Illinois Supreme and Appellate Court Case Summaries

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


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3 Appellate Cases Posted 4-30-14

1. Workers Compensation: Reversed and remanded: Ambiguity in the drafting of a workers compensation claim as to whether (or not) a medicare supplemental annuity was included in the terms of the agreement, or whether the amount settling the claim included the Medicare annuity, was of such a nature that an evidentiary hearing was necessary n connection with claimant's action to enforce the action. Hyman. J.

No. 2014 IL App (1st) 130621  Paluch v. United Parcel Service, Inc.  Filed 4-30-14 (TJJ)

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 plus 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. We find the agreement ambiguous as to the total amount UPS owed to Paluch and reverse the trial court and remand for an evidentiary hearing because the settlement agreement is ambiguous and open to more than one interpretation. After this court issued its opinion on March 26, 2014, Paluch filed a petition for rehearing, which was denied and this modified opinion was issued.

2. Judgments: Affirmed: In an action to revive a judgment entered in 1991, fact that plaintiff filed a petition to revive the judgment in 1998 did not extend or toll the 20-year statute of limitations in Section 2-1602 of the Code of Civil Procedure, and the trial court properly dismissed plaintiff's action, as it was filed just over 20 years form the date of the entry of the original judgment. Hyman, J.

No. 2014 IL App (1st) 130772  Burman v. Snyder  Filed 4-30-14 (TJJ)

The circuit court granted defendant's motion to dismiss a petition to revive to enforce a judgment over 20 years old because: (i) in the absence of a second petition to revive, the judgment had become dormant and, the statute of limitations having run, could  no longer be revived; and, alternatively, (ii) plaintiff's having served defendant with the petition after the expiration of the statute of limitations demonstrated lack of diligence justifying dismissal under Illinois Supreme Court Rule 103 (eff. July 1, 2007). Because we agree with the trial court's finding that the plaintiff's judgment became dormant, and by operation of Illinois law, expired when it was not timely revived, we do not need to determine whether the plaintiff acted diligently in serving the defendant. Affirmed.

3. Criminal Law: Reversed and remanded: Trial court erred in denying defendant's motion to suppress evidence where defendant's actions in stuffing "an unknown object into his crotch area," and the officer's knowledge that defendant had previously been arrested for weapons offenses, were insufficient under Terry v. Ohio to justify pat-down search and recovery of narcotics. Hyman, J.

No. 2014 IL App (1st) 121306  People v. Sims  Filed 4-30-14 (TJJ)

Defendant appeals the trial court's denial of his motion to suppress evidence that was seized during a Terry stop and frisk. Terry v. Ohio, 392 U.S. 1 (1968). He argues that the arresting officer did not have sufficient reasonable suspicion of criminal activity. While responding to an unrelated situation, a police officer saw defendant, sitting out in front of a building, "stuff an unknown object into his crotch area" and begin to walk away. The officer, who recognized defendant and knew he had an arrest for unlawful use of a weapon, stopped and searched defendant on the ground that his "movement" was indicative of "someone that could be armed." Although defendant turned out to be unarmed, the officer seized a plastic bag containing 25 smaller plastic bags of a substance that ultimately tested positive for cocaine. After a bench trial, the trial court found defendant guilty of the possession of a controlled substance with the intent to deliver and sentenced him to six years' incarceration on his criminal record as a Class X offender. We reverse the conviction and sentence on the ground that the stop was not supported with sufficient reasonable suspicion that a crime had been, or was about to be, committed.

2 Appellate Cases Posted 4-29-14

1.  Civil Procedure: Affirmed: Under the section 2-1401 petitioner must show: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting the defense or claim to the trial court in the original action; and (3) due diligence in the filing of the section 2-1401 petition to vacate the judgment. A section 2-1401 petition provides a unique remedy that does not operate “to shield a litigant from the consequences of his own mistakes or his counsel’s negligence.”    Wright, J., Holdridge, J., dissented

No. 2014 IL App (3rd) 130087  Warren County Soil and Water Conservation District  Filed 04-29-14 (LJD)

On June 22, 2011, the trial court entered a default judgment against defendants, Steve Walters, Steve Walters Logging and Export, Inc., and Robert O’Dell, d/b/a Robert O’Dell Logging, for the alleged wrongful cutting of timber belonging to plaintiff, Warren County Soil and Water Conservation District. At the time of the 2011 default judgment, defendants were represented by counsel who failed to appear on their behalf. The trial court denied defendants’ subsequent petition to vacate the default judgment, filed by new counsel pursuant to section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2012)), after finding defendants had not demonstrated due diligence in the original action due to the negligence of defendants’ original trial counsel. On appeal, defendants assert the trial court should have exercised the equitable powers of the court, in the interests of justice, rather than attribute the lack of diligence of their original attorney to these defendants, contrary to well-established case law. We affirm.

2.  Federal Preemption/ Civil Practice: Revesed:  A petition for relief from judgment allows a party to bring to the attention of the trial court factual matters that would have prevented the court from entering the judgment had those matters been presented to the court prior to entry of the judgment.  To prevail, the petitioner must demonstrate by a preponderance of the evidence that (1) a meritorious claim or defense exists, (2) the petitioner exercised due diligence in attempting to present that claim or defense at trial in the original litigation, and (3) the petitioner exercised due diligence in filing the petition as early as possible.    Chapman, J.

No. 2014 IL App (5th) 130017  Price v. Philip Morris, Inc. Filed 04-29-14 (LJD)

The plaintiffs appeal an order denying their petition for relief from judgment (735 ILCS 5/2-1401 (West 2006)). The petition was filed under an unusual set of procedural circumstances. The plaintiffs filed a lawsuit alleging that the defendant's use of the terms "light" and "low tar" in advertising its cigarettes constituted fraud. The plaintiffs  prevailed at trial; however, the judgment was reversed on appeal on the basis of a statutory provision barring consumer fraud actions where the challenged conduct was specifically authorized by federal regulations (see 815 ILCS 505/10b(1) (West 2000)). The matter was remanded to the trial court with directions to dismiss the complaint.  The plaintiffs subsequently filed a section 2-1401 petition for relief from judgment, alleging that (1) evidence unavailable to the plaintiffs at trial showed that the Federal Trade Commission never authorized use of the terms "light" and "low tar" by the defendant, and (2) had the plaintiffs been able to present this evidence at trial, the result on appeal would have been different. In ruling on the petition, the trial court found that the plaintiffs (1) had a meritorious claim, and (2) acted with due diligence both in attempting to present that claim at trial and in filing the section 2-1401 petition as soon as possible. However, the court further determined that it was "equally likely" that the supreme court would have reversed on other grounds had it ruled differently on the question of section 10b(1). In this appeal, the plaintiffs argue that the court impermissibly exceeded the scope of section 2-1401 review but ruled correctly on all other issues. We reverse.

2 Appellate Cases Posted 4-28-14

1.  Administrative review: Affirmed:  An agency's decision on a mixed question of law and fact is considered clearly erroneous only where the reviewing court is left with the definite and firm conviction that a mistake has been  made.   The best evidence of legislative intent is the language used in the statute itself, which must be given its plain and ordinary meaning." Id. If a word or phrase within a statute is undefined, it is appropriate to employ a dictionary to ascertain the meaning of the undefined word or phrase.  The dispositive issue in this case is whether Taiym performed safety or investigative work for the county, state, or federal government prior to being employed as a police officer.  City is not included in the statute.  Cunningham, J.,  Delort, J., specially concurring.

No. 2014 IL App (1st) 123769  Taiym v. The Retirement Board of the Policemen's Aunnuity and Benefit Fund of the City of Chicago  Filed 04-28-14 (LJD)

This appeal arises from a November 28, 2012 order entered by the circuit court of Cook County which affirmed the decision of defendant-appellee the Retirement Board of the Policemen's Annuity and Benefit Fund of City of Chicago (Retirement Board) to deny the petition of plaintiff-appellant Danial F. Taiym's (Taiym) to receive pension credit for previous employment. On appeal, Taiym argues that: (1) the Retirement Board erred when it found that Taiym did not qualify for pension credit under section 5-214(c) of the Illinois Pension Code (Pension Code) (40 ILCS 5/5-214(c) (West 2010)); and (2) the Retirement Board erred when it found that Taiym was not a temporary police officer pursuant to section 5-214(b) of the Pension Code (40 ILCS 5/5-214(b) (West 2010)). For the following reasons, we affirm the judgment of the circuit court of Cook County.

2.  Construction LAw: Affimred: Generally, it is the rule in Illinois that a party who entrusts an independent contractor will not be held vicariously liable for tortuous acts or omissions committed by the independent contractor.  However, if sufficient control is exercised over the independent contractor, then that rule no longer applies and section 414 of the Restatement (Second) of Torts is triggered.  The general rule is that summary judgment in favor of the general contractor is inappropriate when the general contractor agreed to retain control over safety at the construction site or where the general contractor goes to great lengths to control safety at the construction site. However, summary judgment in favor of the general contractor is appropriate where an independent contractor is contractually responsible for jobsite safety and the defendant general contractor takes no active role in ensuring safety [citation], or where [the] general contractor reserves the general right of supervision over the independent contractor but does not retain control over the incidental aspects of the independent contractor's work.  A general contractor's rights to stop work and order changes are general rights of supervision and not a retention of control over the incidental aspects of the work.  "The mere existence of a safety program, safety manual, or safety director is insufficient to trigger [section 414]." Cunningham, J.

No. 2014 IL App (1st) 130308  Fonseca v. Clark Constuction Group, LLC  Filed 04-28-14 (LJD)

This appeal arises from an October 15, 2012 order which granted the motion for summary judgment filed by defendant-appellee Clark Construction Group, LLC (Clark Construction), and denied the motion for summary judgment filed by defendant Maron Electric Company (Maron Electric). Maron Electric is not participating in this appeal. On appeal, plaintiff-appellant Fortino Fonseca (Fonseca) argues that the trial court erred in granting summary judgment in favor of Clark Construction because there was sufficient evidence to establish that Clark Construction owed Fonseca a duty to exercise reasonable care. For the following reasons, we affirm the judgment of the circuit court of Cook County.

7 Appellate Cases Posted 4-25-14

1. Appeals/Jurisdiction/Foreclosure: Appeal dismissed:  There is no jurisdiction under Rule 304(b)(3) because the motion to vacate effectively was brought under section 2-1301(e), and we do not have jurisdiction under Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) because the order granting the motion was not a final and appealable order. Burke, J. 

No. 2014 IL App (2d) 130652    Federal National Mortgage Ass'n v. Tomei   Filed 04-25-14 (RJC)

This residential mortgage foreclosure action was brought by plaintiff, Federal National Mortgage Association, against defendants, Myriam P. Tomei, Mortgage Electronic Registration Systems, Inc., as nominee for Pinnacle Financial Corp., d/b/a Great Lakes Home Mortgage, and unknown owners and nonrecord claimants. Tomei (defendant) appeals the trial court’s judgment granting plaintiff’s “motion,” which plaintiff alleged was pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2012)), to vacate the dismissal of the case for want of prosecution (DWP). Defendant argues on appeal that the section 2-1401 motion was insufficient as a matter of law because plaintiff did not support it by affidavit or overcome the due diligence requirement. Plaintiff responds that we lack jurisdiction to address the appeal, because the section 2-1401 motion was effectively a motion pursuant to section 2-1301(e) of the Code (735 ILCS 5/2-1301(e) (West 2012)) and the order granting the section 2-1301(e) motion was not a final and appealable order. We dismiss the appeal. 

2.  Criminal Law: Reversed: The evidence supporting an involuntary manslaughter instruction is not as strong as the evidence supporting a second degree murder instruction, but the jury could rationally accept defendant acted recklessly and did not intend to shoot Deryon based on the evidence presented. Weighing  the credibility of defendant and the other witnesses is a task for the jury, not the trial judge.  Knecht, J. 

No. 2014 IL App (4th) 120774    People v. Beasley   Filed 04-25-14 (RJC)

Defendant, Alvin C. Beasley, appeals from a jury verdict of guilty of second degree murder. Defendant argues the trial court abused its discretion in failing to instruct the jury on involuntary manslaughter where some evidence supported that theory. We reverse.

3.  Criminal Law: Reversed and remanded: The testimony interpreting the identity of who was depicted in the video was improper.   Relaying Officer Jackson's and Chief Deputy Sandusky's comfort with proceeding with the investigation after viewing the video did not assist the jury's understanding of the steps of the investigation or how defendant became the suspect. Instead, this simply conveyed the officers' personal opinions. The personal convictions of these officers were irrelevant and highly prejudicial.  In this case, the identifications painted multiple layers of prejudice on the images presented to the jury.  The inherent unreliability of the verdict stems from the error of conducting the trial as a display of the subjective aspects of the police investigation. The visual images presented at trial were colored by the unanimous conclusion of witnesses who, though in a position of authority, had no better vantage point than the jury to compare defendant to the video. Although not helpful in explaining the course of the investigation, by introducing these opinions in the context of the investigation, the jury was invited to base its verdict on the propriety of the investigation instead of the adequacy of the proof of the crime. Goldenhersh, J. 

No. 2014 IL App (5th) 120079   People v. Thompson   Filed 04-25-14 (RJC)

Defendant, Jeremy R. Thompson, was charged with illegal procurement of anhydrous ammonia and tampering with equipment in violation of the Methamphetamine Control and Community Protection Act (720 ILCS 646/25 (West 2010)) in the circuit court of Hamilton County. After trial, a jury found defendant guilty on both counts and the court entered judgment on the verdict. On appeal, defendant raises issues as to whether he was denied a fair trial by the trial court admitting lay opinion testimony identifying him from surveillance recordings. We reverse and remand.

4.  Criminal Law/UUW: Affirmed: The record in this case reveals the trial court convicted and sentenced defendant under the Class 2 form of the offense. While Aguilar did not directly address whether the Class 2 form of  AUUW was similarly invalid, this court has since visited the issue and determined the Class 2 form of AUUW remains constitutional.  ("[T]he Class 2 form of AUUW *** merely regulates the possession of a firearm by a person who has been previously convicted of a felony" and, therefore, "defendant's constitutional
challenge to the Class 2 form of the offense in the AUUW statute fails."); ("[W]e agree that the Class 2 form of AUUW under section 24-1.6(a)(1), (a)(3)(A) is a reasonable regulation of the second amendment right to bear arms."). Accordingly, Aguilar does not affect defendant's conviction for AUUW and we reaffirm the judgment of the circuit court of Cook County. Reyes, J. 

No. 2014 IL App (1st) 110793-B    People v. Moore   Filed 04-25-14 (RJC)

Following a bench trial, defendant Tamar Moore (defendant) was found guilty of two counts of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (2), (3)(A), (d) (West 2010)) and one count of unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a), (e) (West 2010)). After merging the counts into one, the trial court sentenced defendant to three years and six months of imprisonment on the Class 2 form of the AUUW offense (720 ILCS 5/24-1.6(a)(1), (d) (West 2010)). On appeal, defendant contends: (1) the State failed to prove his guilt beyond a reasonable doubt because the officers' testimony was not credible; and (2) his conviction under the AUUW statute violates his second amendment rights of the United States Constitution (U.S. Const., amend. II). This court initially affirmed defendant's conviction, finding: (1) the trier of fact could have reasonably found the arresting officers' testimony credible; and (2) the AUUW statute was constitutional. People v. Moore, 2013 IL App (1st)  110793. The Illinois Supreme Court subsequently entered a supervisory order directing us to vacate our judgment and reconsider our opinion in light of People v. Aguilar, 2013 IL 112116.  People v. Moore, No. 115935 (Ill. Jan. 29, 2014). Upon further examination, we reaffirm defendant's conviction.

5.  Home Rule/Ordinances: Affirmed: The state and counties have a greater interest and a more traditional role in addressing the issues of animal control and preventing the spread of rabies than do local municipalities. These issues are matters of statewide concern and do not strictly pertain to the government and affairs of Bridgeview as a home rule unit, within the meaning of article VII, section 6(a), of the 1970 Illinois Constitution. Bridgeview's ordinance was an invalid exercise of its home rule authority. Bridgeview exceeded its authority under section 24 of the Animal Control Act by making it unlawful to operate feral cat colonies within its corporate limits. The trial court correctly determined that Bridgeview not only lacked the home rule authority to enact its ordinance, but also lacked the statutory authority to do so. Hall, J. 

No. 2014 IL App (1st) 122164   County of Cook v. Village of Bridgeview   Filed 04-25-14 (RJC)

This appeal involves two apparently conflicting ordinances that regulate feral cat colonieswithin Cook County. One of the ordinances was adopted by the county. The other ordinancewas adopted by the Village of Bridgeview, a municipality located within Cook County.

6. Sexually Violent Persons Commitment Act: Affirmed:  Proceedings under the Act are civil in nature.  it was not the legislature's intent to allow a respondent to a commitment proceeding to make a late jury demand under these circumstances.  The Act requires a court to hold a dispositional hearing prior to entering a commitment order. A dispositional hearing under the Act is analogous to a sentencing hearing since a trial court must enter a commitment order when a respondent is found to be a sexually violent person. Thus, when the trial court admonished respondent that his trial would proceed in his absence if he refused transportation, that constituted sufficient notice of a dispositional hearing as well. Further, having received such admonishment prior to trial, respondent effectivelywaived his right to be present at the dispositional hearing. Taylor, J. 

No. 2014 IL App (1st) 122186     People v. Miller   Filed 04-25-14 (RJC)

Respondent Dale Miller appeals orders from the circuit court of Cook County finding him to be a sexually violent person and committing him to a secure facility for treatment. He contends that he was denied his right to a jury trial

after the State withdrew its jury demand, as well as his right to dispositional hearing on the issue of whether he should be committed to secure care.

2 Appellate Cases Posted 4-24-14

1.  Parental Rights: Affirmed: The record here establishes that the trial court’s decision to terminate respondent's parental rights was not contrary to the manifest weight of the evidence. Instead, from all that was presented, we find ample evidence to support its finding that this was in Tajannah's best interest. In assessing a minor's best interest, the trial court is to look to all matters bearing on her welfare.   The evidence clearly shows that it is in Tajannah's best interest to allow her to be adopted by her foster parents. Accordingly, there is no error on the part of the trial court. Fitzgerald Smith, J. 

No. 2014 IL App (1st) 133119    In re Tajannah O.    Filed 04-24-14 (RJC)

Respondent-appellant Lishon M. (respondent) appeals from the trial court's order in the instant cause terminating her parental rights over Tajannah O., her minor child. She contends that it was not in the minor’s best interest to terminate her parental rights where she and the minor have an extraordinary bond, she has daily contact with the minor and no witness testified that this contact was harmful or should be diminished. She asks that we vacate the No. 1-13-3119  termination order against her and for any other appropriate relief. For his part, Tajannah’s public guardian has filed an appellee’s brief in this cause, which the State has adopted. For  the following reasons, we affirm the trial court’s termination order.

2. Corporations/Dissolution/Statute of Limitations: Affirmed:  The plain language of section 12.80 prohibits Optima's claims against Jenni and Loucon because the claims were filed more than five years after the corporations were dissolved. At the time the third-party complaint was filed both corporations had ceased to exist. Since Optima did not file its third-party action within the five-year statutory time period, there is no longer an entity that can sue or be sued. It follows that section 5.25 of the Act did not authorize the Secretary of State to serve as Jenni's or Loucon's agent for service of process. The trial court correctly dismissed Optima's third-party complaint with prejudice pursuant to section 2-619. We recognize that dismissal of Optima's third-party action means that Optima's right to sue Jenni and Loucon expired before Optima discovered that it had a cause of action against them. However, this harsh result does not allow us to disregard the plain language of the statute. The plain and unambiguous language of section 12.80 prohibits a court from extending the "grace period" for suits against dissolved corporations beyond the definite period of five years contained in the statute. In the case at bar, there has been no allegation or claim whatsoever that either of the dissolved corporations engaged in any type of fraudulent activity or concealment. Unless and until the legislature amends the corporate survival statute to permit an exception to protect the rights of parties seeking indemnification or contribution which had no knowledge of a claim before the expiration of the five-year term, we believe courts have no power to undo the harsh results of an action such as this. Epstein, J. 

No. 2014 IL App (1st) 123764    Michigan Indiana Condominium Ass'n v. Michigan Place, LLC    Filed 04-24-14 (RJC)

The underlying case arose out of the construction of a 119-unit residential condominium complex (the Complex). Optima was the general contractor and selected subcontractors to perform the construction work, including Jenni and Loucon, each of which provided masonry  services.  Construction was completed in June 2002. On September 2, 2003, Loucon was dissolved. Jenni was dissolved on January 1, 2006. Third-party plaintiff, Optima, Inc. (Optima), appeals from the dismissal, pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)), of its third-party complaint against third-party defendants, Paul Holzman, d/b/a Jenni, Inc. (Jenni), and Loucon, Inc. (Loucon). We affirm the judgment of the circuit court of Cook County.

2 Appellate Cases Posted 4-23-14

1.  Statute of Limitations: Affirmed: The ventilation system, although a temporary installation, was an essential step in the installation of an improvement to the property and that, under the language in section 13-214(a), Rockford Heating’s activities fall under its purview.  Fireman’s Fund filed its complaint four years and three months after the fire occurred and therefore the complaint was barred by the four-year limitations period provided in section 13-214(a) of the Code.  McLaren, J. with Hudson, J. dissenting.

No. 2014 IL App (2d) 130566    Fireman's Fund Insurance Co. v. Rockford Heating & Air Conditioning, Inc.    Filed 04-23-14 (RJC)

Plaintiff, Fireman’s Fund Insurance Company (Fireman’s Fund), as subrogee of First Rockford Group, Inc. (First Rockford), appeals the trial court’s order granting the motion to dismiss filed by defendant, Rockford Heating and Air Conditioning, Inc. (Rockford Heating), pursuant to section 2-619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5)  (West 2010)) on statute-of-limitations grounds. We affirm.

2. Criminal Law: Affirmed: Campbell was not denied effective assistance by counsel's decision not to litigate a motion to suppress his confession, where such a motion would not have been successful and no prejudice arose.  Felon-based firearm bans, like the UUWF and AHC statutes, do not impose a burden on conduct falling within the scope of the second amendment. The sentence Campbell received is proportionate to the serious nature of the offense he committed and consistent with the purpose of the law, including the balancing of the seriousness of the offense with defendant's rehabilitative potential.  Hyman, J.

No. 2014 IL App (1st) 112926    People v. Campbell   Filed 04-23-14 (RJC)

Defendant Vincent Campbell asked to speak with an attorney before being transported to the police station, where he confessed without counsel present. His trial counsel filed, and later  withdrew, a motion to suppress the confession. Campbell accuses his trial counsel of ineffective  assistance. After a bench trial, the trial court found Campbell guilty of five counts of unlawful use of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1(a) (West 2008)), and one count of violating section 24-1.7(a) of the Criminal Code of 1961, the armed habitual criminal (AHC) statute (720 ILCS 5/24-1.7(a) (West 2008)), after police seized guns and ammunition at Campbell's home during the execution of a search warrant. In addition, Campbell argues: (i) both the UUWF and the AHC statutes violate his second amendment right to bear arms by criminalizing a felon's possession of a firearm for purposes of self-defense in his or her own home; (ii) the court relied on incorrect information in declining to sentence him to the minimum available term; and (iii) his UUWF conviction should be vacated under the one-act, one-crime principle because neither the indictment nor the record of proceedings indicates that the UUWF charge was based on an act of possession separate from the act alleged in charging him with violating the AHC statute. Affirmed.

2 Appellate Cases Posted 4-22-14

1.  Criminal Law: Reversed and Remanded: "Our primary objective in construing a statute is to ascertain and give effect to the intent of the legislature, bearing in mind that the best evidence of such intent is the statutory language, given its plain and ordinary meaning."  "[T]here is no rule of construction that authorizes a court to say that the legislature did not mean what the plain language of the statute provides." Thus, "[w]here the language of a statute is clear and unambiguous, a court must give it effect as written, without reading into it exceptions, limitations or conditions that the legislature did not express." Giving the term "minor" its defined meaning under the Act, section 5-120 reads to prohibit only the criminal prosecution of a person under the age of 21 years subject to the Act who was under 17 years of age at the time of the alleged offense.  Liu, J.

No. 2014 IL App (1st) 123262  People v. Fiveash Filed 04-22-14 (LJD)

The issue before this court on appeal is whether an adult defendant may be prosecuted in criminal court for crimes that he allegedly committed when he was under 17 years of age. Defendant David Fiveash was 23 years old at the time he was charged by indictment with criminal sexual assault of his 6-year-old cousin. The offenses allegedly occurred during the period of time when defendant was 14 and 15 years of age. He filed a motion to dismiss the charges for lack of jurisdiction pursuant to section 114-1(a)(6) of the Code of Criminal Procedure of 1963 (725 ILCS 5/114-1(a)(6) (West 2012)), claiming that under section 5-120 of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/5-120 (West 2002)), the juvenile court had exclusive jurisdiction over him for the alleged acts in the indictment, and, therefore, he could not be subjected to criminal proceedings. The trial court agreed that defendant could not be prosecuted under the indictment as it was drafted and dismissed the charges. The State contends that the court erred in dismissing the indictment. For the following reasons, we reverse and remand.

2.  Constiutional Law: Reversed and Remanded: "[t]he General Assembly by law shall make appropriations for all expenditures of public funds by the State." Ill. Const. 1970, art. VIII, § 2(b). Thus, it is the legislative branch of government that is authorized to make appropriations and attempts to expend state funds without legislative appropriation "raise serious separation of powers problems."  Pursuant to the State Finance Act "awards and grants" include payments for "[a]wards and indemnities, pensions and annuities (other than amounts payable for personal services as defined in Section 14); shared revenue payments or grants to local governments or to quasi-public agencies; and gratuitous payments to, or charges incurred for the direct benefit of, natural persons who are not wards of the State."  The statutory stipend is considered a part of each county treasurer's salary. Thus, decreases to a county treasurer's stipend during his or her term of office violate the constitution.    Harris, J.

No. 2014 IL App (4th) 130286   Illinois County Treasurers' Association v. Hamer Filed 04-22-14 (LJD)

Plaintiff, the Illinois County Treasurers' Association (Association), filed a complaint against defendants, Brian Hamer, Director of the Illinois Department of Revenue, and Judy Baar Topinka, Illinois Comptroller, alleging defendants violated Illinois law by failing to pay county treasurers the full amount of mandated annual stipends in 2010 and 2011 and seeking declaratory and mandamus relief. (Initially, the parties' pleadings named Topinka's predecessor, Daniel W. Hynes, as a defendant in the matter; however, the Association later filed a "suggestion of record" asserting Topinka became Illinois Comptroller as of January 10, 2011, and the matter proceeded against Topinka as a defendant.) Following the filings of cross-motions for summary judgment, the trial court granted summary judgment in favor of defendants. The Association appeals. We reverse and remand with directions.

1 Appellate Case Posted 4-21-14

1.  Criminal Law/Search & Seizure: Affirmed: The record appears to contain no evidence of a standard police procedure authorizing a police tow in these circumstances, as opposed to just moving the vehicle out of the lane of traffic. Because the police tow was an exercise of unguided discretion, it unreasonably prolonged the seizure of the car after the initial traffic stop. Afterward, the police further prolonged the seizure by placing a hold on the car while awaiting the arrival of the dog. If the police had not towed the car and placed a hold on it, they never would have had the opportunity to walk a dog around the car, and they never would have acquired probable cause to support the issuance of a search warrant. In our de novo review, we find no attenuation or interruption of the causal sequence extending from the unreasonable towing of the car to the issuance of the tainted search warrant.  Therefore, the suppression of the evidence is upheld. It is fruit plucked from the poisonous tree. Appleton, J. with Pope, J. dissenting.

No. 2014 IL App (4th) 130657    People v. Ferris   Filed 04-21-14 (RJC)

The State charged defendant, Dustin P. Ferris, with unlawful possession of methamphetamine (720 ILCS 646/60(b)(5) (West 2012)). He moved to suppress the evidence against him. After an evidentiary hearing, the trial court granted his motion. The State filed a certificate of impairment and a notice of appeal.

2 Appellate Cases Posted 4-18-14

1. Wrongful Death/Local Gov't. and Gov't. Empl. Tort Immunity Act: Affirmed: Although McLean owed a duty to supervise its students, Brooks' first amended complaint was properly dismissed pursuant to section 3-108 of the Tort Immunity Act where the complaint failed to adequately plead allegations showing willful and wanton conduct. Because section 3-108 applies, no need to address whether sections 2-201 or 2-109 of the Tort Immunity Act also apply. Pope, J.

No. 2014 IL App (4th) 130503    Brooks v. McLean County District Unit No. 5    Filed 4-18-14 (RJC)

On May 18, 2010, Donnie Hampton, a student at Kingsley Junior High School (Kingsley) in Normal, Illinois, was in a boys' bathroom at the school with other students playing a "game" called "Body Shots." According to the complaint in this case, the game involved students voluntarily punching each other with closed fists as hard as they could in the abdomen, chest, and ribs. After participating in the game, Hampton exited the bathroom, collapsed in the hallway, and later died. On February 1, 2013, plaintiff, Jasmine Brooks, the special administrator of Hampton's estate, filed a first amended three-count complaint against McLean County District Unit No. 5 (McLean), which operated Kingsley. The complaint alleged, inter alia, Hampton's Unit No. 5 (McLean), which operated Kingsley. The complaint alleged, inter alia, Hampton's death was the result of willful and wanton conduct on the part of McLean. On February 19, 2013, McLean filed a combined motion to dismiss the complaint with prejudice, which the trial court granted. Brooks appeals, arguing the trial court erred in (1) applying the public-duty rule instead of engaging in a traditional duty analysis, (2) finding the complaint failed to plead sufficient facts to establish willful and wanton misconduct, and (3) holding the complaint was barred by sections 4-102, 2-201, and 2-109 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/4-102, 2-201, 2-109 (West 2012)). We affirm.

2. Juvenile Law: Reversed and remanded: Considering the totality of the circumstances, J.M.'s youth, his mental deficiencies, the DVD which shows not only his inability to read his rights, but also his trust in Jany and Vespa despite their intention to get a statement to use against him, and Dr. Cuneo's credible, expert testimony, we find that the trial court's decision that respondent knowingly and intelligently waived his Miranda rights is against the manifest weight of the evidence. The evidence failed to show that J.M. made a knowing and voluntary waiver of his rights under Miranda. Goldenhersh, J.

No. 2014 IL App (5th) 120196    In re J.M.    Filed 4-18-14 (RJC)

J.M., a minor, appeals from an order of the circuit court of St. Clair County entered after a discharge hearing held pursuant to section 104-25 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/104-25 (West 2010)). The circuit court found that the evidence produced by the State would be sufficient to prove J.M. guilty beyond a reasonable doubt of arson (720 ILCS 5/20-1(a) (West 2008)), theft under $300 (720 ILCS 5/16-1(a)(1) (West 2008)), burglary (720 ILCS 5/19-1 (West 2008)), aggravated arson (720 ILCS 5/20-1.1(a)(3) (West 2008)), and residential arson (720 ILCS 5/20-1(a) (West 2008)) and refused to discharge J.M. Because the discharge hearing did not result in an acquittal of the charges, J.M., who had previously been declared unfit to stand trial, was ordered to seek further treatment in an attempt to restore fitness. In this appeal, J.M. contends the juvenile court erred in denying his motion to suppress his statement because the State failed to prove that he knowingly waived his Miranda rights and made a voluntary statement to police. J.M. asserts that without the statement, the remaining evidence is insufficient to prove him guilty beyond a reasonable doubt of any of the above charges, and, thus the admission of the statement was not harmless beyond a reasonable doubt. For the following reasons, we reverse and remand.

2 Appellate Cases Posted 4-17-14

1. Juvenile Law/Parental Rights: Affirmed in part and vacated in part: In cases where DCFS has authorized private caseworkers to monitor cases of children made wards of the court under the Juvenile Court Act, private caseworkers were authorized to appear in court and apprise court as to status of juvenile's case, and trial court order ordering DCFS employees to appear in every case was not proper, absent a particularized finding as to any particular ward showing that it is in the best interest of the child to require DCFS to appear in addition to any private caseworker. Holder White, J.

No. 2014 IL App (4th) 131281  In re N.M.  Filed 4-17-14 (TJJ)

In these five consolidated appeals, respondent, Bobbie Gregg, as the Acting Director of the Illinois Department of Children and Family Services (DCFS), challenges the portions of the juvenile court's dispositional orders requiring DCFS employees to appear at all hearings even though DCFS had assigned private-agency caseworkers to the minors' cases. (We note that, initially, Richard H. Calica was named as respondent; however, because Bobbie Gregg is now the Acting Director of DCFS, we have substituted her as the party on appeal.) The Director contends the juvenile court erred by ordering DCFS employees to appear at the hearings because (1) section 1-17 of the Juvenile Court Act of 1987 (Juvenile Act) (705 ILCS 405/1-17 (West 2012)) establishes a general rule that a private-agency caseworker assigned to a minor's case may appear and testify at juvenile court proceedings without the presence of a DCFS employee, and (2) the limited statutory exception to the general rule in section 1-17 applies only where the circuit court makes an individualized factual finding after hearing evidence. We affirm in part and vacate in part.

2. Tax Increment Financing: Affirmed: Under agreement in which Village promised to pay school district for use of school's recreational facilities, school district was not obligated to spend funds on capital improvements but could spend funds on employee salaries and other expenses, and Village could not withhold payment for district's failure to spend funds as Village deemed appropriate. McDade, J.

No. 2014 IL App (3d) 130364  The Board of Education of Gardner-South Wilmington High School District 73 v. The Village of Gardner  Filed 4-17-14 (TJJ)

In 1986, the Village of Gardner (Village) entered into an agreement with the Board of Education of Gardner-South Wilmington High School District 73 (District). The agreement granted the Village a license to use the District's outdoor recreational facilities within the designated redevelopment area. In 2012, the District sued the Village, alleging that the Village failed to make the payments called for by the agreement. The trial court agreed and granted summary judgment in favor of the District. The Village appeals and argues that it was not required to make payments to the District because the District sought to spend the funds in violation of the Tax Increment Allocation Redevelopment Act (TIF Act) (65 ILCS 5/11-74.4-1 et seq. (West 2012)). Because neither the contract itself nor the TIF Act limits how the District may spend the funds it is paid by the Village under the license agreement, we affirm.

2 Appellate Cases Posted 4-16-14

1.  Criminal Law/Post-conviction Petition: Reversed: The problem with cases like this, where the defendant argues for the first time on appeal that his sentence and plea are void, involves the record from the trial and the postconviction proceedings on the sentencing issue. Often the record is incomplete or nonexistent, which hinders this court's efforts in determining whether the trial court erred in sentencing the defendant. That is the situation faced regarding the trial judge's intent when he sentenced Medrano to 17 years' imprisonment.  In summary, we cannot make a determination as to whether Medrano's sentence is void under the statute because too many unanswered, fact-specific questions remain unresolved regarding the trial judge's intent in sentencing Medrano to 17 years' imprisonment. Hyman, J. with Pucinski, J. dissenting.

No. 2014 IL App (1st) 102440    People v. Medrano   Filed 04-16-14 (RJC)

Defendant Jose Medrano contends for the first time on appeal that his sentences are void and he must be allowed to withdraw his guilty plea because the trial court did not advise him that his sentences for aggravated criminal sexual assault must be served consecutively rather than concurrently.  Accordingly, we reverse the dismissal of Medrano's petition to permit a new second-stage postconviction hearing to determine the basis of the trial court's sentence.

2. Illinois Health Facilities Planning Act/Fines: Affirmed:   In the present case, the relief that defendant pursues is a fine, not a rescission of the permit it issued plaintiff. A fine would be "effectual relief" for defendant. A reasonable interpretation of section 14.1(b)(2) of the Act is not to "allow permit holders to escape discipline because their violations are not discovered or discoverable until after completion of the relevant project." Because the circuit court may hear no new or additional evidence and because the circuit court reviews the findings and conclusions of the administrative agency on questions of fact instead of making its own findings and conclusions on questions of fact, it follows that the board must first decide the issue of laches—which, plaintiff says, calls for a "fact determination"—and only then may the court consider laches.Appelton, J.

No. 2014 IL App (4th) 130468    Advanced Ambulatory Surgical Center v. The Health Facilities and Services Review Board, Inc.  Filed 04-16-14 (RJC)

The plaintiff in this case is Advanced Ambulatory Surgical Center, Inc., and the defendant is the Illinois Health Facilities and Services Review Board. Defendant issued plaintiff a permit to build an ambulatory surgical center. Seven years after plaintiff finished construction of the facility and the Illinois Department of Public Health (Department) issued plaintiff a license to operate it, defendant notified plaintiff of its intent to fine plaintiff because of (1) an unauthorized cost overrun in the construction and (2) plaintiff's failure to respond to a request for more information about the cost overrun. Plaintiff demanded an administrative hearing. While the administrative proceeding was underway, plaintiff sued defendant in circuit court. Plaintiff sought a judicial declaration that defendant no longer had  authority to impose a fine on plaintiff, considering that plaintiff had finished building the ambulatory surgical center and the Department had issued plaintiff a license to operate it. Plaintiff also asked the circuit court to rule that laches barred defendant from imposing a fine and requesting more information. The parties filed cross-motions for summary judgment. The circuit court denied plaintiff's motion and granted defendant's motion. Plaintiff appeals. Affirmed.

2 Appellate Cases Posted 4-15-14

1.  Criminal Law/DNA/Frye: Affirmed:  Defendant’s sole argument on appeal is that, before permitting the State to offer testimony about the results of the Y-STR test conducted on a DNA specimen from the victim’s panties, the trial court was obligated to conduct a hearing to determine whether the testimony satisfied the test set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which governs the admissibility of new or novel scientific evidence in Illinois.  Holding is that a Frye hearing to determine whether Y-STR testing has gained general acceptance was not necessary. Burke, J.

No. 2014 IL App (2d) 120825    People v. Zapata   Filed 04-15-14 (RJC)

Following a jury trial in the circuit court of Kendall County, defendant, Rodolfo Zapata, was found guilty of criminal sexual assault (720 ILCS 5/12-13(a)(2) (West 2010)) and was sentenced to an eight-year prison term. On appeal, defendant argues that it was error to admit testimony about Y-STR analysis of a specimen of DNA found on the complaining witness’s underwear. We affirm.

2.  Mental Health/Temporary guardian ad litem: Affirmed: In Illinois, a plaintiff need not allege facts to establish standing; it is defendant's burden to prove lack of standing. Petitioners do meet the criteria of an "interested person" within the meaning of the Act and have standing to bring this action. The circuit courts of the counties in which the OSG was named guardian over the wards retain their original jurisdiction, but the circuit court of Clinton County, where Murray is located, has concurrent jurisdiction.  The circuit court's order complies with section 11a-4 of the Act because the order appoints a temporary guardian for a limited purpose and attempts to ensure that the immediate welfare and protection of the OSG wards remains the paramount concern. Goldenhersh, J. with Cates, J. specially concurring.

No. 2014 IL App (5th) 130481    Friends for Murray Center Incorporated v. The Department of Human Services    Filed 04-15-14 (RJC)

Petitioners, filed this action to enjoin respondents from transferring OSG wards residing at the Murray Center to community-integrated living arrangements (CILAs). After a hearing, the circuit court of Clinton County appointed a temporary guardian ad litem of the 24 OSG wards who are residents of Murray and entered a preliminary injunction prohibiting respondents from "transferring any disabled adult who is a resident of [Murray] and under the guardianship of the [OSG] from [Murray] without consent of the temporary guardian ad litem Stuart [sic] Freeman until further order of this court." Respondents, except for Community Resource Alliance, LLC, who failed to appear below, now appeal from the circuit court's order.  We affirm.

1 Appellate Case Posted 4-14-14

1.  Freedom of Information Act (FOIA): Affirmed: Under the plain meaning of section 6(a) of the FOIA, section 9-20 of the Property Tax Code does not allow defendant to escape the cost-only rule for electronic records.  Defendant’s argument presupposes a conflict between section 6(a) of the FOIA and section 9-20 of the Property Tax Code. However, the two statutes fit together. Section 6(a) creates a rule with a narrow exception; section 9-20 fails to come within the exception. There is no genuine conflict that would require us to “choose” between the statutes.  In sum, defendant may not charge more than the cost of purchasing the recording medium for the requested electronic records. McLaren, J.

No. 2014 IL App (2d) 130708    Sage Information Services v. Suhr   Filed 04-14-14 (RJC)

Defendant, Brenda M. Suhr, Winnebago County chief deputy supervisor of assessments and department Freedom of Information Act officer, appeals a judgment that (1) ordered her to provide to plaintiffs, Sage Information Services and Roger W. Hurlbert, electronic records that plaintiffs requested under the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2012)) and (2) awarded plaintiffs attorney fees and costs. On appeal, defendant contends that the trial court erred in basing the permissible charges for the records on section 6 of the FOIA (5 ILCS 140/6 (West 2012)) and not on section 9-20 of the Property Tax Code (35 ILCS 200/9-20 Defendant recognizes that the trial court’s judgment was based on Sage Information Services v. Humm, 2012 IL App (5th) 110580, but she argues that Humm was decided wrongly. We affirm.

1 Appellate Case Posted 4-11-14

1.  Condominiums/Snow and Ice Removal Act: Affirmed: As a matter of law, the Snow and Ice Removal Act (Act) (745 ILCS 75/1 et seq. (West 2012)) bars plaintiff’s negligence suit.  Section 2 plainly conveys an intent to insulate from liability (barring willful or wanton conduct) attempted snow and ice removal efforts that, by either commission or omission, lead to the snow or ice accumulations that cause the plaintiff’s injury. Birkett, J.

No. 2014 IL App (2d) 130682    Ryan v. Glen Ellyn Raintree Condominium Ass'n   Filed 04-11-14 (RJC)

Plaintiff, Mary Ryan, appeals the trial court’s summary judgment in favor of defendants, Glen Ellyn Raintree Condominium Association, Glen Ellyn Raintree Condominium-Ashfield House Owners Association, and CDH Properties, Inc., on plaintiff’s negligence complaint against them.  Affirmed.

5 Appellate Cases Posted 4-10-14

1.  Piercing Corporate Veil/Pleadings: Reversed and remanded: This area of law is still developing, and given the lean factual pleadings in the complaint, we see this as a close case, and our disagreement with the able and experienced trial judge is tempered with great respect for his careful consideration of this issue. Nonetheless, we hold that the trial court erred in granting defendant's section 2-615 motion to dismiss.  Here, though much of plaintiffs' complaint is conclusory and unsupported by facts, ultimately, Plaintiffs' allegations, when liberally construed, allow for the inference that refusing to pierce Silver Fox’s corporate veil would promote injustice. Epstein, J.

No. 2014 IL App (1st) 130469     Buckley v. Abuzir    Filed 04-10-14 (RJC)

Plaintiffs Mama Gramm's Bakery, Inc. (Mama Gramm's) and John Buckley seek to pierce the corporate veil of Silver Fox Pastries, Inc. (Silver Fox) and collect a judgment directly from defendant Haitham Abuzir. The trial court granted defendant's motion to dismiss plaintiffs' amended complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)). Plaintiffs argue on appeal that their complaint should not have been dismissed, because they alleged sufficient facts to show that defendant created Silver Fox as a dummy corporation through which he violated the Illinois Trade Secrets Act (765 ILCS 1065/1 et seq. (West 2006)). We reverse the trial court's judgment and remand for further proceedings.

2.  Tort/Construction: Affirmed: The trial court’s decision to strike affidavit was not erroneous. Even if  the plaintiff’s forfeiture of the issue of whether CH was a “possessor” of the land on which the accident occurred os overlooked, plaintiff’s argument still fails on the merits. Plaintiff has not drawn a connection between CH’s access to the property and its ability to exclude others or regulate their use of the property. Consequently, we find no error in the trial court’s grant of summary judgment on count II of plaintiff’s complaint. Birkett,J.

No. 2014 IL App (2d) 130482    Cain v. Contarino    Filed 04-10-14 (RJC)

Plaintiff, Jeffrey Cain, appeals from the trial court’s grant of summary judgment in favor of defendant, Joe Contarino, Inc., d/b/a Contry Homes, Inc. (CH), on plaintiff’s complaint alleging CH’s negligence in connection with a construction accident that injured plaintiff.

3.  Tort/Premises Liability: Affirmed: None of the testimony and affidavits addresses the issue of what caused Vertin's fall.  Further,  the lack of a handrail in violation of building code requirements is sufficient to create a genuine issue of material fact. Violating an ordinance or failing to comply with a building code, by itself, does not establish proximate cause. Absent any evidence of the cause of Vertin's fall, there is no genuine issue of material fact for the trier of fact to determine. Lytton, J.

No. 2014 IL App (3d) 130246    Vertain v. Mau    Filed 04-10-14 (RJC)

Plaintiff, Lindsey Vertin, appeals from an order of the circuit court granting summary judgment to defendant, Robert J. Mau, Jr., in a negligence action for injures she sustained when she slipped and fell on Mau's stairs. On appeal, she claims that the trial court erred in granting summary judgment because the evidence created questions for the jury as to whether the defects in the stairway were a proximate cause of her fall. We affirm.

4.  Court Fees: Affirmed: The neutral site custody exchange fee is assessed on all civil litigants and supports ancillary court services. The fee is used to compensate for services that allow parents to use neutral sites to exchange custody for visitation. The fee is not imposed on civil litigants who are excluded from the services; rather, the neutral exchange sites are open to all parties who are court-ordered to use them.  The neutral site fee was sufficiently connected to the operation of the court system and the neutral site custody exchanges reduced the burden on the courts and promoted judicial economy.  Because the neutral site custody exchange fee survives constitutional scrutiny, due process is also satisfied. Lipe's due process claim fails as well as his challenge under the free access clause. O'Brien, J.

No. 2014 IL App (3d) 130345    Lipe v. O'Connor    Filed 04-10-14 (RJC)

Plaintiff Jay Lipe, individually and on behalf of all others similarly situated, brought this action against defendants Edward O'Connor, treasurer of Peoria County, and Robert Spears, clerk of Peoria County (collectively Peoria County), challenging the constitutionality of an $8 neutral site custody exchange fee assessed on all civil litigants in Peoria County. The trial court granted Peoria County's motion to dismiss. Lipe appealed. We affirm.

5.  Criminal Law/Postconviction Petition: Affirmed: Because the defendant's ineffective-assistance-of-trial-counsel claim frivolous and patently without merit, we necessarily reject defendant's other postconviction claim that his appellate counsel was ineffective for failing to argue Sharp's ineffectiveness on direct appeal.  The trial court's grant of  motion to withdraw as postconviction counsel  is affirmed because the record shows that (1) Mayo fulfilled all of her Rule 651(c) duties and (2) defendant's postconviction claims are frivolous and patently without merit. Because we so conclude, we also affirm the trial court's judgment dismissing defendant's postconviction petition on the State's motion. Steigmann, J.

No. 2014 IL App (4th) 120901    People v. Kuehner    Filed 04-10-14 (RJC)

In October 2005, defendant, Danny Kuehner, entered an open plea of guilty to attempt (first degree murder) (720 ILCS 5/8-4, 9-1(a)(1) (West 2004)) and home invasion (720 ILCS 5/12-11(a)(2) (West 2004)). In February 2007, defendant filed a motion to withdraw his guilty plea, alleging that his guilty plea was not knowing and voluntary because of his attorney's deficient advice and representation. The trial court denied that motion and sentenced defendant to two consecutive terms of 17 1/2 years in prison. In May 2009, defendant pro se filed a petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-8 (West 2008)), alleging that he was denied his right to the effective assistance of trial and appellate counsel. Following a September 2012 hearing, the court granted postconviction counsel's motion to withdraw and dismissed defendant's petition.
Defendant appeals, arguing that the trial court erred by granting postconviction counsel's motion to withdraw. We affirm.

4 Appellate Cases Posted 4-09-14

1.  Foreclosure: Affirmed: Plaintiff’s failure to plead its standing, assuming that it had the burden to do so, did not deprive the trial court of subject matter jurisdiction and thus render the foreclosure judgment void.  Even if plaintiff lacked standing, it presented a “justiciable matter,” as a foreclosure case “falls within the general class of cases that the court has the inherent power to hear and determine.”  Thus, here, plaintiff’s claim, even if defectively stated, presented a justiciable matter, invoking the trial court’s subject matter jurisdiction. The trial court had subject matter jurisdiction. Jorgensen, J.

No. 2014 IL App (2d) 130676    Nationstar Mortgage, LLC v. Canale    Filed 04-09-14 (RJC)

Defendant, Wayne Canale, the property owner in a foreclosure action, appeals after the trial court confirmed the judicial sale of the property at issue. He asserts that, because plaintiff, Nationstar Mortgage, LLC, failed to comply with the statutory pleading requirements for a foreclosure action (see 735 ILCS 5/15-1504(a) (West 2010)), the trial court lacked subject matter jurisdiction to enter a foreclosure judgment for plaintiff. Affirmed.

2.  Criminal Law/Sentencing: Sentences vacated and remanded: All that happened here was the trial court ordering correction of the mittimus. No consideration of any of the factors enumerated in section 5-4-1(a). No opportunity for Mitchell to speak on his own behalf. No hearing. Mistakes can be made without anyone noticing or realizing it. While perfection in the administration of justice always should be an aspiration, in reality it will never be more than that, which is why we have reviewing courts.  This court has the inherent authority to compel compliance with our orders. Accordingly, we again vacate Mitchell's sentence and remand for a resentencing hearing with directions that Mitchell be sentenced to a term of between 6 and 30 years in prison. On remand, the trial court must conduct a resentencing hearing in compliance with our mandate and the requirements of sections 5-5-3(d) and 5-4-1(a) of the Code.  Hyman, J.

No. 2014 IL App (1st) 120080    People v. Mitchell    Filed 04-09-14 (RJC)

Mitchell appeals from the dismissal, on motion of the State, of his petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2010)). Mitchell asks that we again vacate his sentences and remand for a new sentencing hearing or that the mittimus be corrected to reflect the proper amount of presentence custody credit. Mitchell deserves the hearing he was promised. We vacate his sentences and remand for a new sentencing hearing. The legal system inadvertently stumbled after our supreme court and this court ordered that defendant Ephrain Mitchell's sentences be vacated and the trial court hold a new sentencing hearing. Instead, Mitchell was resentenced without a new sentencing hearing. What happened is regrettable but occurs from time to time due to the sheer volume of criminal cases, limited resources (both financial and personnel), paperwork, and the technical intricacies associated with of the administration of criminal justice.

3. Sexually Violent Persons Commitment Act (SVP Act): Affirmed: The diagnosis of antisocial personality disorder constituted a variance between the pleadings and the proof. But Hayes fails to show prejudice arising from the variance.  While the black letter law states that proof without pleading is as defective as a pleading without proof, the objecting party must show prejudicial effect of the variance. While some controversy surrounds the use of the PNOS nonconsent diagnosis, it is " 'not so unsupported by science that it should be excluded absolutely from consideration by the trier of fact.' "  Accordingly, a Frye hearing was unnecessary.  Finally, Giving that the second special interrogatory would paint an improper picture for the jury, the trial court correctly refused it. Hyman, J.

No. 2014 IL App (1st) 120364    In re the Detention of Hayes    Filed 04-09-14 (RJC)

Cases involving the Sexually Violent Persons Commitment Act (SVP Act) (725 ILCS 207/1 et seq. (West 2012)) require the trial judge to particularly pay close attention to the expert evaluations of the respondent, which is precisely how the judge reached this decision. Unlike most matters, which turn on the past, the issue under SVP Act turns on what might happen in the future based on what is known today. Respondent Lawrence Hayes appeals the trial court’s indefinite involuntary commitment order entered after a jury found him a sexually violent person under the SVP Act. Hayes raises three distinct issues: (i) whether the State can seek commitment for mental diagnosis not pled in its petition; (ii) whether, under the Frye standard, the diagnosis of "paraphilia, not otherwise specified, nonconsent" (PNOS nonconsent) is admissible; and (iii) whether Hayes's proposed special interrogatories should have been given to the jury. We hold (i) no prejudice arose from variations between the petition and proof; (ii) the mental disorder at issue is admissible as a generally accepted diagnosis in the psychiatric community; and (iii) the trial court properly rejected the special interrogatories as incomplete and deceptive.

4. Gov't Tort Immunity: Reversed and remanded: Under section 2-202 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/2-202 (West 2008)), the estate may recover damages from the City if its officers acted willfully and wantonly when they shot Juan in the course of enforcing the law. Because the officers engaged in enforcing the law when they pursued and shot Juan, section 2-202 of the Act, rather than 2-201, establishes the applicable immunity. Section 2-202 immunizes the City and the officers from liability for negligent acts, but not for willful and wanton misconduct. The evidence presents a triable issue of fact as to whether police officers acted willfully and wantonly. We reverse the judgment entered in favor of the City and remand for proceedings in accord with this opinion. Neville, J.

No. 2014 IL App (1st) 131599    Robles v. the City of Chicago    Filed 04-09-14 (RJC)

Luz Robles, as special administrator of the estate of Juan Robles, sued the City of Chicago (City), alleging that City police committed willful and wanton misconduct when they shot and killed Juan. The trial court granted the City's motion for summary judgment, holding that the general immunity for discretionary acts barred recovery from the City, even for its officers' willful and wanton misconduct.

2 Appellate Cases Posted 4-04-14

1.  Foreclosure/Certified question: Certified question answered in the negative.: A spouse who is not on title to property, but is the spouse of the titleholder and maintains the property as her primary place of residence, cannot claim the homestead exemption under section 12-901 of the Code.   There is appellate court authority for the proposition that mere possession is insufficient to allow a nontitled spouse to claim the homestead exemption in section 12-901 of the Code and there is recent persuasive federal case law, whose reasoning we adopt herein, consistent with Illinois authority. Jorgensen, J.

No. 2014 IL App (2d) 130938    GMAC Mortgage, LLC v. Arrigo    Filed 04-04-14 (RJC)

This interlocutory appeal under Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010) arises from a foreclosure proceeding that plaintiff, GMAC Mortgage, LLC, initiated against defendants, Nicholas A. Arrigo, Lina Arrigo, Wells Fargo Bank, N.A., Lee Station Master Association, NFP, Lee Station Townhome Association, NFP, and unknown owners and nonrecord claimants. Defendants counterclaimed and raised an affirmative defense, seeking partition based on Lina’s claim to a homestead exemption. GMAC moved to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2012)). The trial court denied the motion, but certified the following question pursuant to Rule 308: “Whether a spouse may claim her homestead exemption when that spouse is not on title to the property but is the spouse of the title holder and maintains the property as her primary place of residence under [section 12-901 of the Code (735 ILCS 5/12-901 (West 2012))].” We granted GMAC’s application for leave to appeal. For the following reasons, we answer the certified question in the negative.

2.  Criminal Law: Affirmed in part and remanded in part: Recent opinions have allowed a conviction for aggravated battery to impeach the defendant's believability when the trial court performs the Montgomery balancing test and admits the evidence for impeachment. The trial court fully understood and applied the Montgomery standard here. The probative value outweighed the potential for prejudice. The trial court's conclusion was not an abuse of discretion.  The trial court did not improperly consider victim's age as an aggravating factor where it was also an element of the offense. In cases where the victim's age is an element of the offense, the court does not err simply by mentioning the victim's age at sentencing, as it is relevant to the nature of the case.  The trial court would have imposed the same sentence even if it had never read Matthew's statement that was attached to the PSI. Therefore, defendant cannot show unfair prejudice or a violation of due process.  Since the trial court made no inquiry into defendant's ineffective-assistance-of-counsel claim, case is remanded for an informal Krankel inquiry. Pope, J.

No. 2014 IL App (4th) 130551    People v. Raney    Filed 04-04-14 (RJC)

The State charged defendant, Christopher D. Raney, with aggravated battery (720 ILCS 5/12-3.05(d)(1) (West 2010)), domestic battery (720 ILCS 5/12-3.2(a)(1) (West 2010)), unlawful violation of an order of protection (720 ILCS 5/12-30(a)(1)(i) (West 2010)), and criminal trespass to a residence (720 ILCS 5/19-4(a)(1) (West 2010)). The jury found defendant guilty of all four counts. The trial court sentenced defendant to 5 years in prison on count I and 364 days in prison on both counts III and IV, all terms to be served concurrently.  Defendant appeals, arguing the trial court (1) erred by allowing the State to introduce his prior conviction for felony domestic battery to impeach his testimony, (2) improperly enhanced his sentence based on factors inherent in the offense of aggravated battery, (3) erred by considering his ex-wife's son's victim impact statement at sentencing, and (4) failed to inquire into defendant's posttrial claims of ineffective assistance of counsel. We affirm in part and remand in part with directions.

1 Appellate Case Posted 4-03-14

1.  Domestic Relations: Affirmed: Section 701 sets forth the requirements for granting such a request and also states that when those requirements are met, the court may "enter orders of injunction, mandatory or restraining, granting the exclusive possession of the marital residence to either spouse."  Exclusive possession is injunctive relief. The Appellate Court has jurisdiction to hear the appeal.  Petitioner's request for exclusive possession was not a "pleading" that consisted of formal allegations of her claims or defenses, but a motion, i.e., "an application to the court for a ruling or an order in a pending case." and not subject to dismissal under Rule 2-615 which applies to pleadings. Pursuant to section 701 of the Act, the court has the authority to grant exclusive possession if (1) a party has filed a verified petition seeking exclusive possession of the marital residence, and (2) the physical or mental well-being of either spouse or their children is jeopardized by the occupancy of the marital residence by both spouses."   Harris, J.

No. 2014 IL App (4th) 131078 In re Marriage of Engst Filed 04-03-14 (LJD)

Petitioner, David Engst, filed a petition for dissolution of his marriage to respondent, Michelle Engst. During the proceedings, Michelle filed a petition for exclusive possession of the marital residence, which the trial court granted. David appeals the court's interlocutory order pursuant to Illinois Supreme Court Rule 307 (eff. Feb. 26, 2010), arguing (1) the court's order was against the manifest weight of the evidence and (2) the court erred by denying his motion to dismiss Michelle's petition for exclusive possession of the marital residence. We affirm.

2 Appellate Cases Posted 4-02-14

1. Juvenile Justice: Affirmed: A trial court's decision to send a minor to DOJJ is reviewed for an abuse of discretion.  The question of whether the court complied with statutory requirements is a question of law we review de novo. Before sentencing a minor to DOJJ, section 5-750 of the Juvenile Act requires, inter alia, the court to find commitment to DOJJ is the "least restrictive alternative based on evidence that efforts were made to locate less restrictive alternatives to secure confinement and the reasons why efforts were unsuccessful in locating a less restrictive alternative to secure confinement."   Pope, J.

No. 2014 IL App (4th) 131014   In re: Ashley C. Filed 04-02-14 (LJD)

In September 2013, respondent, Ashley C. (born February 4, 1997), entered a plea of guilty to six charges.  In October 2013, the trial court sentenced respondent to the Illinois Department of Juvenile Justice (DOJJ) for an indeterminate term not to exceed respondent's twenty-first birthday.  We affirm the circuit court's judgment.

2.  Criminal Law: Reversed and Remanded: Typically, a defendant forfeits review of a jury instruction error by failing to address the instruction issue in a posttrial motion. However, Illinois Supreme Court Rule 451(c) allows for review of jury instruction errors under a limited exception and provides: “[S]ubstantial defects are not waived by failure to make timely objections thereto if the interests of justice require.”  When conflicting instructions are given, one being a correct statement of law and the other an incorrect statement of law, our supreme court has held the error cannot be deemed harmless.  Wright, J.

No. 2014 IL App (3rd) 110772    Filed 04-02-14 (LJD)

On April 23, 2011, defendant Aaron Warrington was arrested for the felony offense of threatening a public official, a police officer, and resisting arrest, a misdemeanor charge. The State charged defendant, by information, with threatening a public official, a Class 3 felony, but did not include the specific statutory language regarding the victim being a police officer. Eventually, the State filed a third misdemeanor count of fleeing and eluding a police officer.The court held a jury trial on all charges. During the jury instructions conference, neither the court nor the parties recognized the People’s tendered instructions did not include an element of the felony offense requiring the State to prove defendant communicated a "unique threat" to a police officer as a public official. Defendant argues that although the instruction issue was not properly preserved for review, plain error requires reversal of his felony conviction. Additionally, defendant contends the State presented insufficient evidence to prove him guilty of threatening a public official who is a police officer. We reverse and remand for a new trial.

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.