Plaintiff,
Velocity Investments, LLC, filed suit against defendant, Gregory
Alston, based on defendant's default on the terms of his credit card
agreement. Defendant originally entered into a credit card agreement
with Household Bank, whose interest in the debt was subsequently sold
to plaintiff. The trial court entered judgment in favor of plaintiff.
Defendant timely appeals. On appeal, defendant argues, inter alia, that
plaintiff erred by failing to produce the original credit card
contract, showing that defendant agreed to its terms and conditions. We
agree with this contention and, accordingly, vacate and remand for
further proceedings.
3. Criminal Law: Affirmed:
The trial court adhered to Rule 431(b)'s requirement that each juror be
asked, individually or in a group, whether that juror understood and
accepted the Zehr principles, and each juror was given an opportunity
to respond to specific questions concerning the principles. Trial
court did not err in allowing the State to call witness to the witness
stand when it knew that he would invoke his fifth amendment right not
to testify. The trial court determined that the State's motive was not
a flagrant attempt to build its case from the privilege and that the
evidence would not add critical weight to the State's case. The trial
court did not abuse its discretion in allowing witness to invoke the
fifth amendment on the witness stand. Bowman, J.
No.
2-08-0208
People
v. Calabrese Filed
1-15-10 (RJC)
Defendant,
Michael J. Calabrese, was convicted of first-degree murder (720 ILCS
5/9--1(a)(3) (West 2004)) on January 18, 2008, after a jury trial. He
was sentenced to 45 years' imprisonment plus an additional 25 years
pursuant to the mandatory add-on for using a firearm (730 ILCS
5/5--8--1(a)(1)(d)(iii) (West 2004)). On appeal, defendant argues that:
(1) the trial court failed to comply with Supreme Court Rule 431(b)
(Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff.
May 1, 2007); (2) there was insufficient evidence to prove his guilt
beyond a reasonable doubt; (3) the trial court erred in knowingly
allowing the jury to hear witness Patrick Calabrese invoke his fifth
amendment privilege; and (4) his 70-year sentence was excessive given
his mitigating factors. We affirm.
4. Orders of Protection:
Affirmed: The central inquiry in any proceeding to obtain an order of
protection is whether the petitioner has been abused. The trial
court erred in ruling that neglect was a proper basis for the issuance
of the plenary order of protection. As a basis for an order of
protection under the Act, neglect applies specifically to high-risk
adults with disabilities. Because that evidence was sufficient
for a finding of abuse at the first hearing, it would also be
sufficient for such a finding at the second hearing. Thus, while the
trial court erred in issuing the plenary order of protection based on
its finding that K.H. and J.H. were neglected, rather than abused, we
presume that the evidence supporting the allegations made in both
petitions was sufficient for a finding of physical abuse pursuant to
section 103(14)(iii) of the Act (750 ILCS 60/103(14)(iii) (West 2008)).
Therefore, although the basis of the plenary order of protection was
not correctly noted, the trial court did not commit reversible error in
issuing the plenary order of protection. McLaren, J.
No.
2-09-0872
In
re Marriage of Holtrof
Filed
1-19-10 (RJC)
Respondent,
Amy Holtorf, appeals from the orders of the trial court granting
emergency and plenary orders of protection to her husband, petitioner
Michael Holtorf, and their two children, K.H. and J.H., and denying her
motion to vacate those orders of protection. We affirm.
5. Real Estate/Property Taxes:
Reversed and remanded: Illinois Property Tax Appeal Board's (the PTAB)
order dismissing Aux Sable's property tax appeal was clearly erroneous.
PTAB "has provided no factual basis for its decision to allow Aux
Sable's motion to dismiss." O'Brien, J. with Schmidt, J. dissenting.
McLaren, J.
No.
3-08-0561
Minooka
Community High School District No. 111 v. The Illinois Property Tax
Appeal Board Filed
1-12-10 (RJC)
Petitioners
Minooka Community High School District No. 111 and Minooka Community
Consolidated School District No. 201 (collectively the School
Districts) appeal a ruling of the Illinois Property Tax Appeal Board
(PTAB), in which PTAB allowed Aux Sable to take a voluntary dismissal
of its appeal of the Grundy County Board of Review’s (Board of Review)
tax assessment of Aux Sable’s property for the year 2004, after the
School Districts had successfully intervened in the proceedings and
were in the process of obtaining their own valuation of the property.
We reverse the decision of PTAB and remand the cause for further
proceedings.
6. Criminal Law: Affirmed: The
court gave the jury an instruction regarding the offense that did not
include the phrase "other than a firearm." The evidence in this
case was not closely balanced. This error was not so serious that
it affected the fairness of the defendant's trial and challenged the
integrity of the judicial process, regardless of the closeness of the
evidence. Therefore, the trial court did not commit plain error by
giving an improper jury instruction regarding count II. The
performance of the defendant's trial attorney fell below an objective
standard of reasonableness by failing to object to the improper jury
instruction for count II. However, because the evidence against the
defendant was overwhelming, the attorney's failure to object was not so
prejudicial that there was a reasonable probability that the outcome of
the trial would have been different. State did not fail to prove
the elements of aggravated criminal sexual assault beyond a reasonable
doubt. Holdridge, J. with Wright, J. specially
concurring.
No.
3-08-0506
People
v. Taylor
Filed
1-13-10 (RJC)
In a
three-count indictment, the State alleged that the defendant, Toola O.
Taylor, Sr., committed criminal offenses on July 18, 2006. In
count II, the State charged him with aggravated criminal sexual
assault. Before the jurors began their deliberations, the court gave
them, among other instructions, an outdated instruction for count II,
which did not specify that the dangerous weapon was to be one other
than a firearm. The jury found that the defendant had committed both
criminal sexual assault and aggravated criminal sexual assault, as
charged in count II. Additionally, pursuant to a special verdict form,
the jury found that the defendant had not committed aggravated criminal
sexual assault while armed with a firearm. The court sentenced the
defendant to 32 years of imprisonment, based on count II alone. On
appeal, the defendant argues that, regarding count II: (1) it was plain
error for the court to fail to instruct the jury that the dangerous
weapon was to be one other than a firearm; (2) his attorney provided
ineffective assistance by failing to object to the improper jury
instruction; and (3) the State did not prove the elements of the
offense beyond a reasonable doubt. We affirm.
7. Foreclosure/Mechanic's Liens:
Affirmed in part and reversed in part, and the cause is remanded: The
first issue for consideration is whether the trial court erred in
apportioning the sheriff’s sale proceeds. As the sale proceeds were
insufficient to satisfy the liens and the mortgage in full, the trial
court employed the proportionality analysis, crediting Edon and Eagle
with their share of the value of the improvements and crediting LaSalle
its proportional share of the value of the land. The trial court
correctly allocated the sheriff sale proceeds pursuant to section 16 of
the Illinois Mechanics’ Lien Act. The next issue is whether the trial
court erred when it denied LaSalle’s request for attorney fees.
The award of attorney fees is mandatory under the statute and therefore
we hold that the trial court erred in denying LaSalle’s request for
payment of its attorney fees. O'Brien, J. with Carter, J. concurring in
part and dissenting in part and with Schmidt, J. specially
concurring.
No.
3-08-0114
LaSalle
National Bank v. Cypress Creek
Filed
1-15-10 (RJC)
Plaintiff-appellee-cross-appellant
LaSalle Bank National Association filed this action to foreclose a
mortgage it held on a parcel of real estate that was being developed
for senior apartments. Defendants-appellants-cross-appellees Edon
Construction Co. and Eagle Concrete filed mechanic’s liens for work
they had done on the apartment buildings. The property was sold
pursuant to a sheriff’s sale, and in allocating the sale proceeds, the
trial court apportioned the funds between LaSalle as mortgagee and Edon
and Eagle as mechanic’s lien claimants, and subrogated LaSalle to the
position of mechanic’s lien claimant for various costs it funded during
construction. On appeal, Edon and Eagle challenge the allocation and
LaSalle cross-appeals the trial court’s denial of its request for
attorney fees. We affirm in part, reverse in part, and remand.
8. Traffic Law: Affirmed in part and reversed in part: Whee three
of four defendants in DUI cases strictly complied with provisions of
Supreme Court Rule 505, trial courts did not abuse their discretion in
dismissing, with prejudice, traffic tickets against defendants,
including DUIs, where cases did not appear in court within 14-60 period
in Rule 504. Lytton, J. (Schmidt, J., dissenting in part).
Nos. 3-08-0770,
3-08-0771, 3-08-0793, 3-09-0071 & 3-09-0072 (Consol.)
People
v. Ziobro Filed 1-13-10 (TJJ)
Defendants Todd Wambsganss, James Ziobro, Michael Lemoine and Robert
Shanahan were issued citations for driving under the influence and
other traffic violations. The first appearance dates listed on their
citations were beyond the prescribed period set forth in Supreme Court
Rule 504 (166 Ill. 2d R. 504). At their first appearances, defendants
filed motions to dismiss. The trial court granted the motions and
dismissed the charges against defendants with prejudice. We affirm in
part and reverse in part.
9. Election Law: Affirmed: Judicial candidate for subcircuit
judgeship within a judicial circuit must be a resident of the
subcircuit at the time the candidate files petitions to be a candidate
for that office. Carter, J. (Wright, J., dissenting)
No.
3-09-1031
Goodman
v. Ward Filed 1-14-10 (TJJ)
Daniel Goodman petitioned the Will County Officers Electoral Board
(Board), objecting to listing Chris Ward as a candidate on the ballot
in the primary for the office of Circuit Court Judge of the Twelfth
Judicial Circuit, Fourth Subcircuit (subcircuit). The Board denied
Goodman's petition. On review, the Will County circuit court reversed
the Board's decision. We reverse the Board's decision and affirm the
circuit court's ruling.
10. Traffic Law: Reversed and remanded: Trial court suppression of
alcohol testing results on defendant's urine, collected by a
phlebotomist at hospital and thus not in strict compliance with
administrative regulation, was remanded for a hearing to ascertain
whether collection constituted substantial compliance. Lytton, J.
(Wright, J., dissenting).
No.
3-09-0081
People
v. Henry Filed 1-19-10 (TJJ)
While driving her automobile, defendant, Delores Henry, struck a
pedestrian. Police arrested defendant for various traffic violations
and transported her to a hospital to have her blood and urine tested.
Based on the results of her urine test, defendant was charged with
aggravated driving under the influence of alcohol (625 ILCS 5/11-501(d)
(West 2006)). Defendant filed a motion to suppress the results of her
urine test. The trial court granted the motion. We reverse and remand.
11. Construction Law: Reversed and remanded: Plaintiff contractor's
ignorance of need to provide homeowner with a consumer brochure and a
written signed work order did not bar plaintiff's action to foreclose a
mechanic's lien and for breach of contract, where plaintiff performed
work in compliance with oral agreement, and trial court grant of
summary judgment to defendant was error. McDade, J. (Schmidt, J.,
specially concurring, and Lytton, J., dissenting)
No.
3-08-0237
Fandel
v. Allen Filed 1-14-10 (TJJ)
Plaintiff, David Fandel, doing business as Fandel Construction,
performed construction work for defendant, Tiffany Allen, on
defendant’s home. After the project was complete, plaintiff recorded a
“claim for lien” and commenced suit to foreclose the lien after
defendant stopped payment on the check she tendered in payment of the
services. Plaintiff now appeals from the trial court’s granting of
summary judgment in favor of defendant. We reverse and remand.
12. Parental Rights Law: Affirmed: Trial court did not err in
denying mother right to call child who was subject of
termination of parental rights proceeding to ascertain child's wishes
regarding termination of parental rights, where trial court properly
concluded that forcing child to testify was potentially injurious to
child in light of all facts of the case. Carter, J.
No. 3-09-0788
& 3-09-0789 (Consol.)
In
re A.W., Jr. Filed 1-13-10 (TJJ)
The respondent-mother, P.W., appeals from the trial court's decision to
bar her from calling her 15-year-old son, A.W., Jr., as a witness at
the best interest hearing. The respondent argues that the trial court's
decision to bar A.W., Jr.'s testimony violated her due process rights.
We affirm.
13. Administrative Law: Vacated: Trial court grant of mandamus
relief to plaintiffs who complained of administrative decision relating
to medical assistance under Public Aid Code was required to be vacated,
as relief to plaintiffs was only proper under Administrative Review
Law. Burke, J.
No.
2-09-0013
Guerrero
v. Gardner Filed 1-15-10 (TJJ)
Plaintiffs, Margarita Guerrero and Deloris McCoy, applied separately to
the Illinois Department of Human Services (Department) for medical
assistance. The Department denied both applications on the ground that
neither met the statutory criteria. Each plaintiff filed an
administrative appeal, and the Department scheduled both appeals for
December 7, 2006. Before the hearing, Guerrero's representative
submitted a written request to appear by telephone, and McCoy's
representative asked for a postponement pending receipt of additional
medical records. The Department did not grant either request. When
plaintiffs did not appear for their hearings, the Department dismissed
the appeals as abandoned. The time for petitioning for administrative
review passed, and plaintiffs filed a complaint for mandamus in the
circuit court. The trial court's grant of mandamus relief was
thereafter vacated by the Appellate Court where relief was only
available to plaintiffs under the Administrative Review Law.
Petitioner,
Christopher Slomka
(Christopher), filed a motion in the circuit court of Cook County
seeking a preliminary injunction to enjoin Mary Lenehan-Slomka (Mary)
from taking the couple’s two minor children to therapy with
psychologist Jean Gray. The circuit court denied Christopher’s motion
for a preliminary injunction finding that Christopher had waived his
objection to the disclosure of privileged information at the October 8,
2008, hearing by failing to assert the privilege, and that
Christopher’s lack of communication with Jean Gray does not establish a
factual basis for the injunctive relief Christopher requested. On
appeal, Christopher argues that he did not waive privilege under the
Illinois Mental Health and Developmental Disabilities Confidentiality
Act (Confidentiality Act) (740 ILCS 110/1 et seq. (West 2006)), and
thus it is plain error for a trial court to allow a therapist to
testify in violation of the Confidentiality Act. Christopher also
contends that the trial court erred by denying his motion for a
preliminary injunction. We affirm.
The
sole issue in this case is
whether an 11-month delay in notice of an occurrence is reasonable
notice to an insurance company under the provisions of its policy.
Affirmed in part; reversed in part.
8. Administrative
Hrngs./Unemployment Compensation Benefits: Affirmed:
Claimants were not exempted under section 228 of the Act (820 ILCS
405/228 (West 2006)). Under the circumstances of this case, we
find that the paid holidays, vacation, and sick days claimants were
entitled to constituted remuneration by way other than commission. The
performance incentives were also properly considered by the referees.
Tully, J.
No. 1-08-1156
Western
& Southern Life Insurance Co. v. Edmonson
Filed 12-24-09 (RJC)
This action arises out of the consolidation of three appeals filed by
Western and Southern Life Insurance Company (Western). Each appeal was
filed from circuit court judgments affirming decisions of the Board of
Review (Board) of the Illinois Department of Employment Security
(IDES). The decisions found that former insurances agents of Western
claiming unemployment benefits, specifically Karen A. Bryan, Nikea
Edmonson, and Robert Rohman (claimants), were not exempt from covered
employment under the Illinois Unemployment Insurance Act (Act) (820
ILCS 405/100 et seq. (West 2006)). On appeal, Western contends that the
agents were exempted under the Act and not entitled to unemployment
insurance benefits. Affirmed.
9. Medical Malpractice: Affirmed
in part; cause remanded with directions: The trial court did not
abuse its discretion in permitting the evidence of financial motive to
be introduced in a limited and specific manner to address the issue of
the defendants' compliance with the standard of care. The trial
court properly determined that a new trial was not justified because
the jury's conclusion was not against the manifest weight of the
evidence. The trial court did not abuse its discretion in denying the
defendants' motion for a new trial. Nothing to suggest the jury's
award of $100,000 to cover these additional charges resulted from
passion or prejudice, or that it exceeded the necessarily flexible
limits of fair and reasonable compensation. Accordingly, it was an
abuse of discretion for the trial court to subject the jury's award to
remittitur for $100,000. Hall, J. with Garcia, J. dissenting.
No. 1-08-0265
Martinez
v. Elias
Filed 12-28-09 (RJC)
The plaintiff, Thomas Martinez, filed a medical malpractice case
against the defendants, Samuel Elias, M.D. and the Bone & Joint
Center, alleging that Dr. Elias performed unnecessary procedures on the
plaintiff's lower spine. Following trial, the jury returned a verdict
in favor of the plaintiff and against the defendants in the amount of
$500,000. The trial court granted the defendants' posttrial motion for
a remittitur and reduced the jury award to $400,000. The defendants
appeal raising the following issues: whether the admission of a
financial motive for the surgery was error and whether a new trial is
required because the verdict was against the manifest weight of the
evidence. The plaintiff crossappeals, challenging the granting of the
remittitur. Affirmed in part; cause remanded with directions.
10. Insurance Law/Summary
Judgment: Affirmed: Plaintiff contends the patrol car in which he
was injured was not a vehicle furnished or available for his regular
use within the meaning of the regular use exclusion of his State Farm
automobile policy. The trial court correctly held that the patrol car
occupied by plaintiff at the time of the accident was furnished or
available for his regular use, within the meaning of his policy’s
uninsured motorist coverage exclusion. The trial court’s order granting
summary judgment for State Farm and denying summary for plaintiff is
affirmed. Lampkin, J.
No. 1-09-0553
Ryan
v. State Farm Mutual Automobile Insurance Co.
Filed 12-28-09 (RJC)
In this dispute involving a vehicle collision and uninsured motorist
coverage, the insured, plaintiff Gerald Ryan, appeals the trial court’s
grant of summary judgment in favor of his insurer, defendant State Farm
Mutual Automobile Insurance Company (State Farm). Plaintiff contends he
is entitled to coverage because the vehicle at issue was not furnished
or available for his regular use and, thus, not excluded from uninsured
motorist coverage under his State Farm insurance policy. For the
reasons that follow, we affirm the judgment of the trial court.
11. Criminal Law:
Affirmed: It was reasonable for the trial court to find
that Taylor believed death was imminent, and the mere fact that he
asked police officer if he was going to die did not negate such belief.
It is unlikely that a person who did not believe he was dying would
pose such a question to anyone. Although victim Taylor was
seriously wounded, we find that the trial court could find beyond a
reasonable doubt that victim possessed sufficient mental faculties to
give accurate statements to police officer about the
circumstances. Additionally, the admission of victim's
dying declaration did not violate the defendant’s rights to
confrontation under the sixth amendment. The cross-examination
requirement under section 115-10.1 was met and the trial court did not
abuse its discretion in admitting the prior inconsistent statement as
substantive evidence. Cunningham, J.
No. 1-07-1769
People
v. Hatchett
Filed 12-29-09 (RJC)
Following a bench trial in the circuit court of Cook County, defendant
Derrick Hatchett was convicted of first-degree murder and sentenced to
45 years of imprisonment. On appeal, the defendant argues that: (1) he
was denied a fair trial when the trial court admitted the decedent’s
statement as an excited utterance and/or dying declaration; (2) he was
denied a fair trial when the trial court permitted the handwritten
statement of a testifying witness, Tron Johnson, to be introduced as
substantive evidence; (3) he was denied a fair trial when the trial
court refused the defense counsel’s requests to recall Tron Johnson and
for a one-day continuance to secure witnesses; (4) the defendant
was denied effective assistance of counsel; and (5) the defendant’s
guilt was not proven beyond a reasonable doubt. For the following
reasons, we affirm.
12. Property/Tax Deeds: Reversed
and remanded: The
application of sections 22-45(4) and 2-1401(f) is an issue of first
impression in this court. Where, as here, numerous errors
in the process of determining the identity of the record owner of the
property result in a total lack of notice to the record owner, the
record owner is entitled to relief from the tax deed under section
22-45(4). Total lack of notice means that the circuit court never
acquired personal jurisdiction over Devon, even though this action
could be described as in rem or quasi-in rem. This, in turn, means that
the tax deed was void. We find that Miller did not prove that he
was a bona fide purchaser for value. Because we find Miller was
not a bona fide purchaser, he is
not entitled to protection of his interest over that of Devon.
For these reasons, we reverse the judgment of the circuit court, and
remand this cause with directions for the circuit court to set aside
the tax deed under section 2-1401(f) of the Code of Civil Procedure and
section 22-45(4) of the Property Tax Code. Theis,
J.
No. 1-08-1737
In
re Application of the County Collector
Filed 12-29-09 (RJC)
Petitioner, Devon Bank, appeals from the order of the circuit court of
Cook County denying its motion for summary judgment and granting the
cross-motion for summary judgment filed by respondent, Bruce Miller.
Devon had filed a petition pursuant to section 2-1401 of the Code of
Civil Procedure (735 ILCS 5/2-1401 (West 2006)) seeking to set aside a
tax deed issued to respondent Checkmate Acquisitions, Inc., regarding
certain property to which Devon held legal title, contending that it
had never received any notice of the sale, as required by the Property
Tax Code (35 ILCS 200/1-1 et seq. (West 2006)). Miller had responded
that he was a bona fide subsequent purchaser of the property for value
and that because a lack of jurisdiction did not affirmatively appear on
the face of the tax deed proceeding record, under section 2-1401(e) of
the Code of Civil Procedure (735 ILCS 5/2-1401(e) (West 2006)), he had
a superior right to the property. The circuit court agreed with Miller.
13. Workers' Compensation:
Affirmed: The Commission's findings that claimant failed to prove by a
preponderance of the credible evidence that he sustained accidental
injuries arising out of or in the course of his employment with
claimant on June 4, 2004, or August 2, 2004, are not contrary to the
manifest weight of the evidence. Hudson,
J.
No. 1-08-13238WC
Hosteny
v. Illinois Workers' Compensation Comm'n
Filed 12-29-09 (RJC)
Claimant, Jerry Hosteny, filed three applications for adjustment of
claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1
et seq. (West 2004)) for injuries he allegedly sustained while in the
employ of respondent, Anning Johnson Co. Following a hearing, the
arbitrator determined that claimant sustained compensable accidents on
two of the three alleged accident dates. The arbitrator awarded
claimant medical expenses, temporary total disability (TTD) benefits,
and permanent partial disability (PPD) benefits. Respondent appealed,
and the Illinois Workers' Compensation Commission (Commission)
reversed. On judicial review, the circuit court of Cook County
confirmed. Before this court, claimant challenges the Commission's
findings that he failed to sustain his burden of proving compensable
injuries arising out of and in the course of his employment on June 4,
2004, and August 2, 2004. For the reasons that follow, we affirm.