Illinois Supreme and Appellate Court Case Summaries

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

 

    This page contains the current month's summaries, the most recent summaries provided first. 

Click on the case-name link to go directly to the full-text opinion.

Summary headings and authoring Justice (and separate opinion writers) in GREEN.

Case-name link in your browser's LINK COLOR.

Corrected or modified opinions noted by PURPLE headings.


Click here For Supreme Court & Appellate Opinions (with Summaries) posted during February 2014.

For the previous six months' summaries or to return to the Illinois Court Reports Home Page, click on the link below:

 Illinois Court Reports Home Page 



15 Appellate Cases Posted 3-31-14

1.  Contracts: Affirmed:  A guarantor's liability depends on the guaranty contract. General principles of contract construction apply.  A guarantor has acquired status as a favorite of the law, and when construing liability the court accords the guarantor the benefit of any doubts that may arise from the language of the contract.  Moreover, the scope of a guarantor's liability extends no further than that which the guarantor has agreed to accept.  Courts strictly construe guaranty agreements in favor of the guarantor, especially when the creditor prepared the guaranty agreement. Where a guaranty is unequivocal, it must be construed according to the terms and language used, as it is presumed the parties meant what the language imports.  The general rule is that guaranties are not assignable.  But, this rule has not been applied mechanically. The facts of each case determine whether the policy underlying the rule applies.  Hyman, J.

No. 2014 IL App (1st) 123435   Southern Wine and Spirits of Illinois v. Steiner  Filed 3-31-14 (LJD)


Defendants filed a motion to dismiss, which the circuit court granted with prejudice, while also granting plaintiff leave to file an amended complaint against the corporate defendant. The court found that the personal guaranty defendants gave Morand was not assignable and thus Southern could not enforce it. The court also granted, in part, defendants' motion to strike, on hearsay grounds, a portion of an affidavit submitted by Southern.  Southern appeals the trial court's dismissal order arguing the guaranty is enforceable because: (1) the guaranty expressly states it is effective until defendants cancel or discontinue it, which they did not do; and (2) the assignment was not a material change that would discharge the guarantors' obligations. Southern also appeals the trial court's order on defendants' motion to strike, arguing the excised paragraphs fall under the business records exception to the hearsay rule. We affirm.

2.  Domestic relations: Affirmwed: A provision for the payment of college expenses is in the nature of child support and is modifiable." Hupe v. Hupe, 305 Ill. App. 3d 118, 125 (1999). Modification of a dissolution of marriage judgment rests in the sound discretion of the trial court; as a reviewing court, we will not interfere with the exercise of that discretion in the absence of its abuse.  In determining whether a minor is emancipated by any means other than reaching the age of majority, the supreme court identified the factors to be considered by the trial court, including but not limited to: "whether the minor has voluntarily left the protection and influence of the parental home, or whether the minor has otherwise moved beyond the care and control of the custodial parent; whether the minor has assumed responsibility for his or her own care, or whether the minor continues to need support; whether the minor, if self-emancipated, has become dependent on his or her parents again, thereby reverting to being unemancipated."  Hall, J.

No. 2014 IL App (1st) 1230552   In re Marriage of Baumgartner Filed 3-31-14 (LJD)


The petitioner, Susan Lynn Baumgartner (Susan), appeals from orders of the circuit court of Cook County denying her amended petition to enforce the post high school educational provisions of the judgment for dissolution of marriage and granting the amended cross-petition of the respondent, Craig Baumgartner (Craig), terminating the parties'  obligation to provide those expenses for the parties' son, Maxwell Baumgartner (Max). In a separate appeal, Susan appeals from the dismissal of her petition for adjudication of indirect criminal contempt against Craig. The two appeals have been consolidated for review.  For the reasons stated below, we affirm the judgment of the circuit court.

3. Administrative Review: Affirmed in part and reveresed in part: Under article VII, section 6(h), the General Assembly "may provide specifically by law for the exclusive exercise by the State of any power or function of a home rule unit" (Ill. Const. 1970, art. VII, § 6(h)), but if the legislature intends to limit or deny the exercise of home rule powers, the statute must contain an express statement to that effect.  A home rule unit, however, may not constitutionally dictate that review of administrative decisions fall under the Administrative Review Law, as the method of judicial review is not a function pertaining to the home rule unit's government and affairs.  As section 20 does not specifically limit or define the procedures a home rule unit may adopt for determining claims under the Act, we conclude a home rule unit may employ an administrative procedure for assessing claims without acting in a manner inconsistent with the requirements of the Act.   The fact that both a municipality and a pension board are public entities is not enough to establish they are the same parties or are in privity for the purpose of collateral estoppel.  Cases that involve mixed questions of law and fact are subject to a clearly erroneous standard of review.  An agency's decision is clearly erroneous "only where the reviewing court, on the entire record, is 'left with the definite and firm conviction that a mistake has been committed.' " Reyes, J.

No. 2014 IL App (1st) 123402  Pederson v. Village of Hoffman Estates Filed 3-31-14 (LJD)


Plaintiff Alan R. Pedersen (Pedersen) was injured in the line of duty as a firefighter for defendant Village of Hoffman Estates (Village) and sought continuing health coverage benefits under section 10 of the Public Safety Employee Benefits Act (Act) (820 ILCS 320/10 (West 2006)). Defendant Village manager James H. Norris (Norris), after a hearing, denied the claim for benefits.  Pedersen and his wife, plaintiff Karen Pedersen (Karen) then filed suit in the circuit court of Cook County, challenging the denial of benefits under the Act. Plaintiffs' first amended complaint contained three counts, seeking: (I) a declaratory judgment of their rights under theAct; (II) a declaration that the Village ordinance creating a procedure for determining claims under the Act was contrary to the Act and unconstitutional; and (III) administrative review of the decision denying benefits under the Act. Plaintiffs now appeal orders of the circuit court granting partial summary judgment in favor of defendants on counts I and II and affirming the decision to deny benefits challenged by count III after recasting it as seeking a common law writ f certiorari. For the following reasons, we affirm the order of the circuit court granting partial summary judgment in favor of defendants on counts I and II, reverse the order of the circuit court affirming defendants' decision denying plaintiffs' claims on count III, and set aside defendants' decision denying benefits under the Act.

4.  Contracts: Affirmed: A guaranty is a contract; therefore, we apply the standards governing the interpretation of contracts.  The guaranty is strictly construed in favor of the guarantor, but only where some doubt has arisen as to the meaning of the guaranty language.  Terms of a guaranty which are clear and unambiguous must be given effect as written.  Under such circumstances, the meaning of a guaranty presents a question of law. A guarantor will be discharged pro tanto of his obligation where, without the consent of the guarantor, the creditor takes any action to vary the terms of the principal obligation, to increase the guarantor's risk or to deprive the guarantor of the opportunity to protect himself.  Elements of equitable estoppell  set out and discussed.  Hall, J.

No. 2014 IL App (1st) 121111 JPMorgan Chase Bank, N.A. v. East-West Logistics, L.L.C. Filed 3-31-14 (LJD)


On December 4, 2008, the plaintiff, JPMorgan Chase Bank, N.A. (Chase Bank), filed a verified multi-count complaint against Arthur Wondrasek1 and other named parties. Following Mr. Wondrask's death in 2010, his estate was substituted as a party- defendant. In 2012, the circuit court of Cook County entered orders dismissing the Estate's affirmative defenses and counterclaims and granted partial summary judgment to the plaintiff, Chase Bank.  On appeal, the Estate contends as follows: the dismissal of its affirmative defenses and counterclaims was error; the award of summary judgment to Chase Bank was error; and the circuit court erred in ordering the Estate to pay discovery costs to Chase Bank. On review, we find no error and affirm the orders of the circuit court.

5.  Criminal Law: Affirmed: The decision of whether evidence should be admitted belongs to the sound discretion of the trial court and, on review, we will not reverse that decision absent an abuse of discretion.  An abuse of discretion occurs when the ruling is arbitrary or fanciful or where no reasonable person would adopt the trial court's view. In Illinois, a sound recording, which is otherwise competent, material, and relevant, is admissible into evidence if a proper foundation is laid establishing authenticity and reliability of the recording.  Under the silent witness theory, a recording may be admitted without the testimony of a witness with personal knowledge of what the recording portrays as long as there is sufficient proof of the reliability of the process that produced the recording.  Where a defendant does not present any actual evidence of tampering, substitution, or contamination, the State need only establish a probability that those things did not occur.  Any deficiencies go to the weight, rather than the admissibility, of the evidence. Whether a prior statement is inconsistent under section 115-10.1 of the Code and, therefore, admissible as substantive evidence, falls within the sound discretion of the trial court and the decision will be reversed on appeal only if it constitutes an abuse of discretion.  Hyman, J.

No. 2014 IL App (1st) 113457  People v. Sangster  Filed 3-31-14 (LJD)


A jury convicted defendant Antoine Sangster of first degree murder for the shooting death of Frank Meeks and attempted first degree murder for the shooting of Christopher Davis. He received consecutive 40- and 21-year prison sentenc . Sangster raises a number of challenges for our consideration.  We affirm.

6.  Residency Requirements: Affirmed:  The standard for judicial review of administrative decisions, such as the Board’s orders of termination here, is well established. We review the administrative agency’s decision, not the trial court’s determination.  Our review of an administrative agency’s decision to discharge an employee involves a two-step analysis. Siwek v. Police Board, 374 Ill. App. 3d 735 (2007). First, we determine if the agency’s factual findings are contrary to the manifest weight of the evidence.  Second, we must determine if the findings of fact provide a sufficient basis for the agency’s conclusion that cause for discharge exists. An administrative agency’s finding of “cause” for discharge is entitled to considerable deference and is to be overturned only if it is arbitrary and unreasonable or unrelated to the requirements of the service.  DeLort, J.

No. 2014 IL App (1st) 130727  Crowley v. The Board of Education of the City of Chicago  Filed 3-31-14 (LJD)


Residency requirements for public employees generate considerable litigation, usually involving highly fact-based disputes over whether an employee is a bona fide resident of the jurisdiction in question. These consolidated cases present an unusual spin on that pattern. The employees in question, teachers for the Chicago Board of Education (Board),1 admit that they live outside of ChicagoBin fact, outside of Cook County. Their main contentions here are that the Board’s residency requirement became “stale” and unenforceable because the Board failed to vigorously enforce it until recently, and the Board enforced the policy unequally. We agree with the circuit court judges who found otherwise and declared that the Board correctly terminated the teachers’ employment. We therefore affirm the judgments below.

7.  Domestic Relations: Affirmed:  We first address the "equitable adoption" doctrine and find Nicholas's arguments are not well grounded and that this case is vastly different from DeHart both factually and legally. We further hold that equitable adoption was recognized in DeHart for an adult seeking inheritance in a probate proceeding, and it has no application in the statutory proceedings of adoption, divorce, and parentage. Because we hold equitable adoption does not apply in this case, we reiterate our prior discussion and disposition of the  parties' remaining alternate arguments in their original briefs on appeal concerning equitable estoppel, the "equitable parent" doctrine, and parens patriae. We again affirm the circuit court's dismissal.  Because of the opinions in this I will not try to summarize the legal prionciples and direct the reader to the opinon so that the reader can form his/her own conclusions. Pucinski, J., special concurrence with separate opinions by Fitzgerald Smith, J. and Mason, J.

No. 2014 IL App (1st) 111138  In re Marriage of Mancine  Filed 3-31-14 (LJD)


In divorce proceedings below, the husband, respondent Nicholas Gansner, sought custody of a minor child, William Gansner. William had been adopted by only the mother, petitioner Miki Loveland Mancine. The child was not the biological child of either Miki or Nicholas.Nicholas knew at all times that filing a petition to adopt was necessary and was aware that he simply had to provide a form petition and include a copy of Miki's adoption order. The couple adopted another child, and Nicholas filed a petition for that child and became that other child's parent. Yet Nicholas never filed a petition to adopt or even began adoption proceedings for William. Miki then filed for divorce. Nicholas sought custody of William. The circuit court granted Miki's motion to dismiss on the grounds that Nicholas lacked standing. To apply the concept of equitable adoption in the context of our statutory proceedings of adoption, parentage and divorce would undermine the entire family law structure enacted by our legislature and create uncertainty and protracted litigation.


8. Insurance Coverage: Reversed and remanded: Trial court grant of summary judgment to insurance company in declaratory judgment action claiming that insurance company was not obligated to defend or indemnify driver under policy provision excluding driver as a "non-owner" regularly using the car in question reversed, as facts contained in affidavits presented by plaintiff insurance company were ambiguous on the issue of the circumstances in which driver used the car. Lampkin, J.

No. 2014 IL App (1st) 130665  American Access Casualty Company v. Griffin  Filed 3-31-14 (TJJ)

Plaintiff, American Access Casualty Company (American), filed a complaint for declaratory judgment against defendants Erica Perkins, Beverly Perkins, LaTonya Reese, and Kionna Griffin. Erica Perkins is plaintiff’s insured. The remaining defendants are named as necessary parties from whom no relief is sought. The complaint sought a declaration that plaintiff owes no duty to defend or indemnify Erica Perkins for losses caused by her use of a 1995 Dodge Avenger owned by defendant Beverly Perkins. The complaint also sought a declaration of whether the vehicle is covered by any primary insurance policy, and that Erica Perkins had breached her duty of assistance and cooperation under her insurance policy with plaintiff. Plaintiff filed a motion for summary judgment supported by an affidavit from one of its attorneys. Plaintiff’s attorney made averments as to statements Erica Perkins allegedly made to him in two telephone conversations, which plaintiff argued constituted admissions eliminating her use of the  subject vehicle from the insurance policy’s coverage. The circuit court of Cook County granted plaintiff’s motion for summary judgment. For the following reasons, we reverse.

9. Election Law: Affirmed: In action for review of electoral board decision removing candidate from ballot prior to election, petitioner-candidate's failure to name and serve all electoral board members with petition for review prohibited trial court from exercising jurisdiction over subject matter of the case, and trial court properly dismissed candidate's petition. Pucinski, J.

No. 2014 IL App (1st) 140339  Solomon v. Ramsey  Filed 3-31-14 (TJJ)

This case arises from the nominating petition objection process for the March 18, 2014 primary election for the Democratic Party's nomination for the office of Representative in the Illinois General Assembly for the 38th District. Following decisions of the  State Officers Electoral Board (Electoral Board or Board) to remove petitioner McStephen O. A. "Max" Solomon (Solomon or petitioner), from the ballot, and to allow the incumbent candidate's name to remain on the ballot, Solomon filed petitions for  judicial review in the circuit court. The circuit court, however, dismissed his petitions for judicial review for lack of subject matter jurisdiction. Solomon contests the circuit court's ruling on appeal. For the reasons set forth herein, we affirm the judgment of  the circuit court.

10. Administrative Law: Reversed in part, affirmed in part, and remanded: Decision by City of Chicago administrative hearing officer against corporate building owner "represented" by non-lawyer in 1999, but allegedly learned of by owner in 2010 could not be vacated, as City's Municipal Code permitted such after such a passage of time only on "default" orders, and trial court's decision to uphold order affirmed on that ground, but trial court order dismissing owner's suit for declaratory judgment and to quiet title reversed. Delort, J. (Connors, J., dissenting in part and concurring in part).

No. 2014 IL App (1st) 123654  Stone Street Partners, LLC v. The City of Chicago Department of Administrative Hearings  Filed 3-31-14 (TJJ)

This case involves a relatively small amount of money, but it provides an opportunity to explore deficiencies in the manner in which the City of Chicago (city) handles in-house adjudication of ordinance violations. Nearly 14 years ago, a city administrative hearing officer fined plaintiff Stone Street Partners, LLC (Stone Street), for building code violations. Stone Street never paid the fine and the city eventually recorded a lien against the subject property. Stone Street did not, however, challenge the fine until over 11 years after the city imposed it, allegedly because it had never been notified of the proceedings in the first place. After an unsuccessful attempt to vacate the fine at the administrative level, Stone Street filed a complaint in the circuit court for administrative review, equitable relief and monetary damages. The circuit court dismissed plaintiff’s complaint in full. We affirm in part, reverse in part, and remand for for further proceedings.

11. Real Estate Law: Reversed: In action where homeowners filed suit alleging only that defendants "anticipatorily repudiated" contract to purchase plaintiffs' home, trial court ruling that defendants breached the contract reversed as plaintiffs had not pled such, and evidence did not establish elements of anticipatory repudiation and plaintiffs never sought to amend their pleadings to allege breach of contract. Hutchinson, J.

No. 2014 IL App (2d) 130002  Kelly v. Orrico  Filed 3-31-14 (TJJ)

Following a bench trial, the trial court entered a judgment in favor of plaintiffs, Brian Kelly and Nicole Kelly, and against defendants, Larry Orrico and Renae Yockey, after concluding that defendants had anticipatorily repudiated their contract with plaintiffs. The parties had entered into a contract for defendants to purchase plaintiffs’ home, and plaintiffs filed suit when defendants failed to close on the purchase by August 20, 2008. Defendants now appeal, contending that (1) the trial court’s judgment did not match plaintiffs’ pleadings, which alleged a breach-of-contract theory of relief; (2) the record failed to support a finding of defendants’ anticipatory breach; (3) plaintiffs’ election of remedies under a separate contract that they had with a third party to purchase their home precluded a judgment against defendants; and (4) plaintiffs did not suffer damages. For the reasons set forth below, we reverse the trial court’s judgment.

12. Criminal Law: Affirmed: "Post-It" notes written by decedent regarding how she wanted defendant to move out of her home and that their relationship was ended were properly admitted in trial where defendant was charged with first degree murder and arson in connection with the fire which killed decedent, as evidence of defendant's state of mind, where the circumstances proved that defendant would have seen and known of the notes so as to constitute proof of his state of mind and motive to commit the offenses charged; other testimony of oral statements by decedent to third parties regarding her state of mind were erroneously admitted, but any error was harmless in light of the evidence against defendant; and defendant's trial counsel not ineffective for failing to request separate verdict forms on different murder counts. Burke, J.

No. 2014 IL App (2d) 120506  People v. Hill  Filed 3-31-14 (TJJ)

In the direct appeal of his first-degree murder and aggravated arson convictions, defendant, Frank Hill, raises two issues. The first is whether the trial court abused its discretion by allowing evidence of decedent Karyn Pearson’s state of mind. The second is whether his counsel was ineffective for failing to ask for separate verdict forms for first-degree murder. We affirm.

13. Environmental Law: Affirmed: In hearing before county board regarding application to expand existing solid waste landfill, requirement in state Environmental Protection Act  that notice of hearing be by registered mail required only that such notice be made by registered mail, not that applicant show that necessary recipients had actually received the notice by such procedure. Spence, J.

No. 2014 IL App (2d) 130260  Maggio v. The Pollution Control Board  Filed 3-31-14 (TJJ)

Petitioner, Martin Maggio, appeals the order of the Illinois Pollution Control Board (IPCB) affirming the decision of the Winnebago County Board (County Board). The County Board conditionally approved the site location application submitted by Winnebago Landfill Company, LLC (WLC), for the expansion of WLC’s existing solid waste landfill. On appeal, Maggio argues that the County Board lacked jurisdiction to approve the application, because, under section 39.2(b) of the Environmental Protection Act (Act) (415 ILCS 5/39.2(b) (West 2012)), a preapplication notice is not effective until it is received by the person to whom it is directed, and here not every person received the notice within the statutory time period. Maggio also argues that the IPCB erred in finding that WLC’s service effort was reasonably calculated to achieve service 14 days before the siting application was filed. We affirm.

14. Mortgage Foreclosure: Reversed and remanded: Trial court grant of summary judgment of foreclosure vacated and cause remanded where factual issue existed as to whether lender was not licensed to make mortgage loans and mortgage may thus have been void. Burke, J.

No. 2014 IL App (2d) 130567  First Mortgage Company, LLC v. Dina  Filed 3-31-14 (TJJ)

Defendants, Daniel and Gratziela Dina, appeal after the confirmation of the judicial sale of their property. They argue that the court improperly granted summary judgment for foreclosure in favor of plaintiff, First Mortgage Company, LLC; they assert, among other things, that they properly raised the defense that the mortgage lender, First Mortgage Company of Idaho, LLC (FMCI), was not a licensed lender under the Residential Mortgage License Act of 1987 (License Act) (205 ILCS 635/1-1 et seq. (West 2006)). We conclude that a material issue of fact existed concerning FMCI’s status under the License Act and that this precluded a proper grant of summary judgment. We further conclude that the way defendants raised the defense,  by a response in  opposition to summary judgment, did not cause them to forfeit the defense; their defense amounted to a claim that the mortgage contract was contrary to public policy, and such a defense is not forfeited by a technical error in raising it. We therefore vacate  the grant of summary judgment and the confirmation of the judicial sale and remand the cause.

15. Arbitration: Affirmed: In action to confirm an arbitration award in connection with services purportedly extended by plaintiff finance comp[any in securing refinancing to protect defendants from foreclosing on original mortgage, defendants' failure to participate in arbitration acted as a forfeiture of their right to contest applicability of agreement to arbitrate, or the award of attorneys' fees. Jorgensen, J.

No. 2014 IL App (2d) 130670  Advocate Financial Group v. Poulos  Filed 3-31-14 (TJJ)

Defendants, Michael Poulos, Our Billing Department, Inc., Computer Health Network, Inc., and Trellis Health Management, LLC, appeal the trial court’s June 19, 2013, order confirming and entering an arbitration award in favor of plaintiff, Advocate Financial Group. Specifically, the arbitrator awarded plaintiff $17,561.66 for charges and attorney fees it incurred under an agreement it had with defendants. Defendants did not participate in the arbitration. Nevertheless, defendants argue on appeal that the trial court erred in confirming the award, and that we should vacate the order and enter judgment in their favor, because the arbitrator exceeded his authority where the contract between the parties had expired and did not provide for attorney fees. Further, defendants argue that they did not receive proper notice of the arbitration hearing. For the following reasons, we affirm.

6 Appellate Cases Posted 3-28-14

1. Setoffs/Med. pay./Jury trials: Reversed and remanded: Given that the settlement agreement reached between State Farm and American Heartland in the subrogation action compromised the claim for $5,000 in medical payments asserted by State Farm, and that said claim was released, we find that defendant is entitled to a setoff in this matter for $5,000. Palmer, J.

No. 2014 IL App (1st) 122392    Segovia v. Romero    Filed 3-28-14 (RJC)


Defendant Hector Romero argues on appeal that the circuit court of Cook County erred in denying his motion for a setoff from the jury verdict in favor of plaintiff Sylvia Segovia. We reverse and remand.

2. Insurance/Coverage: Affirmed: A determination of whether Gaudina was Rife's "spouse" under the policy should be made by referring to the circumstances as they existed at the time of the accident giving rise to Gaudina's claim. Therefore, the policy's definition of "spouse" was not ambiguous with respect to the relevant time frame for determining whether a person qualifies as a "spouse," and therefore an insured, under the policy.  The undisputed facts showed that Gaudina did not primarily reside with Rife at the time of the accident. Palmer, J.

No. 2014 IL App (1st) 131264    Gaudina v. State Farm Mutual Automobile Insurance Company    Filed 3-28-14 (RJC)


Plaintiff, Robert Gaudina, appeals from the circuit court's March 18, 2013, order denying his motion for summary judgment and granting summary judgment in favor of defendant, State Farm Mutual Automobile Insurance Company. On appeal, Gaudina contends that the circuit court erred in finding that he was not an insured entitled to coverage under his wife's policy. Gaudina asserts that the policy language is ambiguous and must be construed against State Farm. For the reasons that follow, we affirm.

3. Personal injury/wrongful death/Tort Immunity Act: Affirmed: Defendants owed decedent no duty.  Assuming that all of plaintiff’s well-pleaded facts are true, his complaint failed to state a cause of action for negligence because he failed to allege facts to establish that defendants owed decedent a duty to warn of or protect against the risks presented by the river and dam. The existence of a duty and the application of immunity are separate issues. The Tort Immunity Act does not impose new duties on municipalities; rather, it restates and codifies common-law principles.  The distinction between a duty and immunity is critical “because only if a duty is found is the issue of whether an immunity or defense is available to the governmental entity considered.” Jorgensen, J.

No.2014 IL App (2d) 130367    Suchy v. The City of Geneva    Filed 3-28-14 (RJC)


In 2011, decedent, Randy Suchy, died after he jumped into the Fox River in Geneva to save a drowning boy. Subsequently, plaintiff, William Suchy, as the independent administrator of decedent’s estate, brought a personal injury/wrongful death action against defendants, the City of Geneva (City), the Geneva Park District (Park District), and the County of Kane (County). The trial court dismissed plaintiff’s complaint with prejudice, finding that: (1) the hidden danger from the aerated water in the river was an open and obvious danger; and (2) the municipalities were immune from liability pursuant to section 3-110 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-110 (West 2012)). Plaintiff appeals, arguing that: (1) the trial court failed to undertake a traditional duty analysis to determine whether defendants owed a duty; (2) the deliberate-encounter exception to the open-and-obvious doctrine applies and raises a factual question precluding dismissal; and (3) section 3-110 of the Tort Immunity Act does not immunize defendants from liability, where the Park District exercises control of the river and the site of decedent’s death, the City has statutory jurisdiction over the river as well as the right to deny access, and plaintiff properly alleged that the County controlled the river. We affirm.

4. DUI: Reversed and remanded: In sum, the State’s expert witness acknowledged that he was unaware of many of the factors necessary to determine whether defendant was in the elimination phase, and because the police conducted only one BAC test, we find the extrapolation calculation to be inherently unreliable. In addition, because the extrapolation evidence invited the jury to convict defendant on the basis of a supposedly high BAC, the potential for prejudice from admitting that evidence was high. Because the prejudicial effect of the extrapolation substantially outweighed the probative value, the trial court abused its discretion in admitting the evidence. Further, given the conflicting nature of the other testimony at trial, including that defendant passed some field sobriety tests while failing others, the trial court’s admission of the extrapolation evidence was not harmless. Hutchinson, J.

No. 2014 IL App (2d) 120507    People v. Floyd    Filed 3-28-14 (RJC)


Following a jury trial, defendant, Chrystal L. Floyd, was convicted of aggravated driving under the influence (DUI) pursuant to section 11-501(a)(2) of the Illinois Vehicle Code (625 ILCS 5/11-501(a)(2) (West 2010)) and resisting arrest (720 ILCS 5/31-1(a) (West 2010)). During the trial, the State introduced expert witness testimony on a “retrograde extrapolation” calculation in an attempt to demonstrate that defendant’s blood alcohol concentration (BAC) was at or above 0.08 at the time of her arrest. Retrograde extrapolation is premised on the theory that a person’s BAC, derived from a breath or blood test at a particular time, can be extrapolated back to an allegedly higher BAC that existed at the time of a prior incident. The State also introduced evidence of other crimes that occurred before defendant allegedly committed the offense of aggravated DUI. On appeal, defendant contends that the trial court erred by (1) allowing the expert witness’s testimony on retrograde extrapolation when the expert did not have information necessary to conduct a reliable calculation; (2) allowing the State to admit other-crimes evidence that was highly prejudicial, but minimally relevant; (3) allowing testimony, which lacked foundation, that defendant failed a horizontal gaze nystagmus (HGN) test; and (4) failing to instruct the jury that it could not draw a negative inference from the State’s video recording of defendant’s field sobriety tests, which the State failed to produce. For the following reasons, we reverse defendant’s DUI conviction and remand for a new trial.

5. Tax exemptions/charitable & religious/Admin. review: Affirmed: The Department did not err in  rejecting the appellants' argument that it is necessarily entitled to a charitable-use property tax exemption based on its charitable-use exemption from retailers' occupation and use taxes.  Other than caring for the elderly in a faith-inspired manner, there was little evidence of actual religious activity on the property. The Department's conclusion that the appellants' property is not used as a stated place for public worship, Sunday schools, or religious instruction, or anything of that nature is not clearly erroneous. Welch, J.

No. 2014 IL App (5th) 130078    Meridian Village Association v. Hamer    Filed 3-28-14 (RJC)


This is an appeal from administrative review by the circuit court of Madison County of a decision of the Illinois Department of Revenue (the Department) denying the application of Meridian Village Association and Meridian Village Association II (the appellants) for property tax exemptions based on charitable and religious uses of the property for tax years 2003 through 2006. Edwardsville Community Unit School District No. 7 and the Village of Glen Carbon intervened to oppose the appellants' application for an exemption. On January 24, 2013, the circuit court entered an order affirming the decision of the Department. It now comes before us on further review pursuant to the Administrative Review Law (735 ILCS 5/3-101 to 3-113 (West 2012)). 

6. Workers' Compensation Act: Affirmed in part, vacated in part, and remanded: The parties entered into a stipulation regarding fees, and stipulations are construed like contracts. The stipulation then set forth the exact amount to be awarded regarding various bills. Having expressly agreed that these amounts were proper, respondent will not now be heard to complain of them.  Whether the law requires the prescription of a physician presents a question of law. There is no requirement that the opinion of a physician is necessary to support such an award. There is no absolute requirement that an award of the type sought here be supported by the testimony of a physician, so long as competent evidence establishes the reasonableness and necessity of the award. On remand, the Commission should evaluate the opinions of the physical therapists as it would any other such witness in light of all appropriate facts and circumstances. Hudson, J.

No.2014 IL App (2d) 121283WC    Compass Group v. Illinois Wokers' Compensation Commission    Filed 3-28-14 (RJC)


Respondent, Compass Group, appeals an order of the circuit court of Du Page County confirming a decision of the Illinois Workers’ Compensation Commission (Commission) awarding benefits to claimant, Jeffrey Berman, under the Illinois Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2008)). Claimant cross-appeals, arguing that the Commission erred in failing to impose penalties or award costs for purportedly medically necessary modifications that claimant made to his home. For the reasons that follow, we affirm in part, vacate in part, and remand.

6 Appellate Cases Posted 3-27-14

1. Settlement Agreements/Credit Act: Reversed and remanded: The parties' emails did not set forth the specific property to be transferred in the deed, did not specify the legal instruments to be rendered inoperable by the agreement and provided no deadlines for the parties to fulfill their obligations under the agreement.  Simply put, any unwritten understanding by the parties has no bearing on whether the Credit Act has been satisfied. Even when reading the emails together, the relevant terms cannot be found in those writings.The alleged settlement agreement failed to satisfy the Credit Act.  The trial court erred in granting the motion of BWA and the Maynard guarantors to enforce the settlement agreement because that agreement failed to comport with the Credit Act and, as a result, was unenforceable. Lavin, J.

No. 2014 IL App (1st) 121661   Van Pelt Construction Company, Inc. v. BMO Harris Bank, N.A.    Filed 3-27-14 (RJC)


This appeal arises from the trial court's order enforcing a settlement agreement purportedly entered into between mortgagee BMO Harris Bank, N.A., f/k/a Harris Bank, N.A. (Harris), as assignee of Amcore Bank, N.A. (Amcore), and mortgagor BWA, Inc. (BWA), as well as several guarantors of related promissory notes executed in Harris/Amcore's favor. Pursuant to the alleged settlement agreement, Harris agreed to accept $350,000 and a deed in lieu of foreclosure in place of the greater amount due. On appeal, Harris asserts that (1) the settlement agreement was unenforceable under the Credit Agreements Act (the Credit Act) (815 ILCS 160/0.01 et seq. (West 2010)) and the Frauds Act (740 ILCS 80/0.01 et seq. (West 2010)); (2) no evidence showed that Harris's attorney had the authority to enter into the agreement; (3) no settlement agreement was reached; and (4) the condition precedent to Harris's duty under the agreement was not satisfied. Reversed and remanded for further proceedings.

2. Criminal law/DNA testing: Reversed and remanded with directions: Although the State maintains that the requested DNA testing would not overcome the "unequivocal" identifications of defendant by Sheila and Turner, we observe that neither witness testified that she was previously acquainted with defendant, and that requested DNA testing has been deemed materially relevant even where the victim was previously married to the defendant (People v. Hockenberry, 316 Ill. App. 3d 752, 754, 757 (2000)).  The DNA testing of the gray sweatshirt and gloves requested by defendant is materially relevant to his claim of actual innocence and, accordingly, reverse the trial court's order denying his section 116-3 motion. We remand this case so that the trial court may order DNA testing of the gray sweatshirt and gloves. Lavin, J.

No. 2014 IL App (1st) 113265    People v. Smith    Filed 3-27-14 (RJC)


Defendant, Leshun Smith, appeals from an order of the circuit court of Cook County denying his motion for deoxyribonucleic acid (DNA) testing under section 116-3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/116-3 (West 2010)). He contends that the trial court erred in denying his motion because the testing requested has the potential to produce noncumulative evidence materially relevant to his claim of actual innocence. He thus requests that we reverse the trial court's order and remand his cause with instructions that the court order DNA testing on two items of clothing that were presented at trial.

3. Evidence/Experts/Medical bills/Sanctions: Affirmed with sanctions:  The trial court did not abuse its discretion when it barred defendant’s controlled expert witness because defendant “continuously and systematically disregarded” the trial court’s multiple orders to produce discovery.It is presumed that the trial court’s decisions had a sufficient factual basis and were in conformity with the law, and we will resolve any doubts that arise from the incompleteness of the record against defendant as the appellant A proper foundation for the medical bills was established. The following quotation aptly expresses our view of this appeal: “We find that this appeal, viewed as a whole, was frivolous, that it was taken for an improper purpose, and that it was filed specifically to harass and to cause unnecessary delay and needlessly increase the cost of litigation. We choose to impose sanctions for this conduct, finding that cases like this drain valuable resources intended to benefit those who accept the social contract of living under a law-based system of government.” McLaren, J.

No. 2014 IL App (2d) 130283     Fraser v. Jackson    Filed 3-27-14 (RJC)


Plaintiff, William Fraser, sued defendant, John Jackson, for damages resulting from a motor vehicle collision that occurred on September 4, 2009, in Zion, Illinois. After a jury trial, plaintiff was awarded damages in the amount of $61,372.43, which included medical expenses of $31,372.43. In this appeal, defendant raises three issues: (1) whether the trial court erred in barring his expert witness, Dr. Gary Skaletsky, from testifying at trial; (2) whether plaintiff laid a proper foundation for admitting certain of his medical expenses into evidence; and (3) whether the trial court erred in awarding costs and attorney fees to plaintiff. Additionally, plaintiff asserts that this appeal is frivolous and warrants sanctions pursuant to Illinois Supreme Court Rule 375 (eff. Feb. 1, 1994). We affirm, with sanctions.

4. Contracts/Mot. to Reconsider/Summary Judg.: Reversed and remanded: The purpose of a motion for reconsideration is to appraise a trial court of newly discovered evidence, a change in the law, or errors in the court’s application of the law. The defendants’ motion was based upon new evidence, specifically, the audio and video recordings produced by the plaintiff.  The plaintiff acknowledged that the recordings were newly discovered, but argued that they were not evidence because they lacked foundation and parts constituted hearsay.  The circuit court abused its discretion in granting the motion to reconsider. Although the recordings were admittedly newly discovered, they did not provide the basis for the circuit court’s decision to reconsider its denial of summary judgment.  In making its decision, the circuit court specifically relied on the printouts of the plaintiff’s website and the letters and emails between Bule and the plaintiff.  That evidence, however, was not newly discovered.  The doctrine of accord and satisfaction was not applicable under the facts, and the circuit court erred in granting summary judgment on this basis. O'Brien, J. with Wright, J. specially concurring.

No. 2014 IL App (3d) 121013     Hajicek v. Nauvoo Restoration, Incorporated    Filed 3-27-14 (RJC)

In an action for breach of contract and specific performance regarding some historic Mormon stones, the circuit court initially ruled in favor of the plaintiff, John Hajicek, denying the motion of the defendants, Nauvoo Restoration, Inc., Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, and Intellectual Reserve, Inc., for summary judgment. However, after granting the defendants’ motion for reconsideration, the circuit court granted summary judgment in favor of the defendants, dismissing the plaintiff's action with prejudice. The plaintiff appealed.

5. Procurement Code and Illinois Administrative Code: Appeal dismissed:  The issue here was whether the CPO's decision to suspend plaintiff based on the evidence in this case was arbitrary, capricious, or against the manifest weight of the evidence. The trial court had the authority to review the administrative decision to suspend plaintiff from bidding on IDOT projects for two years. However, the period of suspension has expired, the case is moot, and no exception to the mootness doctrine applies.  Consequently, the appeal is dismissed as it is moot. Pope, J.

No.2014 IL App (4th) 130164    Chester Bross Construction Company v. The Department of Transportation    Filed 3-27-14 (RJC)


On October 23, 2012, plaintiff, Chester Bross Construction Company (Chester Bross), filed a petition for writ of certiorari for administrative review against defendants, the Department of Transportation, often referred to as IDOT, IDOT Secretary Anne L. Schneider, IDOT chief procurement officer (CPO) Bill Grunloh, and IDOT hearing officer Thomas R. Wetzler. Plaintiff sought review of CPO Grunloh's decision to suspend plaintiff from participating on any contracts awarded by or requiring approval or concurrence of IDOT for two years. The period of plaintiff's interim suspension was deducted from the two-year suspension. On January 22, 2013, the trial court granted defendants' motion to quash plaintiff's writ of certiorari. Plaintiff appeals, making the following arguments: (1) the trial court erred in quashing its petition for writ of certiorari; (2) defendants lacked adequate evidence of a material misrepresentation by plaintiff to support the suspension; and (3) defendants erred in suspending plaintiff based on rules that were not promulgated in accordance with the Illinois Administrative Procedure Act (5 ILCS 100/1-1 to 15-10 (West 2008)). Defendants argue plaintiff's appeal is moot because plaintiff's suspension has expired. We find the trial court erred in quashing the writ on the basis it had no authority to entertain the action, but we find the ultimate issue moot and dismiss this appeal.

6. Privilege/Illinois Public Accounting Act: Affirmed in part and vacated in part:  There is a testamentary exception to section 27, as there is to the attorney-client privilege, and that the exception applies to this case, in which Brunton challenges her mother's will.  Further, that   apart from the testamentary exception, the personal representative and heirs of Helen Kruger can waive the privilege in the interest of her estate—and that they have done so. Therefore, the discovery order of April 11, 2013 is affirmed, but we vacate the contempt order, considering that Tibble has acted in good faith.

No.2014 IL App (4th) 130421    Brunton v. Kruger    Filed 3-27-14 (RJC)


An attorney, Matthew F. Tibble, appeals from an order in which the trial court, at his own request, found him to be in direct civil contempt of court and fined him $100 for refusing to comply with a discovery order. Tibble did not really treat the court with contempt (as the court understood, for it found his refusal to be "non-contumacious"). Rather, the contempt finding was merely a procedural device; without it, he could not have appealed. Essentially, Tibble is taking this stand on behalf of his client, an accounting firm, Striegel, Knobloch & Company (Striegel). The discovery order requires Striegel to turn over to petitioner, June Brunton, any documents having to do with estate planning services Striegel provided for her parents, Helen P. Kruger and Gordon J. Kruger, who are now deceased. Striegel believes, however, that the accountant-client privilege in section 27 of the Illinois Public Accounting Act (225 ILCS 450/27 (West 2012)) protects those documents from disclosure in a judicial proceeding. The cases interpreting this statute are rather scarce.

6 Appellate Cases Posted 3-26-14

1. Workers' Compensation: Reversed and remanded: Precision is important in writing. Otherwise, as here, the ambiguous wording requires an evidentiary hearing. We reverse the trial court’s holding and remand for further proceedings consistent with this order. Hyman, J.

No. 2014 IL App (1st) 130621    Paluch v. United Parcel Service, Inc.    Filed 3-26-14 (RJC)


Under the terms of a workers' compensation settlement agreement between defendant United Parcel Service, Inc. (UPS), and its employee, James Paluch, UPS was required to pay Paluch an amount that UPS sets at $400,000 and Paluch sets at $400,000 in addition to a Medicare set-aside (MSA) annuity. After UPS refused to read the agreement in the manner that Paluch contended it should be read, he filed this action, arguing that UPS had not fully satisfied the agreement. The trial court agreed with Paluch. UPS now appeals, arguing that $400,000 included the MSA.

2. Illinois Commerce Comm./Public Utilities Act.: Affirmed: ComEd did not meet its burden of proving that the Commission made findings contrary to the manifest weight of the evidence, misinterpreted the Act, or misapplied the Act to the facts in its decisions to disallow recovery from ratepayers for bonuses in excess of 102.9% of preset bonus amounts for meeting performance targets, bonuses paid to an affiliate's employees, and incentive compensation paid to managers in the form of Exelon stock. ComEd also did not meet its burden of showing error in the Commission's decision to adjust rates for expected increases in the number of customers ComEd will serve, and to allocate costs of general wages and plant in accord with the formula used in prior rate cases, rather than using the formula ComEd adopted for its filings with FERC. Neville, J.

No. 2014 IL App (1st) 122860    Commonwealth Edison Company v. Illinois Commerce Commission    Filed 3-26-14 (RJC)


This case involves the Illinois Commerce Commission's application section 16-108.5 of the Public Utilities Act, commonly known as the Energy Infrastructure Modernization Act (220 ILCS 5/16-108.5 (West 2012)). After Commonwealth Edison (ComEd) filed its appeal in this case, the General Assembly further amended the Act in a way that resolved some of the issues on appeal. ComEd now challenges the Commission's rulings (1) requiring an Nos. 1-12-2860 & 1-12-3526 (Cons.) adjustment to rates charged to ComEd customers to reflect the expected increase in the number of customers served; (2) allocating certain general costs between distribution to ratepayers and transmission to out-of-state purchasers; (3) restricting ComEd's recovery from ratepayers for certain performance bonuses paid to ComEd employees; (4) denying ComEd recovery from ratepayers for part of the amount ComEd paid to an affiliate, because the affiliate used the payment to give its employees bonuses based on net income; and (5) denying ComEd recovery from ratepayers for compensation paid to ComEd managers in the form of stock in ComEd's parent corporation. We find that ComEd did not meet its burden of showing error in any of the contested rulings. Accordingly, we affirm the Commission's order.

3. Criminal law: Reversed: The State's case against defendant hinged entirely on the credibility of the police officers. When those officers were impeached with facts omitted from their reports, the State should not have been permitted to bolster their credibility with prior consistent statements that did not explain those omissions. "[T]he admission of a [prior consistent] statement used to bolster the sagging credibility of a witness is reversible error when the witness' in-court testimony is crucial". Further, the court's failure to give a limiting instruction and the State's invitation to the jury to use the prior consistent statements as substantive evidence convince us that the result of defendant's trial may well have been different in the absence of these errors. As there is sufficient evidence in the record to support the conviction, we reverse and remand for a new trial. Mason, J.

No. 2014 IL App (1st) 113624    People v. Randolph    Filed 3-26-14 (RJC)


Following a 2011 jury trial, defendant Willie Randolph was convicted of possession of a controlled substance (less than 15 grams of cocaine) and sentenced to three years' imprisonment. Defendant contends on appeal that the court erred in admitting into evidence a witness's prior consistent statement when there was no allegation of recent fabrication or motivation to lie.

4. Criminal law/Jurisdiction/Appeals: Order vacated; motion dismissed: Because the trial court was not revested with jurisdiction of defendant’s untimely motion to reconsider her sentence, we vacate the ruling on that motion and dismiss it. Because we otherwise lack jurisdiction of this appeal, we do not address her argument that she was not proven guilty beyond a reasonable doubt. Zenoff, J.

No. 2014 IL App (2d) 121105    People v. Shaw    Filed 3-26-14 (RJC)

After a bench trial, defendant, Kristen Shaw, was convicted of aggravated domestic battery (720 ILCS 5/12-3.3(a-5) (West 2010)). On July 20, 2012, she was sentenced to three years’ probation. Pursuant to Illinois Supreme Court Rule 605(a)(3) (eff. Oct. 1, 2001), the trial court admonished her that she had 30 days to file a notice of appeal or a motion to reconsider the sentence; “[i]f that notice of appeal or motion to reconsider is not filed within 30 days of today’s date, you will lose the right to appeal.” Defendant filed a motion to reconsider, but not until August 23, 2012, 34 days after sentencing. On October 4, 2012, at the hearing on the motion, the assistant State’s Attorney said simply, “I don’t have any argument.” The trial court denied the motion on the merits. That same day, defendant filed a notice of appeal. On appeal, defendant argues that she was not proven guilty beyond a reasonable doubt.

5. Insurance/Duty to defend: Affirmed: Because Christian alleged in the federal lawsuit that his personal items were damaged as a result of the Doyles’ wrongfully evicting him, Country Mutual had a duty to defend the Doyles in that proceeding. In this case, the trial court did not abuse its discretion in denying the Doyles’ request for section 155 sanctions.  While we ultimately concluded that the plain and ordinary meaning of the term “eviction” includes harm to a tenant’s personal property, Country Mutual reasonably believed that the policy did not cover such harm. Hutchinson, J.

No. 2014 IL App (2d) 121238    The John T. Doyle Trust v. Country Mutual Insurance   Filed 3-26-14 (RJC)


In 2004, plaintiffs, the John T. Doyle Trust, Kevin C. Doyle, Michael W. Doyle, and Pamela Doyle (collectively, the Doyles), leased space to defendant Christian K. Narkiewicz-Lane. During the lease term, the Doyles sold the leased premises and in the process, removed Christian’s personal items. As a result, Christian filed a lawsuit against the Doyles in federal district court (the federal lawsuit). The Doyles requested that defendant Country Mutual Insurance Company defend and indemnify, pursuant to their insurance policy. Country Mutual denied having an
obligation to defend or indemnify.  Thereafter, the Doyles brought a complaint in the circuit court of Jo Daviess County for a declaratory judgment against Country Mutual. The trial court granted the Doyles’ motion for a judgment on the pleadings, finding that Country Mutual had a duty to defend the Doyles in the federal lawsuit. The trial court subsequently denied the Doyles’ motion for summary judgment with respect to whether Country Mutual should be sanctioned pursuant to section 155 of the Illinois Insurance Code (the Insurance Code) (see 215 ILCS 5/155 (West 2010)).Pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010), Country Mutual appeals the trial court’s grant of the Doyles’ motion for a judgment on the pleadings, contending that the trial court erred in determining that it had a duty to defend the Doyles in the federal lawsuit. The Doyles cross-appeal, contending that the trial court erred in denying their motion for sanctions against Country Mutual. We affirm. 

6. Criminal law: Affirmed in part and vacated in part: Given the nature of the crime at issue, and the aggravating factors as found by the trial court, we cannot say that defendant's sentence is disproportionate to the nature of the offense or greatly at variance with the spirit or purpose of the law. When a defendant is convicted of two offenses based upon the same single physical act, we must vacate the conviction for the less serious offense. Accordingly, we vacate defendant's conviction for aggravated battery of a senior citizen. McDade, J.

No. 2014 IL App (3d) 120312    People v. Sullivan   Filed 3-26-14 (RJC)

Defendant Scott Sullivan was convicted of first degree murder (720 ILCS 5/9-1(a)(2) (West 2010)) and aggravated battery of a senior citizen (720 ILCS 5/12-4.6(a) (West 2010)). He appeals and argues (1) that his conviction should be reversed because the prosecutor made improper comments regarding the standard of proof beyond a reasonable doubt; (2) that his attorney was ineffective for failing to request a jury instruction on causation; (3) that his attorney had a per se conflict of interest during posttrial proceedings; (4) that the trial court imposed an excessive sentence on the first degree murder conviction; and (5) that his conviction for aggravated battery of a senior citizen should be vacated under the one-act, one-crime doctrine. We affirm defendant's first degree murder conviction and sentence, but vacate his conviction for aggravated battery of a senior citizen.

3 Appellate Cases Posted 3-25-14

1. Criminal Law: Affirmed as modified: Defendant was not denied a public trial when the trial court held a portion of voir dire in camera: defendant’s claim is forfeited, and his claim fails on the merits. at most, the judge here, “prevented the members of the voir dire panel from hearing other members’ responses,” which does not violate the right to a public trial. In addition, the trial court’s finding that defendant’s inculpatory statements to the police were knowing and voluntary was not against the manifest weight of the evidence, where defendant’s executed a valid waiver of his Miranda rights. Third, we reject defendant’s contention that his sentence is excessive. Finally, defendant’s mittimus should be corrected to reflect one conviction for first degree murder, rather than two. Delort, J.

No. 2014 IL App (1st) 120927    People v. Jones    Filed 3-24-14 (RJC)


Following a jury trial, defendant Raymond Jones was convicted of first degree murder (720 ILCS 5/9-1 (West 2010)) and sentenced to 75 years’ imprisonment. On appeal, defendant contends that: (1) he was denied a public trial when the trial court held a portion of voir dire in camera; (2) the trial court erred in finding that defendant’s inculpatory statements to the police were knowing and voluntary; (3) his sentence is excessive; and (4) one of his two convictions for first degree murder should be vacated. We affirm as modified.

2. Appeals: Affirmed as modified: We dismiss the appeal for lack of jurisdiction because the trial court abused its discretionin finding the dismissal of Lyons’s contribution claim final and appealable under Rule 304(a). The trial judge’s comments reveal that he entered a written Rule 304(a) finding to advance the substantive issues to this court, effectively circumventing the procedure for certifying questions for interlocutory review under Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010). Burke, J.

No. 2014 IL App (2d) 130577    AT&T v. Lyons and Pinner Electric Company, Inc.    Filed 3-24-14 (RJC)


Defendants and third-party plaintiffs, Lyons Electric Company, Inc., and Pinner Electric Inc. (collectively, Lyons), were performing excavation work when they struck and damaged underground telephone utility facilities owned and operated by plaintiff, AT&T. AT&T filed a second amended complaint, which now consists of a single pending claim, that Lyons was negligent in performing its work. Lyons filed an amended third-party complaint against third-party defendant, USIC Locating Services, Inc., which AT&T had hired to locate and mark the underground facilities before the excavation work began. USIC moved to dismiss the third-party complaint under section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)). The trial court dismissed count I but not count II. On USIC’s motion and over Lyons’s objection, the court entered a written finding that the dismissal of count I was final and appealable under Illinois Supreme Court Rule 304(a)  (eff. Feb. 26, 2010). Lyons appealed to preserve the contribution claim.

3. Insurance/Duty to defend/Choice of law: Reversed in part and affirmed in part; judgment entered.: Based on Pennsylvania’s state courts’ interpretations of “property damage” and “accident,” and considering as persuasive the federal court decisions in David Randall and Melrose, the allegations in the complaint at issue would not be deemed to allege an “accident” under Pennsylvania law.  It is undisputed that the policies at issue in this case contain no choice-of-law provision; thus, we apply the general choice-of-law rules of the forum state, Illinois, to determine which state’s law should apply.  The record points to Pennsylvania as the appropriate choice of law to govern the interpretation of the Zurich policies.  Zurich had no duty to defend under the policies’ “property damage” provisions. Because Zurich had no duty to defend, it has no duty to indemnify. McLaren, J.

No. 2014 IL App (2d) 121276    G.M. Sign, Inc. v. Pennswood Partners, Inc.    Filed 3-24-14 (RJC)


G.M. Sign filed a class action complaint against Pennswood Partners (Pennswood), for sending it unsolicited faxes. Maryland Casualty Company (Maryland Casualty) and Assurance Company of America (Assurance) then filed a declaratory judgment action against Pennswood and G.M. Sign, seeking a declaration that their insurance policies did not provide coverage to Pennswood in the underlying lawsuit for the unsolicited faxes. Zurich filed a motion for summary judgment, arguing that there was no coverage under Pennsylvania law as predicted by federal courts in Pennsylvania. The trial court initially granted summary judgment in favor of Zurich and against Pennswood and G.M. Sign. However, upon Pennswood and G.M. Sign’s motion to reconsider, the trial court withdrew its order and ultimately determined that the federal decisions did not establish a conflict between Pennsylvania law and Illinois law; therefore, Illinois law applied; and, under Illinois law, Zurich had a duty to defend Pennswood. Thus, the trial court granted summary judgment in favor of Pennswood and G.M. Sign. The trial court subsequently denied Pennswood and G.M. Sign’s
request for accrued postsettlement interest. Zurich appeals the trial court’s summary judgment in favor of Pennswood and G.M. Sign and against Zurich, arguing: (1) Illinois courts are vested with the discretion to consider federal courts’ predictions in their conflict-of-laws analysis; (2) in an insurance coverage case, a single state’s law should be applied to the interpretation of an insurance policy; and (3) Zurich had no duty to defend or indemnify Pennswood in the underlying action under Pennsylvania law.

5 Appellate Cases Posted 3-21-14

1. Civil/Default/2-1401: Affirmed: Based on the totality of the circumstances, the trial court did not abuse its discretion. Based on the conduct of both parties, the trial court's conclusion that any lack of due diligence on defendant's part was an excusable mistake is eminently reasonable. The trial court found that because of this collection of mistakes defendant was understandably unaware of the Cook County action and we therefore find no abuse of discretion in its findings. We agree with the trial court that the section 2-1401 petition meets the
liberal standard for vacature under section 2-1401. Lavin, J.

No. 2014 IL App (1st) 123213    West Bend Mutural Insurance Company v. 3RC Mechanical and Contracting Services, LLC.   Filed 3-21-14 (RJC)


This appeal arises from the trial court's order vacating a default judgment entered against defendant 3RC Mechanical and Contracting Services, LLC, pursuant to defendant's petition filed under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)). On appeal, plaintiff West Bend Mutual Insurance Company, as subrogee of ACS Rental Properties, LLC (ACS), contends that the trial court erred in vacating the judgment because defendant had sufficient notice of the underlying lawsuit while also arguing that the negligence of defendant's registered agent, attorneys, and insurer did not excuse its inaction. We affirm.

2. Criminal Law: Affirmed: Defendant has not shown that, at the time of trial, "there were facts in existence which raised a real, substantial and legitimate doubt as to his mental capacity to meaningfully participate in his defense and cooperate with counsel."Trial court's determination that defendant was being dilatory and attempting to delay the proceedings was supported by the record and therefore was not arbitrary, fanciful or unreasonable.  Defendant has not shown that he was prejudiced by the denial of the request for a continuance or by his attorneys' performance at the sentencing hearing. A review reveals that the court gave adequate consideration to the aggravating and mitigating factors and we therefore have no basis to alter the sentence imposed. Palmer, J.

No. 2014 IL App (1st) 092536    People v. Tuduj    Filed 3-21-14 (RJC)


Following a bench trial, defendant Tom Tuduj was found guilty of first degree murder and disarming a peace officer. Defendant was sentenced to a term of 40 years' imprisonment for murder and to a consecutive term of 5 years' imprisonment for disarming a peace officer. On appeal, defendant contends that: (1) the State failed to present evidence that defendant was not involuntarily intoxicated; (2) his attorneys were ineffective for failing to request a second fitness hearing and the trial court abused its discretion by failing to sua sponte order a second fitness hearing; (3) the trial court abused its discretion and denied defendant a fair sentencing hearing when it declined his attorneys' request for a continuance prior to the sentencing hearing; and (4) defendant received an excessive sentence. We affirm.

3. Criminal Law/Post-conviction petition: Affirmed:  Jemal's affidavit is not newly-discovered evidence that could not have been discovered earlier with due diligence. Jemal's signed but non-notarized statement was not only available during the trial but in fact was presented to the trial court in the posttrial motion.  A defendant can only show he was prejudiced by appellate counsel's failure to raise an issue on appeal if the underlying issue has merit.  The decision whether to call a witness or request a continuance is generally a matter of trial strategy, reserved to counsel's discretion.  Counsel's trial performance did not fall below an objective standard.  App. crt. disposes of the MSR claim by noting that our supreme court recently rejected such a claim, holding that MSR was not imposed by the Department but by the trial court by operation of law when it imposed a sentence of imprisonment. Accordingly, we affirm the trial court's summary dismissal of defendant's postconviction petition. Gordon, J.

No. 2014 IL App (1st) 120089    People v. Ross    Filed 3-21-14 (RJC)


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

4. Unemployment Insurance Act/Admin. review: Reversed:  The Board of Review's finding that Mr. Park was discharged for reasons other than employment-related misconduct and, thus, was eligible for unemployment insurance benefits under section 602(A) of the Act, was supported by the evidence and was not clearly erroneous. Also, CRE apparently concedes the issue, and has waived review thereof, by failing to respond to defendants' arguments in their appellant's brief that the Board of Review's finding was not clearly erroneous.  The Director's decision in case number 11 CH 16972, and the Board of Review's decision in case number 11 CH 14681, were supported by the evidence and should not have been disturbed on judicial review.  Rochford, J.

No. 2014 IL App (1st) 122809    C.R. England, Inc. v. The Department of Employment Security    Filed 3-21-14 (RJC)


In case number 11 CH 16972, plaintiff, C.R. England, Inc. (CRE), sought administrative review of a decision by the Director of the Illinois Department of Employment Security (the Department) finding that CRE was the chargeable last employer for William Park's claim for unemployment insurance benefits. In case number 11 CH 14681, CRE also sought administrative review of a decision by the Department's board of review (Board of Review) finding that Mr. Park was eligible for unemployment insurance benefits under section 602(A) of the Unemployment Insurance Act (the Act) (820 ILCS 405/602(A) (West 2010)) because he was discharged by CRE for reasons other than employment-related misconduct. The circuit court reversed both decisions. Defendants, the Board of Review, Maureen T. O'Donnell, Director (Director) of the Department, and Ronald S. Rodgers, representative of the Director of the Department, filed this consolidated appeal from the circuit court's orders reversing the Director and the Board of Review. We reverse the circuit court's orders in both case number 11 CH 16972 and case number 11 CH 14681 and affirm the Director and the Board of Review.

5. Tort/Gov't. Immunity: Certified question answered; cause remanded:  The specific question certified by the trial court is as follows: "Where an injury occurs on an area of public property which has both recreational and nonrecreational purposes, should Section 3-106 immunity apply when said area is located within a public school where the primary character of the area and overall facility is educational and nonrecreational?"   The record does not indicate the Cafetorium has been used for recreation in the past or that the school has encouraged recreational use there. Therefore, the Cafetorium is not property that comes within the scope of section 3-106. 745 ILCS 10/3-106 (West 1994). Section 3-106 of the Tort Immunity Act does not bar Julie's action against the school board for the injuries she allegedly suffered when she fell in the Cafetorium.  Immunizing the school district from tort liability to this plaintiff would be an unreasonable extension of a law whose purpose is to encourage the development and maintenance of parks and similar recreational areas. McBride, J.

No. 2014 IL App (1st) 132987    Abrams v. Oak Lawn-Hometown Middle School    Filed 3-21-14 (RJC)


The issue on appeal is whether an Illinois public school district is shielded from negligence liability when a student is injured in a fall in her school's combined cafeteria and auditorium or "Cafetorium." The school district filed a motion to dismiss the student's tort suit, arguing that the Cafetorium was "public property intended or permitted to be used for recreational purposes" and thus came within the tort liability exemption in section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act. 745 ILCS 10/3-106 (West 1994) (Tort Immunity Act). The trial judge denied the school district's motion and then certified a question for interlocutory appeal. Here, the school district contends the statute plainly applies and that the student cannot maintain her suit, and she counters that her action can go forward because the overall and regular use of the Cafetorium is for educational purposes.

10 Supreme Court Cases Posted 3-20-14

1. Condominium/Forcible Entry & Detainer: Reversed: In Illinois, forcible entry and detainer actions apply to condominiums as well as to landlord and tenant situations, and both the Forcible Entry and Detainer Act and the Condominium Act are involved here. The former statute is intended to provide for a summary proceeding, and limits the defenses and claims that may be raised, stating that “no matters not germane to the distinctive purpose of the proceedings shall be introduced.” In this case, Carlson alleged that Spanish Court Two had breached the obligations of the condominium declaration by failing to maintain the common elements and that this excused or “nullified” her obligation to pay the assessments. In this decision, the Illinois Supreme Court disagreed with her, stating that the duty to pay assessments was absolute and independent of the duty to repair and maintain. The supreme court said that, although Carlson may have other means of recourse in the courts, defeating the forcible entry and detainer action by the means she asserted here was not one of them. The circuit court was affirmed. Justice Theis delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Thomas and Karmeier concurred in the judgment and opinion. Justice Freeman dissented, with opinion, joined by Justices Kilbride and Burke.

No. 2014 IL  115342   Spanish Court Two Condominium Association v. Carlson  Filed 3-20-14 (RJC)


In Highland Park, defendant Lisa Carlson owned a residential unit in the Spanish Court Two Condominium, whose condominium association is the plaintiff here. In the circuit court of Lake County, it filed an action under the Forcible Entry and Detainer Act, claiming that Carlson had failed to pay her monthly assessments and seeking possession of the premises as well as payment of those assessments. Carlson had indeed stopped paying monthly assessments in 2009, and admitted as much, but raised affirmative defenses, claiming that plaintiff association had breached its covenant to maintain and repair the common areas by failing to maintain the roof and brickwork above her unit, causing water leakage and damage to her premises. She also counterclaimed for her damage. The trial court held that these affirmative defenses were not, as required by statute, Agermane@ to the action for forcible entry and detainer and struck them, while severing the damage counterclaim and reassigning it to a different division of the circuit court. The final judgment in the cause at issue here awarded possession to the plaintiff as well as all sums due, and Carlson appealed. The appellate court approved of severing the damage claim but reinstated the affirmative defenses which were based on failure to maintain and repair the common elements. This latter result was reversed by the Illinois Supreme Court in this decision.

2. Negligence/Med. Mal./Good Samaritan Act: Affirmed: The supreme court said that the purpose of the statute is to encourage volunteerism, while the physician in this case, although employed in the emergency room, was expected to respond to Code Blues at the hospital as part of his job. Therefore, the fact that no fee was charged for the medical treatment now being challenged as negligent is not determinative as to the immunity question. The supreme court also upheld the appellate court’s remand to the circuit court for it to address the doctor’s alternative theory in seeking summary judgment, i.e., that he had not deviated from the standard of care. Justice Thomas delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2014 IL  115526   Home Star Bank and Financial Services, etc. v. Emergency Care and Health Organization, Ltd.   Filed 3-20-14 (RJC)

 
In 2001, the injury victim in this case, Edward Anderson, was in the intensive care unit of Provena St. Mary’s Hospital in Cook County, suffering from epiglottitis. A negligence action was later filed on his behalf, based on a severe and permanent brain injury which he suffered when an emergency room physician attempted to intubate him after responding to a Code Blue based on the patient’s labored breathing and pain on swallowing. Anderson is now a disabled person. The emergency room physician, who is one of the defendants here, claimed immunity under the Good Samaritan Act of Illinois, and the circuit court of Cook County awarded summary judgment for the defense. The appellate court, however, reversed, and the Illinois Supreme Court, in this decision, agreed with that reversal.

3. Criminal Law/Accountability: Affirmed:  Fernandez did not contest his guilt of burglary or that an accountability theory could be used to establish it. He did, however, argue that he did not know that his companion was armed and, thus, that he could not be found guilty on an accountability theory for shooting at the officer. He also argued that there was no evidence that he knew his companion had a gun. In this decision, the supreme court rejected this claim, noting that the statute on accountability incorporates the common law “common-design” rule, under which one can be held accountable for a crime other than the one that was planned or intended, provided it was committed in furtherance of the crime which was planned or intended. The challenged conviction was upheld.  Justice Thomas delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2014 IL  115527   People v. Fernandez   Filed 3-20-14 (RJC)

In 2008, in a church parking lot under the Dan Ryan Expressway in Chicago, an armed but off-duty police officer heard the sound of breaking glass and found a man reaching into a parked car through a broken window. That man was the companion of this defendant, Javier Fernandez, who was seated in a SUV which was parked nearby. The companion ran to the defendant’s vehicle, fired three shots at the approaching officer, and was then driven away by the defendant. Both men were subsequently arrested.

In bench proceedings in the circuit court of Cook County, Fernandez was found guilty on an accountability theory of one count of burglary and two counts of aggravated discharge of a firearm in the direction of a peace officer. The trial court merged the convictions into a single count of aggravated discharge of a firearm in the direction of a peace officer and imposed a 12-year prison term. The appellate court affirmed and the defendant appealed to the Illinois Supreme Court.

Fernandez had given to police a signed written statement indicating that he and his companion had been driving around looking for a car to break into in order to get money. He did not contest his guilt of burglary or that an accountability theory could be used to establish it. He did, however, argue that he did not know that his companion was armed and, thus, that he could not be found guilty on an accountability theory for shooting at the officer. He also argued that there was no evidence that he knew his companion had a gun.

4. Criminal Law/Eavesdropping: Affirmed: In this decision, the supreme court said that its analysis was guided by its holding in People v. Clark, 2014 IL 115776, announced on the same day as this case, in which the court held the eavesdropping statute violative of the first amendment to the United States Constitution under the overbreadth doctrine. Here, the supreme court said again that the statute is simply too broad in deeming all conversations to be private and not subject to recording absent consent, even if the participants have no expectation of privacy, and in also criminalizing the publication of those recordings. All of this burdens substantially more speech than is necessary to serve any legitimate interest in protecting conversational privacy, making the statute invalid on its face. This defendant cannot constitutionally be prosecuted for divulging the conversations she recorded. The circuit court was affirmed. Chief Justice Garman delivered the judgment of the court, with opinion. Justices Freeman, Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2014 IL  114852   People v. Melongo   Filed 3-20-14 (RJC) 


In the circuit court of Cook County, this defendant was charged with computer tampering in 2008. An arraignment was set for June 18 of that year, but the docket sheet, the judge’s half sheet, and the court call sheet for that date indicate that the defendant was not in court and that the arraignment did not take place. The defendant later obtained an official court transcript of the June 18, 2008, proceeding and found that it stated that she was present and arraigned on that date. Her efforts to have the court reporter change the transcript were unsuccessful, and she was referred to the assistant administrator of the court reporter’s office, who told her that the matter had to be presented to the judge. Melongo would later argue that she had a reasonable suspicion that a fraud had been committed by the court reporter’s office. In three subsequent telephone conversations with the assistant administrator, the defendant surreptitiously recorded those conversations and posted the recordings and transcripts on her website. She was subsequently charged with eavesdropping and divulging information obtained through eavesdropping. Those charges, and the validity of the statute under which they were brought, are at issue here. At Melongo’s trial on the eavesdropping charges, a mistrial was declared, and the case was reassigned to a different judge.

Melongo subsequently filed a motion before the new judge to have the statute declared unconstitutional on first amendment and due process grounds. In ruling on that motion, the circuit court looked to A.C.L.U. v. Alvarez, 679 F.3d 583 (7th Cir. 2012), from the Seventh Circuit. That federal ruling had found that the plaintiff in that case had a strong likelihood of success in a first amendment claim that the Illinois eavesdropping statute was unconstitutional as applied to a plan to record police officers performing their duties in public places. In ruling in this case, the circuit court found the eavesdropping statute unconstitutional both facially and as applied. This direct appeal to the Illinois Supreme Court followed.  The circuit court was affirmed.

5. Criminal Law: Affirmed in part and reversed in part: In this decision, The supreme court said that the statutory notice requirement applies only when the prior conviction is not already an element of the offense, which is not the case here. The prior conviction was an element of the offense and the indictment so stated. There was no “enhancement” because the Class 2 sentence imposed was the only one allowed pursuant to the statute under which the defendant was convicted. The circuit court’s judgment was affirmed. Justice Kilbride delivered the judgment of the court, with opinion. Justice Kilbride delivered the judgment of the court, with opinion.  Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2014 IL  115581    People v. Easley   Filed 3-20-14 (RJC)   

 

In 2008, an incident occurred on the south side of Chicago in which six shots were fired. This defendant, who was arrested as he ran from the scene, was found to have in his pocket a handgun with six spent shell casings inside. He already had a prior conviction for unlawful use of a weapon by a felon. After bench proceedings in the circuit court of Cook County, he was sentenced to nine years in prison for the Class 2 offense of unlawful use of a weapon by a felon.

On direct review, the appellate court affirmed his conviction. What is at issue here is the nature of the sentence, which the defendant had challenged in two respects, claiming both of an improper double enhancement and of the State’s failure to notify him, as he said was required by statute, that he could be sentenced as a Class 2 offender. The appellate court rejected the double enhancement claim, as the Illinois Supreme Court also did in this decision. However, the appellate court was of the view that the prosecution had failed to meet its statutory obligation to notify the defendant of its intention to seek an “enhanced” term, and it remanded for imposition of a lesser Class 3 sentence. On this point, the appellate court was reversed.

The indictment in this case alleged that the defendant was guilty of unlawful use of a weapon by a felon in that he was previously convicted of unlawful use of a weapon by a felon. The State had a certified copy of that earlier conviction. The Code of Criminal Procedure specifies that a first conviction for unlawful use of a weapon by a felon is a Class 3 felony and that a second or subsequent such offense is a Class 2 felony.  Appellate court judgment affirmed in part and reversed in part. Circuit court judgment affirmed.

6. Criminal Law: Affirmed: The Illinois Supreme Court said that the Miller case declared a new substantive rule which can be applied retroactively. It also said that the statute calling for a mandatory sentence of life without parole for those who commit multiple murders is not facially unconstitutional because it can be validly applied to adults. However, as applied to this juvenile, the statute invalidly made the challenged sentence mandatory by precluding the sentencing court from considering the offender’s young age and individual circumstances. The defendant can still be sentenced on remand to natural life without parole, but the sentencing court must exercise its discretion in so doing.  Justice Freeman delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2014 IL  115595    People v. Davis   Filed 3-20-14 (RJC)   

 

This defendant was arrested at age 14, a few days after the 1990 fatal shooting of two men in Chicago. In the circuit court of Cook County, he was tried as an adult on an accountability theory and received, pursuant to statute, a natural life sentence without parole because he had been found guilty of murdering more than one person. He also received 30 years each for other offenses related to the shootings—two counts of attempted first degree murder and one count of home invasion—all to run concurrently. All of this was affirmed on direct appeal, and the defendant has spent the intervening years bringing unsuccessful collateral challenges, of which this is the fifth. However, in 2012, the United States Supreme Court held in Miller v. Alabama that it is cruel and unusual punishment, in violation of the eighth amendment to the United States Constitution, to impose a mandatory life sentence without parole on one who was under the age of 18 at the time of the crime. When Miller was decided, the cause at issue here, the defendant’s 2011 motion for leave to file a successive postconviction petition, was pending in the appellate court after the circuit court had denied it. That reviewing body found that the United States Supreme Court’s decision applied retroactively to Davis and, although it affirmed the circuit court’s denial of leave to file a successive petition, it vacated the defendant’s sentence, remanding for resentencing. That ruling by the appellate court is affirmed in this decision.

7. Criminal Law/Traffic/Search & Seizure: Affirmed: In this opinion the Illinois Supreme Court agreed, upholding the granting of the motion to suppress. The court said that, once the reason for the traffic stop had ended, the request for the license was no longer justified and was in violation of the fourth amendment. The courts below were upheld. Justice Theis delivered the judgment of the court, with opinion. Justices Freeman, Kilbride, Karmeier, and Burke concurred in the judgment and opinion. Chief Justice Garman dissented, with opinion, joined by Justice Thomas.

No. 2014 IL  115769    People v. Cummings   Filed 3-20-14 (RJC)  

In Whiteside County, this defendant was cited for the Class 4 felony of driving on a suspended license. He filed a motion to suppress evidence, claiming a violation of his fourth amendment rights, and he was successful in the circuit court. No trial on this offense has occurred. The State appealed the suppression, and the appellate court affirmed. The matter came before the Illinois Supreme Court when the State appealed again.  In 2011, in the City of Sterling, a police officer noticed that the registration of the van driven by the defendant appeared to be expired. The officer’s check of the registration revealed that it was valid, but also revealed that the registered owner, Pearlene Chattic (who the officer knew was a woman) was wanted on a warrant. On pulling the vehicle over, the officer determined that the driver was not a woman. He then proceeded to ask defendant driver for his license, which defendant could not produce. The charge at issue here resulted. Both the circuit and appellate courts believed that, once the officer determined that the vehicle was not driven by the woman as to whom there was an outstanding warrant, he had no further reason to continue the traffic stop and should not have asked for the driver’s license. They held that doing so amounted to an unreasonable search and seizure that was unconstitutional.

8. Criminal Law/Eavesdropping: Affirmed:  In this decision, the supreme court issued a first amendment ruling that section (a)(1)(A) of the current eavesdropping statute is unconstitutional as overly broad. Both the State and the defendant agreed that what the legislature wanted to do was protect conversational privacy. Before 1994, the consent of all parties to have their conversation recorded was not required to legitimize a recording if any party lacked an intent to keep the conversation private. In 1994, the legislature changed all that by amending the statute to make clear that no recording can be made absent consent from all parties, regardless of any lack of expectation of privacy. There are certain exceptions. Thus, all conversations are deemed private (and not subject to recording), even if the participants in fact have no privacy expectation. This is overly broad as covering a great deal of wholly innocent conduct and criminalizing the recording of a whole range of conversations that cannot be deemed in any way to be private. This section of the statute goes too far in its effort to protect individuals’ interest in the privacy of their communications. The circuit court was affirmed. Chief Justice Garman delivered the judgment of the court, with opinion. Justices Freeman, Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion. 

No. 2014 IL  115776    People v. Clark   Filed 3-20-14 (RJC) 

In Kane County, a woman who was represented by an attorney sought child support from this defendant, who proceeded pro se. At 2010 circuit court proceeding in that matter, the defendant recorded courtroom conversations in which he took part with this attorney and the presiding judge. He would later claim that there was no court reporter present nor any other recording device to record the proceedings, and that he needed to preserve the record of his case. Also, in the hallway outside the courtroom, he had a conversation with the plaintiff’s attorney, which he also recorded. No consent of the other parties to the recording of these conversations was obtained. Clark was later indicted under Illinois’ eavesdropping statute for recording these conversations. He claimed that the section of the statute under which he was charged was unconstitutional as violating his rights under the first amendment and to substantive due process. The circuit court agreed with him and granted his motion to dismiss the indictment, bringing the matter before the Illinois Supreme court in the State’s direct appeal in defense of the legislation.

9. Foreclosure/Jursidiction/Service: Reversed and remanded: In this decision, the Supreme Court of Illinois held that a party’s waiver of personal jurisdiction is prospective only and does not serve to retroactively validate orders entered without personal jurisdiction. The parties had disputed the impact of a 2000 statutory amendment on this question, and different views on this matter had been expressed in the appellate court. Prior to this amendment, case law had held that a judgment that was void when entered remained void, despite a later submission by the party to the court’s jurisdiction. The supreme court said that it is not apparent from the language of the amendment that the legislature intended to change this established case law. If anything, the amendment was intended to provide additional protection to defendants objecting to the assertion of personal jurisdiction over them. The supreme court said that the legislature did not intend to adopt a rule allowing a defendant’s waiver to retroactively validate orders entered without personal jurisdiction. The revised statute at issue here should therefore be viewed as codifying the law as it existed before the amendment. Since the orders entered prior to October 12, 2011, must be vacated, the cause was remanded to the circuit court for further proceedings. The circuit and appellate courts were reversed. Justice Kilbride delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2014 IL  116311        BAC Home Loans Servicing, LP v. Mitchell    Filed 3-20-14 (RJC)

Kim Mitchell, the defendant in this case, is the debtor on a $75,400 promissory note secured by a mortgage on her home in Chicago. In 2009, approximately four years after she executed the note to Countrywide Home Loans, Inc., its successor, BAC Home Loans Servicing, LP, became the plaintiff in this case by filing a complaint in the circuit court of Cook County to foreclose the mortgage. A special process server was employed who produced an affidavit stating that the summons and complaint were left at the debtor’s residence with her daughter, Michelle Foreman, who lived there and who was over 13 years old. A default judgment was entered in 2010. Defendant debtor would later allege that she was never served, and she filed an affidavit to this effect, stating that her only child was a son and that his name was William Mitchell. However, these matters were not brought forward until October 12, 2011, when the debtor filed an appearance and a postjudgment motion to vacate the circuit court’s September 14, 2011, order confirming the report of sale and distribution and for possession. Although plaintiff creditor would then acknowledge that the substituted service which had been attempted was defective as not in compliance with statute, plaintiff creditor alleged that, by this time (i.e., in a postjudgment motion to vacate the order confirming the sale), the debtor had waived all objections to the circuit court’s personal jurisdiction over her. The circuit court agreed and denied the debtor’s motion to quash the order confirming the sale. The appellate court affirmed. The appellate court noted that the debtor had failed to comply with the statutory requirements for challenging personal jurisdiction—she had not filed a motion to dismiss for lack of jurisdiction or a motion to quash service of process. That reviewing court then opined that there had been a waiver which operated both prospectively and retroactively and that, thus, the debtor had waived any jurisdictional challenge to the circuit court’s orders entered prior to her initial postjudgment motion to vacate.

10. Domestic Relations/Custody: Reversed and remanded:In this decision, the Illinois Supreme Court held that the evaluator’s fees should be allocated between the parties pursuant to the same provision of the Illinois Marriage and Dissolution of Marriage Act which allowed for the evaluator’s appointment and which states criteria for that allocation. The supreme court agreed with the father’s claim that categorization of the professional fees as a court cost was improper. The supreme court explained that, at common law, the fact that a party has prevailed in a litigation does not create a right to cost recovery, and that costs may be recovered only as provided for by statute. However, the Illinois cost statutes do not provide a definition of costs. The supreme court said that, to fill this gap, “costs” has become a term of art that has acquired a fixed and technical meaning in this law. The court followed its 2003 decision which defined costs as charges or fees taxed by the court, such as filing fees, courthouse fees, and reporter fees, as well as subpoena fees and statutory witness fees. Court costs are generally paid directly to the clerk, the manner of their calculation is set by statute, and they are not paid directly to a professional. Meanwhile, the Illinois Marriage and Dissolution of Marriage Act provides for the allocation of the costs and fees of appointed professional personnel “between the parties based upon the financial ability of each party and any other criteria the court considers appropriate” and that the “court may conduct a hearing as to the reasonableness of those fees and costs.”  Justice Thomas delivered the judgment of the court, with opinion.  Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2014 IL  116319      In re Marriage of Tiballi     Filed 3-20-14 (RJC)

This Kane County custody dispute arose after the parties’ divorce in 2005. In 2010, the husband, as plaintiff, filed a petition seeking custody modification and, pursuant to statute, a psychologist was appointed by the circuit court to perform an evaluation. The evaluator’s report was submitted when the girl was 14, the father’s petition was dismissed, and the father was ordered to pay the evaluator’s fees as a court cost. The appellate court affirmed. The appellate and circuit courts were reversed and the cause was remanded to the circuit court for the allocation hearing called for by statute.


2 Appellate Cases Posted 3-20-14

1. Probate: Affirmed: Under the undisputed facts of this case, (1) there was no concealment of the proceedings and (2) Harry’s statutory right to renounce Jean’s will abated upon his death, because the right is purely personal and not intended to benefit Harry’s heirs contrary to Jean’s intent. Even if Harry or Conard had petitioned to renounce the will while he was alive, his right to renounce would have abated upon his death, because there was no concealment.   Burke, J.

No. 2014 IL App (2d) 130205    In re Estate of Monfrans  Filed 3-20-14 (RJC)


Jean Mondfrans passed away, leaving a will that did not include any provisions for her husband, Harry Mondfrans, who was suffering from dementia and residing in an assisted living facility. When Jean’s will was admitted to probate, no notice was sent to Harry, and he died less than two months later.  Conard Mondfrans, Harry’s son, served as his conservator in the probate proceedings on Jean’s will and as the administrator of his estate. Conard petitioned to renounce Jean’s will under section 2-8 of the Probate Act of 1975 (755 ILCS 5/2-8 (West 2012)). John Collins, the executor of Jean’s estate, objected on the ground that the petition was filed after Harry’s death and more than seven months after the admission of Jean’s will to probate. The trial court sustained the objection and dismissed the petition with prejudice as untimely.
 Conard appeals, arguing that the seven-month limitations period for petitioning to renounce a will should not apply and that Harry’s right to renounce Jean’s will should survive his death, because Jean’s representatives engaged in “active concealment” of the probate proceedings. We affirm.

2. Custody/Guardianship/Standing: Reversed and remanded: Certified question is "As a matter of law, is the Petitioner [(Lee)] required to re-establish standing in order to modify a custody order where the Court previously found she had standing, ordered temporary custody to her, and granted substantial visitation when permanent custody was awarded to the child's father?" The answer is no.   Appleton, J.

No. 2014 IL App (4th) 130939    Lee v. Fosdick    Filed 3-20-14 (RJC)


Petitioner, June Lee, is the maternal grandmother of S.L., born on October 27, 2004. Respondent, Uriah N. Fosdick, is S.L.'s father. S.L.'s mother, Miranda Richards, is deceased. After Richards died, Lee filed a petition seeking custody and guardianship of S.L. She thereafter amended her petition. Fosdick moved to dismiss the amended petition on the ground that Lee lacked standing. The trial court granted Fosdick's motion for dismissal as to count I of Lee's amended petition, the count in which she sought custody of S.L. (in the other count, she sought guardianship). While dismissing count I, the court did two additional things. First, the court made a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). Second, the court certified a question for interlocutory review pursuant to Illinois Supreme Court Rule 308(a) (eff. Feb. 26, 2010). Lee appeals under Rule 304(a). Also, we granted her leave to appeal under Rule 308(a). The correct answer to the certified question is no. Therefore, we reverse the trial court's judgment, and we remand this case for further proceedings.

2 Appellate Cases Posted 3-19-14

1. Criminal Law: Reversed: Even crediting the testimony that one of the officers observed money changing hands, there is no evidence in the record that either officer observed any drugs, much less a large quantity of drugs, in defendant's possession.  The defendant was merely standing on a public street and neither officer observed him in possession of any quantity of drugs.  The defendant was frisked based only on a suspicion that he was involved in a drug transaction and, therefore, may have been armed. The protective pat-down of defendant was improper.  Mason, J.

No. 2014 IL App (1st) 122275    People v. Boswell  Filed 3-19-14 (RJC)


Following a jury trial, defendant Lamont Boswell was convicted of two counts of possession of a controlled substance. Due to his criminal history, he was sentenced to an extended term of five years in prison. On appeal, defendant contends that the trial court erred in denying his motion to suppress evidence because the police lacked reasonable suspicion to stop and frisk him and that, therefore, his conviction must be reversed. In the alternative, defendant contends that he must receive a new trial because he represented himself without receiving any of the admonishments required by Illinois Supreme Court Rule 401(a) (eff. July 1, 1984). We reverse the denial of defendant's motion to suppress and, in turn, reverse his conviction.

2. Domestic Relations/Premarital Agreement: Affirmed in part, reversed in part and remanded: The agreement’s attorney-fee-shifting ban as to child-related issues violates Illinois public policy and is unenforceable as to those issues. Because it violates Illinois public policy, no  determination is needed as to whether Missouri law controls. Jorgensen, J. with Hutchinson, J. dissenting

No. 2014 IL App (2d) 121333   In re Marriage of Heinrich   Filed 3-19-14 (RJC)


Petitioner, Mary Lee Heinrich, filed a petition for dissolution of her marriage to respondent, Paul Heinrich. Subsequently, respondent filed a motion for declaratory judgment, seeking a general determination of the parties’ rights under their premarital agreement. The trial court declared the parties’ premarital agreement valid and enforceable. It subsequently denied respondent’s motion to reconsider, which was brought 17 months later, and found that there was no just reason to delay enforcement or appeal or both pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). Respondent appeals, arguing that the trial court erred in: (1) declaring that the premarital agreement’s attorney-fee-shifting ban was valid as to child-related issues; (2) denying respondent’s motion to reconsider for untimeliness and lack of new facts; and (3) declaring the premarital agreement valid and enforceable. We affirm in part, reverse in part, and remand the cause for further proceedings.

5 Appellate Cases Posted 3-18-14

1. Negligence: Reversed and remanded: In wrongful death action stemming from motor vehicle accident, trial court erred in giving "careful habits" instruction (IPI Civil 10.08) where plaintiff's counsel admitted that decedent was contributorily negligent, and trial court erred in refusing to give instruction at request of corporate defendant that plaintiff had burden to prove that defendant driver was agent of corporate defendant. McBride, J. (Palmer, J., concurring opinion; Gordon, J., dissenting opinion).  Modified on denial of rehearing.

No. 2013 IL App (1st) 082513-B  Powell v. Dean Foods Co.  Filed 3-14-14 (TJJ)


In July 2002, Adam McDonald, Diana Kakidas and Christina Chakonas were tragically killed when a tractor-trailer driven by defendant Jaime L. Reeves struck their vehicle at an intersection in Wanatah, Indiana. Following a trial, the jury returned a verdict in favor of plaintiffs, finding defendants jointly and severally liable, and awarded $8 million to the McDonald estate, $8 million to the Kakidas estate, and $7 million to the Chakonas estate. In a special interrogatory, the jury also found that Christina Chakonas was 40% contributorily negligent in causing the collision and reduced the award to the Chakonas estate accordingly to $4.2 million. We are reviewing this case for a second time following a remand by the Illinois Supreme Court. In a prior opinion, we considered defendants' argument that the trial court erred in denying Alder's motion for substitution of judge as a matter of right, and we agreed with defendants and vacated all orders subsequent to the improper denial and remanded for a new trial before a new trial judge. See Powell v. Dean Foods Co., 405 Ill. App. 3d 354 (2010). The Illinois Supreme Court granted the petition for leave to appeal. Before the supreme court, plaintiffs filed a joint motion to dismiss Alder with prejudice. The supreme court granted the motion to dismiss and concluded that the remaining defendants, Reeves, Alco and Dean Foods, lacked standing to appeal the denial of Alder's motion for substitution of judge as a matter of right. The supreme court vacated our prior decision and remanded the case to this court to consider the remaining issues raised on appeal. Powell v. Dean Foods Co., 2012 IL 111714.

2. Criminal Law: Affirmed: In prosecution for unlawful use of firearm by felon, predicate felony of aggravated unlawful use of weapon was not vitiated by supreme court holding in Aguilar case where predicate felony was aggravated use of a weapon conviction itself predicated upon a prior felony conviction and thus outside the orbit of Aguilar, and defendant properly sentenced as a Class 2 offender, notwithstanding lack of notice by State that it would seek to have defendant sentenced as a Class 2 offender rather than a Class 3 offender. McBride, J. (Gordon, J., concurring in part and dissenting on part). (Note: Court's decision on second point consistent with Illinois Supreme Court decision in People v. Easley, 2014 IL 115581, decided on March 20, 2014, and soon to be digested here).

No. 2014 IL App (1st) 121937  People v. Soto  Filed 3-18-14 (TJJ)


Following a jury trial, defendant Carlos Soto was convicted of unlawful use of a weapon by a felon. On appeal, defendant contends that: (1) his conviction must be reversed because the State failed to prove an element of the offense, that he was convicted of a prior felony, where the prior conviction on which the State relied, aggravated unlawful use of a weapon, was based on a statute that has since been declared unconstitutional by our supreme court in People v. Aguilar, 2013 IL 112116; and (2) he was improperly convicted of unlawful use of a weapon by a felon as a Class 2 felony offense instead of a Class 3 offense because the State only charged defendant with unlawful use of a weapon by a felon as a the Class 3 offense and failed to give notice that it intended to charge defendant with the enhanced Class 2 offense. We affirm.

3. Criminal Law: Affirmed, mittimus corrected: Similar to the case noted immediately above, defendant was properly sentenced as a Class 2 offender for the offense of unlawful use of firearm by felon, rather than a Class 3 offender, notwithstanding State failure to allege in charging document that it would seek such a sentence, where predicate felony was a "forcible felony," thus requiring defendant to be sentenced as a Class 2 offender; where predicate felony is an element of the offense, Section 111-3(c) of Code of Criminal Procedure does not require "enhanced sentence" to be alleged. Palmer, J. (Gordon, J., dissenting).

No. 2014 IL App (1st) 122017  People v. Polk  Filed 3-18-14 (TJJ)


Following a jury trial, defendant Lovell Polk was convicted of the Class 2 offense of unlawful use or possession of a weapon (UUW) by a felon and he was sentenced to four years and six months in prison. On direct appeal to this court, defendant contends in his opening and supplemental briefs that (1) the sentence for his UUW by a felon conviction must be reduced from a Class 2 offense to a Class 3 offense as the State failed to notify him of its intent to seek an enhanced sentence; (2) he was subject to an improper double enhancement because the same prior felony conviction was used to prove an element of the UUW by a felon offense and to elevate it to a Class 2 felony; and (3) his mittimus must be corrected. For the reasons discussed below, we affirm defendant’s conviction and sentence for the Class 2 offense of UUW by a felon, but order that the mittimus must be corrected to exclude reference to the two counts that were dismissed via nolle prosequi before jury selection.

4. Employment Law/Unemployment Benefits: Affirmed: Illinois Department of Employment Security decision to not award unemployment benefits upheld, where employee told co-workers and supervisors during a meeting that "I don't want to turn this into an Arizona thing," an apparent reference to the shooting of 18 persons in Arizona two weeks earlier. Gordon, J.

No. 2014 IL App (1st) 123669  Baker v. Illinois Department of Employment Security  Filed 3-18-14 (TJJ)


Plaintiff Ronald Baker appeals from an order of the circuit court of Cook County affirming the ruling of the Board of Review (Board) of the Illinois Department of Employment Security (IDES) which denied him unemployment benefits. On appeal, plaintiff contends that his statement in the presence of three supervisors did not constitute a threat or misconduct. He also asserts the circuit court abused its discretion in denying his request to remand the matter to the Board to consider a supervisor's affidavit as additional evidence. We uphold the Board's decision.

5. Criminal Law: Affirmed: Trial court ruling suppressing evidence pursuant to warrantless search affirmed; purported Medicare "audit" search was an unlawful pretext for a search for evidence of a crime, and defendant's response of "Okay" when told the search was going to be conducted did not constitute consent. McBride, J.

No. 2014 IL App (1st) 130507  People v. Lee  Filed 3-18-14 (TJJ)


Following a hearing, the trial court granted defendant Won Kyu Lee's motion to suppress evidence obtained pursuant to a warrantless search. The State appeals, arguing that the trial court erred in suppressing evidence from the administrative search of defendant's offices because defendant (1) expressly consented to the search and (2) consented to the search by entering into a contract with Medicare. Affirmed.

5 Appellate Cases Posted 3-17-14

1. Public Employee Relations/Arbitration: Affirmed: Action by CTA Board in passing an ordinance abolishing the position of construction inspector (with the resultant loss of two persons' jobs) was governed by the Metropolitan Transit Authority Act, not the collective bargaining agreement between the CTA and the employees' unions, and the trial court decision to dismiss the unions' action to compel arbitration was therefore proper. Cunningham, J.

No. 2014 IL App (1st) 122526  Amalgamated Transit Union, Local 241 v. Chicago Transit Authority  Filed 3-17-14 (TJJ)


This appeal arises from a July 9, 2012 order entered by the circuit court of Cook County which dismissed, with prejudice, the petition to compel arbitration filed by petitioner-appellant Amalgamated Transit Union, Local 241 (Local 241). On appeal, Local 241 argues that: (1) the trial court erred in dismissing its petition to compel arbitration because the parties agreed to arbitrate the grievance which alleged violations of the parties' collective bargaining agreement (CBA); (2) the trial court erred in dismissing its petition to compel arbitration because section 28 of the Metropolitan Transit Authority Act did not extinguish respondent-appellee, Chicago Transit Authority's (CTA) duty to collectively bargain with Local 241; and (3) the doctrines of res judicata and collateral estoppel did not bar its petition to compel arbitration. For the following reasons, we affirm the judgment of the circuit court of Cook County.

2. Gifts: Affirmed: Plaintiff's failure to prove that gift of dog to then-cohabitating romantic partner was in any way conditioned upon any future event such as, for example, marriage, meant that plaintiff failed to prove that she was entitled to return of dog taken by defendant upon end of parties' romantic relationship. Cunningham, J.

No. 2014 IL App (1st) 122980  Koerner v. Nielsen  Filed 3-17-14 (TJJ)


Plaintiff-appellant, Jennifer Koerner (Koerner), appeals from an order of the circuit court of Cook County which found that she had given the dog at issue (the Stig) to defendant-appellee, Kent Nielsen (Nielsen), as a gift and that he was thus its rightful owner. On appeal, Koerner contends that the trial court erred in finding that: (1) an inter vivos gift had occurred; (2) she had not revoked the gift prior to delivery; and (3) the burden of disproving a completed inter vivos gift lies with the party challenging the gift. She thus requests that this court reverse the trial court's judgment and enter an order stating that she is the Stig's rightful owner. Although Nielsen has not filed a brief in response, we will consider the appeal pursuant to the principles set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 131-33 (1976). For the following reasons, we affirm the judgment of the circuit court of Cook County.

3. Insurance Coverage/Duty to Defend: Affirmed in part, reversed in part, and remanded: In declaratory action by insured seeking that several insurance companies defend insured in action for negligent misrepresentation and fraud arising out of insured's financial services business, trial court properly granted summary judgment to excess carriers, but erred in granting summary judgment to primary carrier, where trial court erred in ruling that insured's services in connection with transactions at issue in case where insured was sued did not involve work done for a "third party." Cunningham, J.

No. 2014 IL App (1st) 123503  Hilco Trading, LLC v. Liberty Surplus Insurance Corp.  Filed 3-17-14 (TJJ)


This appeal arises from an October 9, 2012 order entered by the circuit court of Cook County which granted the motion to dismiss filed by defendant-appellee Continental Casualty Company and which dismissed with prejudice the complaint against Continental; granted the motion for summary judgment filed by defendant-appellee Liberty Surplus Insurance Corporation (Liberty) and dismissed with prejudice the complaint against Liberty; dismissed with prejudice the complaint against defendants-appellees ACE American Insurance Company and Illinois Union Insurance Company; and denied the cross-motion for partial summary judgment filed by plaintiffs-appellants Hilco Trading, LLC; Hilco, Inc; Hilco Appraisal Services, LLC; Hilco Enterprise Valuation Services, LLC; Mark A. Smiley; Arnold H. Dratt; and Jeffrey Linstrom (collectively, the plaintiffs). On appeal, Hilco Appraisal and Hilco Valuation (collectively, Hilco Appraisal and Valuation) argue that the trial court erred in granting Liberty's motion for summary judgment, dismissing the complaint against Liberty and Illinois Union, and denying their cross-motion for partial summary judgment. For the following reasons, we affirm the judgment of the circuit court of Cook County as to Continental and ACE, and we reverse the judgment of the circuit court as to Liberty, Illinois Union, and the plaintiffs. We remand the matter for further proceedings.

4. Criminal Law: Sentence vacated and remanded for resentencing: Trial court sentence in murder case of 60 years on blind plea of guilty vacated, where trial court emphasis on elderly victim's status as a World War II vet, "a very, very fine man," and a member of "the greatest generation," constituted improper emphasis on an improper aggravating factor- - the victim's personal traits. Hutchinson, J. (concurring opinion by Hudson, J.)

No. 2014 IL App (2d) 121340  People v. Mauricio  Filed 3-17-14 (TJJ)


Defendant, Hector M. Mauricio, appeals, asserting that the trial court abused its discretion when it imposed on him a 60-year sentence for the first-degree murder of Roscoe Ebey. He argues, among other things, that the trial court based the sentence in part on an improper aggravating factor, Ebey’s personal traits. We agree that this is an improper factor. We further hold that the record does not demonstrate that the trial court’s consideration of this improper factor did not lead to a greater sentence. We therefore must vacate the 60-year sentence and remand the matter for resentencing. This being the case, we need not address defendant’s other claim of error, that the trial court failed to give sufficient weight to certain mitigating factors; on remand, the court will necessarily weigh all proper factors anew.

5. Class Actions/Attorneys' Fees: Affirmed: Trial court's decision that attorney was only entitled to $50,000 payment per apparent agreement with second counsel, rather than one-third of attorneys' fees sought by attorney, was not against the manifest weight of the evidence. Spomer, J.

No. 2014 IL App (5th) 130050  O'Leary v. America Online, Inc.  Filed 3-17-14 (TJJ)


In this dispute involving the payment of attorney fees, the respondent, Diab & Bock, LLC, appeals the order of the circuit court of St. Clair County that found that the movant, Freed & Weiss, LLC, was not obliged to pay Bock a one-third share of certain attorney fees earned in the underlying class action case captioned above. Weiss cross-appeals with regard to a subsequent order in this case in which the trial judge ordered Weiss to retender to Bock a check in the amount of $50,000. For the following reasons, we affirm both orders of the circuit court.

3 Appellate Cases Posted 3-14-14

1. Criminal Law: Affirmed in part, sentence vacated  and modified: In armed robbery case (with a firearm), use of term "dangerous weapon" in jury instructions, rather than "firearm," did not amount to plain error in face of defendant's lack of objection where jury was properly instructed as to "firearm" in other areas of instructions and where evidence was overwhelming that a firearm was utilized; but where trial court mistakenly believed that defendant's prior conviction was a Class X offense, rather than a Class 1 offense, extended term sentence was vacated, and appellate court modified sentence to maximum non-extended sentence. Rochford, J.

No. 2014 IL App (1st) 120485  People v. Ware  Filed 3-14-14 (TJJ)


Following a jury trial, defendant, Emmanuel Ware, was found guilty of six counts of armed robbery with a firearm and sentenced to six concurrent prison terms of 50 years, including a 15-year firearm enhancement and 5-year extended term on each count. On appeal, defendant argues the trial court improperly instructed the jury on the offense of armed robbery with a dangerous weapon where he was charged with armed robbery with a firearm. He also maintains the trial court abused its discretion when it refused to consider a plea agreement as untimely. Defendant further asserts he must be resentenced to a nonextended term because the trial court incorrectly believed he had a previous Class X conviction. Finally, defendant argues we must remand for a new sentencing hearing as his criminal background, which was presented to the trial court, included prior convictions for aggravated unlawful use of a weapon (AUUW). We affirm, but vacate the extended term and modify defendant's concurrent sentences.

2. Unemployment Benefits: Reversed and remanded: Department of Employment Security properly found that trucking company was the "last chargeable employer" for trucker, notwithstanding company's claim that trucker was an independent contractor, and Department properly found that trucker was not terminated for employee-related misconduct, and was therefore eligible for unemployment benefits. Rochford, J.

No. 2014 IL App (1st) 122809  C.R. England, Inc. v. Department of Employment Security  Filed 3-14-14 (TJJ)


In case number 11 CH 16972, plaintiff, C.R. England, Inc. (CRE), sought administrative review of a decision by the Director of the Illinois Department of Employment Security finding that CRE was the chargeable last employer for William Park's claim for unemployment insurance benefits. In case number 11 CH 14681, CRE also sought administrative review of a decision by the Department's board of review finding that Mr. Park was eligible for unemployment  insurance benefits under section 602(A) of the Unemployment Insurance Act  because he was discharged by CRE for reasons other than employment-related misconduct. The circuit court reversed both  decisions. Defendants, the Board of Review, Maureen T. O'Donnell, Director (Director) of the Department, and Ronald S. Rodgers, representative of the Director of the Department, filed this consolidated appeal from the circuit court's orders reversing the  Director and the Board of Review. We reverse the circuit court's orders in both case number 11 CH 16972 and case number 11 CH 14681 and affirm the Director and the Board of Review.

3. Domestic Relations/Orders of Protection: Order of protection vacated and remanded: In case for order of protection which wound its way through circuit court due to numerous motions by pro se respondent, where one judge recused herself from further proceedings, when case came before that same judge approximately one year later, order of protection issued by that judge should not have been issued by her, since she had previously recused herself, but order of protection ordered by appellate court to remain in effect, "on a temporary basis," till case could be heard on petitioner's emergency motion to extend the order, within 21 days of issuance of appellate court mandate. McDade, J.

No. 2014 IL App (3d) 130404  Brzowski v. Brzowski  Filed 3-14-14 (TJJ)


This case is the latest in a long series of pro se appeals filed by respondent Walter Brzowski regarding a 2007 order of protection entered in favor of his ex-wife, petitioner Laura Zasadny (formerly Laura Brzowski). The plenary order of protection was extended several times, and on May 16, 2013, the trial court entered another two-year extension of the order. Respondent appealed. Because the judge who presided over the 2013 extension hearing had previously recused herself from the case, we vacate and remand for further proceedings.

5 Appellate Court Cases Posted 03-11-14

1.  Criminal Law: Affirmed:  On review of a trial court's ruling on a motion to suppress, great deference is afforded to the trial court's factual findings.  "A judgment is against the manifest weight of the evidence only when an opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not based on evidence."  Further, in reviewing the court's ruling on a motion to suppress, "it is proper for us to consider the testimony adduced at trial, as well as at the suppression hearing."  Once a suspect indicates "in any manner" prior to or during police questioning that he wishes to remain silent, the interrogation must cease.  An invocation of the right to silence must be unambiguous, unequivocal and clear.  This right to silence may be invoked either verbally or through conduct that clearly indicates a desire to end all questioning."    Cunningham, J.

No. 2014  IL App (1st) 110231   People v. Kronenberger     Filed 03-11-14   (LJD)


Following a jury trial in the circuit court of Cook County, defendant Christopher Kronenberger was convicted of first-degree murder and sentenced to 60 years of imprisonment. On appeal, the defendant argues that the trial court committed reversible error by denying his motion to suppress his incriminating statements to the police. For the following reasons, we affirm the judgment of the circuit court of Cook County.

2.  Lien Rights: Affirmed: In construing the above statute, our task is to “ascertain and give effect to the legislature’s intent.”  The best indicator of the legislature’s intent is the plain language of the statute.  “When the statute’s language is clear, it will be given effect without resort to other aids of statutory construction.” Id. Moreover, we must construe the statute to avoid rendering any part of it meaningless or superfluous.  Based on the plain language of section 2-1403, no property that is held “in trust” may be used for the satisfaction of a judgment. However, there is no such prohibition regarding property that is no longer held in trust.  Spendthrift trust provisions restrict the beneficiary’s ability *** to attach the trust corpus.  However, once trust income is paid to the beneficiary, the income is no longer subject to the protection of the spendthrift provisions in the trust, and the spendthrift provisions are not effective to shelter the trust assets from the beneficiary’s creditors.  Schostok, J.

No. 2014  IL App (2nd) 121074   Community Bank of Elmhurst v. Klein  Filed 03-11-14   (LJD)


The defendant, George Klein, Jr., appeals from the July 9, 2012, order of the circuit court of Du Page County imposing a lien against distributions that he received from a trust. The lien was imposed in favor of the plaintiff, the Community Bank of Elmhurst (the Bank). On appeal, the defendant argues that the lien was improper because it violates section 2-1403 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1403 (West 2012)). The defendant also appeals from the trial court’s order denying his motion to reconsider. We affirm.

3.  Employment Security: Affirmed in Part and Reversed in Part: In the case of administrative review, this court reviews the Department's decision, not that of the circuit court.   The determination of whether an employer has proven that it falls within an exemption to coverage under the state unemployment system is a mixed question of law and fact.  A mixed question of law and fact is one involv[ing] an examination of the legal effect of a given set of facts. [Citation.] Stated another way, a mixed question is one in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard.  The statute, therefore, provides that where a school is not an institution of higher education and is not separately incorporated from a church, convention or association of churches, it is exempt from coverage under the state unemployment system because the teachers and other personnel are direct employees of the church or convention of churches.  However, where a school is separately incorporated as is Unity, it must prove three things to qualify for exemption from the state unemployment system: (1) that it is not an institution of higher education; (2) that it is operated primarily for religious purposes; and (3) that it is operated, supervised, controlled or principally supported by a church or convention or association of churches.     Schmidt, J.,  Lytton, J., concurs in part and dissents in part

No. 2014  IL App (3rd) 120799   Unity Christian School of Fulton v. Rowell  Filed 03-11-14   (LJD)


The ultimate issue before this court is whether Unity Christian School (Unity) met its burden before the Department of Employment Security (Department) to establish that it is exempt from the requirement to make compulsory contributions to the unemployment system. Unity contends it is entitled to a religious exemption. This issue involves two subissues: (1) Is Unity operated primarily for religious purposes? and (2) Is Unity controlled or primarily  supported by a church or group of churches?  The judgment of the circuit court of Whiteside County is reversed and the decision of the Director of the Department of Employment Security is confirmed. This case is remanded for further proceedings on the remaining count. Director confirmed; circuit court reversed, and cause remanded to the circuit court of Whiteside County.

4.  Employment Security: Circuit Court reversed: Extensive managerial responsibilities" are ever sufficient to confer standing upon an administrative agency to prosecute an appeal.  Because the Board's decision that plaintiff was not eligible for unemployment benefits due to his misconduct constitutes a mixed question of law and fact, we will reverse the Board's decision only if it was clearly erroneous.  Under this standard, we will reverse the Board's decision only if, based on the entire record, we are left with the definite and firm conviction that a mistake has been committed.  In determining whether an employer was harmed, the employee's conduct should be viewed in the context of potential harm, and not in the context of actual harm."  Steigmann, J.

No. 2014  IL App (4th) 130391   Farris v. The Department of Employment Security  Filed 03-11-14   (LJD)


In January 2011, plaintiff, Donald Farris, was fired from his employment at a pig- breeding facility owned by Strout Crossing, LLC (Strout), and operated by Pike Pig Systems, Inc. (Pike), for violating a biosecurity policy designed to avoid bacterial contaminants from entering the breeding facility and infecting the pigs. Plaintiff applied to the Department of Employment Security (Department) for unemployment benefits. Strout objected on the ground that plaintiff was discharged due to employment-related misconduct, rendering him ineligible for unemployment benefits under section 602(A) of the Unemployment Insurance Act (820 ILCS 405/602(A) (West 2012)). A claims adjudicator agreed with Strout. Plaintiff appealed the claims adjudicator's decision to a Department referee who, following a hearing, determined that plaintiff was eligible for unemployment benefits because his actions did not constitute misconduct within the meaning of section 602(A) of the Act. Strout appealed the referee's decision to the Board of Review (Board), which reversed the referee's decision and found plaintiff ineligible for unemployment benefits. Plaintiff then filed a complaint for administrative review in the circuit court, arguing that he was not guilty of employment-related misconduct because his violation of the biosecurity policy did not result in harm to Strout. The circuit court agreed and reversed the Board's decision.  The Department, its Director, and the Board appeal from the circuit court's decision, arguing that plaintiff's actions constituted misconduct within the meaning of section 602(A) of the Act, even though those actions did not result in actual harm. We agree and reverse.

5.  Real Estate Disclosure Act: Reversed: The purpose of a summary judgment proceeding is not to try issues of fact but is to determine whether any triable issues exist." "A triable issue exists where there is a dispute concerning material facts or where those facts are  undisputed but reasonable persons might draw different inferences from those facts."  A buyer's right to receive a disclosure statement prior to closing cannot be waived." In Curtis, the sellers who failed to provide a disclosure form were liable for failing to disclose a defective water supply system, even though the buyer continued with the sale without the form.  Generally, a defendant's knowledge of a defect at the time of the closing is a question of fact to be determined by the trial court. Curtis, 321 Ill. App. 3d at 201, 746 N.E.2d at 1237. Further, "[a] trier of fact need not accept a party's testimony that he had no knowledge of a particular fact in question if the evidence shows to the contrary."  A seller who discloses some information can be subject to liability under the Act if the seller knows the information disclosed contains a material error, inaccuracy, or omission.  Knecht, J.

No. 2014  IL App (4th) 130397  Messerly v. Boehmke  Filed 03-11-14   (LJD)

In March 2004, plaintiffs Richard and Rhonda Messerly filed a complaint against defendant, Robert E. Boehmke, Sr. Plaintiffs' third amended complaint alleged (1) defendant violated the Residential Real Property Disclosure Act (Act) (765 ILCS 77/25 (West 1998)) and (2) plaintiffs incurred damages due to the incomplete disclosures. Both parties moved for summary judgment. The trial court granted defendant's motion.  On appeal, plaintiffs claim the record contains evidence defendant knowingly violated the Act and the trial court erroneously concluded plaintiffs could waive defendant's obligations under the Act. Plaintiffs also ask this court to reverse the trial court's grant of summary judgment in favor of defendant and order the trial court to grant their motion for summary judgment as to defendant's liability. We reverse.

4 Appellate Cases Posted 3-10-14

1. Video Gaming: Affirmed: State statute prohibiting "knockoff switch" or "retention meter" on gambling amusement devices was not unconstitutionally void for vagueness, and did not violate procedural due process, in light of legitimate State interest in prohibiting manipulation of gaming devices. Connors, J.

No. 2014 IL App (1st) 131005  Tomm's Redemption, Inc. v. Hamer  Filed 3-10-14 (TJJ)


Plaintiff Tomm’s Redemption, Inc. is in the business of providing coin-operated amusement devices to various establishments in the Chicago area. Section 35(a) of the Video Gaming Act, however, prohibits the possession or operation of “any device that awards credits and contains a circuit, meter, or switch capable of removing and recording the removal of credits when the award of credits is dependent upon chance.”1 Violation of the provision is a class 4 felony. Claiming that the provision is unconstitutionally vague and a violation of due process, plaintiff filed this lawsuit. The circuit court dismissed the complaint, and we affirm.

2. Freedom of Information Act: Affirmed in part and reversed in part: Freedom of information request for Chicago police documents relating to complaints against police officers (CRs) and so-called "repeater lists" were not exempt in their entirety from disclosure under state Freedom of Information Act as "adjudicative materials," and upon remand circuit court is to determine whether any portion of requested files do relate to the exemption, and to determine whether plaintiff is entitled to attorney's fees for prevailing, despite trial court's initial ruling that plaintiff did not "substantially prevail." Connors, J. (with separate concurring opinions by Delort and Cunningham, JJ.)

No. 2014 IL App (1st) 121846  Kalven v. The City of Chicago  Filed 3-10-14 (TJJ)


Plaintiff Jamie Kalven filed suit against defendants Chicago police department (CPD) and City of Chicago pursuant to the Freedom of Information Act, seeking the disclosure of certain documents related to complaints of police misconduct. Plaintiff and defendants filed cross-motions for summary judgment, and the circuit court granted and denied both motions in part. Plaintiff now appeals from the court’s ruling that certain documents are exempt from FOIA disclosure and from the denial of attorney fees. Defendants appeal from the court’s ruling that certain lists are not exempt from FOIA disclosure. We affirm in part and reverse in part and remand for further proceedings.

3. Easements: Affirmed in part and reversed in part: Trial court ruling that building easement had previously terminated under terms of prior agreement relating to operation of hotel on property upheld, but trial court ruling that defendant's right of ingress and egress to its property in face of plaintiff's plan to erect a multi-story building reversed. Hoffman, J.

No. 2014 IL App (1st) 131401  527 S. Clinton, LLC v. Westloop Equities, LLC  Filed 3-10-14 (TJJ)


The defendant, Westloop Equities, LLC, appeals the circuit court order granting summary judgment in favor of the plaintiff, 527 S. Clinton, LLC, on both counts of the plaintiff's second amended complaint which sought judicial declarations that its proposed development of a multi-story commercial and residential building would not violate an easement held by the defendant. The defendant also argues the circuit court erred in refusing to modify a discovery order entered in the matter. For the reasons that follow, we affirm in part and reverse in part.

4. Criminal Law: Affirmed: Where counsel appointed to represent defendant at post-conviction proceedings moves to withdraw at request of defendant who expresses a desire to proceed pro se, counsel is not required to submit a Rule 651(c) certificate, distinguishing People v. Greer, 212 Ill.2d 192 (2004). Appleton, J.

No. 2014 IL App (4th) 120833  People v. Heard  Filed 3-10-14 (TJJ)


The circuit court dismissed defendant's petition filed pursuant to the Post-Conviction Hearing Act at the second stage of the proceedings. Defendant appeals, arguing the case must be remanded for the purpose of compelling appointed counsel to comply with the mandates of Illinois Supreme Court Rule 651 prior to her withdrawal as counsel. However, we find, because counsel withdrew at defendant's request and not due to counsel's inability to form a cognizable argument under the Act, we find remand is not necessary.

2 Appellate Cases Posted 3-13-14

1. Juvenile: Vacated in part and remanded with directions: Upon consideration of the supplemental briefing, we find that: (1) respondent's current juvenile adjudications for felony theft are not void but should be reduced to misdemeanor theft adjudications; (2) the dispositional order committing respondent to the DOJJ is not an authorized disposition for misdemeanor offenses and is void; and (3) this case should be remanded so that the previous orders may be amended in the trial court to indicate that respondent was adjudicated delinquent for two counts of misdemeanor theft and so that the trial court may conduct a new dispositional hearing to determine the appropriate disposition for respondent based upon the two charges of misdemeanor theft. Carter, J.

No. 2014 IL App (3rd) 110467-B   In re Antoine B. - Modified upon denial of rehearing    Filed 3-13-14 (RJC)


Respondent, Antoine B., was adjudicated delinquent for two counts of felony theft (720 ILCS 5/16-1(a)(1)(A), (b)(2) (West 2010)) and committed to the Department of Juvenile Justice (DOJJ) for an indeterminate term not to exceed three years. Respondent appealed, arguing that the commitment to the DOJJ was excessive. We affirmed the trial court's judgment. In re Antoine B., 2013 IL App (3d) 110467-U, ¶¶ 14, 17. Pursuant to a supervisory order from the supreme court, we subsequently withdrew our decision and directed the parties to file supplemental briefing on the issue of whether respondent's felony adjudications were void under the supreme court's decision in People v. Taylor, 221 Ill. 2d 157, 182 (2006), which held that a prior felony juvenile adjudication was not a prior felony conviction for purposes of the escape statute. In re Antoine B., No. 116538 (Ill. Oct. 2, 2013).  Therefore, we vacate the trial court's commitment order and remand this case with directions for further proceedings.

2. Criminal Law/sentencing/fines: Affirmed in part and remanded with directions: Based on this record, it is difficult to discern what, if any, fines the court intended to order defendant to pay. Therefore, we remand the matter to the trial court with directions to enter a written order identifying the amount and nature of each charge ordered by the court and, thereafter, allow the applicable $5-per-diem credit in each case. Wright, J.

No. 2014 IL App (3rd) 120472    People v. Hill   Filed 3-13-14 (RJC)


Defendant, Bruce A. Hill, pled guilty to failure to register as a sex offender (730 ILCS 150/3(a) (West 2008)) and received a sentence of 24 months of probation in case No. 09-CF-36. While on probation for that offense, defendant was convicted of aggravated battery (a Class 3 felony) (720 ILCS 5/12-4(b)(8) (West 2010)) and domestic battery (a Class A misdemeanor) (720 ILCS 5/12-3.2(a)(2) (West 2010)), in case No. 11-CF-430, and the trial court sentenced him to serve 30 months in the Illinois Department of Corrections (DOC). Defendant appeals both sentences, arguing the trial court improperly required him to pay a $200 deoxyribonucleic acid (DNA) analysis fee in case No. 11-CF-430, failed to properly credit him for time served, and failed to reduce his monetary obligation by allowing a $5-per-diem credit against his fines for each day spent in presentencing custody. We affirm the imposition of the $200 DNA analysis fee and remand for the trial court to properly credit defendant for time served.

3. Animal Control Act: Affirmed: The issue raised in this appeal is whether the trial court erred in entering summary judgment in favor of the defendants after finding that as a matter of law the defendants were not owners of the dog pursuant to the Act. At the time and place of the accident described in the plaintiff's complaint, the defendants were absentee landlords of the premises leased to Lesko and Ritzel, and they did not own, possess, or have the right to care for or control the dog that allegedly caused the plaintiff's accident. We agree with the defendants and find that the trial court did not err in granting summary judgment in their favor. Welch, J. with Goldenhersh, J. dissenting.

No. 2014 IL App (3rd) 120513    Whitten v. Luck    Filed 3-13-14 (RJC)

The plaintiff, Douglas R. Whitten, appeals from an order of the circuit court of Montgomery County entering summary judgment in favor of the defendants, Donna Luck and Bill Warren. For the reasons which follow, we affirm the decision of the circuit court.

5 Appellate Cases Posted 3-12-14

1. Wrongful Death/MFNT: Reversed: The plaintiff waived any objection based on prejudice to remarks made by the defense in opening statements concerning the decedent's pending gun charge when she, in fact, opposed the grant of a mistrial. Even in reviewing the issue to determine whether there was any plain error, we hold that the trial court abused its discretion in granting a new trial because there was no error where at the time of the remarks the evidence was ruled admissible and the defense made them in good faith, and there was no showing by plaintiff or any indication in the record of substantial prejudice to plaintiff as a result of those remarks. The grant of a new trial also cannot be supported on the basis of allegedly faulty jury instructions, as the court properly instructed the jury on the applicable law. Pucinski, J.

No. 2014 IL App (1st) 122427    Davis v. The City of Chicago    Filed 3-12-14 (RJC)


This case is an interlocutory appeal after the trial court granted plaintiff's motion for a new trial following a jury's verdict in favor of the defense in her wrongful death suit for the death of her son caused by the defendant police officer. The defendant officer and City of Chicago's defense was that the officer acted in self-defense and reasonably believed the decedent pointed a gun at the officer. The trial court granted a new trial based solely on the defense's references to the decedent's pending gun charge at the time of the shooting in opening statements. Defendants argue that the trial court abused its discretion in granting a new trial on this ground because there was no substantial prejudice to plaintiff by the isolated references to the gun charge. Reversed.

2. Criminal Law/postconviction petition: Reversed and remanded: Hobson has substantially shown that his trial counsel committed unprofessional errors by failing to object to substantive use of out-of-court statements by Smith and Harper, and by failing to discover and present at trial available evidence impeaching Dyra and showing the extent of the favors Smith and Weston received from the State immediately following their grand jury testimony. Hobson has also substantially shown a reasonable probability that he would have achieved a better result at trial if his counsel had not so erred. Accordingly, we reverse the dismissal of Hobson's postconviction petition and remand for an evidentiary hearing on the petition. Neville, J. with Hyman, J. and Mason, J. specially concurring.

No. 2014 IL App (1st) 110585    People v. Hobson   Filed 3-12-14 (RJC)


Following a bench trial, the trial court found Kenneth Hobson guilty of murder. The appellate court affirmed the conviction. People v. Hobson, No. 1-05-3944 (2007) (unpublished order under Supreme Court Rule 23). Hobson filed a postconviction petition in 2008. Court-appointed counsel filed a supplemental postconviction petition. The circuit court dismissed the postconviction petition and its supplement without holding an evidentiary hearing. On this appeal, we find that Hobson made a substantial showing that he received ineffective assistance of trial counsel. We reverse the trial court's decision and remand for an evidentiary hearing.

3. Condominiums/Appeals/Jurisdiction: Affirmed: A reversal without remand does not revest the trial court with jurisdiction. There was no case pending in the trial court following our reversal without remand. Accordingly, we hold that the trial court here correctly ruled that it lacked jurisdiction over defendant’s turnover motion. Because the trial court was without jurisdiction to act, we do not reach the parties’ myriad contentions regarding the merits. Zenoff, J.

No. 2014 IL App (2d) 130432   Glens of Hanover Condominium Association v. Carbide    Filed 3-12-14 (RJC)


Defendant, Imtiaz Carbide, appeals from an order of the circuit court of Du Page County ruling that it was without jurisdiction to decide defendant’s motion for a turnover of possession of a condominium unit and rents. We affirm.

4. Criminal Law/Hearsay: Reversed and remanded:  Statements concering abuse of another was not reasonably pertinent to diagnosis or treatment and were therefore inadmissible under section 115-13 of the Code.  The State has failed, in case after case, to heed the advice of Cameron and appropriately limit the State's use of hearsay evidence to explain the steps of an investigation.  The State's repeated abuse of this limited exception to the hearsay rule—in the face of repeated condemnation from the appellate court—shows a disrespect for the fundamental purpose of the hearsay rule, which "is to test the real value of testimony by exposing the source of the assertion to cross-examination by the party against whom it is offered."Based upon our thorough review of the trial record, we conclude that defendant has met his burden of establishing plain error. The cumulative errors in this case, including the erroneous admission of prejudicial evidence and the State's improper argument based thereon, threatened to tip the scales of justice against defendant. For the foregoing reasons, we reverse defendant's convictions and remand for a new trial. Because the State presented sufficient evidence to sustain defendant's convictions, double jeopardy does not bar a retrial. Steigmann, J. 

No. 2014 IL App 4th) 120634    People v. Boling   Filed 3-12-14 (RJC)

In February 2012, a jury convicted defendant, Brandon M. Boling, of two counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2010)). In April 2012, the trial court sentenced defendant to two consecutive terms of 31 years in prison. Defendant appeals, arguing that (1) hearsay statements of the victim, K.A., were improperly admitted under section 115-10 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115-10 (West 2012)) because those statements described (a) events that were not elements of the charged offenses and (b) criminal offenses against someone else; (2) the State improperly elicited hearsay statements that revealed previous allegations of sexual abuse against defendant; (3) sexual assault nurse examiner Noelle Cope was not qualified to offer her opinion that the victim's complaints were credible; and (4) the prosecutor improperly commented upon the victim's credibility in closing argument. We reverse defendant's convictions and remand for a new trial.

5. Medical Malpractice/Rule 213/Petrillo: Reversed and remanded:  Although each case presents different facts that affect the imposition of the appropriate sanction for a Rule 213 violation, the type of violation that occurred in this case—that is, an undisclosed opinion on a critical issue before the trier of fact—warrants reversal.  The trial court's admission of the deposition evidence provided pursuant to the completeness doctrine was relevant, particularly appropriate, and sufficiently tailored to place the evidence solicited during her cross-examination in its proper context.  The  mortality rates and Child's score deposition testimony Eloy introduced under the rule of completeness was proper under that doctrine.  The specific policy the Petrillo court sought to protect by prohibiting a defense counsel's communications with a plaintiff's treating physician—namely, the confidential and fiduciary relationship between a doctor and the patient—were not implicated by contact that merely sought to facilitate the physician's appearance at trial by preemptively resolving any scheduling conflicts.  Steigmann, J. 

No. 2014 IL App 4th) 121100    Fakes v. Eloy   Filed 3-12-14 (RJC)

In November 2006, plaintiff, Mary Fakes, as special administratrix for the estate of Laura Alice Powell, deceased, filed a medical malpractice suit against defendants, Victor Eloy, M.D., and his principal, Internal Medicine Subspecialty Associates, Ltd. (hereinafter, defendants or Eloy). In March 2012, a jury returned a verdict in Eloy's favor. ¶ 2 Fakes appeals, arguing that the trial court (1) erred by failing to impose sanctions against Eloy for violating Illinois Supreme Court Rule 213 (eff. Jan. 1, 2007) and (2) abused its discretion by admitting (a) evidence under the rule of completeness, (b) the testimony of two medical experts with whom defense counsel purportedly engaged in prohibited ex parte communications in violation of the doctrine announced in Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 499 N.E.2d 952 (1986) (Petrillo doctrine), (c) hearsay evidence, and (d) evidence the court had barred. Fakes also argues that the court violated her right to a fair trial by refusing to strike four prospective jurors for cause. For the reasons that follow, we reverse and remand.

7 Appellate Cases Posted 3-7-14

1. Criminal Law: Reversed and remanded: In case of attempt first degree murder of a police officer, where defendant testified that she did not pull the trigger of the weapon she was holding, but officer did so testify, where those two persons were the only two witnesses to the incident, trial court erred in not instructing jury on lesser included offense of aggravated assault. Taylor, J.

No. 2014 IL App (1st) 112854  People v. Kidd  Filed 3-7-14 (TJJ)


On May 15, 2007, defendant Shandra Kidd and two friends were walking in the vicinity of 2727 East 78th Street in Chicago when they were approached by police officers. Kidd ran away. One of the officers, Officer Charles Johnson, gave chase. According to Johnson, during the chase, Kidd pulled out a gun and attempted to shoot him. In a statement later given to police, Kidd admitted that she was in possession of a gun and pointed it in Johnson’s direction but denied pulling the trigger. Following a jury trial, Kidd was convicted of attempted murder of a peace officer. She was sentenced to 40 years’ imprisonment, plus a 15-year sentencing enhancement for committing the crime while armed with a firearm. Kidd now appeals her conviction and sentence. For the  reasons that follow, we reverse and remand for a new trial.

2. Insurance coverage: Affirmed in part and reversed in part and remanded: Actions by claimants against hospital for hospital's cessation of experimental breast cancer vaccine were properly cognizable as actions for medical malpractice, so that one insurance company was obligated to defend and indemnify hospital under terms of its policy, but insurer whose policy contained a specific exclusion for medical malpractice damages had no obligation to defend or indemnify. Taylor, J.

No. 2014 IL App (1st) 113755  Rosalind Franklin University of Medicine and Science v. Lexington Insurance Company  Filed 3-7-14 (TJJ)


This appeal arises out of a declaratory judgment action involving an insurance dispute between plaintiff, Rosalind Franklin University of Medicine and Science (Rosalind), and two of its insurers, Lexington Insurance Company (Lexington) and Landmark  American Insurance Company (Landmark). On November 23, 2011, the trial court granted summary judgment for Rosalind and against Lexington and Landmark, finding that both insurers had a duty to indemnify Rosalind for the settlement in the  underlying suit. It is from this judgment that Lexington and Landmark now appeal. For the reasons that follow, we affirm in part and reverse in part.

3. Mechanics Liens: Affirmed: Trial court grant of summary judgment in favor of property owners on contractor's suit to enforce mechanic's lien upheld for contractor's failure to provide sworn statement required by Section 5 of Mechanics Liens Act regarding all parties furnishing labor, materials, and services, and to document amounts paid or owed to such. Palmer, J.

No. 2014 IL App (1st) 130730  Cityline Construction Fire and Water Restoration, Inc. v. Roberts  Filed 3-7-14 (TJJ)


Plaintiff, Cityline Construction Fire and Water Restoration, Inc. (Cityline), appeals from an order of the circuit court of Cook County granting summary judgment in favor of defendants, Andrew C. Roberts and Valerie Gherold (Owners), on count I of Cityline's complaint against the Owners and count II of the Owners’ counterclaim against Cityline. Count I of Cityline's complaint sought to foreclose a mechanic’s lien against the Owners and count II of the Owners’ counterclaim sought a declaration that the lien was void and unenforceable. For the reasons that follow, we affirm.

4. Domestic Relations: Appeal dismissed for lack of jurisdiction: Appellate court had no jurisdiction to hear mother's appeal of trial court order denying her leave to remove minor child to California where other petitions before trial court, including motions regarding child support modification, custody, and parenting schedule, were still pending. Reyes, J.

No. 2014 IL App (1st) 132765  In re Parentage of Rogan M.  Filed 3-7-14 (TJJ)


Petitioner Keisha M. appeals the judgment of the trial court denying her petition to remove her minor child from Illinois to California. On appeal, Keisha argues: (1) the trial court applied the improper evidentiary standard; and (2) the trial court's finding that removal was not in the child's best interests was against the manifest weight of the evidence. For the following reasons, we dismiss the appeal for lack of jurisdiction.

5. Criminal Law: Affirmed: Evidence in sexual assault prosecution against stepfather for alleged sexual assault of his stepdaughter was sufficient to prove defendant guilty beyond a reasonable doubt that he was guilty, other crimes evidence regarding assault of other stepdaughter proper to prove propensity to commit sex offenses under Section 115-7.3 of Code of Criminal Procedure, and trial court rulings prohibiting defense from questioning complainant regarding her consensual sexual activities with others proper under Rape Shield Statute. Gordon, J.

No. 2014 IL App (1st) 120484  People v. Cerda  Filed 3-7-14 (TJJ)


Defendant Jesus Cerda was convicted on December 1, 2011, after a jury trial of four counts of criminal sexual assault of his stepdaughter J.M. that occurred between March 1, 2006, and January 31, 2007. After hearing factors in aggravation and mitigation, the trial court sentenced defendant to four consecutive terms of 10 years, for a total of 40 years in the Illinois Department of Corrections. On this direct appeal, defendant raises three issues for our consideration: (1) that the State failed to prove him guilty beyond a reasonable doubt because both the complainant's testimony and the other crimes evidence were inherently unbelievable; (2) that the trial court violated defendant's right to present a defense and confront the witnesses against him by excluding evidence, pursuant to the rape shield statute, concerning the victim's past sexual experience; and (3) that the trial court erred by allowing the State to introduce evidence of other sexual assaults committed by defendant against both J.M. and another stepdaughter. For the following reasons, we do not find these claims persuasive and we affirm.

6. Fraud: Affirmed in part and reversed in part: In action under numerous theories, including fraud and constructive trust, trial court ruling in favor of plaintiff against estate of his former business partner for partner's conduct in paying himself substantially more than plaintiff despite agreement to split profits 50-50, with minor exceptions, appellate court upheld multi-million dollar award in favor of plaintiff, including punitive damages. Burke, J.

No. 2014 IL App (2d) 121100  Kovak v. Barron  Filed 3-7-14 (TJJ)


This appeal involves a dispute between plaintiff, F. Gary Kovac, a 50% shareholder of defendants Pinnacle Systems, Inc., Triad Controls, Inc., and Pressroom Electronics, Inc. (Operating Companies), and Kenneth L. Barron, Jr. (deceased), the other 50% shareholder. Kovac alleged that Barron had secretly arranged, through the use of a payroll servicing company, wholly owned by Barron, to pay himself substantially more in salary despite an agreement that Kovac and Barron would take the same salaries and bonuses. Following a bench trial, the trial court entered judgment in favor of Kovac as to count V (fraud), awarding him $3,220,702, and the court imposed a constructive trust on Barron’s estate. The trial court further entered judgment in favor of Kovac as to count VI (breach of an oral agreement to lease property to the Operating Companies and share equally in the rental profits) and awarded Kovac $45,981. As to count II (breach of fiduciary duty to the Operating Companies and their shareholders by diverting repair business income from the Operating Companies to Repair Services), the trial court entered judgment in favor of the Operating Companies and awarded damages in the amount of $327,790. Finally, the court awarded Kovac $450,000 in punitive damages against the estate.We affirm in part, reverse in part, and remand the cause with directions.

7. Election Law: Affirmed: Use by candidate for Democratic township committeeman of wrong form in connection with nominating petitions, and his claim under oath that he was "a qualified voter," a Democratic candidate," and "legally qualified" for the office sought, constituted substantial compliance with election law, despite failure to claim that he was "a qualified primary voter of the Democratic Party" as required by statute, and electoral board decision denying objections to his candidacy proper. Gordon, J.

No. 2014 IL App (1st) 140446  Zurek v. The Cook County Officers Electoral Board  Filed 3-7-14 (TJJ)


The issue before us is whether the current Democratic committeeman of an Illinois township should be barred from re-election and his name stricken from the ballot in the upcoming March 2014 primary election because he concededly used the wrong form for his "Statement of Candidacy" and thus failed to state, as he was statutorily required to do, that he was "a qualified primary voter of the Democratic Party" (10 ILCS 5/7-10 (West 2012)). He stated instead that he was: (1) "a qualified voter," (2) "a Democratic candidate for election to the office of Township Committeeman of Leyden Township, Illinois," and (3) "legally qualified *** to hold such office." The Cook County Officers Electoral Board found that he was nonetheless in substantial compliance with the Election Code and voted unanimously to place his name on the ballot, and the circuit court of Cook County agreed. For the following reasons, so do we.

2 Appellate Cases Posted 3-6-14

1. Freedom of Information Act: Reversed and remanded: Gist of plaintiff newspaper's request for state Department of Financial and Professional Regulation was to request department to prepare a tally as to number of complaints against identified doctors, but FOIA is not designed to compel a governmental body to compile data the agency does not ordinarily maintain, or to answer questions put by requesting party, and trial court order compelling department to comply was error. Harris, J.

No. 2014 IL App (4th) 130427  Chicago Tribune Company v. The Department of Financial and Professional Regulation  Filed 3-6-13 (TJJ)


On February 25, 2010, plaintiff, Chicago Tribune Company, requested defendants, the Department of Financial and Professional Regulation and Donald W. Seasok, in his official capacity as acting director of the division of professional regulation, to disclose the number of initial claims received by the Department against multiple named physicians licensed by the Department. The Department denied plaintiff's request. On April 18, 2011, plaintiff filed a declaratory judgment complaint in the circuit court of Sangamon County pursuant to the Freedom of Information Act (FOIA) (5 ILCS 140/11(a) (West 2010)). The parties filed cross-motions for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure. On May 16, 2012, the circuit court entered a written order granting plaintiff's motion for summary judgment and denying the Department's motion for summary judgment. The Department appeals, arguing the circuit court erred by granting summary judgment in plaintiff's favor. We reverse and remand with directions.

2. Criminal Law/DUI: Affirmed: During investigation of driving under the influence of alcohol (and a fatality), use by State police of a DUI kit that was subsequently discarded, but was of a type which used alcohol as a disinfectant (shown by tests of another similar kit showing 0.006% alcohol) did not violate requirement that blood samples be taken using "proper medical technique," and defendant's conviction for aggravated DUI affirmed. Cates, J.

No. 2014 IL App (5th) 130022  People v. Weidner  Filed 3-6-14 (TJJ)


Following a stipulated bench trial, the defendant, Howard Neil Weidner, was found guilty of aggravated driving while under the influence of alcohol in violation of section 11-501(d)(1)(F) of the Illinois Vehicle Code, and he was sentenced to a three-year term of imprisonment. On appeal, the defendant contends that evidence of his blood-alcohol concentration was inadmissible at trial absent a proper foundation establishing that his blood samples were collected using "proper medical technique" as required in section 11-501.2 of the Code and section 1286.320(c) of Title 20 of the Illinois Administrative Code (20 Ill. Adm. Code 1286.320(c), amended at 31 Ill. Reg. 15107, 15111 (eff. Oct. 29, 2007)). We affirm.

1 Appellate Court Case Posted 03-05-14

1.   Legal malpractice: Reversed: The issue is proximate cause. Huang cannot attribute damages to Brenson's failure at trial. In malpractice cases like this one, which turn on the attorney's conduct during litigation, "a plaintiff must generally prove a case-within-a-case to establish proximate cause. The trial court's error acted as an intervening cause, relieving Brenson's alleged negligence.  Judicial estoppel is inapplicable because Huang has not asserted or shown any of the elements of judicial estoppel, and defendants do not assert any factual position in this litigation that is contrary to a position taken in the underlying case.  It is not clear that, even if Brenson had properly informed Huang of Zhou's demands, Huang could have convinced or forced the insurance company to settle and avoid going to trial. Accordingly, Huang failed to plead that defendants' breach of fiduciary duty—failing to relay Zhou's settlement demands—proximately caused his damages. Hyman, J.

No. 2014  IL App (1st) 123231    Huang v. Brenson    Filed 03-05-14   (RJC)


Plaintiffs, a lawyer and his firm, brought this legal malpractice claim against the lawyer who defended him in a legal malpractice claim brought by a former client. In the original case, plaintiffs' professional liability insurer retained defendants Ian Brenson and the Law Offices of Ian Brenson (collectively, Brenson) to represent plaintiffs John Z. Huang and his firm John Z. Huang, P.C. (collectively, Huang). The former client prevailed against Huang. (Ultimately, that judgment was reversed on appeal.) Huang's legal malpractice case against Brenson was dismissed, and this appeal followed.

7 Appellate Court Cases Posted 03-04-14

1.   Illinois Pension Code/Admin. Review: Reversed: The Board's decision denying pension benefits, while given deference, is subject to reversal if it is against the manifest weight of the evidence.There is no medical evidence that could reasonably be construed to be supportive of the Board's decision that would justify this court affirming it on appeal.  Under the facts of this case, this court finds that the plaintiff's back was injured on May 25, 2010 and that the Board's decision that this injury played no role whatsoever in his current permanent disability from back problems was contrary to the manifest weight of the evidence. This court reverses the decision of the Board which denied plaintiff's application for duty-related pension benefits where it found that plaintiff's permanent disability was not caused, even in part, by an on-the-job injury because it is not supported by the manifest weight of the evidence.  Simon, J.

No. 2014  IL App (1st) 131066    Scepurek v. The Board of Trustees of the Northbrook Firefighters' Pension Fund    Filed 03-04-14   (RJC)


The plaintiff, Mark E. Swanson, appeals from an order of the circuit court which confirmed a decision of the Board of Trustees of the Flossmoor Police Pension Fund (the Board), denying his application for a line-of-duty disability pension under section 3-114.1 of the Illinois Pension Code (Code) (40 ILCS 5/3-114.1 (West 2008)) or, in the alternative, by reason of a stroke he suffered in the performance of his duties as a police officer under section 3-114.3 of the  Code (40 ILCS 5/3-114.3 (West 2008)). For the reasons which follow, we affirm the judgment of the circuit court.

2.   Criminal Law: Affirmed: Testimony provided the necessary facts to allow a rational trier of fact to find the essential elements of the crime of involuntary servitude beyond a reasonable doubt. Ttestimony showed that defendant subjected Jessica into a commercial
sexual activity and threatened to harm her. Accordingly, we cannot say that the jury erred when it found defendant guilty of involuntary servitude based on his conduct toward Jessica.  It follows that based on our holding that the State proved defendant guilty of involuntary servitude beyond a reasonable doubt, that defendant's argument here that he cannot be convicted of "Type B" trafficking in persons for forced labor or services because the State failed to prove the element of involuntary servitude is without merit. Harris, J.

No. 2014  IL App (1st) 112209   People v. Bonaparte   Filed 03-04-14   (RJC)


A jury found defendant Troy Bonaparte guilty of two counts of involuntary servitude, three counts of trafficking in persons for forced labor or services, and one count of pandering. Before this court, defendant challenges the sufficiency of the evidence used against him for his convictions for involuntary servitude and trafficking in persons for forced labor or services. Defendant did not challenge his conviction for pandering in his brief before this court. We hold the jury properly found defendant guilty of involuntary servitude and trafficking in persons for forced labor or services beyond a reasonable doubt.

3.   Civil/216 RTA/MTD: Affirmed in part, reversed in part and remanded: Michael timely responded to the Rule 216 request to admit by mailing his response within 28 days of November 20. Nothing in Rule 216 requires the response to be received by the requesting party within 28 days of serving the request. Vision Point makes clear that Rule 216 requests to admit are discovery tools. As such, broad discretion is vested in the trial court in the administration of its trial docket and its supervision over the conduct of discovery. Given the reality of practicing law and the daily demands of addressing most litigation matters, it is not unusual for attorneys to wait until the last moment to finalize a document for his client. While we do not condone or encourage noncompliance with court-imposed deadlines, trial courts must be mindful of and recognize the wisdom of Rule 183 and exercise properly the discretion granted thereby.  Also, the "transaction" alleged, the holding of the coins, constitutes a service and not the sale of goods.  As such, it falls outside of the purview of the statute of frauds found in article 2 of the Uniform Commercial Code, which governs only the sale of goods and not the services alleged in the complaint. Therefore, we reject defendants' contention that plaintiff's claims are barred by the statute of frauds. Additionally, the agreement to store the coins was capable of, and was allegedly performed in one year.  As such. the plaintiff's claims are not barred by the statute of frauds. Pierce, J.

No. 2014  IL App (1st) 121840    Armagan v. Pesha   Filed 03-04-14   (RJC)


Defendants bring this appeal arguing the circuit court erred in denying their motion to dismiss plaintiff's verified complaint; in granting plaintiff's motion to deem facts admitted; and in granting summary judgment on two counts in favor of plaintiff. For the following reasons, we affirm in part and reverse in part and remand to the circuit court for further proceedings consistent with this opinion.

4.   Fee petitions/Discovery: Affirmed: App. Crt. holding that plaintiff owed COSCO and Interpool a duty to defend is the law of the case and plaintiff is barred from relitigating that issue by now claiming that COSCO and Interpool did not exclusively tender their defense in the underlying actions to plaintiff and that they may have received a double recovery as a result. Thus, to the extent plaintiff has already requested discovery regarding other insurance policies issued to COSCO and Interpool, the circuit court's ruling is the law of the case and bars such discovery.  The circuit court did not abuse its discretion by denying plaintiff's discovery request because plaintiff was seeking discovery as to issues it was barred from relitigating by the law of the case doctrine. Also, the court did not abuse its discretion by denying the section 155 request for attorney fees by COSCO and Interpool because plaintiff was not barred from requesting an evidentiary hearing or challenging the reasonableness of the fees in the supplemental petition and any delay it caused by doing so is not so unreasonable or vexatious as to warrant an award of attorney fees under section 155 of the Insurance Code. Simon, J.

No. 2014  IL App (1st) 121895    American Service Insurance Company v. China Ocean Shipping Company   Filed 03-04-14   (RJC)


This case arises from a multivehicle accident which occurred on October 1, 2003, and resulted in the deaths of eight people and injuries to many others. Multiple lawsuits were filed against Vincent Zepeda; his employer, Frontline Transportation (Frontline); and COSCO and Interpool, which allegedly owned, leased, maintained, and/or controlled the trailer Zepeda was hauling when the accident occurred. Plaintiff, American Service Insurance Company, appeals from orders of the circuit court of Cook County denying its motion to take discovery regarding the supplemental fee petition filed by defendants, China Ocean Shipping Company (Americas) Inc. (COSCO), and Interpool Titling Trust (Interpool); granting the supplemental fee petition; and denying plaintiff's motion to reconsider the orders denying its request for discovery and granting the supplemental fee petition.  Affirmed.

5.   DUI/Stat. Summary Susp.: Reversed and remanded: Defendant was not deprived of a substantial right where it is clear he received actual notice of the statutory summary suspension on the date of his arrest. Defendant admitted he received the notice following his arrest, rendering the issue undisputed. Not only did defendant admit he received the written notice, he also admitted he was given the proper admonitions contained in the written warning to motorist. Accordingly, the trial court erred in granting defendant's petition to rescind on the basis the officer failed to warn defendant his license was subject to summary suspension. Pope, J.

No. 2014  IL App (4th) 130340    People v. Clayton   Filed 03-04-14   (RJC)


The State appeals the trial court's order granting defendant Ryan C. Clayton's petition to rescind the statutory summary suspension of his driver's license. We reverse and remand for further proceedings.

6.   Criminal/Appeals/Jurisdictin: Appeal dismissed: Here, after the trial court denied the State's initial motion in limine, the State chose to proceed to trial instead of seeking appellate review by timely filing a certificate of im-pairment. No doubt the State hoped that the jury would return guilty verdicts on the counts charged, but instead the jury acquitted defendant on four counts and was unable to reach a verdict on the fifth count. Thus, the State forfeited its right under Rule 604(a) to appeal the court's order denying the State's motion in limine. Steigmann, J.

No. 2014  IL App (4th) 130542   People v. Mendiola   Filed 03-04-14   (RJC)


In July 2012, the State charged defendant, Juan Mendiola, with (1) four counts of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2012)) and (2) one count of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)). During a February 11, 2013, hearing, the trial court considered and denied the State's motion in limine, which sought the admission of a telephone call recording that defendant made from jail to Lisa K. (Lisa), the mother of the two minor victims the State alleged defendant abused. Two days later, the court denied the State's motion to reconsider. The jury later acquit-ted defendant on four of the five charges, but could not reach a verdict on one count of aggravat-ed criminal sexual abuse. The court declared a mistrial on that remaining count. In March 2013—prior to a second trial on the remaining count of aggravated criminal sexual abuse—the State filed a second motion in limine, which sought to introduce the March 4, 2014 same recording. In June 2013, the trial court entered a written order, denying the State's motion in limine, reiterating the rationale the court stated in its earlier denial.
The State appeals, arguing that the trial court abused its discretion by denying the State's March 2013 motion in limine. Because we conclude that this court lacks jurisdiction, we dismiss the State's appeal.

7.   Insurance (coverage)/Dec. action: Appeal dismissed: The parties agree that the lease contract between Hogan and Justin Time/Haag Food contained a choice-of-law provision establishing that Missouri law would be applied. While there is no Illinois case interpreting Harco's contingent endorsement, the Illinois Supreme Court issued an opinion in 1977 enforcing a similar form of contingent coverage issued to truck owners who lease their trucks to other motor carriers. St. Paul Fire & Marine Insurance Co. v. Frankart, 69 Ill. 2d 209, 370 N.E.2d 1058 (1977). The endorsement clearly bars coverage for this accident. Because there is no applicable coverage, and Missouri law prohibits the creation of coverage by waiver, the arguments advanced by plaintiffs lack merit. Chapman, J.

No. 2014  IL App (5th) 130124   Justin Time Transportation, LLC v. Harco National Insurance Company   Filed 03-04-14   (RJC)


This case presents an insurance coverage question resulting from a fatal motor vehicle accident involving a leased truck. Hogan Truck Leasing (Hogan) owned the truck and leased it to Justin Time Transportation, LLC (Justin Time). The driver of the leased vehicle, Derell L. Boyd, lost control of the truck and slid on ice-covered roads. The truck driven by Boyd struck and killed Edwin W. Sargent. Harco National Insurance Company (Harco) issued the insurance policy involved with this appeal. The named insured under the Harco policy was Hogan. The Harco policy covered permissive users of Hogan's vehicles. Justin Time maintained a $1 million liability insurance policy issued by Netherlands Insurance Company (Netherlands). Justin Time also had a $3 million umbrella policy written by Indiana Insurance Company. Edwin W. Sargent's estate filed a civil suit for wrongful death against the plaintiffs. The lawsuit settled. The plaintiffs then filed a declaratory judgment action against Harco to determine their rights pursuant to Harco's policy. The trial court granted summary judgment for the plaintiffs, finding that provisions of Harco's policy were ambiguous and that Harco waived its right to use the policy exclusion. Harco appeals.

2 Appellate Court Cases Posted 03-03-14

1.   Illinois Pension Code/Admin. Review : Affirmed: Sufficient factual evidence exits  in the record supporting the Board’s determination that the plaintiff failed to prove that his disability is the result of a stroke suffered as a result of the performance of his duties as a police officer or resulting from the performance of an act of duty as a police officer, we are unable to conclude that the Board’s decision denying him a 65% pension under either section 3-114.1 or section 3-114.3 of the Code is against the manifest weight of the evidence.   Hoffman, J.

No. 2014  IL App (1st) 130561    Swanson v. The Board of Trustees of the Flossmoor Police Pension Fund    Filed 03-03-14   (RJC)


The plaintiff, Mark E. Swanson, appeals from an order of the circuit court which confirmed a decision of the Board of Trustees of the Flossmoor Police Pension Fund (the Board), denying his application for a line-of-duty disability pension under section 3-114.1 of the Illinois Pension Code (Code) (40 ILCS 5/3-114.1 (West 2008)) or, in the alternative, by reason of a stroke he suffered in the performance of his duties as a police officer under section 3-114.3 of the  Code (40 ILCS 5/3-114.3 (West 2008)). For the reasons which follow, we affirm the judgment of the circuit court.

2.   Domestic Relations/Support/Contempt: Affirmed: In this case, the trial court did not, as respondent posits, hold him in contempt for asserting his fifth-amendment privilege. Instead, the trial court held respondent in contempt because he failed to meet his burden of showing why he should not be held in contempt. The petitioner met her burden of establishing a prima facie case of contempt at the March 20, 2013, hearing. The court's March 27, 2013, written order so reflects. We must presume petitioner presented some evidence of respondent's noncompliance at the March 20, 2013, hearing. At this point, respondent had the burden of establishing cause as to why he should not be held in contempt. Respondent's assertion of his fifth-amendment privilege cannot be substituted for evidence and does not shift the burden back to petitioner. Respondent is attempting to use the fifth-amendment as a sword to defeat allegations of contempt, not as a shield from compulsory self-incrimination as it was originally intended. Knecht, J.

No. 2014  IL App (4th) 130326   In re: Marriage of Ray    Filed 03-03-14   (RJC)


In August 2011, petitioner, Kari L. Ray, filed a petition for dissolution of marriage and a verified petition for temporary custody, maintenance, child support, and attorney fees. In December 2011, the trial court entered an agreed order compelling respondent, David J. Ray, to pay, inter alia, child support in the amount of $2,000 per month. In December 2012, respondent ceased making support payments per the court's order, which prompted petitioner to file a petition for rule to show cause to issue for indirect civil contempt and attorney fees. After a March 2013 hearing, the trial court held respondent in indirect civil contempt and set the purge amount at $1,000 cash. On appeal, respondent asserts the court improperly held him in contempt where respondent invoked his fifth-amendment privilege against self-incrimination during the contempt proceedings. We affirm.