Illinois Supreme and Appellate Court Case Summaries

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

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3 Appellate Court Cases Posted 2-28-13

1.  Animal Control Act: Affirmed:  At issue is whether Adams was liable as the legal owner of the dog under the Animal Control Act (Act) (510 ILCS 5/16 (West 1996)). The Act does not impose strict liability on the legal owner and there was no factual or reasonable basis to impose liability.  Schostok, J.

No. 2013 IL App (2d) 120681     Hayes v. Adams Filed 2-28-13 (RJC)

In this case involving injuries caused by a dog bite, the plaintiff, Kristen N. Hayes, appeals the trial court’s order granting summary judgment in favor of the defendant, Tina L. Adams.  Adams was not present when the dog bit Hayes, having relinquished the dog into the custody and control of a veterinary clinic that then allowed the dog to escape. Affirm.

2.  Criminal Law: Reversed and remanded: Upon consideration of the totality of the circumstances as presented by this case, the defendant's confession during the recorded, fifth interview was involuntarily given. Under these circumstances, the defendant's confession was obtained in dereliction of the law and must be suppressed. Defendant's confession was involuntarily given.  Carter, J.

No. 2013 IL App (3d) 110170    People v. Travis Filed 2-28-13 (RJC)

The defendant, Monta Travis, was convicted of first degree (felony) murder (720 ILCS 5/9-1(a)(3) (West 2006)) and armed robbery (720 ILCS 5/18-2(a) (West 2006)), and was sentenced to concurrent prison terms of 45 years and 20 years, respectively. On appeal, the defendant argues that: (1) the circuit court erred when it failed to suppress the two unrecorded statements he gave to the police; (2) the court erred when it found that he voluntarily confessed to the police; and (3) his sentence was "void" because he was sentenced on both the felony murder charge and the offense underlying the felony murder charge, which entitles him to a new trial because his jury waiver was invalid. We reverse the court's judgment and remand the cause for a new trial at which the defendant's recorded, fifth interview is to be suppressed.

3.  Juvenile Law\Neglect: Affirmed: The trial court's finding that the minors were neglected due to an injurious environment was not against the manifest weight of the evidence. In this case, the respondent engaged in an act of sexual intercourse and attempted to sexually assault his daughter at a time when other minors were present in the home. This conduct is sufficient to support a finding that his actions created an injurious environment and a resultant finding of neglect. McDade, J.

No. 2013 IL App (3d) 120137    In re J.B. Filed 2-28-13 (RJC)

The State filed a petition alleging that J.B., S.B., and R.B. were neglected minors due to an injurious environment based on allegations that Lorenzo B., the respondent, sexually assaulted B.B., his 13-year-old daughter who is not involved in the instant juvenile case, and Sierra B., another
minor female. The court found that the State had proven the allegations in the petitions and adjudicated the minors neglected. The court subsequently found the respondent dispositionally unfit and made the minors wards of the court. The respondent appeals, contending that the trial court
erred when it found that the minors were neglected because the police investigated the allegations of abuse months after the abuse occurred, the respondent's admissions of the abuse were not recorded, and there was no physical evidence of the abuse. We affirm.

6 Appellate Court Cases Posted 2-26-13

1.  Legal Malpractice: Affirmed:  Plaintiffs' negligence and breach of fiduciary duty claims are duplicative.  Therefore, the plaintiffs were not permitted to pursue both claims and that the circuit court did not err by granting summary judgment in favor of defendants on the breach of fiduciary duty count.   Simon, J.

No. 2013 IL App (1st) 111371    Pippen v. Pedersen Filed 2-26-13 (RJC)

Plaintiffs, Scottie Pippen and Air Pip, Inc. (Air Pip), appeal from multiple orders of the circuit court of Cook County in connection with a jury trial on their claim of negligence against defendants, Pedersen & Houpt, James J. Clarke, and Peer Pedersen, that resulted in an entry of judgment in their favor in the sum of $790,901.89. On appeal, plaintiffs contend that the circuit court erred by granting summary judgment on their breach of fiduciary duty claim in favor of defendants because that claim was not duplicative of their negligence claim and they should have been permitted to pursue both claims even if they were duplicative. For the reasons that follow, we affirm.

2. Eminent Domain Act\Condemnation: Reversed and remanded: Nandorf had no leasehold interest on the date of the taking and no right to apportionment of the condemnation award and the trial court erred in apportioning the award. The judgment of the trial court was reversed and the matter remanded for the trial court to order that the apportioned condemnation award funds of $380,000 for the leasehold interest, $99,045.81 reimbursement for gross rent paid, and $6,500 for fees to Enright be disgorged and remitted in full to Yellen without offset. Simon, J.

No. 2013 IL App (1st) 112638     Public Building Commission of Chicago v. Yellen Filed 2-26-13 (RJC)

On February 7, 2002, plaintiff, Public Building Commission of Chicago (PBC), filed a complaint for condemnation pursuant to the Public Building Commission Act (50 ILCS 20/1 et seq. (West 2002)) seeking title to real property located at 2329-43 South Kedzie Avenue, Chicago, Illinois. The property was owned by defendants Sherwin Yellen (Yellen) and Martin Yellen. Defendant Nandorf, Inc., d/b/a Unique Thrift Store (Nandorf), was named as a party claiming a leasehold interest in the property. Following a jury trial, the jury entered a verdict setting the compensation for the property at $1,950,000, plus interest. On May 16, 2007, the trial court entered a final judgment order based on this verdict.

3. Criminal Law\Post-Conviction petition: Affirmed: Defendant’s lack of awareness of the content of counsel’s closing argument does not amount to a constitutional violation cognizable under the Post-Conviction Hearing Act.  A postconviction proceeding is a collateral attack upon the prior conviction and affords only limited review of constitutional claims not presented at trial. Counsel’s argument did not amount to the functional withdrawal of the involuntary-manslaughter instruction. Hudson, J.

No. 2013 IL App (2d) 120065     People v. Shamlodhiya Filed 2-26-13 (RJC)

Following a jury trial in the circuit court of Du Page County, defendant, Ashwani K. Shamlodhiya, was convicted of first-degree murder and residential arson. Defendant filed a postconviction petition, raising a number of issues. The trial court summarily dismissed the petition, and this court reversed (People v. Shamlodhiya, (unpublished order under Supreme Court Rule 23)). Following remand, the trial court dismissed a number of defendant’s claims following second-stage postconviction proceedings.  One claim proceeded to the third stage after which the trial court denied defendant’s petition. Defendant now appeals, raising two issues. First, he contends that his attorneys’ failure to disclose to him that they would not argue for the lesser included offense of involuntary manslaughter rendered him incapable of making a knowing decision regarding whether to seek a second-degree murder conviction in a bench trial (the trial judge believed second-degree murder would be an appropriate result). Second, he argues that during closing argument his attorney, without consulting him, effectively abandoned his request that the jury consider involuntary manslaughter. For the reasons that follow, we affirm.

4. Whistleblower Act: Reversed and remanded: In this case, Willms’ allegations reveal that he told the inspector that the sidewalk was out of compliance and that it had not been repaired in accordance with the inspector’s order. Willms also alleged that he was terminated in retaliation for the fine assessed based on those disclosures. Interpreting the Whistleblower Act as a whole, and giving the language its ordinary meaning, Willms has alleged sufficient facts to state a claim under the Whistleblower Act. Thus, the trial court order granting OSF Healthcare’s motion to dismiss is reversed, and the cause is remanded for further proceedings consistent with this opinion. O'Brien, J.

No. 2013 IL App (3d) 120450     Willms v. OSF Healthcare System Filed 2-26-13 (RJC)

The plaintiff, Gary Willms, a former employee of the defendant, OSF Healthcare System, alleged that he was terminated in violation of the Illinois Whistleblower Act (740 ILCS 174/1 et seq. (West 2008)). The trial court granted OSF Healthcare’s motion to dismiss, finding that Willms’ communication with an Illinois Department of Public Health inspector was not a “disclosure” under the Whistleblower Act. Willms appealed.

5. Foreclosure\Judgments\Liens: Affirmed: Black Hawk's lien lapsed on June 6, 2001.  Section 12-101 (735 ILCS 5/12-101) is a statute in derogation of the common law, which requires strict compliance by a judgment creditor who wishes to assert a lien against a person's real property. Clearly, Black Hawk could have both revived its judgment and filed its memorandum of judgment within seven years of the original judgment. Black Hawk's failure to file a memorandum of the revived judgment before expiration of the lien created by the original judgment resulted in a lapse and, ergo, a loss of priority. Schmidt, J. with Lytton, J. specially concurring.  

No. 2013 IL App (4th) 110706    Wells Fargo Bank, NA v. Heritage Bank of Central Illinois Filed 2-26-13 (RJC)

Plaintiff, Wells Fargo Bank, N.A. (Wells Fargo), brought this foreclosure action seeking a judgment of foreclosure and sale of real property located at 1106 Audubon Drive, Pekin, Illinois. Defendants, Heritage Bank of Central Illinois (Heritage) and Black Hawk Investment Properties
(Blackhawk), also claimed secured interests in the property. Ultimately, the property sold at auction for $150,001 and the circuit court of Tazewell County distributed the proceeds by awarding Wells Fargo $115,590.54 and Heritage $34,410.46. Black Hawk appeals, claiming the trial court erred in failing to grant Black Hawk priority status when disbursing the proceeds of the sale. We affirm.

6. Parentage\Contempt: Affirmed in part; reversed in part: Here, although D.G.'s overall time with Randy will be diminished by moving to Maine, Leah's demeanor, which we note has remained consistent throughout D.G.'s life, is to cooperate with Randy with regard to his accessibility to D.G. Although a denial of Leah's petition to remove would undoubtedly permit Randy more time with D.G., it will also come at the expense of the quality of life D.G. will forgo if his family is separated and Leah has to obtain employment.  Given the evidence presented and our standard of review, we conclude that the court did not abuse its discretion by finding that Leah's conduct was not contemptuous.Steigmann, J.   

No. 2013 IL App (4th) 120916    Banister v. Partridge Filed 2-26-13 (RJC)

After petitioner, Leah Guffey Banister, and respondent, Randolph Partridge (hereinafter, Randy), ended their relationship, Leah gave birth to her son, D.G. (born September 7, 2002). On Leah's later petition under the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/1 to 28 (West 2010)), the trial court entered several orders, establishing Randy's paternity, his support obligation, and granting Leah custody of D.G. subject to Randy's visitation.  In July 2009, Leah married Thomas P. Banister, who lived in Kentucky as a senior enlisted soldier serving in the United States Army. Two years later, Leah filed a "petition for leave to remove minor child from state," requesting to move D.G. from Illinois to Kentucky to reside with her husband. Randy objected and filed separate pleadings to prevent the move and obtain primary custody of D.G. Randy also filed contempt charges against Leah for moving D.G. to Kentucky in violation of the trial court's order. In December 2011, the court granted Leah's petition, and in March 2012, the court dismissed Randy's contempt claim.

3 Appellate Court Cases Posted 2-25-13

1.  Election Law: Affirmed in Part and Reversed in Part:  Since the statement of candidacy for the position is only required to be in "substantially" the same form as set out in the statute, use of the short form notary public affirmation which does not include the words"to me personally known" is not fatal and the Board should not have stricken the candidates from the ballot.    Gordon, J.

No. 2013 IL App (1st) 130442  Cortez v. Municipal Officers Electoral Board for the City of Calumet City Filed 2-25-13 (LJD)    

This is an appeal of the decision of the Circuit Court of Cook County reversing the Electoral Board's decision to remove nine candidates from the ballot for the municipal elections.  The circuit Court is affirmed as to eight of the candidates and reversed as to one.

2.  Criminal Discovery: Affirmed: Rule 415 provides that discovery materials should be only used in "conducting his side of the case".   Rule 415 does not conflict with Rule 411 since the purpose of producing the material before the preliminary hearing is so that the defendant can make an early decision to take an offer and plea deal before the preliminary hearing.  Posting the material on social websites is a violation of Rule 415 and is prohibited.    Steigmann, J.

No. 2013 IL App (4th) 120747  People v. Fulmer  Filed 2-25-13 (LJD)    

The trial court ordered the defendant's attorney to remove a video of the undercover officers interacting with the defendants from two social network websites. The state produced the video in discovery and the attorney posted it on the websites.   The attorney appeals the court's order to remove the video from the websites.

3.  Tort Immunity Act: Affirmed: Section 4-102 of the Act codifies common law rule that municipalities are not liable for failure to provide police and fire protection.  4-107 provides immunity for injury for failure to make an arrest or for "releasing a person in custody."  There is no exception for wilful and wanton conduct.  Wexstten, J.

No. 2013 IL App (5th) 110146  Prough v. Madison County Filed 2-25-13 (LJD)    

The trial court dismissed the complaint against the Sheriff of Madison county for releasing a prisoner who killed his father shortly after his release.  A warrant for the arrest of the alleged killer had been previously issued for detention and a mental health examination by a judge in a different county of Illinois.

4 Appellate Court Cases Posted 2-22-13

1. SLAPP Lawsuits: Affirmed: The circuit court's finding that the counterclaim stated a potentially viable cause of action and the time and damages evidence in this case do not support the inference that Mr. Jursich's lawsuit was filed in order to deter the defendants from the exercise of their constitutional right to free speech or to proceed with the lawsuit in this case.  Rather, the evidence strongly supports the inference that Mr. Jursich's counterclaim was filed as a result of his belief that he had been defamed by the statements made by Messrs. McLaughlin and Carroll and was intended to seek compensation for the damage to his reputation. Since the claim must be both retaliatory and meritless, we need not address whether Mr. Jursich's claim is also meritless. The defendants failed to carry their burden to demonstrate affirmatively that Mr. Jursich's counterclaim for defamation was retaliatory and therefore a SLAPP lawsuit.  Hall, J.

No. 2013 IL App (1st) 113279      Chicago Regional Council of Carpenters v. Jursich Filed 2-22-13 (RJC)

The plaintiff and counterdefendant, the Chicago Regional Council of Carpenters (the CRCC), filed a complaint to reduce to judgment fines imposed against defendant and counterplaintiff, Earl Jursich. Mr. Jursich filed a counterclaim for defamation against the CRCC and the third-party defendants, Daniel McLaughlin and Larry Carroll (collectively the defendants). The defendants moved to dismiss the counterclaim pursuant to the Illinois Citizen Participation Act (735 ILCS 110/1 et seq. (West 2008)) (the Act). The circuit court denied the motion to dismiss. This court granted the defendants' petition for leave to appeal. See Ill. S. Ct. R. 306(a)(9) (eff. Feb. 16, 2011). On appeal, the defendants contend that they were entitled to immunity under the Act and, therefore, the circuit court erred when it denied their motion to dismiss. We affirm the judgment
of the circuit court.

2. Insurance Coverage/Pollution: Affirmed:  The underlying complaints allege bodily injuries or property damage arising out of the Village's discharge, dispersal, or release of pollutants into the community's tap water. The exclusions at issue apply to those claims.  An absolute pollution exclusion is not limited to intentional torts or any other particular theory of liability. The underlying complaints assert a variety of legal theories, but according to the policies, the exclusion is triggered by the facts or "occurrence" of bodily injury or property damage by pollutants. The clause excludes liability for harm resulting from the dispersal or release of pollutants, not their creation or their original distribution. McBride, J.

No. 2013 IL App (1st) 120112    The Village of Crestwood v. Ironshore Specialty Insurance Company Filed 2-22-13 (RJC)

Plaintiffs Village of Crestwood, Illinois, and the town's former long-standing mayor, Chester Stranczek (together Village or Crestwood), filed this declaratory judgment action seeking a declaration that three excess public entity general liability insurers owed duties to defend or indemnify against at least 25 individual and class action lawsuits alleging the Village knowingly and routinely mixed cheap, polluted water into the municipal tap water supply in order to cut municipal expenses. The defendant insurers were Westport Insurance Corporation, as successor in-interest to Coregis Insurance Company (Westport), United National Insurance Company (United National), and Ironshore Speciality Insurance Company, formerly known as TIG Speciality Insurance Company (Ironshore). The circuit court held that the underlying claims fell within absolute pollution exclusion clauses in each of the eight insurance contracts at issue and that this entitled the defendant insurers to summary judgment. The Village appeals, contending the pollution exclusions should have been limited to claims alleging "traditional environmental pollution," pollution originated by the Village, or pollution exceeding maximum permitted contaminant levels for drinking water; or should not have been applied to claims arising from the Village's "central business activity" of providing municipal tap water.

3. Criminal Law: Affirmed & remanded:  The complaint accurately stated the actual obstructing conduct – "he exited his vehicle during a traffic stop *** and refused to return to the vehicle." Even assuming the complaint inaccurately stated the official act Reul was performing at the time defendant engaged in such conduct – arresting defendant vs. issuing the citation – this variance did not mislead the defendant in making his defense in light of the fact that the record establishes that defendant knew he was being issued a citation and also that Reul was still in the process of issuing the citation. The court ordered defendant to serve 48 consecutive hours of imprisonment. Thus, it complied with the mandate prescribed in section 531-1(a-5). However, the court failed to comply with section 5-4.5-100(b)'s mandate that defendant be given credit for presentence custody. McDade, J. Carter, J and Holdridge, J. specially concurred

No. 2013 IL App (3d) 110477   People v. Smith Filed 2-22-13 (RJC)

Defendant, Daniel Smith, appeals his conviction and sentence for obstructing a peace officer. We affirm defendant's conviction, vacate his sentence, and remand to the circuit court for further proceedings.

4. Real Estate/Breach of Contract: Affirmed:  Plaintiff failed to establish fraud in the sale of the subject property, plaintiff's breach of contract action must fail.  Thus, the trial court properly granted summary judgment to defendants.  Since none of plaintiff's claims survive summary judgment, the question of class certification is moot, Lytton, J. 

No. 2013 IL App (3d) 120337      Lindy Lu, LLC v. Illinois Central Railroad Company Filed 2-22-13 (RJC)

Plaintiff, Lindy Lu LLC, along with others who purchased quitclaim deeds from defendants, Illinois Central Railroad Company and Railway Property Management, filed a six-count complaint against defendants, alleging, among other things, breach of contract. Plaintiff and defendants filed
cross-motions for summary judgment. Plaintiff also filed a motion for class certification. The trial court granted defendants' motion for summary judgment, denied plaintiff's motion for summary judgment and denied plaintiff's motion for class certification. We affirm.

6 Supreme Court Cases Posted 2-22-13

1. Criminal Law: Judgment reversed and cause remanded.: In this decision, the Illinois Supreme Court said that, for statements to be inadmissible as made in plea negotiations, it must be clear that an accused actually intended to plead guilty in exchange for a concession by the State and that such an intention is objectively reasonable under the circumstances. Here, the supreme court said that Rivera’s intent to engage in plea negotiations was not shown. It was not evident that he was actually offering to plead guilty to any crimes, and he was informed several times that he would not be offered anything in exchange for his statements. The supreme court found no plain error and remanded the cause to the appellate court for consideration of the other issues raised by the defendant which that court had not reached. Justice Burke delivered the judgment of the court, with opinion.  Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Karmeier, and Theis concurred in the judgment and opinion.

No. 2013 IL  112467     People v. Rivera Filed 2-22-13 (RJC)

A Cook County jury convicted this defendant of three counts of predatory criminal sexual assault, three counts of criminal sexual assault, five counts of aggravated criminal sexual abuse, and one count of possession of child pornography.  When he was in pretrial custody and before he was charged, defendant said he wanted to talk about what happened but that he also wanted guarantees. He wanted to get probation and did not want to go to jail. The officers doing the interrogating told him that they could not give him any guarantees. All of this was admitted at trial. The State argued at closing that these conversations were inculpatory as admissions of guilt. The events at issue involved a three-year period between 2002 and 2004, and the victims were his 11-year-old stepdaughter and her 13-year-old friend. The young victims testified at trial, and the defendant also testified, denying what they had to say. He received a 75-year term. The appellate court reversed and remanded for a new trial, finding plain error in the improper admittance of plea-related statements at trial, even though Rivera had not previously raised this objection. The State appealed, claiming that the statements were not plea-related and, thus, were admissible.

2. Criminal Law/post-conviction petition: Affirmed: In this decision, the supreme court also affirmed because the request for leave to file is facially deficient. The Post-Conviction Hearing Act states that a petitioner must show “cause” for failure to raise his claim earlier. However, the supreme court said here that the defect claimed by Evans here is something which, as a matter of law, can never be “cause” because the petitioner is presumptively charged with knowledge of mandatory supervised release as a matter of law. However, the supreme court spoke to issues concerning the Post-Conviction Hearing Act that can be expected to arise again, although they are not necessary to the result here. The court recommended that the legislature address more specifically how one seeking leave to file a successive postconviction petition meets the statutory requirements of showing cause and prejudice.  Chief Justice Kilbride and Justices Freeman, Garman, Karmeier, and Theis concurred in the judgment and opinion. Justice Burke dissented, with opinion.

No. 2013 IL  113471    People v. Evans Filed 2-22-13 (RJC)

In 2005, this Cook County defendant was found guilty of aggravated battery with a firearm and was sentenced to a 12-year term. The appellate court affirmed. In 2008, he filed, pro se, his first postconviction petition. It was summarily dismissed, and the appellate court affirmed.

In 2009, again acting pro se, he filed the pleading which is at issue here, seeking leave to file a successive postconviction petition under the Post-Conviction Hearing Act. Evans alleged that he had just discovered that, after serving his 12-year sentence, he will be subject to an additional three-year term of mandatory supervised release (MSR). This MSR had not been mentioned when he was originally sentenced by the trial court, and this was asserted to deny due process. The Criminal Code does provide, however, that for the offense of which Evans was convicted, the three-year MSR term shall, by operation of law, be included in the sentence “as though written therein.” This was the first time Evans had raised this question. It had not been asserted in his initial direct appeal or in his first postconviction petition. The request for leave to file a successive postconviction petition was denied by the circuit court, and the appellate court affirmed.

3. Criminal Law/post-conviction petition: Appellate court judgment reversed and Circuit court judgment affirmed: In this decision, the supreme court also affirmed because the request for leave to file is facially deficient. The Post-Conviction Hearing Act states that a petitioner must show “cause” for failure to raise his claim earlier. However, the supreme court said here that the defect claimed by Evans here is something which, as a matter of law, can never be “cause” because the petitioner is presumptively charged with knowledge of mandatory supervised release as a matter of law. However, the supreme court spoke to issues concerning the Post-Conviction Hearing Act that can be expected to arise again, although they are not necessary to the result here. The court recommended that the legislature address more specifically how one seeking leave to file a successive postconviction petition meets the statutory requirements of showing cause and prejudice.  Chief Justice Kilbride and Justices Freeman, Garman, Karmeier, and Theis concurred in the judgment and opinion. Justice Burke dissented, with opinion.

No. 2013 IL  114121     People v. Eppinger Filed 2-22-13 (RJC) 

In 2005, this Cook County defendant was found guilty of aggravated battery with a firearm and was sentenced to a 12-year term. The appellate court affirmed. In 2008, he filed, pro se, his first postconviction petition. It was summarily dismissed, and the appellate court affirmed. In 2009, again acting pro se, he filed the pleading which is at issue here, seeking leave to file a successive postconviction petition under the Post-Conviction Hearing Act. Evans alleged that he had just discovered that, after serving his 12-year sentence, he will be subject to an additional three-year term of mandatory supervised release (MAR). This MAR had not been mentioned when he was originally sentenced by the trial court, and this was asserted to deny due process. The Criminal Code does provide, however, that for the offense of which Evans was convicted, the three-year MAR term shall, by operation of law, be included in the sentence “as though written therein.” This was the first time Evans had raised this question. It had not been asserted in his initial direct appeal or in his first postconviction petition. The request for leave to file a successive postconviction petition was denied by the circuit court.

4. Labor relations/Arbitration: Appellate court judgment reversed and Board decision confirmed: In this decision, the supreme court held that the “clearly erroneous” standard is not the proper standard for review where, as here, the parties’ collective-bargaining agreement calls for disputes to be settled by an arbitrator. A court’s review of an arbitrator’s award is extremely limited, and the question is whether the decision draws its essence from the collective-bargaining agreement. Whether an arbitrator has exceeded his authority under the collective-bargaining agreement presents a high hurdle to one challenging the decision and, on review, presents a question of law. The arbitrator had interpreted the quoted provision of the collective-bargaining agreement as calling for a dismissal procedure that was not arbitrary, and he found arbitrariness in the lack of information given to the employee prior to her dismissal. Finding that the arbitrator’s decision was based on the language of the collective-bargaining agreement and the parties’ bargaining history, the supreme court reversed the judgment of the appellate court and held that the Board did not err in ordering the school district to comply with the arbitrator’s award.  Justice Burke delivered the judgment of the court, with opinion. Chief Justice Kilbride and Justices Freeman, Thomas, Garman, and Theis concurred in the judgment and opinion. Justice Karmeier specially concurred, with opinion.

No. 2013 IL  113721    Griggsville-Perry Community Unit School District No. 4 v. Illinois Educational Labor Relations Board Filed 2-22-13 (RJC) 

This school employment dispute comes from Griggsville-Perry Community Unit School District No. 4 in Pike County. The concerned employee was a “paraprofessional” who, for 11 years, had worked in the elementary school library, helped at recess, and taught keyboarding classes. She was a member of the Griggsville-Perry Federation of Support Personnel IFT-AFT, Local #4141, which had a collective-bargaining agreement with the employing school district, the plaintiff here. The collective-bargaining agreement provided that when “a member of the bargaining unit is required to appear before the Board of Education concerning any disciplinary matter, the staff member shall be given reasonable prior written notice of the reasons for such meeting and shall be entitled to have a personal representative at said meeting.”  In February of 2008, the school principal recommended the employee’s discharge to the school board and the union filed a grievance with the district, which was denied. The employee spoke at the regular March meeting of the school board, although the concerns at issue had not been previously specified to her, and she was then discharged. The matter then went to arbitration, as provided in the collective-bargaining agreement. The arbitrator ordered a reinstatement after concluding that the employee had not received a fair hearing. The school district challenged the arbitrator’s decision by refusing to comply with it. The union then filed an unfair labor practice charge with respondent Illinois Educational Labor Relations Board. The Board confirmed the arbitrator’s award and plaintiff school district appealed to the appellate court under Supreme Court Rule 335. The appellate court held that the arbitrator’s award was “clearly erroneous.”

5. Food Security Act: Affirmed:  The main issue on appeal is whether the direct notice provision of section 1631(e) of the Food Security Act of 1985 (7 U.S.C. § 1631(e) (2006)) requires strict or substantial compliance. This case is governed by the Federal Food Security Act of 1985, which provides how notices of security interests such as this are to be worded. The statute provides that there must be a statement of “each county or parish in which the farm products are produced or located,” but this was not done here. The Supreme Court of Illinois construed this as a requirement that must be strictly complied with. The United States Supreme Court has not spoken on this issue, and the federal appellate court for the Eighth Circuit has construed the Act as calling for strict, rather than substantial, compliance. Despite plaintiff’s arguments that substantial compliance should be sufficient, the Illinois Supreme Court rejected this view, ruling that a secured party must strictly comply with the “direct notice” provisions of the Act in order to recover. The appellate court’s ruling that defendant grain elevator took free of the security interest of which plaintiff had attempted to give notice was affirmed. Chief Justice Kilbride and Justices Thomas, Karmeier, and Theis concurred in the judgment and opinion. Justice Freeman specially concurred, with opinion, joined by Justice Burke.

No. 2013 IL  113836   State Bank of Cherry v. CGB Enterprises, Inc. Filed 2-22-13 (RJC) 

Consolidated Grain and Barge Enterprises, the defendant here, maintains a grain elevator in La Salle County. It sold the crops of Lawrence Rogowski, of Utica, and delivered to him the proceeds of that sale by checks paid directly to him. He is not a party to this action. However, the State Bank of Cherry, the plaintiff here, had lent money to Rogowski for which he signed a promissory note. He granted the plaintiff a security interest in his crops and any proceeds of their sale. Plaintiff bank notified defendant grain elevator of its lien by two separate written notices, one covering the crop years of 2004 and 2005 and the other covering the years 2005 and 2006. The notices listed as covered agricultural commodities “all grain on hand, all growing crops,” without listing their amount or location. Plaintiff bank obtained a deficiency judgment against Rogowski in 2008, which remains unsatisfied. It filed this action in the circuit court of La Salle County, seeking payment from defendant grain elevator, which, it alleged, had failed to protect plaintiff’s lien by making payments directly to Rogowski. The circuit court had ruled in favor of the plaintiff, but the appellate court reversed and the supreme court, in this decision, agreed with the appellate court and its acceptance of defendant grain elevator’s argument that the notices of security interest were insufficient for failing to strictly comply with the Act.

6. Criminal Law: Affirmed:  At issue is whether the appellate court properly remanded the cause for a hearing on the defendant’s ability to pay a public defender fee when more than 90 days had passed since the entry of the final order at the trial court level. In this decision, the supreme court held that the perfunctory hearing that was held had indeed been inadequate and that the defendant was entitled to a new hearing of the quality set forth by statute. However, the supreme court refused to hold, as requested by the defendant, that it was now too late to hold any hearing at all in order to impose a public defender fee. There is no reason why the trial court’s error should be uncorrectable on appeal, and the issue of whether the statute’s 90-day time limit is mandatory or directory is not presented by the facts of this case.   Justice Thomas delivered the judgment of the court, with opinion. Chief Justice Kilbride and Justices Freeman, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2013 IL  114054   People v. Somers Filed 2-22-13 (RJC) 

In this Livingston County case, the defendant, charged with five counts of burglary, pled guilty in 2009 and received a sentence of 2 years’ probation and 180 days in jail. He was ordered to pay a public defender fee of $200 after the judge questioned him about his employment. This fee would reimburse the county for the cost of appointed counsel. Later, in 2010, he was sentenced to six years in prison after having been found to have violated his probation. In his appeal, Somers contended that the hearing on his ability to pay the public defender fee had been inadequate, but he later also argued that it was now too late for a remand for a proper hearing because the applicable statute calls for a hearing within 90 days of judgment. He thus argued that no hearing could be held at all and that the fee should be vacated. The appellate court remanded for a new hearing anyway and this appeal followed. The appellate court’s remand was affirmed.

4 Appellate Court Cases Posted 2-21-13

1.  Criminal Procedure/Traffic Court: Affirmed: Double jeopardy is a prohibition against prosecution for the same offense after conviction or acquittal or multiple prosecutions for the same offense.  Bond forfeiture is a civil judgement and becomes a civil liability, which is not a criminal conviction.   McLaren, J.

No. 2013 IL App (2nd) 110577   People v. Taylor   Filed 2-21-13 (LJD)

Defendants were charged with misdemeanor and felony driving without a license.  When they did not appear on their court dates a judgement of bond forfeiture was entered.  Defendants appeal the denial of their motions to dismiss based on "double jeopardy"  We affirm

2. Pensions/ Administrative Review: Reversed and Remanded: Three standards of review listed and discussed.  The standard of  review of a factual determination is "against the manifest weight." Court analyzed the record and found that the board's conclusion that the doctor's opinions were not to be believed since the board found the plaintiff not credible was against the manifest weight.   Schostok, J., McLaren, J. dissents.

No. 2013 IL App (2nd) 110824  Lambert v. The Downers Grove Fire Department Pension Board  Filed 2-21-13 (LJD)

This is an appeal from the Pension Board's denial of the plaintiff's application for a line of duty disability pension. We Reverse and Remand.

3.  Civil Practice/Accounting Negligence: Reversed and Remanded: Exhibits to a complaint trump the allegations of the complaint only is the complaint is based on the exhibits.  Here the exhibits are not the basis of the complaint which is fiduciary duty of the defendant which is founded upon substantive principles of agency, contract and equity.  The two elements of a claim are existence of the fiduciary relationship and breach of the duties imposed as a matter of law a a result of that relationship.o   Schostok, J.

No. 2013 IL App (2nd) 120512   Miller v. Harris Filed 2-21-13 (LJD)

Founding Shareholders in a corporation sued the accountant and his firm for breach of fiduciary duties.  The trial court dismissed the fourth amended complaint under 2-615.  Reversed and Remanded

4.  Foreclosure: Affirmed: 735 ILCS 5/15-1508(b)provides only the the motion to confirm the sheriff's sale shall not be heard before the sale.   The notice may be sent before the sale.   Zenoff, J.

No. 2013 IL App (2nd) 120593   Citibank, N.A. v. Monroe Filed 2-21-13 (LJD)

Defendants appeal confirmation of the sheriff's sale because the notice of motion for confirmation was sent before the sale.  Affirmed

4 Appellate Cases Posted 2-20-13

1. Criminal Law: Affirmed: Evidence sufficient to prove defendant guilty of attempt first degree murder of three police officers, even though officers or their vehicle were not struck by any bullets, where evidence showed that defendant fired five shots from an AK-47 at the officers while fleeing a murder just committed by defendant, and sentences totalling 135 years for first degree murder and three attempt murders not excessive in light of the seriousness of the offenses. Gordon, J.

No. 2013 IL App (1st) 110349 People v. Teague  Filed 2-15-13 (TJJ)

Defendant Bennie Teague was convicted of the first-degree murder of his former employer, Marcus Hendricks, and of attempted first-degree murder of three police officers, which occurred while defendant was trying to evade capture for the murder of  Hendricks earlier that same day. The jury also determined that defendant had personally discharged the firearm that caused Hendricks' death. With respect to the attempted murders, defendant admits in his brief to this court that he shot an AK-47  semiautomatic assault rifle 5 times from a distance of 40 feet away "in the officers' presence in an effort to keep them at bay while he attempted to escape" capture for the murder of Hendricks. However, defendant claims that the State's evidence was   insufficient to prove that he intended to kill the officers, since there was no evidence that his shots actually hit either the officers or their vehicle. For the reasons discussed below, we affirm his conviction and sentence.

2. Municipal Contracts: Affirmed: Trial court properly granted summary judgment to plaintiff contractor in suit against village for grading work performed by plaintiff, despite village claim that plaintiff's claim was barred by 6-month limitation period under Bond Act, as plaintiff's claim was for breach of contract rather than a claim upon the terms of the applicable bond. Burke, J.

No. 2012 IL App (2d) 120474 Lake County Grading Company v. The Village of Antioch  Filed 2-20-13 (TJJ)

Defendant Neumann Homes, Inc., entered into two infrastructure agreements (the contract) with defendant the Village of Antioch (Village), to make certain public improvements in two residential subdivisions. Pursuant to the contract, Neumann provided  four surety bonds that guaranteed performance for the benefit of the Village. The bonds did not also guarantee payment to subcontractors, which was required by section 1 of the Public Construction Bond Act (Bond Act). 30 ILCS 550/1 (West 2010).  Neumann defaulted on its contract with the Village and also failed to pay plaintiff, Lake County Grading Co., LLC., a subcontractor that worked on the project. Plaintiff filed a five-count second amended complaint to recover payment from the Village. The  trial court granted plaintiff summary judgment on counts II and IV, in which plaintiff alleged breach of contract under a third-party-beneficiary theory. Plaintiff’s theory was that (1) section 1 of the Bond Act (see 30 ILCS 550/1 (West 2010)) required the  Village to obtain from Neumann a payment bond for the benefit of subcontractors, (2) Neumann’s bonds were only performance bonds and not payment bonds, and (3) the Village’s noncompliance with section 1 of the Bond Act rendered it liable for third- party-beneficiary breach of contract. On appeal, the Village argues that under section 1 a payment bond provision was read into Neumann’s performance bonds, and therefore plaintiff’s recourse was to file an action on the bonds under section 2 of the Bond  Act, which was barred by the 180-day limitations period set out therein (30 ILCS 550/2 (West 2010)). We affirm.

3. Criminal Law: Affirmed in part and vacated in part and remanded: Trial court properly refused to turn over personnel file of police officer witness and properly refused defense cross-examination of officer based upon unrelated past instance for which officer was investigated by police department, but cause remanded for necessary court hearing in connection with court ruling granting State's motion for public defender fee under 725 ILCS sec.5/113-3.1. Schostok, J.

No. 2013 IL App (2d) 110915 People v. Collins  Filed 2-20-13 (TJJ)

Following a bench trial, the defendant, Andrew A. Collins, was convicted of delivery of a controlled substance within 1,000 feet of a park and sentenced to eight years’ imprisonment. On appeal, the defendant argues that the trial court erred in (1) barring   the defense from viewing the police department personnel file of the testifying officer and impeaching him with information contained in that file and (2) imposing a public defender reimbursement fee in the absence of a statutorily required hearing. We  affirm in part, vacate in part, and remand for a hearing.

4. Insurance Broker Fraud: Affirmed in part, reversed in part, and remanded: In action by plaintiffs for claims relating to fraud and negligent supervision in connection with defendants' alleged efforts in convincing plaintiffs to mortgage residence to 100% of value and make particular investments suggested by defendants, trial court properly dismissed negligent supervision claim pursuant to Moorman doctrine, but erred in dismissing remaining counts as barred by the statute of limitations, where operation of discovery rule tolled application of statute, and plaintiffs' remaining claims were timely filed. Schostok, J.

No. 2013 IL App (2d) 111112 Rasgaitis v. Waterstone Financial Group, Inc. Filed 2-20-13 (TJJ)

The plaintiffs, Jeanette and Robert Rasgaitis, appeal from the trial court’s dismissal of their second amended complaint. The trial court dismissed the complaint on the basis that it was barred by the statute of limitations. The plaintiffs’ complaint alleged  claims against the defendants, Waterstone Financial Group, Inc. (Waterstone), Ronald Fara, and Vicki Diggles, for alleged fraud in soliciting the plaintiffs to mortgage their home and invest the equity in certain life insurance policies and annuities. We  affirm in part, reverse in part, and remand for additional proceedings.

4 Appellate Cases Posted 2-19-13

1. Involuntary Administration of Psychotropic Drugs: Reversed: Trial court oral ruling that "evidence was overwhelming" as to State's request that respondent be subject to involuntary administration of psychotropic drugs, was not a sufficient factual finding and conclusion of law as required by Mental Health Code, and case not moot despite passage of 90-day period for involuntary administration of drugs. Delort, J.

No. 2013 IL App (1st) 112837 In re Rita P.  Filed 2-19-13 (TJJ)

Following an evidentiary hearing, the circuit court entered an order authorizing the administration of involuntary psychotropic medication to respondent, Rita P., for 90 days. On appeal, respondent contends that the order should be reversed because the trial  court failed to make findings of fact, as required by section 3-816(a) of the Mental Health and Developmental Disabilities Code. Respondent also contends that the instant appeal falls within three recognized  exceptions to the mootness doctrine. We find that the case is not moot, and reverse.

2. Insurance Coverage law: Reversed and remanded: In case where insured originally elected to reject maximum uninsured and underinsured coverage below maximum limits of policy, and then limited UM coverage to $40.,000, subsequent increase by insured of policy limits did not require insured to make an affirmative election again refusing maximum UM coverage, so that trial court ruling that insurance company was potentially liable for up $500,000 limit of policy was error, and initial limit of $40,000 was applicable in claim for wrongful death. Rochford, J.

No. 2013 IL App (1st) 123222  Alshwaiyat v. American Service Insurance Company Filed 2-19-13 (TJJ)

In this action for declaratory judgment, plaintiff-appellee, Hatem Alshwaiyat, sought a determination that a policy of automobile insurance issued to plaintiff's employer by defendant-appellant, American Service Insurance Company (ASI), provided  $500,000 in underinsured motorist coverage for an automobile accident involving both plaintiff and his deceased wife. ASI has appealed from an order entering summary judgment in favor of plaintiff. For the reasons that follow, we reverse.

3. Criminal Law: Affirmed: Evidence was sufficient to support trial court conclusion that defendant in murder case was properly found guilty but mentally ill, rather than insane; trial court did not err in refusing to consider that defendant was not guilty due to defense of voluntary intoxication where defendant did not claim such at trial; trial court not obligated to make sua sponte decision regarding second degree murder; and sentence of 27 years for first degree murder not excessive under facts of case. Steigmann, J.

No. 2013 IL App (4th) 110103 People v. McCauley  Filed 2-19-13 (TJJ)

Following a July 2010 bench trial, the trial court found defendant, Liam J. McCauley, guilty but mentally ill of first degree murder. In September 2010, the court sentenced defendant to 27 years in prison. Defendant appeals, arguing that the trial court erred  by finding him guilty but mentally ill of first degree murder because he did not meet the statutory definition of "voluntary intoxication" and he had proved that he was insane at the time of the murder. Alternatively, defendant argues that the trial court erred  by (1) failing to sua sponte find him guilty of the lesser-mitigated offense of second degree murder and (2) imposing an excessive sentence. We affirm.

4. Criminal Law: Affirmed: Trial court conclusion that defendant was unfit for trial due to brain damage suffered in connection with self-inflicted gunshot wound, leading to inability to recall any details of home invasion allegedly committed by him, affirmed. Appellate court expressly refuses to apply decision of Second District in People v. Schwartz, 135 Ill. App. 3d 629 (2d Dist. 1985). Chapman, J.

No. 2013 IL App (5th) 110385 People v. Stahl  Filed 2-19-13

The defendant, Terris E. Stahl, is unable to remember any of the events surrounding the incidents leading to charges of home invasion and aggravated unlawful restraint due to brain damage resulting from a self-inflicted gunshot wound. He was found unfit  to stand trial. After a subsequent fitness restoration hearing, the court again found that the defendant was unfit to stand trial and that it was not reasonably probable that he could be fit within one year. The State appeals, arguing that the defendant's inability  to recall events does not render him unfit to stand trial. We affirm.

5 Appellate Cases Posted 2-15-13

1.  Post Conviction Petition:  Vacated and Remanded:  The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 (West 2010)) itself establishes a right to proceed pro se.  The Act creates a statutory right to counsel and that the statutory language expressly leaves to the defendant-petitioner to invoke at his choosing.  The right to self-representation is not absolute; that is, making a request or demand to proceed pro se does not ipso facto mandate that the defendant must be allowed to represent himself. Where a defendant has a right to proceed pro se, he must knowingly and intelligently relinquish his right to counsel.  Howse, J.

No. 2013 IL App (1st) 101064 People v. Gray  Filed 2-15-13 (LJD)

Following a jury trial, defendant Marcos Gray was convicted in 2000 of first degree murder and attempted armed robbery and sentenced to concurrent prison terms of natural life and 15 years. We affirmed the judgment on direct appeal. People v. Gray, No. 1-00-4122 (2002) (unpublished order under Supreme Court Rule 23). Defendant now appeals from the dismissal, upon the State's motion, of his postconviction petition. He contends that the circuit court violated his right to self-representation by not granting his requests to proceed pro se and by striking his pro se amendments to his petition.

2.  Criminal Law: Affirmed: To prove a defendant guilty of attempted murder, the State must prove: (1) that defendant performed an act that constituted a substantial step toward committing a murder; and (2) that he had the criminal intent to kill the victim.  When a defendant challenges the sufficiency of the evidence, it is not the function of the reviewing court to "retry" the defendant or "to substitute its judgment for that of the fact finder."  Poor marksmanship is not a defense to attempted murder, and it is a question of fact for the jury to determine whether defendant lacked the intent to kill or whether defendant was simply unskilled with his weapon and missed his targets.   Gordon, J.

No. 2013 IL App (1st) 110349 People v. Teague  Filed 2-15-13 (LJD)

Defendant Bennie Teague was convicted of the first-degree murder of his former employer, Marcus Hendricks, and of attempted first-degree murder of three police officers, which occurred while defendant was trying to evade capture for the murder of Hendricks earlier that same day. The jury also determined that defendant had personally discharged the firearm that caused Hendricks' death. After hearing   factors in aggravation and mitigation, the trial court sentenced defendant to 85 years for the first-degree murder of Hendricks, which included a 25-year enhancement for personally discharging the firearm that caused Hendricks' death. The trial court also sentenced defendant to 50 years for each conviction for attempted murder to run concurrently with each other but consecutively to the 85-year sentence for murder. As a result, defendant was sentenced to serve a total of 135 years in the Illinois Department of Corrections (IDOC).

3.  Mortgage Foreclosure: Affirmed: A mortgage foreclosure judgment is not final and appealable until the circuit court enters an order approving the sale and directing the distribution of the property.  The clear and unambiguous language of section 15-1509(c) of the Foreclosure Law bars the defendant's claims in her section 2-1401 petition and is dispositive. Reyes, J.

No. 2013 IL App (1st) 111224 U.S. Bank National Association v. Prabhakaran Filed 2-15-13 (LJD)

In this mortgage foreclosure action, the defendant, Jean J. Prabhakaran, appeals the circuit court of Cook County's denial of her petition to vacate the foreclosure judgment and confirmation of sale pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2008)). The defendant alleges the confirmation of sale was void because the plaintiff, U.S. Bank, N.A. (U.S. Bank), as trustee for Credit Suisse First Boston Heat 2005-5 (Credit Suisse), accepted additional payments from the defendant after the judgment of foreclosure was entered. The defendant also asserts she presented  a meritorious defense in her section 2-1401 petition. For the reasons that follow, we affirm the judgment of the circuit court.

4.  Criminal Law: Affirmed:  The State “has the burden of proving beyond reasonable doubt the identity of the person who committed the crime” and the “identification of the accused by a  single eyewitness is sufficient to sustain a conviction.” The five factors used by Illinois courts to evaluate the reliability of an identification are: (1) the witness’s opportunity to view the suspect during the offense; (2) the witness’s degree of attention; (3) the accuracy of any prior descriptions provided; (4) the witness’s level of certainty at the time of the identification  procedure; and (5) the length of time between the crime and the identification.  Gordon, J.

No. 2013 IL App (1st) 112632 People v. Tomei  Filed 2-15-13 (LJD)

Following a bench trial, defendant Kurt Tomei was convicted of criminal trespass to real property and criminal damage to property. After hearing factors in aggravation and mitigation, defendant was sentenced to 30 days in the Cook County department of corrections with a 6-day credit for time considered served, 2 years’ conditional discharge, plus statutory fines and fees. On this appeal, defendant argues the sufficiency of the evidence, claiming that the State failed to prove him guilty beyond a reasonable doubt because the sole eyewitness’s identification of defendant as the offender was not reliable  enough to support a conviction. For the following reasons, we affirm.

5.  Insurance Law:Affirmed: If an insurance policy does not specify a choice of law, its provisions are generally governed by the following factors: “ 'location of the subject matter, the place of delivery of the contract, the domicile of the insured or of the insurer, the place of the last act to give rise to a valid contract, the place of performance, or other place bearing a rational relationship to the general contract.'   Maryland Law controls.  Antiassignments clauses are valid in Maryland.  Gordon, J.

No. 2013 IL App (1st) 120983 Water Applications and Systems Corporation v. Bituminous Casualty Corporation  Filed 2-15-13 (LJD)

The plaintiff, WASCO LLC, filed this suit claiming that defendant Bituminous Casualty Corporation, an insurance company, breached its duties under two insurance policies when it did not defend plaintiff after receiving a notice of potential liability from the United States Environmental Protection Agency (EPA) during an EPA investigation process. Defendant claims that plaintiff cannot be an assignee of the  policy without defendant’s written consent pursuant to the terms of the insurance policy. Plaintiff claims that no written consent is required. The trial court granted defendant’s motion for summary judgment dismissing the suit. Plaintiff appeals, and for the following reasons, we affirm.

2 Appellate Cases Posted 2-14-13

1.  Criminal Law: Affirmed: Elements of Plain error doctrine listed and briefly discussed. When reviewing a trial court's suppression ruling, this court applies a two-part standard of review. The trial court's factual findings and credibility determinations are entitled to great deference and will be reversed only if they are against the manifest weight of the evidence.  However,  the trial court's ultimate legal ruling as to whether suppression was warranted is reviewed de novo.  Terry v. Ohio recognized a limited exception to this requirement which allowed police officers, under appropriate circumstances, to briefly stop a person for temporary questioning when the officer reasonably believed that the person had committed or was about to commit a crime. A vehicle stop, as in this case, is analogous to a Terry stop and is generally analyzed pursuant to Terry principles. To justify a Terry stop, a police officer must be able to point to specific and articulable facts which, combined with the rational inferences from those facts, reasonably warrant the intrusion. Epstien, J.

No. 2013 IL App (1st) 102696 People v. Sanders  Filed 2-14-13 (LJD)

After a bench trial, defendant Detertoring Sanders was convicted of the offense of armed habitual criminal and sentenced to 10 years in prison. Defendant appeals contending that the trial court erred in denying his motion to quash arrest and suppress evidence because there were no specific and articulable facts to justify a stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968). For the reasons that follow, we affirm.

2.  Public Hazards: Affirmed: Plaintiff had the burden to prove that the building was (1) “dangerous and unsafe” (65 ILCS 5/11-31-1(a) (West 2006)) and (2) “beyond reasonable repair”.  "[A] structure may be deemed ‘dangerous and unsafe’ under section 11-31-1 even if the danger is confined to those connected to the property.”  Law of the case doctrine set out and discussed.  Notice required under the statute is not condition precedent to filing of suit but notice must be given before an "Order of Demolition" is requested.   Discussion of whether lienholders are necessary parties. Birkett, J.

No. 2013 IL App (2nd) 111221 The Village of Ringwood v. Foster Filed 2-14-13 (LJD)

This case involves the continuing efforts of plaintiff, the Village of Ringwood, to remediate the public hazard it claims is posed by a fire-damaged apartment building owned by defendant, Deborah Foster. The fire occurred in October 2006, and in January 2007 the trial court authorized plaintiff to demolish the building. In Village of Ringwood v. Foster, 405 Ill. App. 3d 61, 85-86 (2010) (Foster I), we vacated the demolition order because the record suggested, and plaintiff did not dispute, that there was a lien on the property and that plaintiff failed to provide the lienholder the requisite statutory notice of plaintiff’s intent to seek a demolition order. On remand, plaintiff issued a notice to First National Bank of McHenry (First National), the lienholder. Over defendant’s objection that the notice was deficient, the trial court reissued the demolition order. Defendant appeals, and we affirm.

1 Appellate Case Posted 2-13-13

1. Parental Rights Law: Affirmed: Trial court conclusion that mother engaged in abuse of minor child and neglect due to an injurious environment, all stemming from excessive corporal punishment where mother "whooped" 12-year-old with a belt, and continued to do so while child's uncle held him down to facilitate administration of blows with the belt, upheld in face of mother's claim that she had right to utilize corporal punishment for child's failure to do chores properly. Karnezis, J. (N.B. Rule 23 Order issued November 13, 2012, issued on February 13, 2013 as an opinion pursuant to the State's motion for such).

No. 2012 IL App (1st) 121706 In re Malik B.-N.  Filed 11-13-12 (TJJ)

Respondent Kurtina B. appeals from orders of the circuit court finding respondent’s minor son, Malik B.-N., to be neglected and abused under the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/1-1 et seq. (West 2010)) and making him a ward of the  court. We affirm.

4 Appellate Cases Posted 2-11-13

1. Criminal Law: Affirmed: Evidence was sufficient to prove defendant guilty beyond a reasonable doubt of aggravated criminal sexual assault based upon the victim's inability to give knowing consent, where evidence, including defendant's statements regarding manner in which he had beaten and slapped victim, coupled with injuries that caused her death (and supported jury verdict of guilty of involuntary manslaughter), was such that it was sufficient to support verdict of guilty. Birkett, J.

No. 2013 IL App (2d) 110303 People v. Brown  Filed 2-11-13 (TJJ)

Following a jury trial, defendant, Thomas A. Brown, was convicted of involuntary manslaughter and aggravated criminal sexual assault (predicated upon criminal sexual assault). He was sentenced to consecutive imprisonment terms of 5 years and 18 years, respectively. On appeal, defendant contends that the State failed to prove him guilty beyond a reasonable doubt of aggravated criminal sexual  assault. For the reasons that follow, we affirm.

2. Domestic Relations: Affirmed: Trial court order increasing respondent ex-husband's monthly child support upheld, both on ground that respondent's income had increased and on ground that ex-wife's expenses had increased, and award of attorneys' fees to ex-wife's attorney for proceedings in connection with indirect contempt petition against ex-husband for failure to take child to school function upheld also. Jorgensen, J.

No. 2013 IL App (2d) 120551 In re Marriage of Putzler  Filed 2-11-13 (TJJ)

Respondent, Ronald Putzler, appeals two court orders: (1) a December 27, 2011, order increasing his monthly child support obligation from $2,500 to $3,703; and (2) an April 25, 2012, order awarding petitioner, Marguerite Putzler, $3,125 in attorney fees  in connection with her successful pursuit of two contempt petitions against him. For the following reasons, we affirm.

3. Criminal Law/Traffic: Affirmed: Police officer's conduct in requesting from driver her license and proof of insurance, after he had already satisfied himself that driver of the vehicle he pulled over did not appear to be violating any laws, unreasonably prolonged the initial stop, and trial court order granting motion to suppress upheld. Lytton, J. (Wright, J., dissenting).

No. 2013 IL App (3d) 120128 People v. Cummings  Filed 2-11-13 (TJJ)

Defendant, Derrick A. Cummings, was charged with driving while license suspended. The trial court granted defendant's motion to suppress evidence. The State appealed, arguing that the trial court erred in finding that the police officer unreasonably prolonged the stop of defendant's vehicle by asking defendant for his driver's license and proof of insurance after the reasonable suspicion for the stop had been satisfied and was no longer present. We affirm.

4. Workers' Compensation: Affirmed in part, vacated in part: Trial court order remanding workers' compensation claim to Industrial Commission for adjudication of claimant-employee's claim for pension benefits vacated, as Workers' Compensation Act provides no authority for such to be adjudicated by Commission, but award otherwise upheld, despite employer claim that it ought to be reduced in case where claimant retired after accident giving rise to claim. Hoffman, J.

No. 2013 IL App (1st) 113394WC Wood Dale Electric v. The Illinois Workers Compensation Commission  Filed 2-11-13 (TJJ)

Wood Dale Electric appeals form an order of the circuit court of Cook County which, among other things, reversed that portion of a decision of the Illinois Workers' Compensation Commission (Commission) that awarded it a credit pursuant to section 8(j)2  of the Workers' Compensation Act (Act) (820 ILCS 305/8(j)2 (West 2008)) against benefits due its injured employee, Richard Bilson (hereinafter referred to as the "claimant"), and affirming the Commission's award of a weekly wage differential to the   claimant for injuries he suffered while working. For the reasons which follow, we vacate a portion of the circuit court's order and affirm the remainder.

6 Appellate Cases Posted 2-08-13

1.  Post Conviction Petition: Affirmed: A trial court’s decision to enter a defendant’s prior conviction into evidence for purposes of impeachment will not be disturbed absent an abuse of discretion.  When deciding whether to admit a prior felony conviction into evidence, the trial court must balance whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.  The trial court is not required to specify and evaluate the factors used in the balancing test on the record as long as it actually applies the test. A trial court abuses its discretion when it acts arbitrarily, without employing conscientious judgment, or exceeds the bounds of reason and ignores recognized principles of law resulting in a substantial prejudice to defendant. Howse, J.

No. 2013 IL App (1st)  060039  People v. Melton Filed 2-08-13 (LJD)

Following a jury trial, defendant Terrance Melton was (1) the trial court erred in admitting his prior convictions as impeachment evidence; (2) he is entitled to a new trial because the prosecutor made inflammatory remarks not based in evidence during closing arguments; and (3) his mittimus should be corrected to accurately reflect time served in custody of the Sheriff’s day reporting program. We withdrew our prior Rule 23 order filed on October 3, 2008, and, on June 10, 2010, entered a Rule 23 order upon denial of defendant’s petition for rehearing.   Defendant subsequently filed a petition for  leave to appeal; the supreme court denied the petition but issued a supervisory order directing us to reconsider in light of People v. Mullins, 242 Ill. 2d 1 (2011). People v. Melton, No. 110774 (Sept. 18,  2011). We set a briefing schedule for the parties.We hereby vacate our previous order and affirm the judgment of the trial court.

2.  Administrative Review: Affirmed: The failure to commence an administrative review action, where required, is jurisdictional, and the circuit court will have no subject matter jurisdiction to act.  The lack of subject matter jurisdiction cannot be waived, and without it, the trial court has no authority to consider or act on a case before it other than to dismiss it.  An "administrative decision" is "any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency."    Lampkin, J.

No. 2013 IL App (1st)  111780  Hawthorne Race Course, Inc. v. Illinois Racing Board Filed 2-08-13 (LJD)

Plaintiff, Hawthorne Race Course, Inc. (Hawthorne), appeals the circuit court's ruling upholding the decision of defendant, the Illinois Racing Board (Board), in interpreting the Illinois Horse Racing Act of 1975 (Racing Act) (230 ILCS 5/54.75 (West 2010)). Plaintiff contends the Board erred in concluding that the percentage of the Horse Racing Equity Trust Fund (Fund) payable to each eligible licensee under the 2008 version of the Racing Act should be the same as that previously distributed under the 2006 version of the statute. Based on the following, we affirm.

3.  Premises Liability: Reversed and Remanded: When presenting a motion for summary judgment, the defendant bears the initial burden of providing competent evidentiary material, which, if uncontradicted, entitles him to judgment as a matter of law.  Summary judgment is a drastic means of disposing of a lawsuit and should only occur when judgment for the moving  party is clear and free from doubt.  Summary judgment is not appropriate where: (1) there is a dispute as to a material fact: (2) reasonable persons could draw divergent inferences from  undisputed material facts, or (3) reasonable persons could differ on the weight afforded to the applicable legal standard. Lampkin, J.

No. 2013 IL App (1st)  111850   Wells v. Colonial Heights Recreation Center, Inc. Filed 2-08-13 (LJD)

Plaintiff, Therese Wells, appeals the trial court's order granting summary judgment in favor of defendants, Colonial Heights Recreation Center, Inc. (CHRC), and Erickson Condominium Management Company (Erickson). Plaintiff contends the trial court erred in granting summary judgment where there were genuine issues of material fact regarding defendants' negligence. Based on the following, we reverse and remand for further proceedings.

4.  Criminal Law: Affirmed:  In order to prevail on a claim of ineffective assistance of counsel, defendant must show that: (1) counsel's performance was deficient; and (2) counsel's deficient performance prejudiced defendant.  Counsel's decision whether to file a motion to quash arrest or suppress evidence is generally "a matter of trial strategy, which is entitled to great deference."  For counsel's decision to be considered deficient, defendant must show that the unfiled motion stood a reasonable chance of success at the time of trial.  To support a Terry v. Ohio stop,  the officer must have specific and articulable facts which, taken together with rational inferences therefrom, reasonably warrant the intrusion. A seizure is said to occur where "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." A seizure additionally requires that " 'the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.' "  While an officer yelling "Stop, in the name of the law!" may constitute a seizure if the suspect submits to such a show of authority by halting, no seizure occurs when the suspect responds by fleeing; in the latter case, the suspect's liberty and freedom of movement have not been restrained.  A seizure of the driver does not occur until the driver submits to the show of authority by stopping her vehicle. Holderidge, J.

No. 2013 IL App (3rd)  110310  People v. Hunter Filed 2-08-13 (LJD)

Defendant, Casey D. Hunter, was charged with attempted first degree murder (720 ILCS 5/9-1(a)(1), 8-4 (West 2010)), aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(3) (West 2010)), and unlawful possession of weapons by a felon (720 ILCS 5/24-1.1(a) (West 2010)). At a jury trial, defendant was found guilty of possession of weapons by a felon and acquitted of the other two charges. Defendant challenges his conviction, arguing that his trial counsel was ineffective for failing to file a motion to quash arrest and suppress evidence establishing his possession of a firearm. We affirm.

5.  Criminal Procedure: Remanded for further hearings: Section 104-25(g)(2) of the Code provides that when a defendant remains unfit for trial at the conclusion of his extended period of treatment (725 ILCS 5/104-25(d)(2) (West 2010)), the court must determine whether he is subject to involuntary admission under the Mental Health Code or constitutes a serious threat to the public safety. 725 ILCS 5/104-25(g)(2) (West 2010). If the State proves this by clear and convincing evidence, defendant shall be remanded to DHS for further treatment. The court had the authority to  consider defendant's release to a less secure setting, such as a nursing home, and place him there if it found compelling reasons.  Lytton, J.

No. 2013 IL App (3rd)  110876  People v. Taylor Filed 2-08-13 (LJD)

Defendant, Will Taylor, was charged with two counts of first degree murder (720 ILCS 5/9- 1(a)(1), (a)(2) (West 2002)) and two counts of attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2002)). Defendant was found unfit to stand trial. Following an extended period of treatment that was unsuccessful in restoring defendant's fitness, the court found that defendant was subject to involuntary admission and constituted a serious threat to the public safety. 725 ILCS 5/104-25(g)(2) (West 2010). The court remanded defendant to the Department of Human Services (DHS) for further treatment under section 104-25(g)(2) of the Code of Criminal Procedure of 1963 (Code). Id. Defendant appeals, arguing that his request for release to a nursing home for further treatment should have been both considered by the court and granted. We remand.

6.  Easements/ Exceptions: Affirmed:  A de novo review is a review without any deference to the trial court's decision. If all the trial court did was apply the law to an uncontested set of facts, we would have no reason to defer to the trial court's decision, because the trial court is in no better position than we to apply the law. The owner of higher ground incurs liability for damages proximately caused to the lower ground by an increase in the flow of surface water incidental to an unreasonable development of the higher ground.  In ruling on a motion for reconsideration, a trial court can abuse its discretion not only by making, or adhering to, factual findings that are against the manifest weight of the evidence but also by applying the wrong legal standard or by using the wrong legal criteria.   Under the civil law rule, the owner of dominant, or higher, land has an easement in servient, or lower, land to allow surface water to flow naturally off the dominant land and onto the servient land.  The good-husbandry exception allowed the owner of the dominant land to change the natural flow of surface water upon the servient land if such change was necessary to the reasonable development of the dominant land for agricultural purposes.  Appleton, J.

No. 2013 IL App (3rd)  120132  Shulte v. Flowers Filed 2-08-13 (LJD)

Plaintiffs, Art Shulte and Diane Shulte, brought this action against defendant, Roger K. Flowers, Sr., alleging he had caused them damages by altering his land so as to increase the flow of surface water onto their land. At first, after hearing evidence in a bench trial, the trial court found in plaintiffs' favor, awarding them $80,000 in damages. Defendant thereafter filed a motion for reconsideration, in which he argued that the court's judgment was against the manifest weight of the evidence. The court agreed with defendant, granting the motion for reconsideration "as to all issues," vacating the judgment in plaintiffs' favor,  and entering judgment in defendant's favor. Plaintiffs appeal. We find no abuse of discretion in the trial court's decision to grant defendant's motion for reconsideration.

3 Supreme Court Cases Posted 2-07-13

1. Criminal Law: Affirmed: Jury selection defects were error.  Objections to these defects had not been raised during the voir dire or by posttrial motion and were, therefore, defaulted. The question thus becomes whether there was plain error calling for reversal. The supreme court held that there was not. The court said that, under plain-error analysis, the defendant bears the burden of persuasion and he did not meet his burden here.The defendant argued the first prong of the plain-error rule, namely, that the evidence was so closely balanced that the error could have tipped the scales of justice against him. However, the supreme court did not agree that the evidence was close. There was unrebutted evidence of an inculpatory statement and there was some physical evidence supporting it. There was nothing in the record to indicate that the statement was coerced or untrue. Defendant’s refusal to sign his statement could be attributed to the fact that, as he had purportedly admitted, he did not want to reveal that he was gay. Wilmington had a second theory. He argued that the trial court had not ascertained whether he, personally, agreed to the submission to the jury of an instruction on second degree murder. It has been held that a defendant has the right to decide whether to submit an instruction on a lesser-included offense, but the supreme court pointed out that second degree murder is not a lesser-included offense of first degree murder. It is more accurately described as a lesser-mitigated offense of it, by which an accused does not expose himself to potential criminal liability which he might otherwise avoid.  Justice Karmier delivered the judgment of the court, with opinion. Chief Justice Kilbride and Justices Thomas, Garman, and Theis concurred in the judgment and opinion. Justice Burke dissented, with opinion, joined by Justice Freeman.

No. 2013 IL  112938        People v. Wilmington Filed 2-07-13 (RJC)

A Cook County jury convicted this defendant in the 2004 shooting death of a man whose body was found in a garbage can on the south side of Chicago. He received consecutive prison terms of 50 years for the murder and 5 years for concealment of a homicidal death. The appellate court had initially reversed and remanded for a new trial, finding plain error in purportedly inadequate questioning during jury selection, but, pursuant to a supervisory order from the Illinois Supreme Court, it reconsidered, and, ultimately, affirmed the convictions and sentences. In this decision, the supreme court agreed with what the appellate court had done, although reasoning slightly differently. Wilmington gave a statement which was taken down by hand by an assistant State’s Attorney, but Wilmington thereafter would not sign his statement and he did not testify at trial. There was trial testimony that defendant had stated that he had been engaged in a sexual relationship with the male victim, that they had argued at the defendant’s residence, and that defendant had shot the victim in the head before dragging the body outside and stuffing it in a garbage can. When police searched the defendant’s residence with his consent, they found that it had been cleaned and redecorated, no inculpatory evidence was found, and no fingerprints suitable for comparison were obtained. At trial, the defense offered testimony as to defendant’s mild retardation. There was also conflicting testimony as to whether he suffered from seizures. However, there was forensic testimony that the condition of the body was consistent with having been dropped on the sidewalk and then dragged on it.

In jury selection for a criminal trial, the rules of the supreme court require that potential jurors be asked if they understand and accept the presumption of innocence, the requirement of proof of guilt beyond a reasonable doubt, the fact that an accused is not required to offer any evidence, and the fact that any failure to testify may not be held against him. In this appeal, Wilmington raised the arguments that the trial court failed to ask prospective jurors whether they understood and accepted the principle that his failure to testify should not be held against him, and, as to the other three principles, the venirepersons were asked only whether they accepted them, rather than whether they understood them. The supreme court said in this opinion that this was error. Objections to these defects had not been raised during the voir dire or by posttrial motion and were, therefore, defaulted. The question thus becomes whether there was plain error calling for reversal. The supreme court held that there was not. The court said that, under plain-error analysis, the defendant bears the burden of persuasion and he did not meet his burden here.

2. Criminal Law: Order vacated and cause remanded: The supreme court said that the issue to be resolved in this case concerns proof of the elements of the offense and not statutory constitutionality. The court said that the defendant is entitled to present evidence supporting his defense that he did, in fact, possess a valid license, while the State may offer rebuttal that he misled authorities into reinstating his privilege to drive by providing erroneous information through either purposeful concealment or incorrect representation. The supreme court held that the determination as to statutory constitutionality was not necessary to the disposition of the case, and it was vacated. The dismissal of the information and the discharge of the defendant were also vacated.  Justice Karmier delivered the judgment of the court, with opinion. Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Burke, and Theis concurred in the judgment and opinion.

No. 2013 IL  113986       People v. Jackson Filed 2-07-13 (RJC)

In 2011, the State’s Attorney of Clinton County filed an information alleging that this defendant had committed, on July 9, 2010, the Class 4 felony of driving on a suspended license. His license had been suspended in 1997, but, in 2006, he applied for a new license using a different name and answering negatively to a question as to whether his license had ever been suspended. A new license was issued at that time. Jackson argued that the statute on driving on a suspended license unconstitutionally denied him due process by preventing him from presenting evidence that he thought he had a valid license. The circuit court declared the statute unconstitutional as applied to him and this direct appeal followed. In this decision, the supreme court vacated the circuit court’s rulings because the case can be resolved on nonconstitutional grounds. Such cases are not subject to direct appeal. The cause was remanded to the circuit court for further proceedings.

3. Criminal Law: Reversed: The supreme court noted that what the police officer testified to was unrebutted. The court said that the absence of some of the traditional indicia of drug activity—officers did not see anything in the defendant’s hands or observe any transactions or see him flee—did not call for a different result. The court said that the facts known to police at the time of the arrest provided reasonable grounds to believe he was committing a criminal offense.  Justice Freeman delivered the judgment of the court, with opinion. Chief Justice Kilbride and Justices Thomas, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2013 IL  112734     People v. Grant Filed 2-07-13 (RJC)

This Cook County defendant received a three-year sentence for Class 4 possession of cocaine after a stipulated bench trial. The appellate court reversed the conviction, finding lack of probable cause for his initial arrest, but, in this decision, the supreme court reversed the appellate court and upheld the conviction. In 2008, Chicago police in an unmarked car saw the defendant yelling “dro, dro” to a passing vehicle. This was in front of a Chicago Housing Authority building, in an area known for marijuana sales. The arresting officer who testified said that, based on his experience, “dro, dro” is slang for the sale of cannabis, and case law has recognized that this refers to a higher quality, or hydroponic, marijuana. The defendant was initially arrested for violation of a Chicago municipal ordinance forbidding the solicitation of unlawful business on a public way. At the scene, plastic bags containing what appeared to be cannabis were found on his person, and, at the police station, plastic bags of what later tested positive for cocaine were also found in his clothing. All of this took place without a warrant, and the defendant argued lack of probable cause to arrest him. The circuit court had denied Grant’s motion to quash arrest and suppress evidence, and the supreme court, in this decision, agreed with that, finding that there was probable cause to arrest.

4. Criminal Law: Reversed and judgment reinstated and cause remanded: On appeal, the Illinois Supreme Court did not agree with the appellate court on the interpretation of the corpus delicti rule, holding that the State need not present independent evidence corroborating every element of the charged offenses before a defendant’s statement may be used to prove the corpus delicti. Here, the supreme court found, the independent evidence was sufficient to permit the defendant’s confession to be presented at trial.  However, there were two issues which the appellate court had not reached, namely, whether defendant’s request for a jury instruction on the lesser-included offense of aggravated criminal sexual abuse had been improperly denied and, if it was not required, whether his combined 18-year term for the two predatory criminal sexual assault convictions was excessive. The cause was remanded to the appellate court for its consideration of these issues.  Chief Justice Kilbride delivered the judgment of the court, with opinion. Justices Freeman, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion. Justice Thomas specially concurred, with opinion.

No. 2013 IL  1127370    People v. Lara - Modified upon denial of rehearing 2/7/13 Filed 2-07-13 (RJC)

This Cook County defendant was charged with committing two counts of predatory criminal sexual assault on an eight-year-old girl on two separate dates in January of 2005, when he was 19. The location of the incidents was his mother’s apartment, where the girl was sleeping on the floor after having been brought overnight for babysitting by defendant’s mother. He gave a confession, which was admitted into evidence, and the girl gave statements and also testified at trial. The jury convicted him of both offenses and he received consecutive terms of 10 and 8 years. The confession admitted that he had penetrated the victim, an element of the offenses, but his testimony at trial denied any inappropriate behavior. On appeal, he argued that the confession should not have been admitted because it was not sufficiently corroborated by independent evidence as required by the rule of corpus delicti. The appellate court held that this rule required the State to produce independent evidence of the elements of penetration (which the girl’s descriptions did not), and that insufficient independent evidence was presented to support the convictions. It reduced them to the lesser-included offenses of aggravated criminal sexual abuse and remanded for resentencing.

1 Appellate Case Posted 2-07-13

Post Conviction Petition/Credit for Time: Mittimus Modified: Section 110-14(a) of the Code provides that "[a]ny person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon application of the defendant."  The $30 for the Children's Advocacy Center is a "fine."   Goldenhersh, J.

No. 2013 IL App (5th) 110282  People v. Butler Filed 2-07-13 (LJD)

The instant case stems from a postconviction petition filed by defendant, Robert A. Butler. Defendant pled guilty to unlawful delivery of a controlled substance (720 ILCS 570/407(b)(3) (West 2010)). Pursuant to a negotiated plea, defendant was sentenced to five years in the Department of Corrections to be followed by two years of mandatory supervised release, awarded credit for time served from  November 23, 2010, until March 3, 2011, and charged $291 in costs and fees, including a $30 Children's Advocacy Center fee. No postjudgment motion was filed.  The trial court dismissed the petition at the first stage, finding the allegations without merit. In this appeal, the only issue we are asked to address is whether defendant is entitled to a $5-a-day credit against the $30 Children's Advocacy Center fee (55 ILCS 5/5-1101(f-5) (West 2008)) imposed at sentencing.

2 Appellate Cases Posted 2-05-13

1.  Child Support: Affirmed: The Act provides a means for the custodial parent to collect child support payments directly from the noncustodial parent’s employer.  Specifically, section 35 of the Act places a duty on the payor who has been served with notice to pay over to the State Disbursement Unit the ordered portion of the obligor’s income.  Thus, the provisions regarding the information to be contained in the notice of withholding require both the anticipated termination date and the obligor’s social security number. In addition, the obligee’s signature is expressly excepted from affecting the validity of the notice of withholding.  “Shall” generally indicates that the legislature intended a mandatory obligation.  The word “generally,” however, offers ample wiggle room. While “shall” typically indicates a mandatory, rather than a directory, provision, a mandatory provision does not always require strict compliance and might be satisfied through substantial compliance.  A line of cases holds that, where “shall” is accompanied by some sort of penalty or consequence, it will be deemed mandatory and require strict compliance; where no penalty or consequence accompanies “shall,” it will be deemed directory and require only substantial compliance. Birkett, J.

No. 2013 IL App (2nd) 120405  Schultz v. Performance Lighting, Inc. Filed 2-05-13 (LJD)

Plaintiff, Jennifer Schultz, appeals the judgment of the circuit court of Lake County, which dismissed her complaint seeking to recover from defendant, Performance Lighting, Inc., child support amounts that defendant allegedly should have withheld from her ex-husband’s paychecks pursuant to section 35 of the Income Withholding for Support Act (Act) (750 ILCS 28/35 (West 2010)). The trial court held that plaintiff’s notice of withholding to defendant was not strictly compliant with the provisions of the Act (see 750 ILCS 28/20(c) (West 2010)). On appeal, plaintiff contends that she substantially complied with the notice provisions, at least sufficiently to trigger defendant’s obligation to withhold funds from the ex-husband’s paychecks. Plaintiff urges that, because her notice was sufficient in fact to notify defendant of  its withholding obligation, the trial court erred in dismissing her complaint for failing to state a claim. We disagree with plaintiff and affirm the trial court’s judgment.

2.  Forcible Detainerr: Reversed and Remanded:  Under section 9-111(a), a condo association that prevails in a forcible entry and detainer action against an owner over unpaid assessments is entitled to possession of the owner’s property until the owner files a motion to vacate the judgment of possession. As the statute states, the key issue that the court must decide in considering such a motion is whether “the default in payment of the proportionate share of expenses has been cured.”  Defendant has the burden of proof under section 9-111 and must  demonstrate to the trial court’s satisfaction that the default has been cured before the judgment of possession can be vacated.  A motion under section 9-111 is designed for the sole purpose of determining whether the defendant is entitled to regain possession from the plaintiff after judgment, so section 9-106’s germaneness requirement applies with equal force to postjudgment proceedings such as this one. The only purpose of a hearing on a motion to vacate the judgment of possession is to answer two factual questions: (1) whether “the default in the payment of the proportionate share of expenses has been cured,” and (2) whether the premises are currently leased to a tenant. Connors, J.

No. 2013 IL App (1st) 120400  Gotham Lofts Condominium Association v. Kaider Filed 2-05-13 (LJD)

Plaintiff Gotham Lofts Condominium Association won a judgment of possession for defendant Donald Kaider’s condominium property due to defendant’s failure to pay assessments for common expenses. Defendant later filed a motion to vacate the judgment, asserting that his delinquent account had been satisfied because plaintiff leased the property to a tenant after the judgment. The circuit court agreed and,  among other relief, ordered defendant to be reinstated into possession. We reverse and remand.

2 Appellate Cases Posted 2-04-13

1. Telephone Consumer Protection Act: Certified Questions Answered: In interpreting a federal statute, “ ‘[o]ur task is to give effect to the will of Congress, and where its will has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive.’ ”  Federal law is enforceable in state courts not because Congress has determined that federal courts would otherwise be burdened or that state courts might provide a more convenient forum[,] *** but because the Constitution and laws passed pursuant to it are as much laws in the States as laws passed by the state legislature.’ ” For purposes of supremacy clause jurisprudence, federal limitations periods generally are considered components of federal law that must be followed when entertaining federal causes of action.  Zenoff, J.

No. 2013 IL App (2nd) 120740  Wellington Homes, Inc. v. West Dundee China Palace Restaurant, Inc. Filed 2-04-13 (LJD)

The federal Telephone Consumer Protection Act of 1991 (TCPA) (47 U.S.C. § 227 (2006))  prohibits, among other things, the use of “any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C) (2006). In addition to permitting state attorneys general and the Federal Communications Commission to pursue civil  actions in federal district court for violations of the statute (47 U.S.C. § 227(f)(1), (f)(2), (f)(3) (2006)), the TCPA permits individuals to bring private actions seeking statutory damages of $500 per violation  of the statute.  This interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010) involves two certified questions: (1) “Does Illinois’ two-year limitations period for a statutory penalty *** apply to TCPA claims brought in Illinois state courts seeking statutory damages pursuant to [section 227(b)(3) of the TCPA?]” and (2) “If not, what limitations period applies to TCPA claims brought in  Illinois state courts?” We answer the first certified question in the negative. As to the second certified question, we conclude that the four-year federal catchall statute of limitations codified at 28 U.S.C. § 1658(a) applies to private TCPA claims filed in Illinois state courts.

2.  Administrative review: Affirmed: Three standards of review listed.  An act of duty is “ ‘[a]ny act of police duty inherently involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life, imposed on a policeman.’ ”  An officer who is injured when on duty does not qualify for a on-duty disability merely because she was on duty.  The critical inquiry is the capacity in which the officer was acting at the time she was injured.  To establish eligibility for an on-duty disability pension, an officer need not prove the on-duty injury was the sole or primary cause of her disability; it must be a causative factor. O'Brien, J.

No. 2013 IL App (3rd) 120231 Buckner v. The University Park Police Pension Fund Filed 2-04-13 (LJD)

Plaintiff Gwendolyn Buckner brought this complaint for administrative review after the trial court affirmed the decision of defendants University Park Police Pension Fund; the Board of Trustees of the University Park Police Pension Fund; Mary Distler, Gordon Smith, and Daniel Murphy, the members of the Board of Trustees of the University Park Police Pension Fund; and the Village of University Park, denying her an on-duty disability pension and awarding her a not-on-duty disability pension. The trial court affirmed the Board’s determination. She appealed. We affirm.

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