Evidence of Williams' termination would have had no impact on the damages award.  BNSF has not shown that it was prejudiced by not being allowed to introduce evidence of Williams' termination.  Also, The loss of household services has nothing to do with Williams' relationship with his wife and the effect Williams' injuries had on that relationship was not the subject of proof at trial. Mason, J.

No. 2015 IL App (1st) 121901-B    Williams v. BNSF Railway Company   Filed 3-18-15 (RJC)

Plaintiff-appellee Anthony Williams filed suit against defendant-appellant BNSF Railway Company (BNSF) pursuant to the Federal Employers Liability Act (FELA) (45 U.S.C. § 51) (2006), for an employment-related injury. BNSF filed a third-party complaint for contribution and contractual indemnification against third-party defendant-appellee Quality Terminal Services (QTS). The jury returned a verdict in favor of Williams and awarded total damages in the amount of $2,676,960. The jury assessed 50% of the negligence involved in the injury to Williams, 37.5% to BNSF and 12.5% to QTS. The jury also returned a verdict in favor of QTS on BNSF's contractual indemnity claim. On September 25, 2013, this court dismissed the appeal for lack of jurisdiction, concluding that because the only issue remaining after the trial court's oral ruling denying BNSF's posttrial motion was a tax setoff issue that did not toll the time for filing an appeal, BNSF's appeal was not timely filed. The supreme court reversed and remanded, holding that the judgment was not final until the trial court issued its ruling on the setoff issue, because the trial court's prior oral
ruling was not entered in the law record book until that date.  Thus, we now address the merits of BNSF's appeal.

2. Criminal Law/Evidence/Search & Seizure: Affirmed: This is a case in which the State offered plentiful evidence of this defendant's role in the murders of all three members of his wife's family, an act that unfortunately was cruelly presaged in his many threats. Defendant would have this court focus almost exclusively on the "fact" that the State did not offer forensic evidence that unequivocally tied him to the murders, as if that were controlling. It is not.  It is axiomatic that the absence of forensic evidence does not equate to reasonable doubt in all cases.  Accordingly, defendant's argument on the sufficiency of evidence must fail. The fact that the police used cell phone technology as an aid in this effort after learning all of the above information does not in any way provide defendant for a legal basis to contest the results of the search of his person that was conducted.Also, defendant fails to offer any argument on how he was prejudiced by the court's denial of the continuance or how any delay in discovery caused him to be ill prepared during the trial proceeding. Accordingly, we find that the trial court did not abuse its discretion in this matter. Lavin, J.

No. 2015 IL App (1st) 122325    People v. Balfour   Filed 3-18-15 (RJC)

After trial by a Cook County jury, defendant William Balfour was convicted of the firstdegree murder of three members of his wife's family, along with charges related to the commission of these murders, including home invasion, aggravated kidnapping, residential burglary and possession of a stolen motor vehicle. He was sentenced to three consecutive terms of natural life in prison for the murders and consecutive terms of 60 years, 50 years and 10 years in prison for the related convictions. Defendant appeals, claiming, in the main, that there was insufficient evidence to convict
him of these charges beyond a reasonable doubt while particularly emphasizing his position that the evidence did not conclusively establish that he killed the youngest victim, his wife's sevenyear-old son whose body was found days after the home invasion, in a sport's utility vehicle (SUV) stolen from the child's slain uncle. The vehicle had been abandoned in the vicinity of the west-side apartment where defendant was taken into custody on the day of the murders. Defendant also avers that the search of his person was done without warrant and without probable cause, thus requiring the trial court to have barred any related evidence. Defendant also claims that the trial was unfair in that the state exaggerated negative forensic evidence as incriminating. Finally, defendant claims that his sister-in-law's testimony about his unsavory character was irrelevant and prejudicial.

3. Governmental Tort Immunity: Affirmed: The defendants qualify as “public employee[s] serving in a position involving the determination of policy or the exercise of discretion.”  No Illinois cases that discuss whether a decision to terminate an employee is a discretionary policy determination within the meaning of section 2-201, federal courts applying Illinois law have consistently answered this question in the affirmative. Also, defendants had no duty, contractual or otherwise, to retain Brooks until the investigation concluded. Given that defendants had authority to terminate Brooks, they could also validly threaten to terminate him unless he resigned from his position. O'Hara, J.

No. 2015 IL App (1st) 140392   Brooks v. Daley   Filed 3-18-15 (RJC)

Plaintiff John Brooks, the former fire commissioner of the city of Chicago, brought this suit against defendants Richard Daley, the former mayor of the city of Chicago, and Raymond Orozco, Daley’s former chief of staff, seeking damages in connection with Brooks’ resignation as fire commissioner in 2010. Brooks alleged that ever since he was appointed as fire commissioner in 2008, Daley wanted to oust Brooks and replace him with Daley’s preferred candidate for the position. To that end, when a fire department employee made allegations of sexual harassment against Brooks in 2010, defendants allegedly forced Brooks to resign before an official investigation could clear Brooks’ name. Brooks sought damages for intentional infliction of emotional distress and tortious interference with an advantageous business relationship. The trial court dismissed Brooks’ complaint, finding that defendants were immune from suit under section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2-201 (West 2012)), which immunizes public employees “serving in a position involving the determination of policy or the exercise of discretion” for their actions “in determining policy when acting in the exercise of such discretion.” Brooks appeals, arguing that immunity does not apply where defendants’ actions were unauthorized and outside the scope of their employment. Finding no error, we affirm.

4. Criminal Law/Burglary: Judgmment vacated: By obtaining control over stolen property on the street, defendant acted with the intent to permanently deprive the owners of the use and benefit of their property. Thus, defendant had already committed the theft when he entered Pawn King. As he could not have entered Pawn King with the intent to commit therein a theft, since it already occurred, he could not be found guilty of burglary. Accordingly, defendant's convictions for burglary must be vacated. Turner, J. with Steigmann, J. dissenting.

No. 2015 IL App (4th) 130265    People v. Murphy   Filed 3-18-15 (RJC)

In January 2013, a jury found defendant, Cortez D. Murphy, guilty of two counts of burglary. In March 2013, the trial court sentenced defendant to six years in prison. On appeal, defendant argues (1) the State failed to prove him guilty beyond a reasonable doubt, (2) the jury instructions denied him a fair trial, and (3) he was denied the effective assistance of counsel. We vacate defendant's burglary convictions.

5. Sexually Dangerous Persons Act: Reversed and remanded: An expert chosen and retained by an adverse party is, by definition, not impartial. Thus, if the State is allowed to choose its own expert, due process demands the appointment of an independent examiner for the respondent. Under the circumstances of this case, the court's denial of the respondent's request ran afoul of this requirement. The appointment of an independent expert of the State's choosing would require the appointment of an expert for the respondent in order to comport with due process. The Act does not contemplate this type of battle between party-retained experts. As such, the Act does not allow the State to seek the appointment of its own chosen expert. Chapman, J. 

No. 2015 IL App (5th) 130416    People v. Grant   Filed 3-18-15 (RJC)

The respondent, James E. Grant, was committed under the Sexually Dangerous Persons Act (Act) (725 ILCS 205/0.01 et seq. (West 2012)). Subsequently, he filed an application for discharge or conditional release. An evaluation of the respondent was prepared and filed with the court. A team of evaluators found that the respondent was not a sexually dangerous person and recommended conditional release. The State filed a motion to appoint an independent psychiatrist to examine the respondent. The court granted the State's motion over the respondent's objection and denied the respondent's request to appoint his own independent psychiatrist. A jury found that the respondent remained subject to commitment as a sexually dangerous person. The respondent appeals, arguing that the court erred and violated his constitutional rights by appointing an expert for the State and denying his request for his own expert. We reverse and remand for further proceedings consistent with this decision.

3 Appellate Cases Posted 3-17-15

1. Wage Payment and Collection Act.  Breach of Contract. Unjust Enrichment.  Reversed and Remanded.  Pierce, J.

No. 2015 IL App (1st) 141287   McCleary v. Wells Fargo Securities, LLC  Filed 3-17-15 (JMC)

Plaintiff, Thomas McCleary, appeals the dismissal of his amended complaint under section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)). McCleary's amended complaint alleged claims for breach of contract, violation of the Illinois Wage Payment and Collection Act (Act) (820 ILCS 115/2 (West 2012)) and unjust enrichment. Plaintiff's amended complaint pled sufficient facts that, if proven, would entitle him to relief.

2. Criminal Law.  Aggravated Battery to a Peace Officer.  Reasonable Doubt. Affirmed in Part, Reversed in Part.  McLaren, J.

No. 2015 IL App (2d) 130387 People v. Jones Filed 3-17-15 (JMC)

Following a jury trial, defendant, DeAndrea Jones, was convicted of aggravated battery to a peace officer (720 ILCS 5/12-4(b)(18) (West 2010)) and obstructing a peace officer (720 ILCS 5/31-1(a) (West 2010)). The trial court sentenced him to five years’ imprisonment. Officer Loechel was undoubtedly authorized to conduct some initial investigation, in doing so he found no evidence of domestic violence, or of any other offense for that matter. The report that prompted the investigation stated only that a verbal argument was occurring, accompanied by the sound of objects breaking. Loechel, too, heard arguing and things breaking, but, even after entering defendant’s home, he discovered no evidence of violence. Guzman, the ostensible victim, had no visible injuries and did not request assistance. Loechel’s authority to remain in defendant’s home effectively ended at that point. His remaining in the home in an attempt to detain defendant was an unauthorized act that defendant could obstruct.

3. Criminal Law.  Murder and Home Invasion.  Automatic Transfer under the Juvenile Court Act.  Cates, J.

No. 2015 IL App (2d) 110492    People v. Baker    Modified upon denial of rehearing 3/17/15 (JMC)

Following a jury trial, the defendant, Clifford W. Baker, was convicted of two counts of first-degree murder and three counts of home invasion. He was sentenced to two mandatory terms of natural life in prison for the murders, and a term of 30 years for
each of the home invasions, with one 30-year term to run consecutive to the sentences on *Justice Spomer was originally assigned to participate in this case. Justice Moore was substituted on the panel subsequent to Justice Spomer's retirement and has read the briefs and listened to the tape of oral argument. Although the defendant was 15 years old at the time he committed the murders, he was tried as an adult in accordance with the automatic transfer provision in the Illinois Juvenile Court Act of 1987  On appeal, the defendant challenged the constitutionality of the automatic transfer provision, the constitutionality of the sentencing scheme as applied to juvenile defendants, the propriety of certain procedural and evidentiary rulings by the trial court, and the effectiveness of his trial counsel. Our original opinion was issued on February 6, 2015. The defendant filed a petition for rehearing on February 27, 2015. We now issue this modified opinion upon denial of the defendant's petition for rehearing. For the reasons stated, the defendant's mandatory natural life sentences for murder must be vacated and the cause must be remanded for a new sentencing hearing. 

5 Appellate Cases Posted 3-16-15

1. Civil Pro./2-1401 Petition: Affirmed in part and reversed in part: The trial court did not err in finding that Willis failed to exercise due diligence in the settlement proceedings. Section 2-1401 does not provide the petitioner relief from "the consequences of his own mistake or negligence."To set aside a settlement agreement based on fraudulent concealment in a section 2-1401 petition, Willis must show that "the misrepresentation of the assets could not reasonably have been discovered at the time of, or prior to, the entry of the judgment." Documents available prior to the entry of the settlement agreement could have been used by Willis to obtain its own appraisal. The trial court did not err in dismissing Willis's section 2-1401 petition for lack of due diligence. Harris, J.

No. 2015 IL App (1st) 132183   Willis Capital LLC v. Belvedere Trading LLC   Filed 3-16-15 (RJC)

Plaintiff, Willis Capital LLC (Willis), appeals the trial court's dismissal of its first amended petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2012)). On appeal, Willis alleges that the trial court should have granted its section 2-1401 petition to "reopen a 2008 settlement agreement and judgment under which it sold its ownership interest in [d]efendant Belvedere Trading LLC (Belvedere)" because: (1) defendants fraudulently concealed information regarding the value of the business prior to the execution of the settlement agreement; (2) the written waiver of fiduciary duties contained in the settlement agreement is unenforceable; (3) the March 5, 2012, dismissal order by the Chicago Board Options Exchange (CBOE) had no preclusive effect on the petition; and Nos. 1-13-2183 & 1-14-0381 (Consolidated) (4) the trial court should have held an evidentiary hearing on the petition. Willis also challenges the trial court's award of reasonable attorney fees to defendants. For the following reasons, we affirm the dismissal of the section 2-1401 petition. However, we reverse the trial court's award of attorney fees and costs to defendants.

2. Mortgage Foreclosure/Summary Judg./Appeals: Affirmed in part and dismissed in part. Cause remanded: Defendant’s lack of compliance with Supreme Court Rule 341(h) does not preclude appellate review. D eficiencies in the Otis affidavit rendered it useless to demonstrate that Tsevis validly reinstated the mortgage. “[P]ayment of the required sums is the crucial act” to effectuate a valid reinstatement. Accordingly, there was no genuine issue of material fact preventing the granting of summary judgment in favor Plaza Bank.  The court below awarded Plaza Bank its attorney fees because the underlying agreements require the defendants to pay the attorney fees of Plaza Bank for any litigation it might bring to collect on the notes. Case is remanded to the trial court for the sole purpose of considering any supplemental fee petition which Plaza Bank might bring regarding this appeal. Delort, J.

No. 2015 IL App (1st) 133672   North Community Bank v. 17011 South Park Ave, LLC   Filed 3-16-15 (RJC)

This case presents two novel issues regarding mortgage foreclosures. The first concerns what facts must a mortgagor prove to establish he validly reinstated a delinquent mortgage. The second involves what procedural pitfalls lie in the path of an aggressively defensive mortgagor who tries to interlocutorily appeal a foreclosure order.

3. Insurance/Rights & Obligations: Affirmed: The general conditions and the cited provisions of the subcontract, Carrozza was obligated to purchase CGL insurance. Article 2.1 of the subcontract stated that the general conditions applied to the subcontract and that the Subcontractor assumed "all obligations and responsibilities" that the contractor assumed toward the owner, which included purchasing the required insurance policies. Carrozza assumed the responsibility to procure CGL insurance, just as Athens promised the owner that it
would procure CGL insurance. Connors, J.

No. 2015 IL App (1st) 140006    West Bend Mutual Insurance Company v. Athens Construction Company, Inc.   Filed 3-16-15 (RJC)

Defendant Athens Construction Co., Inc. (Athens), and its insurer, intervening plaintiff Harleysville Lake States Insurance Company (Harleysville), appeal an order of the circuit court that granted summary judgment to plaintiff West Bend Mutual Insurance Company (West Bend)
and against Athens and Harleysville. On appeal, Athens and Harleysville contend that the court erred in finding that the written agreement between Athens and a subcontractor did not require the subcontractor to name Athens as an additional insured on the subcontractor's commercial
general liability (CGL) policy with West Bend. We affirm.

4. Criminal Law/Search & Seizure/UUW: Affirmed: The physical touch of defendant's shoulder is one of many nonoffensive methods our culture and society accept as a measure of common courtesy to attract another person's attention. Accordingly, that physical contact with defendant was not a demonstration of police authority indicative of a seizure but was, instead, a socially accepted method of initiating the encounter that ensued. The undisputed record showed that McCord approached defendant in a professional, nonoffensive manner, posing appropriate questions that defendant willingly answered. With the exception of McCord's initial tap of defendant's shoulder, none of the Mendenhall factors indicative of a seizure are present on this record.  Defendant seeks to render section 24-1.6(a)(1), (a)(3)(I) unconstitutional by extending the protections afforded by the second amendment to persons under 21 years of age. We decline to do so. Instead, we adhere to the "obvious and undeniable conclusion" announced by the Aguilar court that "the possession of handguns by
minors is conduct that falls outside the scope of the second amendment's protection." Steigmann, J.

No. 2015 IL App (4th) 130072    People v. Lake   Filed 3-16-15 (RJC)

In June 2012, the State charged defendant, Trevon M. Lake, in part, with (1) aggravated use of a weapon (720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2010)) and (2) defacing identification marks of a firearm (720 ILCS 5/24-5(b) (West 2010)). Defendant later filed a motion to suppress the gun police seized, arguing that the police search of him was unreasonable under the fourth amendment to the United States Constitution. U.S. Const., amend. IV. Following a November 2012 hearing, the trial court denied defendant's motion to suppress. At a stipulated bench trial conducted later that month, the court found defendant guilty of both charges. In December 2012, the court sentenced defendant to time served (187 days in jail) and probation for 24 months. Defendant appeals, arguing that (1) the trial court erred by denying his motion to suppress evidence and (2) his conviction for aggravated use of a weapon under section 24-1.6(a)(1), (a)(3)(I) of the Criminal Code of 1961 is unconstitutional. We disagree and affirm.

5. Premises Liability/Open & Obvious/MSJ: The circumstances of this case simply do not fit within recognized understandings of the deliberate encounter exception. The undisputed evidence in this case establishes that (1) the condition was open and obvious as a matter of law and (2) no exception to the open-and-obvious doctrine applies. Application of the open and obvious rule affects the first two factors of the duty analysis: the foreseeability of injury, and the likelihood of injury. [Citation.] Where the condition is open and obvious, the foreseeability of harm and the likelihood of injury will be slight, thus weighing against the imposition of a duty."  Under the facts of this case, "[t]he imposition of this burden is not justified[,] given the open and obvious nature of the risk involved." Accordingly, because defendants owed no duty to plaintiff, the trial court properly granted defendants' motion for summary judgment. Steigmann, J.

No. 2015 IL App (4th) 140512    Lucasey v. Plattner   Filed 3-16-15 (RJC)

In January 2013, plaintiff, Richard R. Lucasey, sued defendants, Ronald Plattner and Maureen Plattner, for injuries plaintiff received after falling from a retaining wall in defendants' backyard while he was performing a real-estate appraisal of defendants' property. In July 2013, defendants moved for summary judgment, arguing that plaintiff's negligence claims were precluded because (1) the retaining wall was an open-and-obvious hazard and (2) neither the "distraction" exception nor the "deliberate encounter" exception to the open-and-obvious doctrine applied. In May 2014, the trial court granted summary judgment for defendants. Plaintiff appeals, arguing that the trial court erred by (1) striking the affidavit of plaintiff's purported expert in architecture and building codes and (2) granting summary judgment for defendants because (a) the question of whether the retaining wall was an open-and obvious hazard was for the jury to decide and (b) even if the hazard was open and obvious, the "distraction" and "deliberate encounter" exceptions to the open-and-obvious doctrine applied.We disagree and affirm.

3 Appellate Cases Posted 3-13-15

1. Med. Malpractice/Immunity: Affirmed: Construing the pleadings, depositions, admissions and affidavits strictly against defendants and liberally in favor of plaintiff, we find plaintiff has failed to present evidence to show that defendants were negligent in treating her diagnosed condition. The court did not err in finding defendants immune from liability under section 6-105 (failure to conduct an adequate examination) and section 6-106(a) (failure to diagnose) for the negligence asserted in counts I and III.  given that defendants are immune from liability for their "physical" treatment and that plaintiff has not sufficiently alleged that defendants had a duty to comport themselves towards her in any particular manner or to believe her complaints, the court did not err in granting summary judgment to defendants on the negligent infliction of emotional distress counts II and IV.  Plaintiff has not shown that the hospital knew she had an emergency condition, the hospital cannot be liable for any failure to provide stabilizing treatment under EMTALA. Palmer, J.

No. 2015 IL App (1st) 131122    Johnson v. Bishof   Filed 3-13-15 (RJC)

Plaintiff Koni Johnson filed an action against defendants Christine Pabin Bishof, M.D., Jonathan Bankoff, M.D., and the County of Cook, doing business as John H.Stroger, Jr., Hospital (the county) alleging negligence, negligent infliction of emotional distress and violation of the Emergency Medical Treatment and Active Labor Act (EMTALA) (42 U.S.C. § 1395dd (2012)) in defendants' diagnosis and treatment of her in the emergency room of John H. Stroger, Jr., Hospital (Stroger Hospital). The court entered summary judgment for defendants on all counts asserted against them in plaintiff's fifth amended complaint. On appeal, plaintiff argues the court erred in granting summary judgment on (1) counts I and III, as defendants are not immune from liability under sections 6-105 and 6-106 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/6-105, 6-106 (West 2012)) (Tort Immunity Act) for their negligence in failing to appropriately treat her, (2) counts II and IV, as defendants are not immune from liability under the Tort Immunity Act for their negligent infliction of emotional distress on her and (3) count V, as questions of fact exist regarding whether she was given a medical screening examination within defendants' capability to provide and was stabilized before being discharged from the emergency room as required by EMTALA. We affirm.

2. Domestic Relations/ Child Support/Income: Affirmed: The trial court did not abuse its discretion when it excluded from its child support calculations Arjuna’s proportionate share of the retained earnings from Mahantech. In the present case, the trial court considered whether Arjuna was the sole shareholder of the subchapter S corporation, whether there was evidence that he was manipulating income to reduce his support obligation, whether the corporation’s retained earnings were excessive, and whether there was a legitimate business purpose for not distributing the retained earnings. Based on our review of the above cases from Illinois and from other jurisdictions, we find no error of law in the trial court’s approach. The trial court also did not abuse its discretion in denying Moorthy's request for an additional amount for daycare expenses. Palmer, J.

No. 2015 IL App (1st) 132077    In re Marriage of Moorthy   Filed 3-13-15 (RJC)

In June 2003, the trial court entered a judgment dissolving the marriage of petitioner, Deepalakshmi Moorthy, and respondent, Channa Mallik Arjuna. In May 2011, Moorthy filed a petition to modify the amount of child support Arjuna paid for their daughter. Following an evidentiary hearing, the trial court entered an order on May 29, 2013, in which it increased the amount of child support based on Arjuna's current yearly salary, but the trial court held that Arjuna’s proportionate share of the retained earnings from his majority-owned subchapter S corporation should not be imputed to him for purposes of calculating his child support obligation. Moorthy appeals that order, contending that the proportionate share of the retained corporate earnings should be included in Arjuna’s net income in calculating Arjuna's child support obligation. We affirm.

3. Zoning: Affirmed: The municipal statutes are not satisfied by the plaintiffs' efforts at pre-suit notice. We reach this conclusion in part because the plaintiffs' search of the "authentic tax records" in order to give notice to other property owners was incomplete and we are not persuaded that the legislature condoned less than strict compliance with the notice statutes. Precedent indicates that searching the county's "authentic tax records" in order to give pre-suit notice includes searching not only the records of the Cook County Treasurer, but also the records of the Cook County Clerk and the Cook County Assessor.  We find (1) that the point for determining the properties to be given pre-suit notice was the "location" of the subject property to be rezoned, not its common address or addresses, and (2) that the plaintiffs' use of the common address, 1330 East 53rd Street, as the basis for their search cannot be attributed to the municipality or the owner of the rezoned property. The plaintiffs did not follow the Municipal Code. The plaintiffs' search parameters were wrong, through no fault of the other litigants. McBride, J. with Gordon, J. specially concurring.

No. 2015 IL App (1st) 140570    Scott v. City of Chicago   Filed 3-13-15 (RJC)

Chicagoans Michael Scott, James Des Jardins, and Mark Graham, who own residential properties on South Kenwood Avenue, and their neighbor, Lorraine Pettigrew, who owns residential property on South Kimbark Avenue, brought an action against City of Chicago to challenge the city council's decision to rezone property on 53rd Street between Kenwood and Kimbark Avenues from retail zoning to a planned development pursuant to the Chicago Zoning Ordinance. Where there was once just a parking lot and gas station on the north side of 53rd Street, the new zoning would allow for a mixed use building that is 13 stories and 155 feet tall. The construction plans include 267 multi-family residential units, ground floor commercial space, and 218 parking spaces.

1 Appellate Cases Posted 3-12-15

1. DCFS/Admin. Hrng.: Reversed with directions: There was no evidence that plaintiff’s use of  “K3,” which was considered to be legal synthetic marijuana at the time, rendered her unable to adequately supervise S.H.  Based on the record, we are left with the definite and firm conviction that a mistake has been committed, as DCFS failed to meet its burden by a preponderance of the evidence. Therefore, we find that DCFS’s decision to deny expungement of plaintiff’s indicated finding of neglect was clearly erroneous. Burke, J.

No. 2015 IL App (2d) 131037    L.F. v. The Department of Children and Family Services   Filed 3-11-15 (RJC)

After the Department of Children and Family Services (DCFS) entered against plaintiff, L.F., an indicated finding of child neglect due to inadequate supervision (89 Ill. Adm. Code 300.appendix B (Allegation 74), amended at 35 Ill. Reg. 2861 (eff. Feb. 8, 2011)), she administratively appealed the finding and requested that it be expunged from the state central register. Following an evidentiary hearing, the administrative law judge (ALJ) recommended to deny the expungement request. Defendant Richard H. Calica, as director of DCFS (Director), agreed and denied plaintiff’s expungement request. The circuit court of Lake County affirmed the Director’s decision. Plaintiff timely appeals from that order. For the following reasons, we reverse the trial court’s decision and order the Director to expunge the indicated finding from the state central register.

9 Appellate Cases Posted 3-11-15

1. Judgments/UFTA/Piercing Corp. Veil: Reversed and remanded with directions: Defendants violated the UFTA when, in winding down Westgate, they disbursed all of the company’s assets to themselves and other unsecured creditors when they knew about their potential liability to Cullen on its arbitration claim. We disagree with the trial court’s finding that Burnham was entitled to the $400,000 development fee or that the other transfers were made in good faith in the absence of documentary evidence to support that finding. Under section 8 of the UFTA a creditor in a case of fraudulent transfer may obtain “avoidance of the transfer or obligation to the extent necessary to satisfy” its claim. 740 ILCS 160/8 (West 2012). Thus, we remand to the trial court to permit Cullen to satisfy its Pennsylvania judgment. Further, because defendants were using Westgate as a shield to avoid personal liability, the corporate veil has been pierced and defendants are personally liable for the judgment amount, plus interest. Lastly, we need not address Cullen’s claim under the Delaware Limited Liability Company Act having determined that defendants violated the UFTA by dissipating all of Westgate’s assets. Hyman, J.

No. 2015 IL App (1st) 122538   A.G. Cullen Construction, Inc. v. Burnham Partners, LLC   Filed 3-11-15 (RJC)

Defendant Westgate Ventures, LLC, hired plaintiff A.G. Cullen Construction, Inc., to build a warehouse and distribution facility in Big Beaver, Pennsylvania. (Westgate was primarily owned by defendant Burnham Partners, LLC, which, in turn, was owned by defendant Robert Halpin.) When the project neared completion, Westgate and Cullen had a disagreement and Westgate stopped paying Cullen. This led to Cullen seeking relief through arbitration and obtaining an award of $457,416.37, which it reduced to judgment in Pennsylvania. Before the arbitration award was entered, Burnham, through Robert Halpin, began to wind down Westgate, liquidating all of the company's assets. After paying off a $2.5 million secured construction loan, the majority of Westgate's remaining cash was disbursed to Burnham in the form of a $400,000 development fee and to the Halpins, to repay a loan they made to Westgate, leaving Westgate with no funds to pay the arbitration award. Cullen filed a lawsuit against defendants in the circuit court of Cook County to recover the amount awarded, alleging, among other things, fraudulent conveyance and breach of fiduciary duty. After a bench trial, the circuit court entered judgment in defendants' favor on all counts and dismissed the complaint.

2. Criminal Law/Post-convicton Hearing Act: Affirmed: The trial court properly dismissed Brown's second-stage postconviction petition. The allegations in Brown's petition, with his supporting documentation, fail to make a substantial showing of any constitutional deprivation to warrant a third-stage proceeding when viewed against the full and complete record before us. Hyman, J.

No. 2015 IL App (1st) 122940    People v. Brown   Filed 3-11-15 (RJC)

Defendant, Isaiah Brown, appeals from the second-stage dismissal of his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)), following his conviction for unlawful use of a weapon by a felon. Brown contends the trial court erred in dismissing his petition without an evidentiary hearing because he made a substantial showing of a constitutional violation where trial counsel was ineffective for failing (a) to investigate and present four witnesses whose testimony would have supported the one defense witness at trial who testified Brown did not have a weapon and (b) to inform Brown of the State's guilty plea offer and the extended sentence he faced if convicted at trial. And, trial counsel was ineffective because she labored under a conflict of interest by also representing Omar Young, another man arrested at the scene and a potential defense witness. Brown further argues the trial court demonstrated bias against him by prejudging his case and asks this court to remand his cause for an evidentiary hearing before a different judge.

3. Criminal Law/Post-convicton Hearing Act: Affirmed: The trial court did not err in finding that the police acted reasonably under Terry v. Ohio, 392 U.S. 1 (1968), in stopping defendants' vehicle, which matched the description provided by the victims and was in the vicinity of the crime, and that the police properly conducted a limited protective search of defendants' clothing under People v. Johnson, 387 Ill. App. 3d 780 (2009), because the perpetrators were believed to be armed. Further, the trial court properly admitted testimony from the shoeprint expert, and her testimony along with the State's other evidence was sufficient to prove Simpson guilty beyond a reasonable doubt.  Hyman, J.

No. 2015 IL App (1st) 130303    People v. Simpson   Filed 3-11-15 (RJC)

After a bench trial, Marcus Simpson and his codefendant Andrew Dortch were convicted on four counts of home invasion (720 ILCS 5/12-11(a)(3) (West 2008)) with guns, while the residents were in the house. Simpson received a sentence of 30 years in prison. He appeals, arguing the trial court erred in denying his pretrial motion to quash his arrest and suppress evidence. Simpson also argues the State failed to lay the proper foundation for the testimony of its shoeprint expert witness and failed to prove defendant guilty beyond a reasonable doubt.

4. Withholding for Support Act: Affirmed:Although Provident is subject to the requirements of section 35 of the Withholding Act, it did not knowingly violate the Act and,therefore, the statutory penalty was not warranted. Hyman, J.

No. 2015 IL App (1st) 133048   In re Marriage of Solomon   Filed 3-11-15 (RJC)

This appeal concerns the penalty provision in section 35 of the Income Withholding for Support Act (Withholding Act) (750 ILCS 28/35 (West 2010)), for the employer's failure to properly administer child support payments withheld from its employee's wages. As part of a marriage dissolution judgment, Ralph Solomon's employer, third-party respondent, Provident Hospital of Cook County, was ordered to deduct and pay the designated amount from Ralph's paychecks as provided in the Withholding Act. After Provident failed to timely process two child
support payments, Iren Solomon filed a complaint against Provident Hospital, seeking "to determine and collect" a statutory penalty of $100-per-day for a "knowing" violation. The trial court denied her petition finding "the mistake was not a knowing violation." Iren claims the trial court erred because Provident failed to withhold proper child support on more than one occasion, had notice of its failure, and did not rebut the statutory presumption that it did so "knowingly." We affirm.

5. Illinois Land Trusts/Bankruptcy: Affirmed: Illinois land trusts are merely a vehicle for property ownership where the beneficiary retains control and are not "third party" entities for purposes of the "fraudulent transfer to third parties" exceptions to bankruptcy discharge. The circuit court did not err in granting defendant's motion to dismiss pursuant to section 2-619 of the Code for being "barred by other affirmative matter avoiding the legal effect of or defeating the claim" (735 ILCS 5/2-619(a)(9) (West 2012)), based on Soltys's bankruptcy
discharge. Plaintiff received notice of Soltys's bankruptcy proceedings and did not timely file an adversary claim to challenge the dischargeability of its deficiency judgment claim. The Illinois land trusts in this case are not third parties and do not come within the "fraudulent transfers to third parties exception" to bankruptcy discharge. The court correctly ruled that that plaintiff was barred from bringing this action by Soltys's bankruptcy discharge. Pucinski, J.

No. 2015 IL App (1st) 140100   FirstMerit Bank, N.A. v. Soltys   Filed 3-11-15 (RJC)

In this case we address a plaintiff creditor's claim that it can attempt to satisfy a debt discharged in bankruptcy from property transferred by the debtor to land trusts under the exception for fraudulent transfers to third parties.

6. Illinois Wage Payment and Collection Act: Reversed and remanded:The resolution of this appeal turns entirely on the meaning of the "but not both" language added to section 14 of the Act by the 2011 amendment.  Amended section 14 is a remedial provision which limits
only the amount that a plaintiff may recover under the Act, not as a jurisdictional provision that limits the avenues by which (or venues in which) he may seek recovery. Amended section 14 merely provides that a plaintiff may recover the amount of underpaid wages plus penalties in either the DOL or the circuit court, "but not both." In other words, this provision merely as preventing a plaintiff from obtaining a double recovery. Holdridge, J. and Wright, J. specially concurred, with opinion.

No. 2015 IL App (3d) 130585   Krause v. USA Docufinish   Filed 3-11-15 (RJC)

The plaintiff, Michael Krause, brought this small claims action under the Illinois Wage Payment and Collection Act (the Act) (820 ILCS 115/1 et seq. (West 2012)) to recover wages from his former employer which Krause claimed were earned and unpaid. The plaintiff also brought claims for breach of contract and "interference with contract of employment." The defendants brought counterclaims for "overpayment" and "property damage," but later abandoned their counterclaim for overpayment. Prior to filing his complaint in small claims court, the plaintiff filed a wage claim against defendant USA DocuFinish with the Illinois Department of Labor (DOL). The DOL ordered Defendant USA DocuFinish to pay the plaintiff $3,346.56. Defendant USA DocuFinish initially disputed the DOL's ruling. However, sometime after the plaintiff filed his complaint in small
claims court, USA DocuFinish paid the plaintiff the amount ordered by the DOL.  On June 5, 2013, the trial court granted the defendants' motion to dismiss the plaintiff's claim under the Act. The trial court found that section 14 of the Act "precludes further legal action by [plaintiff] Krause because *** sec[tion] 14 causes a loss of jurisdiction for an Employee who has filed a claim with the Dep[artment] of Labor."

7. FOID: Reversed: In light of recent second amendment decisions, we see a serious constitutional issue with the perpetual ban on the possession of firearms based upon a misdemeanor crime of domestic violence.  Here, O’Neill punched his son in the mouth. Had he acted in the same manner toward a stranger, he would have faced a five-year prohibition from possessing a firearm. Those prohibited from possessing a gun under federal law can seek relief pursuant to section 925(c) of the Gun Control Act, which provides relief procedures from federal disabilities.  O’Neill conceded that his conviction constituted a misdemeanor crime of domestic violence. The Act prohibits the court from granting relief where doing so would be contrary to federal law.  Given the state of the law and the fact that O’Neill did not participate, we have no choice but to reverse. We make it clear that we are not reversing the court’s findings, which as stated above are the same findings that the Attorney General is required to make under section 925(c), that: O’Neill had not committed a forcible felony within 20 years; that he was not likely to act in a manner dangerous to public safety; and that granting relief was not contrary to the public interest.  We are only reversing the court’s order requiring the Department to reinstate O’Neill’s FOID card. Schmidt, J. 

No. 2015 IL App (3d) 140011    O'Neill v. Director of the Illinois Department of State Police   Filed 3-11-15 (RJC)

The Illinois Department of State Police (Department) revoked petitioner Michael O’Neill’s firearm owner’s identification (FOID) card. The Department sent O’Neill a letter stating that it revoked his FOID card based on his conviction of battery, resulting from an incident of domestic violence.
O’Neill petitioned the circuit court, which ordered the Department to reinstate O’Neill’s FOID card. The Department intervened and filed a motion to vacate the court’s order, which the court denied. The Department appeals, arguing that the circuit court lacked jurisdiction. Alternatively,
the Department argues that O’Neill is not entitled to relief due to the fact that federal law prohibits him from possessing firearms. O’Neill has not filed an appellee’s brief. For the following reasons, we reverse.

8. DUI: Affirmed: Using such a witness as a 'human lie detector' goes against the fundamental rule that one witness should not be allowed to express his opinion as to another witness's credibility." "[T]hese observations are improper characterizations of the defendant and useless in the determination of innocence or guilt, and in fact, they tend to prejudice the jury. It is [defendant's] denial of guilt that is important and not the manner in which he communicates it." The trial court erred when it allowed this form of testimony.  Given the photographic evidence and defendant's admitted inconsistencies, we find it very likely the jury rejected defendant's version of events. Absent any other explanation and based on the record before us, we cannot say the evidence was so closely balanced that Bragg's improper testimony tipped the scales of justice against defendant. Thus, we cannot find plain error. Pope, J.  

No. 2015 IL App (4th) 130358   People v. O'Donnell   Filed 3-11-15 (RJC)

Following a jury trial, defendant, Anthony L. O'Donnell, was convicted of driving under the influence of alcohol. The trial court sentenced defendant to 24 months' probation and 90 days' incarceration in the Champaign County correctional center. Defendant appeals, arguing he is entitled to a new trial under the first prong of the plain-error doctrine because (1) the trial court impermissibly allowed a police officer to testify as a "human lie detector," and (2) the evidence in his case is closely balanced. We affirm.

9. Probate/Judgments: Reversed and remanded with instructions: The question as to whether an unsatisfied judgment can be defined within the context of the statute that allows for the further administration of an unsettled portion of the estate under section 24-9 of the Act appears not to have been previously considered by our courts. As a matter of law, that an unsatisfied money judgment is not the equivalent of an "unsettled portion of the estate" as that term is used in section 24-9 of the Act. The trial court made no findings in this regard, but did reopen the estate and allowed the Bank's petition for revival of the judgment, tacking on additional interest to be paid by an estate that had no value. It was error for the court to reopen the estate under the circumstances presented here. Accordingly, we reverse both the November 26, 2013, order granting the Bank revival of its judgment as well as the October 23, 2013, order reopening the estate. We further instruct the trial court to reinstate its March 27, 2007, order closing the estate and discharging the Executor.  Cates, J. with Welch, J. dissenting.   

No. 2015 IL App (5th) 130599    In re Estate of Carlen   Filed 3-11-15 (RJC)

This is an appeal from orders of the circuit court of Effingham County which reopened the estate of Walter L. Carlen, deceased, for the purpose of reviving a judgment which had been previously obtained against the estate, but which was about to lapse due to the passage of time.

4 Appellate Cases Posted 3-10-15

1. Workers' Compensation: Affirmed: In action for declaratory judgment in which plaintiff sought declaration that he could seek further benefits from his employer notwithstanding settlement of a claim for personal injuries sustained by plaintiff by a third party while plaintiff was working and which resulted in a settlement and resolution of a lien for workers' compensation benefits previously paid, trial court properly dismissed action and counterclaim for lack of jurisdiction as Industrial Commission has exclusive authority to resolve that issue. Stewart, J.

No. 2015 IL App (5th) 140267  Bradley v. The City of Marion Illinois  Filed 3-10-15 (TJJ)

The plaintiff, Patton Bradley, filed a complaint for a declaratory judgment against his employer, the City of Marion, Illinois, and its workers' compensation insurer, the Illinois Public Risk Fund (collectively referred to as the  defendants). The defendants filed a counterclaim for declaratory judgment. The plaintiff and the defendants asked the circuit court to decide whether the plaintiff could seek additional benefits under the Illinois Workers' Compensation  Act, following the plaintiff's settlement of a third-party tort claim that arose from the workplace accident. The circuit court, sua sponte, held that it lacked subject matter jurisdiction to decide the controversy. Both the plaintiff and the  defendants appeal the circuit court's ruling. We affirm.

2. Traffic Law: Affirmed: Police agency practice of transmitting traffic tickets to circuit court on Mondays and Fridays, rather than within 48 hours of issuance as required by SCR 552, justified circuit court order dismissing tickets. Moore, J. (Modified on denial of rehearing).

No. 2015 IL App (5th) 140423  People v. Geiler  Filed 3-10-15 (TJJ)

The State appeals the July 31, 2014, order of the circuit court of Madison County that granted the motion of the defendant, Christopher M. Geiler, to dismiss a traffic citation for failure to timely file the citation with the circuit clerk  within 48 hours, in violation of Illinois Supreme Court Rule 552, as a part of a clear and consistent violation of said rule. On February 11, 2015, we issued our original opinion affirming the judgment of the circuit court. On February  26, 2015, the State filed a petition for rehearing. We hereby issue this modified opinion upon denial of rehearing.

3. Injunctions/Arbitration Awards: Affirmed in part and reversed in part: In action for equitable relief in connection with enforcement of an arbitration award wherein plaintiff was awarded the right to property or alternatively money in a particular amount, trial court erred in granting defendant releif that prohibited plaintiff from seeking title to the property at issue simply because the plaintiff had sought to secure monetary relief through citation proceedings, but plaintiff not entitled to attorneys' fees. Liu, J.

No. 2015 IL App (1st) 140088  Work Zone Safety, Inc. v. Crest Hill Land Development LLC  Filed 3-10-15 (TJJ)

Plaintiff, Work Zone Safety, Inc. (Work Zone), appeals an order of the circuit court granting defendant, Crest Hill Land Development (CHLD), equitable relief on a judgment confirming an arbitration award. The arbitration involved a  dispute that arose out of CHLD’s sale of certain wetlands property to Work Zone. The arbitrator concluded that CHLD was obligated to repurchase the property at a specific price and awarded Work Zone damages in the amount of said price—noting that the award "stands" if CHLD failed to repurchase the property. The circuit court confirmed the award and entered a judgment against CHLD. Subsequently, CHLD did not repurchase the property or appeal the  judgment. Instead, CHLD moved to dismiss the supplementary proceedings and asked for a “return of excess payment,” arguing that it was inequitable for Work Zone to both retain the property and collect money damages. Work Zone challenged the motion as "an improper collateral attack" on the judgment. Following a hearing, the court ordered Work Zone to transfer the property to CHLD. This appeal followed. Affirmed in part and reversed in part.

4. Election Law: Affirmed: Board of Elections properly dismissed objection to aldermanic candidacy based upon claim that candidate did not live in ward for requisiste period of time, since when new aldermanic districts are drawn Municipal Code permits residents of old ward boundaries to seek candidacy in any new wards that old ward is now part of. Neville, J.

No. 2015 IL App (1st) 150310  Mondragon v. Reyes  Filed 3-10-15 (TJJ)

This case involves the interpretation of provisions in the Illinois Municipal Code concerning residency requirements following redistricting. Although Raul Reyes had lived in the 14th ward within the year preceding the 2015 election,  he sought election as alderman for the 15th ward. Adolfo Mondragon objected maintaining that Reyes did not meet the Code's residency requirement. The Board of Election Commissioners of the City of Chicago (Board) dismissed  Mondragon's objection, finding that because of a redistricting in 2012, residents of the 14th ward met the residency requirement to run for alderman in the 12th, 14th, 15th, 16th, 22nd, and 23rd wards. Mondragon appeals. We agree  with the Board's interpretation of the Code, and therefore we affirm.

2 Appellate Cases Posted 3-9-15 

1. Public Employee Pensions: Affirmed: Fire department deputy chief's actions in responding to a particular call while off-duty, in his capacity as media affairs officer, did not not constitute an "act of duty" so as to entitle him to disability benefits for injuries suffered in jumping over a CTA turnstile, and Board decision denying benefits also supported by claimant's failure to prove that injury prevented him from perfoming duties of a deputy chief. Delort, J.

No. 2015 IL App (1st) 141350  Howe v. The Retirement Board of the Firemen's Annunity and Benefit Fund of Chicago  Filed 3-9-15 (TJJ)

This case comes before us for a second time to review whether the defendant Retirement Board (Board) of the Firemen’s Annuity and Benefit Fund of Chicago properly denied plaintiff’s application for a duty disability benefit, which  plaintiff had filed pursuant to section 6151 of the Illinois Pension Code. On our initial review, we did not reach the merits of the underlying claim because we found the Board never validly took final action on the application. Howe v.  Retirement Board of the Firemen’s Annuity & Benefit Fund, 2013 IL App (1st) 122446. We vacated the Board’s decision and remanded the cause with instructions for the Board to take valid final action by conducting a proper  affirmative vote on a specific written decision. After a majority roll call adopting its written decision to deny plaintiff a duty disability benefit, plaintiff filed a second complaint for administrative review. The circuit court affirmed the  Board’s administrative decision. For the following reasons, we confirm the Board’s decision and affirm the circuit court’s judgment confirming the Board.

2. Criminal Law: Affirmed: In case where it was impossible to ascertain when defendant (while serving time in an out-of-state prison) actually delivered request for final disposition to circuit court in Illinois, claim that defense counsel was ineffective for failing to move to dismiss case for failure to comply with time requirements of Interstate Agreement on Detainers could not succeed; no showing was made that prosecution violated Bastson with respect to claim of exercising peremptory challenges based on race, where claim that prosecution used challenges to excuse an African-American venireperson because of a prior conviction, but not a white venireperson, was a function of the timing of the challenge and the available challenges left to the State at each time challenges were made or not made. Hudson, J.

No. 2015 IL App (2d) 120856  People v. Payne  Filed 3-9-15 (TJJ)

Following a jury trial in the circuit court of Winnebago County, defendant, Kenneth Lee Payne, Jr., was found guilty of aggravated vehicular hijacking and aggravated battery. The trial court sentenced defendant to a term of 20 years’  imprisonment for aggravated vehicular hijacking and a concurrent 5-year term of imprisonment for aggravated battery. On appeal, defendant raises two distinct issues. First, defendant argues that defense counsel was ineffective for  failing to move for the charges against him to be dismissed under the speedy-trial provisions of the Interstate Agreement on Detainers. Second, defendant argues that he is entitled to a new trial because, in violation of Batson v.  Kentucky, 476 U.S. 79 (1986), the State used a peremptory challenge to strike a prospective juror on the basis of race. For the reasons that follow, we affirm.

6 Appellate Cases Posted 3-6-15

1. Insurance Coverage: Affirmed: Claim against law enforcement officers for malicious prosecution in connection with exonerated criminal defendant began when prosecution of that person commenced, not when claim for such was filed upon that person's release from custody 20 years later; thus policy in effect in 2011 did not cover alleged malicious prosecution claim filed against municipality and police officers. Burke, J.

No. 2015 IL App (2d) 140293  Indian Harbor Insurance Company v. The City of Waukegan  Filed 3-6-15 (TJJ)

Defendants, Juan A. Rivera, Jr., the City of Waukegan (City), and former Waukegan police officers Lucian Tessman, Donald Meadie, Fernando Shipley, Howard Pratt, Richard Davis, and Phillip Stevenson, appeal from the order  granting the motion of plaintiff, Indian Harbor Insurance Company, for judgment on the pleadings, pursuant to section 2-615(e) of the Code of Civil Procedure (Code) (735 ILCS 5/2-615(e) (West 2012)). Defendants raise several issues, but the crux of the case concerns when coverage for a malicious-prosecution claim is triggered under the language of the law enforcement liability insurance policies that plaintiff issued to the City. Plaintiff contends that  coverage is triggered at the commencement of the alleged malicious prosecution, as that is defined as the “wrongful conduct” under the policies. Defendants contend that coverage is triggered at the termination of the prosecution in  favor of the accused. The trial court agreed with plaintiff and found that, under the plain language of plaintiff’s policies, the policies were occurrence-based and coverage was triggered at the commencement of the prosecution. We  affirm, for the following reasons.

2. Utility Regulation: Affirmed: Illinois Commerce Commission decision approving "performance-based formula rate" complied with applicable statute, and no further study was required. Jorgensen, J.

No. 2015 IL App (2d) 140202  The Coalition to Request Equitable Allocation of Cost Together v. Illinois Commerce Commission Commonwealth Edison Company  Filed 3-6-15 (TJJ)

In 2013, the Illinois Commerce Commission (Commission) approved the performancebased formula rate that Commonwealth Edison (ComEd) proposed to apply to its various customer classes. Petitioner, The Coalition to Request  Equitable Allocation of Costs Together (REACT), appeals. We affirm the Commission’s ruling, because: (1) the Commission did not err in interpreting the requirements of the statute; (2) the evidence substantiated the Commission’s  finding that a cost-based rate design did not require further segmenting the primary-voltage level of service by phase of service; and (3) the Commission reasonably found that the benefits of a further study on the question did not  outweigh the costs.

3. Criminal Law: Affirmed in part and vacated in part: Police had sufficient information to justify Terry stop of defendant; lineup was not suggestive simply because defendat was only person with a "garish" shirt on in lineup; natural life sentnece for home invasion predicated on two prior Class X felonies proper, notwithstanding that one Class X conviction was based on a conviction committed when defendant was 17 years old; prior Class X offense was not void, despite "illegal" sentence which did not include 15-year firearm enhancement; but four home invasion convictions vacated in light of one act, one crime rule. Lampkin, J.

No. 2015 IL App (1st) 120751  People v. Lawson  Filed 3-6-15 (TJJ)

After a jury trial, defendant Charles Lawson was found guilty of four counts of home invasion and four counts of aggravated kidnapping. The trial court sentenced him to natural life in prison. On appeal, defendant contends that (1)  the trial court should have granted his motion to quash his arrest and suppress evidence because the police stopped him without reasonable suspicion where he was walking on a public street near the site of the home invasion but 3 1/2 hours after it had occurred; (2) the trial court should have granted his motion to suppress the lineup identifications, which were unduly suggestive based on defendant’s attire; (3) the statutory provision regarding the sentencing of  habitual criminals is unconstitutional as applied to defendant because one of his prior qualifying convictions—a 1998 armed robbery—occurred when he was 17 years old and, thus, his current natural life sentence constitutes punishment too severe for conduct that he had committed as a juvenile; (4) his natural life sentence based on being adjudicated an habitual criminal should be vacated because it is predicated on a 2003 armed robbery conviction that is  void; and (5) his multiple convictions for home invasion violate the one-act, one-crime rule. For the reasons that follow, we vacate three of defendant’s four home invasion convictions pursuant to the one-act, one-crime rule but  otherwise affirm the judgment of the circuit court.

4. Criminal Law: Affirmed: Defendant's trial counsel provided effective assistance of counsel, despite claims that counsel failed to show that victim of beating with a baseball bat had cocaine in his system, and allegedly failed to call witnesses who, defendant claimed, would have impeached the victim's testimony. Gordon, J.

No. 2015 IL App (1st) 131420  People v. Kirklin  Filed 3-6-15 (TJJ)

Defendant Avery Kirklin was found guilty after a bench trial of aggravated battery. This case involved a credibility dispute where the trial court resolved the credibility issue against defendant. Defendant, age 59, who had no prior  criminal history and had been employed for over 30 years as a truck driver, was sentenced on April 18, 2013, to two years of probation. On this direct appeal, defendant claims that his trial counsel was ineffective for: (1) failing to  impeach the victim with evidence of the victim's recent cocaine use; (2) failing to impeach the victim with prior inconsistent statements about the incident which the victim allegedly made to his friends; and (3) failing to call character  witnesses who would testify to defendant's peaceful temperament. For the following reasons, we affirm.

5. Criminal Law: Affirmed: Where defendant claimed that State delayed indicting him so as to secure a tactical advantage while he was in custody for another case, defendant waived such claim where, subsequent to his indictment on this case, he agreed to continuances thus occasioning delay and prohibiting a claim that he was prejudiced by any such delay; public defender fee assessed at sentencing vacated for lack of hearing. Hudson, J.

No. 2015 IL App (2d) 130517  People v. Daniels  Filed 3-6-15 (TJJ)

Following a jury trial, defendant, James K. Daniels, was found guilty of burglary and sentenced to 11 years in prison. The trial court also ordered defendant to pay a $750 public defender fee. Defendant timely appeals, arguing: (1) his  due process rights were violated where the State intentionally delayed obtaining an indictment for 79 days after filing the information, in order to gain a tactical advantage over defendant; and (2) the $750 public defender fee must be  vacated outright, because it was imposed without the requisite hearing. For the reasons that follow, we affirm defendant’s conviction of burglary, and we vacate the $750 public defender fee.

6. Criminal Law: Reversed and remanded: Trial counsel's failure to comply with Supreme Court Rule 604(d) regarding the certificate of compliance detailing how counsel had communicated with defendant as to the claims to be made in motion to withdraw guilty plea, required further hearing on motion to vacate guilty plea. Goldenhersh, J.

No. 2015 IL App (5th) 130147  People v. Willis  Filed 3-6-15 (TJJ)

Defendant, Anthony J. Willis, appeals from an order of the circuit court of Marion County denying his motion to withdraw his guilty plea to the offense of escape and his motion to reduce sentence. Defendant raises three issues on  appeal: (1) whether the order denying his motion to withdraw his guilty plea should be reversed because his public defender filed a certificate under Illinois Supreme Court Rule 604(d) that was defective on its face and impeached by  the record; (2) whether the sentence imposed was disproportionate to the nature of the offense and should be modified; and (3) whether he was denied effective assistance of counsel with respect to his guilty plea, the negotiations leading up to his guilty plea, his motion to withdraw his guilty plea, and his motion for reduction of sentence. We reverse and remand with directions.

6 Appellate Cases Posted 3-5-15

1. Criminal Law: Affirmed: Evidence sufficient to prove force in connection with robbery where evidence showed that defendant grappled with store cashier victim at time of taking; trial court did not abuse its discretion in sua sponte having jury instructed as to lesser included offense of robbery; and trial counsel not ineffective for failing to present a definition for the word "force" when one was requested by the jury. Ellis, J.

No. 2015 IL App (1st) 120035  People v. Hicks  Filed 3-5-15 (TJJ)

Defendant Carl Hicks was charged with armed robbery for allegedly holding up a candy store. The State's witnesses testified that, during the robbery, he pointed a gun at the store's cashier and struggled with her over the money he took from the cash  register. Defendant admitted that he took the money from the register, but denied carrying a gun or touching the cashier. Defendant appeals, raising three issues: (1) whether the State's evidence was insufficient to prove that he took the money by the use or  threat of force; (2) whether the trial court erred in sua sponte instructing the jury as to the offense of robbery; and (3) whether his trial attorney provided ineffective assistance of counsel when he failed to tender a definition of "force" in response to the jury's  question. Affirmed.

2. Criminal Law: Reversed and remanded: At trial for predatory criminal sexual assault, trial court permitted State to introduce evidence of defendant's conviction for aggravated criminal sexual abuse, including testimony by the complainant and a certified copy of conviction. After defendant's conviction here, that other conviction was reversed and thereafter not prosecuted by the State. The Appellate Court here held that the reversal of that propensity case constituted "new evidence" that would likely change the result on retrial and granted defendant a new trial. McDade, J. (Schmidt, J., sp. concurring) (Lytton, J., dissenting).

No. 2015 IL App (3d) 080829-C  People v. Fields  Filed 3-5-15 (TJJ)

Defendant, Albert L. Fields, was convicted of two counts of predatory criminal sexual assault of a child, three counts of criminal sexual assault, and two counts of aggravated criminal sexual abuse. Defendant appealed his convictions. We reversed and  remanded for a new trial on the sole ground that defendant was denied effective assistance of counsel because his attorney was laboring under a per se conflict of interest. We did not reach defendant's remaining issues on appeal. People v. Fields, 409 Ill.  App. 3d 398 (2011). Thereafter, the supreme court reversed our decision (Fields, 409 Ill. App. 3d 398) and directed us to consider those issues previously raised but left unresolved owing to [our] disposition. People v. Fields, 2012 IL 112438, & 43.  Upon vacating our prior judgment, we entered a minute order directing the parties to submit additional briefing on the precise question of whether defendant's conviction in the instant case must be reversed in light of the fact his previous conviction that had served as propensity evidence had been reversed. People v. Fields, No. 3-08-0829 (October 31, 2014) (minute order). Upon review, we reverse defendant's conviction and remand the matter for a new trial.

3. Criminal Law: Reversed and remanded: In post-trial proceedings relating to defendant's request to withdraw a guilty plea, where circumstances indicated that defendant may not have been "fit to stand trial" at time of hearing on motion to vacate plea of guilty, it was error for trial court not to have conducted a fitness hearing to determine defendant's fitness at this post-trial hearing. McDade, J. (Schmidt, J., dissenting). (Modified on denial of rehearing).

No. 2014 IL App (3d) 120639  People v. Zelenak  Filed 10-9-14 (TJJ)

Defendant, George F. Zelenak, pled guilty to aggravated kidnapping and aggravated criminal sexual assault and was sentenced to a total of 36 years' imprisonment. Defendant filed a motion to withdraw his plea, which the trial court denied. Defendant  appeals, arguing that the court erred in conducting a hearing on defendant's motion to withdraw his guilty plea without ordering a fitness evaluation. We reverse and remand.

4. Criminal Law: Affirmed in part, vacated in part, and remanded: Trial court ruling at sentencing regarding imposition of amount to be paid by defendant to reimburse the county for the cost of his public defender was insufficient under Section 113-3.1 of the Code of Criminal Procedure, and award vacated and mater remanded. Lytton, J.

No. 2015 IL App (3d) 130109  People v. McClinton  Filed 3-5-15 (TJJ)

A jury found defendant, Howard A. McClinton, guilty of delivery of less than one gram of cocaine, and the court sentenced him to seven years' incarceration. At the sentencing hearing, the court imposed various fines and fees and ordered defendant to pay  $2,958 to reimburse the county for the public defender's services. Defendant appeals, arguing that the court abused its discretion by imposing the public defender fee and that defendant is entitled to additional $5-perday credit toward his fines. We vacate the  public defender fee, and remand with directions; we also order the circuit clerk to apply the appropriate sentencing credit, and otherwise affirm defendant's conviction.

5. Public Employment Disability Benefits: Affirmed: Public teachers who previously received disability payments properly required to reimburse Teachers' Retirement Service for disability benefits paid to them while they worked as as "web instructors" at a private university during the period of disability. Knecht, J.

No. 2015 IL App (4th) 140401  Nuzzi v. The Board of Trustees of the Teachers' Retirement System of the State of Illinois  Filed 3-5-15 (TJJ)

Plaintiffs, Thomas Nuzzi and Deborah Nuzzi, are married to each other and are the former superintendent and former principal, respectively, at St. George Community Consolidated School District (St. George). In August and September 2008, Deborah and Thomas, respectively, were awarded disability benefits by the Teachers' Retirement System (TRS) based on their post-traumatic stress disorder. In March 2010, TRS began investigating plaintiffs' employment as adjunct web-based instructors at Olivet  Nazarene University. In March 2010, TRS notified Thomas his right to receive disability benefits terminated on January 28, 2009, due to his employment and sought reimbursement of $46,959.91. In May 2010, TRS informed Deborah her right to receive  disability benefits terminated February 2, 2009, due to her employment and demanded reimbursement of $37,218.61. Plaintiffs appealed the TRS staff determination. Plaintiffs appeal, asserting (1) the pertinent sections of the Pension Code are ambiguous  and inconsistent; (2) section 16-149, not section 16-149.2, applies to this case; and (3) their employment at Olivet Nazarene University does not violate section 16-149(c). We affirm.

6. Environmental Law/Mining Law: Affirmed: Plaintiff environmental groups were not "parties of record" as that term is defined in the Administrative Review Law, and therefore did not have standing to contest grant of mining rights by Department of Natural Resources. Turner, J.

No. 2015 IL App (4th) 140405  The Sierra Club v. The Office of Mines and Minerals of the Department of Natural Resources  Filed 3-5-15 (TJJ)

Plaintiffs, the Sierra Club, Prairie Rivers Network, and Openlands, appeal the Sangamon County circuit court's April 16, 2014, dismissal of their first-amended petition for review of the actions of defendants, the Department of Natural Resources  (Department); the Department's Office of Mine and Minerals; the Department's Office of Realty and Environmental Planning; and Marc Miller, the Department Director (collectively, Department defendants), in approving the surface-mining permit of  defendant, Mississippi Sand, LLC (Mississippi Sand). On appeal, plaintiffs assert they have standing to challenge the Department defendants' actions. We affirm.

1 Appellate Case Posted 3-4-15

1. Tort Law.  Negligence.  Exculpatory Clause.  Summary Judgment Reversed.  Hyman, J.


2015 IL App (1st) 133716 Hawkins v. Capital Fitness, Inc.  Filed 3-4-15 (JMC)

Hawkins was injured while working out at Capital Fitness when when a nearby mirror fell from the wall and struck him.  Hawkins alleged negligence in failing to secure the mirror or warn patrons about the mirror and failed to cordon off the area around the mirror.  Capital Fitness sought and obtained summary judgment on the basis of the exculpatory clause in its membership agreement.  Hawkins sucessfully argued that the exculpatory clause did not bar his claim because the incident was not within the scope of possible dangers ordinarily accompanying the use of a fitness club.

2 Appellate Cases Posted 3-3-15

1. Criminal Law: Affirmed: Forgery conviction upheld; evidence was sufficient to establish proof beyond a reasonable doubt. Schostok, J.

2015 IL App (2d) 140604  People v. Lawson  Filed 3-3-15 (JMC)

Defendant appeals her convictions of two counts of forgery (720 ILCS 5/17-3(a)(1), (a)(2) (West 2012)). She contends that the State failed to prove beyond a reasonable doubt that, with the intent to defraud, she knowingly made and delivered a false document that was apparently capable of defrauding another. Affirmed.

2. Criminal Law: Reversed and Remanded: Motion to quash arrest and suppress evidence improperly granted by trial court. Birkett, J.

2015 IL App (2d) 140451 People v. Bernard  Filed 3-3-15 (JMC)

The State appeals from an order of the circuit court of Kendall County granting the amended motion of defendant to quash her arrest and suppress evidence. Because the evidence supporting her charged offense was not the fruit of the purportedly unconstitutional police conduct, and therefore the exclusionary rule did not apply. Reversed and remanded.

1 Appellate Case Posted 3-2-15

1. Domestic Relations: Affirmed: Hague Convention petition; effect of voluntary dismissal; substantial change of circumstances. Connors, J.

2015 IL App (1st) 140976 In re Marriage of Krol  Filed 3-2-15 (JMC)

Wife raised three issues on appeal. First, whether the trial court improperly allowed the Hague petition to "stand alone" following the dismissal of Dorota's petition for dissolution of marriage. Second, whether the trial court's orders entered after the voluntary dismissal of Dorota's petition for dissolution were void ab initio. Third, whether a substantial change of circumstances since the September 2, 2010 order finding Poland to be the child's habitual residence warrants that it is in the best interest of the child to remain in the United States pending a custody determination. Court answered all three issues in the negative.