Illinois Supreme and Appellate Court Case Summaries

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

 

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6 Appellate Cases Posted 5-30-14

1.  Post Conviction Petition: Reversed and Remanded: Discussion of plain error and its applicability in post conviction reviews;  "Clear” or “obvious” in the context of the plain-error doctrine means that the law is well settled at the time of trial; if the law was unclear at the time of the trial, but becomes clear (i.e., settled) during the appeal, then the error is not “plain” for purposes of the plain- error doctrine. It is error to instruct the jury that it is "their duty to define reasonable doubt." In a footnote on page 11 and 12, the court suggests the "only acceptable answer it" it could think of.  Birkett, J.

No. 2014 IL App (2nd) 121155    People v. Downs Filed 5-30-14 (LJD)


In Downs I ( 2012 Ill App (2d) 100755-U) As the circuit court of Kane County had acknowledged during the hearing that some of defendant’s allegations indicated possible neglect, we remanded the case with directions to appoint counsel and continue the case from that point. The trial court complied with our directive and appointed counsel, held a Krankel hearing, and denieddefendant’s motion for a new trial. Defendant appeals, arguing again that his counsel was ineffective. Defendant also argues, for the first time in this matter, that the trial court committed plain error by erroneously defining“ reasonable doubt” for the jury in response to the jury’s question. Despite the procedural irregularity in raising the reasonabledoubt issue, we agree and reverse.

2.  Mental Health: Affirmed: Exceptions to the mootness doctrine listed and discussed.  At a commitment hearing, the State's burden is to prove by clear and convincing evidence that the respondent is a person subject to involuntary admission. "The clear and convincing standard requires proof greater than a preponderance, but not quite approaching the criminal standard of beyond a reasonable doubt." Stewart, J.

No. 2014 IL App (5th) 110495    In re James W.  Filed 5-30-14 (LJD)


The respondent, James W., appeals from the trial court's October 13, 2011, order concluding that he should remain subject to involuntary admission and be "hospitalized in a Department of Human Services mental health or developmental center, which is the leastrestrictive environment currently appropriate and available." We affirm.

3.  Juvenile Justice: Reversed and Remanded for resentencing: Discussion of void versus voidable to determine whether the court had jurisdiction to decide the constiutional arguments of the defendant.  The trial court may commit defendant to the DJJ only if it finds that commitment to the DJJ is the least-restrictive alternative. Gordon, J.

No. 2014 IL App (1st) 130241    In re Henry P.  Filed 5-30-14 (LJD)


Following a bench trial in juvenile court, defendant was adjudicated delinquent for robbery, armed robbery, aggravated robbery, theft from person, battery, and aggravated battery, and the trial court sentenced defendant to the mandatory minimum term of five years’ probation, which required defendant to reside at Lawrence Hall Youth Services(Lawrence Hall), a residential facility.

4. Criminal Law/Speedy Trial Act: Affirmed: People v. Thomas, 2014 IL App (2d) 1 The provisions of section 103-5 are to be liberally construed in favor of the defendant and that the State cannot improperly manipulate criminal proceedings or purposefully evade the operation of the provisions of this section. Where the State files new and additional charges that arise from the same facts as the original charges, and the State had knowledge of these facts at the commencement of the prosecution, the time within which trial must begin on the new and additional charges is subject to the same statutory limitation that is applied to the original charges.   McLaren, J.

No. 2014 IL App (2nd) 130660    People v. Thomas Filed 5-30-14 (LJD)


People v. Thomas, 2014 IL App (2d) 130660

The trial court granted the motion of defendant, Richard J. Thomas, to dismiss, on speedy-trial grounds, count IV of the charges against him, which count had been filed three days before defendant’s scheduled jury trial. The State now appeals from the trial court’s denial of the State’s motion to reconsider that dismissal. We affirm.

5.  Criminal Law: Affirmed: The existence of probable cause for a search warrant depends on the totality of the circumstances.  “A showing of probable cause means that the facts and circumstances within the knowledge of the affiant are sufficient to warrant a person of reasonable caution to believe that an offense has occurred and that evidence of it is at the place to be searched.” At a probable cause hearing, the trial court must make a practical, commonsense assessment of whether, given all of the circumstances set forth in the affidavit, there is a fair probability that evidence of a particular crime will be found in a particular place,  Jorgenson, J.

No. 2014 IL App (2nd) 121167 People v. Brown Filed 5-30-14 (LJD)

Defendant, Errick Brown, was convicted of first-degree murder (720 ILCS 5/9-1(a)(2) (West 2008)) and sentenced to 55 years’ imprisonment. On appeal, defendant argues that the court erred in denying his motion to quash a search warrant and suppress evidence because the warrant was not supported by probable cause. For the following reasons, we affirm.

6.  Mortgage Foreclosure: Reversed and Remanded: To determine whether a covenant runs with the land, a court looks to whether: (1) the grantee and the grantor intended the covenant to run with the land; (2) the covenant touches and concerns the land; and (3) there is privity of estate between the party claiming the benefit and the party resting under the burden of the covenant.  Payment of taxes is  a promise relates directly to the land itself, and the use thereof. Payments made in connection with the use or ownership of land have been found to be covenants running with the land. McLaren, J.

People v. Brown, 2014 IL App (2d) 121167 No. 2014 IL App (2nd) 130858  Bank of America, N.A. v. Cannonball LLC Filed 5-30-14 (LJD)

Bank of America, as successor by merger to LaSalle Bank National Association (LaSalle Bank), filed a mortgage foreclosure complaint against Home Depot U.S.A. (Home Depot), et al., to enforce various lending agreements that Bank of America had with Cannonball LLC (Cannonball), in connection with the development of the Kendall Marketplace shopping center (shopping center), a multibuilding, multitenant commercial development in Yorkville, Illinois. Home Depot’s counterclaim sought, inter alia, a declaration that, pursuant to its agreements with Cannonball, it had certain covenants that ran with the land and were binding against Bank of America.

5 Appellate Cases Posted 5-28-14

1. Juvenile: Affirmed: The registration provisions of the Violent Offender Against Youth Registration Act (730 ILCS 154/5(a)(2), 10 (West 2012)) are unconstitutional as a violation of procedural due process and equal protection Mason, J. with Pucinski, J. concurring in part and dissenting in part.

No. 2014 IL App (1st) 132540    In re M.A.    Filed 5-28-14 (RJC)


In her first referral to juvenile court, 13-year-old respondent-appellant, M.A., was adjudicated delinquent of certain charges arising out of an altercation with her older brother. As a result of this adjudication, M.A. was ordered to register for a minimum of 10 years under the Illinois Murderer and Violent Offender Against Youth Registration Act (730 ILCS 154/1 et seq. (West 2012)). The Act automatically requires juveniles adjudicated delinquent for certain offenses to register as violent offenders against youth for a minimum of 10 years following adjudication. There are no exceptions to the registration requirement and juveniles are automatically required to register as adults when they turn 17. M.A. challenges the Act's application on a number of grounds, including substantive and procedural due process and equal protection. We determine that the Act results in a violation of procedural due process and equal protection; and, therefore, reverse the trial court's order requiring M.A. to register pursuant to the Act.

2. Discovery/Mental Health Records/Confidentiality Privilege: Affirmed: Deprizio waived her privilege under the Act. Requiring the trial court to wait for live testimony before finding the Act's privilege waived not only proves inefficient, but is an illogical interpretation of the Act.  A reading of the transcript as a whole shows that after the in camera inspection, the trial judge properly considered the factors, and justified her ruling, as required under the Act.  The discovery orders of the trial court are affirmed and further find that Hebeisen acted in good faith to test the validity of the orders and vacate the sanction against him. Hyman, J. 

No. 2014 IL App (1st) 123206    DePrizio v. The MacNeal Memorial Hospital Association   Filed 5-28-14 (RJC)


The confidentiality privilege set out in the Mental Health and Developmental Disabilities Confidentiality Act (the Act) (740 ILCS 110/1 et seq. (West 2010)) comes before us after plaintiff’s counsel, for the second time, takes a “friendly” contempt. His refusal, unrelated to the earlier appeal, regards various records about the treatment of plaintiff's cognitive impairment reviewed by independent expert witnesses that plaintiff identified as testifying at trial. The issue involves the effect of Rule 213(f)(2) disclosures on the exercise of the confidentiality privilege created by the Act. Ill. S. Ct. R. 213(f)(2) (eff. Jan. 1, 2007). MacNeal Memorial Hospital Association cross-appeals, asserting that the trial court erred in limiting the extent of the disclosure of Deprizio's mental health records. We find no error and affirm.

3. Foreclosure/Jurisdiction/Publication: Reversed: Because the Bank's motion to serve by publication did not strictly comply with the requirements of section 2-206, the publication notice authorized by the trial court was insufficient to confer personal jurisdiction over Karbowski and the subsequent orders based on that service are void. Mason, J. 

No. 2014 IL App (1st) 130112    The Bank of New York Mellon F/K/A The Bank of New York v. Karbowski   Filed 5-28-14 (RJC)


Defendant-appellee, Krzysztof Karbowski, appeals from orders entered by the circuit court of Cook County denying his motion to quash service by publication, entering a judgment of foreclosure and confirming the foreclosure sale. Karbowski contends that the affidavit submitted by Bank of New York Mellon in support of its motion for leave to serve him by publication was not timely filed and was defective on its face and, therefore, his motion to quash service should have been granted. Karbowski further argues that because the circuit court did not acquire personal jurisdiction over him, its later orders entering a judgment of foreclosure and confirming the foreclosure sale are void and must be vacated. We agree and reverse.

4. Appeals/Remand/Jurisdiction: Affirmed: Remand was unnecessary because under Supreme Court Rule 369(b), after a reviewing court affirms all or part of a judgment, jurisdiction revests in the trial court to enforce the judgment and for other proceedings to go on as if no appeal had been taken. Ill. S. Ct. R. 369(b) (eff. July 1, 1982). As to the doctrine of res judicata, enforcement of a judgment merely continues or supplements the original case and does not constitute a separate or subsequent action.  FCSC's garnishment proceeding was supplementary to the underlying breach of contract case, not a separate or subsequent action. When this court reversed the trial court's fee award order, the garnishment order necessarily failed. Therefore, the doctrine of res judicata did not apply to bar return of fees this court found to have been improperly awarded to FCSC. Hyman, J. 

No. 2014 IL App (1st) 132098    POM 1250 N. Milwaukee, LLC v. F.C.S.C., Inc.   Filed 5-28-14 (RJC)


Plaintiff appealed an award of attorney fees entered against it, but decided to neither seek a stay of enforcement nor post a bond. While the appeal proceeded, defendant engaged in postjudgment remedies and collected the entire judgment. (This saved plaintiff from possibly having to pay postjudgment interest.) Plaintiff succeeded in its appeal, and this court reversed the judgment. Plaintiff, of course, wanted defendant to return its money so went back to the trial court, which ordered defendant to pay up. Defendant, however, contends plaintiff put itself in a win-lose predicament, that is, plaintiff won the appeal, but the trial court exceeded its authority in ordering defendant to give back the money. Defendant raises two issues for us to consider: (i) the trial court did not have jurisdiction over plaintiff's motion because the appellate court reversed the award of attorney fees without remand; and (ii) the doctrine of res judicata bars plaintiff from seeking return of the money. We reject both arguments. The trial court appropriately and properly handled the case after the appeal, and so we affirm.

5. Domestic Relations/Atty. fees: Affirmed: There was no Rule 13 violation here. First, there is no constitutional “right to counsel” in a dissolution proceeding, so a Rule 13 violation cannot impinge on any such “right.”  There was nothing inherently prejudicial in the court’s decision to allow Brunkalla to withdraw and to then schedule a firm and final trial date more than 90 days thereafter.  Here, even if interim fees were available to Victoria under the statute, the trial court did not abuse its discretion in declining to award them.  Victoria’s four fee petitions filed after Brunkalla withdrew were not verified, nor were any affidavits attached thereto.  Two days prior to trial, Victoria filed a request to continue the trial. Her  assertions, that she was not prepared and could not represent herself on account of her surgery and medications, were not supported.  She filed no affidavits on her own behalf or from physicians, which might have attested to her symptoms and the effects of any medications she purportedly was taking, nor did she attach medical records or any other documents supporting the date of surgery, the medications prescribed, or the effects thereof.  the trial court dod not abuse its discretion by denying her request for a continuance. Jorgensen, J. 

No. 2014 IL App (2d) 130198    In re Marriage of Heindl   Filed 5-28-14 (RJC)


Petitioner, Keith J. Heindl, and respondent, Victoria E. Heindl, married in 1992. In 2010, Keith petitioned to dissolve the marriage. On January 4, 2013, after a trial, the court entered the dissolution judgment. Victoria appeals, arguing that her due process rights were violated where the court, after her counsel withdrew and in violation of Illinois Supreme Court Rule 13 (eff. July 1, 2013), entered a series of orders prejudicial to her. Further, Victoria argues that the court erred where it denied her request for interim attorney fees so that she could hire counsel. Finally, Victoria argues that the court abused its discretion where it denied her request to continue the trial on account of a recent surgery. For the following reasons, we affirm.

4 Appellate Cases Posted 5-27-14

1. Criminal Law: Reversed and Remanded: In order to warrant a Franks hearing, a defendant is required to make a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and that the allegedly false statement was necessary to the finding of probable cause.  The supreme court thus determined that the precise standard lies somewhere between mere denials on the one hand and proof by a preponderance on the other.    Delort, J.

No. 2014 IL App (1st) 121047   People v. Chambers   Filed 5-27-14 (LJD)


After a jury trial, Terrill Chambers was found guilty of armed violence and possession of a controlled substance with intent to deliver and sentenced to consecutive respective terms of 25 and 45 years’ imprisonment. In this appeal, he contends that the court erred in denying his motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), and that the sentences imposed by the circuit court are excessive.

2. Foreclosure: Affirmed: Our supreme court determined that to allow a party to challenge a default judgment through a motion to vacate, after the judicial sale has taken place, is inconsistent with the Foreclosure Law. Under the Foreclosure Law, after a judicial sale and a motion to confirm the sale has been filed, the court's discretion to vacate the sale is governed by the mandatory provisions of section 15-1508(b).  Harris, J.

No. 2014 IL App  (1st) 123176   DLJ Mortgage Capital, Inc. v. Frederick  Filed 5-27-14 (LJD)


Defendant, Calvita J. Frederick, appeals the order of the circuit court granting summaryjudgment in favor of plaintiff, DLJ Mortgage Capital, Inc. (DLJ), on plaintiff's foreclosure complaint. On appeal, Ms. Frederick challenges the merits of the foreclosure complaint rather than the confirmation of sale pursuant to the Illinois Mortgage Foreclosure Law (735 ILCS 5/1-1507(c) (West 2010)) (Foreclosure Law). She does not challenge the trial court's determination that the sale proceeded properly. For that and the following reasons, we affirm.

3.  Criminal Law: Reversed and Remanded: A trial court’s ruling on a motion to quash an arrest and suppress evidence presents amixed question of law and fact, and it requires a bifurcated standard of review.  Findings of fact made by the trial court are given deference and will not be disturbed unless they are against the manifest weight of the evidence. However, the ultimate issue (i.e., the application of the law to the established facts) is subject to de novo review. A search, during a Terry stop, is proper only if the officer reasonably believes that “ ‘the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others. This is an objective standard that is satisfied if, in light of the totality of the circumstances, a reasonably prudent person in that situation would believe that his or her safety or the safety of others is in danger. Likewise, the sole fact that a person has been properly detained as a suspect in a crime such as burglary does not automatically grant an officer the right to conduct a search.  Birkett, J.

No. 2014 IL App  (2nd) 130320  People v. Fox  Filed 5-27-14 (LJD)


Defendant, Evan A. Fox, appeals from his convictions of burglary, retail theft, and criminal damage to property. Following the guilty finding, defendant was sentenced to probation for 48 months. He asserts that the trial court erred in admitting evidence obtained from an improper search. Because no articulable facts exist ed at the time of the stop to support the belief that defendant was then armed and dangerous, we hold that the search violated defendant’s constitutional rights, and that the evidence should not have been admitted. Therefore, we reverse and remand for further proceedings.

4.  Criminal Law: Affirmed: Although a cotenant gives his consent, a search will be found unreasonable as to a defendant who was physically present at the scene and expressly stated his refusal to allow police to enter and search the premises.  In fourth amendment jurisprudence, reasonableness is measured by examining the totality of the circumstances.  Schmidt, J.

No. 2014 IL App  (3rd) 130075  People v. Santovi Filed 5-27-14 (LJD)


The State charged defendant, Maria Santovi, with driving under the influence, improper lane usage, leaving the scene of an accident, failure to give information or render aid, illegal transportation of alcohol, operating an uninsured motor vehicle, and failure to reduce speed to avoid an accident.  Defendant filed a petition to rescind her statutory summary suspension. Following testimony in the civil proceeding, the trial court grante d defendant's petition, finding that theofficer effectuated an illegal arrest when the officer threatened to kick the bathroom door down.  In the criminal matter, a hearing was set on defendant's motion to quash her arrest and suppress evidence. The parties stipulated that the trial court would rely on transcripts from the hearing on defendant's petition to rescind the statutory summary suspension. The trial court held that while the officers' initial entry into defendant's home was consensual, the defendant was effectively under arrest at the time the officer threatened to kick down the bathroom door. The court ordered all evidence obtained after the illegal arrestsuppressed.

3 Appellate Cases Posted 5-23-14

1.Criminal Law: Affirmed:  Under the two prong test, a defendant must demonstrate that counsel's performance fell below an objective standard of reasonableness and a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different.  In case alleging ineffective counsil in failing to file a motion to suppress, the defendant must demonstrate that the unargued suppression motion is meritorious and that at least a reasonable probability exists that the trial outcome would have been different had the evidence been suppressed. Whether or not a motion to quash a search warrant and suppress evidence should be filed in a criminal case is a matter of trial tactics and has little bearing on competency of counsel.    Taylor, J.

No. 2014 IL App (1st) 122573    People v. Kornegay     Filed 5-23-14 (LJD)


Defendant, Sidney Kornegay, was found guilty of unlawful use of a weapon by a felon and two counts of simple possession of heroin, which were merged under the one-act, one-crime doctrine. On appeal, defendant contends his counsel was ineffective for failing to file a motion to quash the search warrant and suppress evidence. Defendant also challenges fees he was assessed and contends he should receive a $5-per-day credit against his fines. We affirm the judgment and correct the fines, fees and costs order.

2. Insurance Law: Affirmed: The opinion discusses the issues of primary versus excess coverage and the rules to determine who is primary coverage when there are two policies covering the insureds on a construction site and one of the workers is injured.  It also discusses inurance certificates adding the general contractor as an additional insured.  McBride, J.

No. 2014 IL App (1st) 133145   Certain Underwriters at Lloyd's, London v. Central Mutual Insurance Co.     Filed 5-23-14 (LJD)


General contractor Golden Nail Builders, Inc. (Builders), was the named insured on a commercial general liability insurance policy it obtained from Certain Underwriters at Lloyd's London (Underwriters) and an additional insured on a commercial general liability insurance policy that subcontractor Erik Electric Service, Inc. (Erik Electric), obtained from Central Mutual Insurance Company (CMIC). When an employee of a sub-subcontractor was injured on a home construction site, the two insurers disagreed as to which was the primary insurer and which was the excess insurer.

3.  Trafic/Agg. DUI: Affirmed: Statutes are presumed constitutional.  The burden of rebutting that presumption is on the party challenging the validity of the statute to clearly demonstrate a constitutional violation.  Under the equal protection clause, a statute that does not affect a fundamental right or involve a suspect or quasi-suspect classification will be reviewed under the rational basis test.  A statute will pass muster if “the means the statute employs to achieve its purpose are rationally related to that purpose.  Because the DUI statute treats all individuals who ingest illegal substances the same and bears a rational relationship to the state's legitimate interest “in protecting the public from drivers whose driving ability may be impaired by the consumption of controlled substances,” it is a proper exercise of the state's police power to keep the streets and highways safe.  Lytton, J. special concurrence Schmidt, J.

No. 2014 IL App (1st) 130031 People v. Rennie    Filed 5-23-14 (LJD)

Defendant, Krystin Rennie was convicted of two counts of aggravated driving under the influence (DUI) and sentenced to concurrent terms of six and two years in prison. She appeals, arguing that the DUI statute is unconstitutional and that her sentence is excessive. We affirm.

10 Supreme Court Cases Posted 5-22-14

1. Domestic Relations/Sex Offenders: Vacated and remanded: Trial court order ruling finding that Section 607(e) of Marriage and Dissolution of Marriage Act, which prohibits visitation for non-custodial parents who are serving a sentence for a sex offense against a victim under 18 years of age, unconstitutional, deemed moot by virtue of fact that father had completed sentence and required sex offender treatment before Supreme Court's ruling on constitutionality of statute, and none of the three typical exceptions to the mootness doctrine applied in this instance. Burke, J.

No. 2014 IL 115463  In re Marriage of Donald B.  Filed 5-22-14 (TJJ)


This matter comes before us on direct appeal from a circuit court of Cook County judgment finding section 607(e) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/607(e) (West (2010)) unconstitutional on its face and as applied to petitioner, Donald B. Section 607(e) prohibits a non-custodial parent who has been convicted of a sexual offense perpetrated on a victim less than 18 years of age from obtaining court-ordered visitation with his or her children while serving his sentence and until successfully completing “a treatment program approved by the court." In this case, after Donald’s visitation with his minor children was suspended pursuant to section 607(e), he challenged the constitutionality of the statute. The circuit court of Cook County ruled the statute unconstitutional and then ordered visitation be reinstated. That order was stayed, however, by this court at the request of the Cook County Public Guardian (Public Guardian), who brought this appeal from the circuit court’s finding of unconstitutionality on behalf of Donald’s two minor children, Andrea B. and Jonathan B.  Lisa Madigan, Attorney General of the State of Illinois, has also filed an appeal from the circuit court’s ruling as intervenor. We have consolidated the two appeals for our review. After the parties submitted their briefs and oral argument was heard, Donald filed a motion in the circuit court seeking reinstatement of visitation, asserting that he was now in compliance with section 607(e) of the Marriage Act. This raised a question as to whether the appeal before us had been rendered moot. We requested additional briefing. We now hold that the appeal before us is moot and no exceptions to the mootness doctrine apply to permit our consideration of the statute’s constitutionality. Accordingly, we lift the stay order entered by this court, vacate the circuit court’s order finding the statute unconstitutional, and remand to the circuit court for further proceedings consistent with this opinion.

2. Sexually Violent persons Act: Affirmed: Evidence sufficient to show that respondent proved to be a sexually violent person beyond a reasonable doubt, but procedural circumstances at the close of trial showed that trial court did not conduct necessary dispositional hearing to determine whether respondent should be committed in a secure facility or released conditionally, and matter remanded for such a hearing. Freeman, J.

No. 2014 IL 115542  In re Commitment of Fields  Filed 5-22-14 (TJJ)


In March 2011 a jury found respondent Justin Fields to be a sexually violent person (SVP) under the Sexually Violent Persons Commitment Act. After the circuit court of Cook County entered judgment, respondent requested (1) a date for a dispositional hearing, and (2) a pre-hearing evaluation. In denying respondent’s requests, the court determined it already had sufficient information to make its dispositional ruling, based on evidence presented at trial. The court ordered respondent committed to a secure treatment and detention facility. On appeal, respondent argued that the State failed to prove beyond a reasonable doubt that he was an SVP under the Act and that the circuit court denied him his statutory right to a dispositional hearing. The appellate court affirmed the judgment that respondent was an SVP, but vacated the circuit court’s commitment order and remanded the cause for a dispositional hearing. 2012 IL App (1st) 112191, ¶ 80. We allowed the State’s petition for leave to appeal, and now affirm the judgment of the appellate court.

3. Criminal Law/Post-Trial DNA Testing: Appellate Court reversed, circuit court affirmed: In case where defendant had been convicted of first degree murder and aggravated criminal sexual assault, his post-trial petition under Section 116-3 of Code of Criminal Procedure was properly denied by trial court where requested Y-STR-type testing requested lacked the potential to produce new, non-cumulative evidence that would establish defendant's innocence in light of DNA match to defendant and crime scene evidence adduced at trial. Burke, J.

No. 2014 IL 115756  People v. Stoecker  Filed 5-22-14 (TJJ)


In 1998, defendant Ronald L. Stoecker was convicted by a jury of first degree murder and aggravated criminal sexual assault and sentenced to concurrent terms of natural life and 30 years in prison. His convictions and sentences were affirmed on direct appeal. People v. Stoecker, No. 3-98-0750 (1999) (unpublished order under Supreme Court Rule 23). In 2009, defendant filed a pro se motion for postconviction deoxyribonucleic acid (DNA) testing pursuant to section 116-3 of the Code of Criminal Procedure of 1963. Defendant requested that the circuit court order additional testing of forensic evidence using new DNA testing methods which were unavailable at the time of trial. The circuit court of Stark County denied the motion based on defendant’s failure to meet the statutory requirements for postconviction DNA testing. The appellate court reversed and remanded for further proceedings. 2013 IL App (3d) 110300-U. For the following reasons, we reverse the judgment of the appellate court and affirm the judgment of the circuit court.

4. Mental Health Code/Involuntary Administration of Medication: Appellate court reversed, circuit court affirmed: Trial court order requiring psychotropic medications to be administered to respondent involuntarily upheld, despite failure of trial court to make specific findings of fact on record, as Section 3-816(a) of Mental Health Code is directory rather than mandatory, and trial court's written order set forth its "legal conclusion that the evidence overwhelmingly supported the [State's} petition" for involuntary medication and written order complied with other procedural provisions of the Code. Theis, J.

No. 2014 IL 115798  In re Rita P.  Filed 5-22-14 (TJJ)


On September 2, 2011, the Cook County circuit court entered an order authorizing the involuntary treatment of respondent, Rita P., with psychotropic medication. On appeal, respondent argued that the treatment order must be reversed because the trial court failed to comply with section 3-816(a) of the Mental Health and Developmental Disabilities Code, providing that final orders “shall be accompanied by a statement on the record of the court’s findings of fact and conclusions of law.” The appellate court agreed with respondent and reversed the treatment order. 2013 IL App (1st) 112837. For the reasons that follow, we reverse the judgment of the appellate court and affirm the judgment of the trial court.

5. Criminal Law/Fitness to stand trial: Affirmed: Defendant's amnesia regarding the events of the day or period giving rise to the charges against him (here, amnesia resulting from a self-inflicted gunshot wound) is not per se a reason to find a defendant unfit to stand trial, but is a factor required to be considered under the totality of the circumstances, and here the totality of the circumstances supported the trial court's decision that defendant was unfit. Karmeier, J.

No. 2014 IL 115804  People v. Stahl  Filed 5-22-14 (TJJ)


Due to brain damage from a self-inflicted gunshot wound to his face, defendant, Terris E. Stahl, cannot remember any of the events surrounding the incidents leading to home invasion and aggravated unlawful restraint charges against him. The trial court found defendant unfit to stand trial. Later, after a discharge hearing, he was found “not not guilty” of the charges against him and the circuit court of St. Clair County remanded him to the Department of Human Services (DHS) for extended terms of treatment of 24 months for home invasion and 15 months for unlawful restraint. After DHS determined that defendant had been restored to fitness, a fitness restoration hearing was held and the trial court found that defendant remained unfit to stand trial and that it was not reasonably probable that he would be fit within one year. The State appealed, arguing that the trial court’s ruling that defendant remained unfit to stand trial was against the manifest weight of the evidence because a defendant’s amnesia related to the events surrounding the charges against him is not sufficient, in and of itself, to support a finding of unfitness. The appellate court affirmed. 2013 IL App (5th) 110385, ¶¶ 19,
33. This court granted the State’s petition for leave to appeal. Appellate court affirmed.

6. Sexually Dangerous Persons Act: Affirmed: Although State's psychiatric witness in proceeding under Sexually Dangerous Persons Act claimed 12 instances of sexual conduct involving nine victims, but no details to support those claims were adduced, and where evidence established only one such incident involved an attempt to touch another person's breasts, evidence was insufficient to establish that respondent was a sexually dangerous person as it did not establish "a substantial probability" to commit future sex offenses as required by People v. Masterson. Garman, C.J.

No. 2014 IL 115964  People v. Bingham  Filed 5-22-14 (TJJ)


The circuit court of Macon County declared defendant, Julianna Bingham, to be a sexually dangerous person under the Sexually Dangerous Persons Act, and appointed the Director of the Illinois Department of Corrections (Department) as her guardian. Defendant was ordered to remain committed to the Department “until or unless [she] is recovered and released.” The appellate court reversed the trial court’s judgment. 2013 IL App (4th) 120414. We granted the State’s petition for leave to appeal. For the reasons that follow, we affirm.

7. Liquor Control Act: Affirmed: Proceedings before local liquor control commission which involved effort to revoke license based upon employee/agent's activities in laundering money to evade federal requirements involving cash transactions in excess of $10,000, including admission into evidence of proceedings leading to conviction of employee in federal court, did not violate due process, as license holder had opportunity to contest evidence and present evidence on its own behalf, even though it was not a party to federal prosecution. Theis, J.

No. 2014 IL 116173  WISAM 1, Inc. v. Illinois Liquor Control Commission  Filed 5-22-14 (TJJ)


This appeal arises out of a decision by the Illinois Liquor Control Commission, which affirmed the decision of the deputy local liquor control commissioner of the City of Peoria to revoke the liquor license of WISAM 1, Inc., doing business as Sheridan Liquors (Sheridan Liquors). The circuit and appellate courts affirmed the decision on administrative review. 2013 IL App (3d) 110607-U. At issue is whether Sheridan Liquors was denied due process at the revocation proceeding before the Local Commissioner. For the following reasons, we hold that its due process rights were not violated and affirm the decision of the Commission.

8. Freedom of Information Act/State's Attorney Offices: Reversed and remanded: State Freedom of Information Act applies to State's Attorneys; they are not exempt from its application as they are not part of the judicial branch; and circuit and appellate court rulings finding State's Attorney's office in Kendall County exempt reversed. Karmeier, J.

No. 2014 IL 116303  Nelson v. The County of Kendall  Filed 5-22-14 (TJJ)


The issue on this appeal is whether the office of the State’s Attorney of Kendall County is exempt from the disclosure requirements of the Freedom of Information Act (FOIA) on the grounds that the State’s Attorney’s office is part of the judicial branch of Illinois government and therefore beyond the reach of the FOIA. The circuit court answered this question in the affirmative and, on that basis, dismissed two related causes of action brought by plaintiffs to compel disclosure of certain public records generated by personnel in the Kendall County State’s Attorney’s office. The appellate court affirmed. 2013 IL App (2d) 120635. We granted plaintiffs’ petition for leave to appeal. For the reasons that follow, we reverse and remand to the circuit court for further proceedings.

9. Insurance Coverage/Choice Of Law: Appellate court reversed, circuit court affirmed: In insurance coverage dispute stemming from claim that insured violate federal Telephone Consumer Protection Act, fact that federal district court in Indiana has previously predicted what Indiana Supreme Court would do regarding coverage issue, was not a determination of Indiana law so as to create a conflict between Illinois and Indiana, and choice of law analysis was not applicable as there was therefore no conflict between the two states. Theis, J.

No. 2014 IL 116389  Bridgeview Health Care Center, Ltd. v. State Farm Fire and Casualty Company  Filed 5-22-14 (TJJ)


This appeal presents the following question: When a federal district court sitting in a sister state makes a prediction under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), that the supreme court of that state would resolve a legal issue in a way that is at odds with Illinois law, does that prediction, in itself, establish an actual conflict between the two states’ laws for purposes of a choice-of-law analysis? For the reasons that follow, we answer that question in the negative.

10. Criminal Procedure: Affirmed: Where minor victim "barely" answered preliminary questions, and "froze up" when substantive questioning commenced, police detective's testimony regarding what victim told him was inadmissible hearsay, but error harmless beyond a reasonable doubt in light of DNA evidence and properly admitted testimony regarding what child had told her mother. Thomas, J.

No. 2014 IL 116653  In re Brandon P.  Filed 5-22-14 (TJJ)


Respondent, Brandon P., was charged by petition for adjudication of wardship with aggravated criminal sexual abuse. The petition alleged that the then 14-year-old respondent committed an act of sexual conduct against his 3-year-old cousin, M.J. Following an adjudicatory hearing, the circuit court of Vermilion County found respondent guilty and sentenced him to the Illinois Department of Juvenile Justice for an indeterminate period not to exceed (1) the period for which an adult could be committed for the same act, or (2) the date of respondent’s twenty-first birthday, whichever came first. Respondent appealed, and the appellate court affirmed the adjudication. 2013 IL App (4th) 111022. This court allowed respondent’s petition for leave to appeal.


6 Appellate Cases Posted 5-22-14

1.  Criminal Law: Vacated in part and Affirmed in part: When reviewing a trial court's ruling on a motion to suppress, we accord great deference to the trial court's factual findings and will not disturb those findings unless they are against the manifest weight of the evidence.  Illinois mandates that photo array suspects "not appear to be substantially different from 'fillers' or 'distracters' in the *** photo spread, based on the eyewitness' previous description of the perpetrator, or based on other factors that would draw attention to the suspect."  Lineups are not rendered inadequate *** merely because the defendant is the only individual in the lineup who was also in the" photo array. We will not reverse a conviction unless the evidence is so unreasonable, improbable, or unsatisfactory that it raises a reasonable doubt of defendant's guilt.    Epstein, J.

No. 2014 IL App (1st) 121171  People v. Daniel Filed 5-22-14 (LJD)


Following a jury trial, defendant Ashton Daniel was convicted of armed robbery and aggravated unlawful restraint and sentenced to concurrent 34- and 5-year prison terms. His convictions stem from the May 28, 2010, robbery of Ayoob Shafi's store. Defendant raises eight issues on appeal: (1) the photo array and lineup identification procedures were unduly suggestive; (2) the State failed to prove him guilty beyond a reasonable doubt; (3) the State made improper and prejudicial comments during opening statement and closing argument; (4) his sentence is excessive; (5) his aggravated unlawful restraint conviction violates the one-act, one-crime doctrine; (6) the jury was not properly instructed regarding armed robbery with a firearm; (7) the jury did not make the requisite finding to support a 15-year firearm enhancement; and (8) he was improperly assessed a $200 DNA indexing fee. We vacate defendant's aggravated unlawful restraint conviction, because it was carved from the same physical acts as his armed robbery conviction. We also vacate his $200 DNA indexing fee under People v. Marshall, 242 Ill. 2d 285 (2011), because defendant's DNA was previously obtained and indexed. We otherwise affirm defendant's conviction and sentence.

2.  Administrative Review: Affirmed: The standard of review this court applies when reviewing a circuit court's dismissal of a complaint is de novo."  Where it appears from the record that no set of facts could be proven which would entitle the plaintiff to relief, dismissal must be affirmed.  Subject matter jurisdiction from a circuit court is withheld unless "the statutorily prescribed procedures are *** strictly followed." Section 3-103 of the Administrative Review Law mandates that any party seeking review of an administrative agency's final decision file a complaint and issue a summons within 35 days from the date that the final administrative decision is served on him or her.  Fitzgerald Smith, J.

No. 2014 IL App (1st) 131568 Hooker v. Retirement Board of the Fireman's Annuity & Benefit Fund Filed 5-22-14 (LJD)


In this case we are asked to determine whether a cause of action against the defendant, the Retirement Board of the Fireman's Annuity & Benefit Fund of Chicago (hereinafter the Board), may be brought by an estate of a deceased former recipient of an annuity paid pursuant to the Illinois Pension Code (Pension Code) (40 ILCS 5/6-101 et seq. (West 2008)) to benefit the estate's heirs. We hold today that it may not and therefore affirm the judgment of the circuit court.

3.  Parentage Act:  Affirmed in Part and Vacated as to Counts I & II and Remanded: The Parentage Act of 1984 establishes a “statutory mechanism that serves to legally establish parent and child relationships in Illinois.”Section 2 of the Parentage Act of 1984 provides that a “ ‘parent and child relationship’ means the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations.”  To invoke the doctrine of [equitable] estoppel, a false representation must generally relate to an existing or past event, not to a promise concerning a future happening.  The Supreme court has held that an equitable adoption would be recognized in Illinois “only in those cases where there is sufficient, objective evidence of an intent to adopt (or fraudulently or mistakenly holding out as a natural child on a continual basis), supported by a close enduring familial relationship.”  A clear and convincing evidence is necessary to support an equitable adoption claim. Extwensive discussion of this question and of the Suprme Court Case of DeHart.   Zenoff, J., McLaren, J., concurs in part and dissents in part.

No. 2014 IL App (2nd) 120266-B  In re Parentage of Scarlett Z.-D.   Filed 5-22-14 (LJD)


Petitioner, James R.D. (Jim), sought a declaration of parentage, custody, visitation, and child support regarding Scarlett Z.-D., the adopted daughter of his former fiancée, respondent, Maria Z. He appeals from the trial court’s dismissal under section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)) of his claims brought under common-law contract theories and from the court’s denial, following trial, of his claims brought under the equitable parent doctrine. Initially, we affirmed. In re Parentage of Scarlett Z.-D., 2012 IL App (2d) 120266. Jim filed a petition for leave to appeal with the Illinois Supreme Court. The supreme court denied his petition but also entered a supervisory order.  In accordance with our supreme court’s directive, we vacate our previous order in this case. We conclude that a different result is not warranted under the law as it existed at the time of our previous order. However, to the extent of any change in the law, our reconsideration is hindered by the lack of factual findings by the trial court, which did not have the benefit of DeHart when it rendered its ruling. For the following reasons, we affirm the trial  ourt’s dismissal of counts III through VI, vacate its order denying counts I and II, and remand with directions for further proceedings.

4.  Post Conviction Petition: Reversed and Remanded: At the second-stage dismissal hearing, “the defendant bears the burden of making a substantial showing of a constitutional violation.”  Further, the trial court must accept as true “all well-pleaded facts that are not positively rebutted by the trial record.”  Where, as here, the defendant’s claims are based on matters outside the record, the trial court is prohibited from engaging in fact finding.  Thus, when factual disputes require a determination of the truth or falsity of supporting affidavits or exhibits, that determination cannot properly be made at a hearing on a motion to dismiss, but rather can be resolved only during a third-stage evidentiary hearing.   To succeed on a claim of actual innocence, a defendant must show that the evidence he now presents is: (1) newly discovered; (2) material and not cumulative; and (3) of such conclusive character that it would probably change the result on retrial.   McLaren, J.

No. 2014 IL App (2nd) 120810   People v. Alexander   Filed 5-22-14 (LJD)

Defendant, Reico L. Alexander, appeals from the dismissal of his amended postconviction petition based on newly discovered evidence. On appeal, defendant argues that the trial court erred by dismissing his petition, because the allegations contained in the petition and the supporting affidavit made a substantial showing that defendant was actually innocent of the charged offense. We reverse and remand for further proceedings.

5. Traffic/DUI: Affirmed in part and reversed in Part and Remanded: Instrument logs certifying the accuracy of Breathalyzer machines are hearsay.  The evidence may be admitted where the State lays a proper foundation for its admission under the business-records exception to the hearsay rule.  “Evidentiary rulings are within the sound discretion of the trial court and will not be reversed unless the trial court has abused that discretion.  An abuse of discretion will be found only where the trial court’s ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court. Rules for proper foundation set out in the opinion.   McLaren, J.

No. 2014 IL App (2nd) 120990   People v. Harris   Filed 5-22-14 (LJD)

Following a bench trial, defendant, Douglas R. Harris, was found guilty of one count of failure to stop after having an accident involving personal injury (625 ILCS 5/11-401(a) (West 2008)) and two counts of driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(1), (a)(2) (West 2008)). The trial court sentenced him to concurrent probation terms of 30 and 24 months, respectively. Defendant timely appealed. Defendant argues that the trial court erred in allowing into evidence a logbook showing that the Breathalyzer machine used to conduct a breath test on defendant had been certified as accurate, because the State failed to lay the proper foundation. The State maintains that the issue has been forfeited. In the alternative, the State argues that the logbook was properly admitted into evidence. The State also asks that we correct the mittimus to reflect a DNA analysis fee of $250, instead of $200. For the reasons that follow, we affirm as modified in part, reverse in part, and remand.

6.  Administrative Review/ Workers Compensation:  Affirmed: We review the administrative agency's decision rather than the judgment of the circuit court.  The purpose of [the offset statute] is to prevent SURS participants from obtaining double recoveries of disability benefits [citation] and to facilitate recoupment of SURS disability benefits to the extent a SURS participant is eligible for workers' compensation or occupational diseases benefits for a period of time for which he or she received SURS benefits.    Pope, J.

No. 2014 IL App (4th) 130719  Wright v. Board of Trustees, State Universities Retirement System   Filed 5-22-14 (LJD)

In July 2007, plaintiff, Cheryl Wright, was awarded disability benefits by the State Universities Retirement System of Illinois (SURS) retroactive to December 23, 2006, based on a July 2006 disability date. In March 2011, SURS staff notified Wright by letter she owed $51,413.62 (after SURS withheld her February 2011 disability payment of $1,687.96) based on a workers' compensation award she received. Wright sought administrative review. ¶ 2 In February 2012, the Claims Panel of SURS issued a written opinion upholding the SURS staff's determination. In June 2012, the Executive Committee of the Board of Trustees of SURS (Executive Committee) issued a final administrative decision adopting the Claims Panel's determination in its entirety. In July 2013, the circuit court affirmed the decision of the Executive Committee

2 Appellate Cases Posted 5-21-14

1. Criminal Law: Affirmed: Trial court properly found defendant guilty of promoting prostitution where evidence showed that defendant worked as a cashier at a massage spa and was responsible for maintaining and keeping money provided to others working at spa who agreed to perform sex acts for money, and claim that official court interpreter was incompetent deemed forfeited for failure to raise it at trial. Hyman, J.

No. 2014 IL App (1st) 130222  People v. Clark  Filed 5-21-14 (TJJ)


Defendant argues that her conviction for promoting prostitution at a spa should be reversed because the State failed to present sufficient evidence that she had control of the spa and knew prostitution was occurring there. 720 ILCS 5/11-14.3(a)(1) & 720 ILCS 5/11-0.1(a)(2) (West 2010). Eun Kyung Clark, whose first language is Korean, also contends errors by the court-appointed interpreter in translating her testimony violated her right to a fair trial and due process and impinged on her fifth amendment right against self-incrimination. Lastly, Clark asserts the trial court's credibility determinations in favor the State were against the manifest weight of the evidence. We affirm. Based on all of evidence presented, a rational trier of fact could have found Clark knew or should have known prostitution was occurring at the spa. Regarding the competency of the interpreter, Clark forfeited this issue by failing to object at trial and failing to raise plain error review in her brief. (Clark did not file a reply brief.) Finally, Clark has not presented a basis to disturb the court's credibility determinations.

2. Criminal Law: Reversed and remanded: Trial court abused its discretion in denying defendant leave to raise affirmative defense of self-defense on day of trial for aggravated battery where ruling prohibited defendant from raising any defense, less stringent sanctions were possible, and was "too severe under the facts and circumstances." Stewart, J.

No. 2014 IL App (5th) 120349  People v. Tally  Filed 5-21-14 (TJJ)


On October 17, 2011, the State charged the defendant, Phillip C. Tally, with aggravated battery in violation of section 12-3 of the Illinois Criminal Code of 1961. The State filed a motion for pretrial discovery on April 27, 2012. The motion for pretrial discovery requested the defendant to give written notice of any affirmative defenses that he intended to assert at the trial. The defendant did not give notice of any affirmative defense until the day of his bench trial when he disclosed that he intended to raise self-defense as an affirmative defense. The circuit court barred the defendant's defense as a discovery sanction, and the defendant appeals his conviction following the bench trial. We reverse.

5 Appellate Cases Posted 5-20-14

1. Administrative Hearings: Affirmed in part and reversed and remanded in part: 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 only permitted such after such passage of time for "default" orders, but trial court order dismissing building owner's suit for declaratory judgment and to quiet title reversed. Delort, J. (Connors, concurring in part and dissenting in part). (Modified on denial of rehearing).

No. 2014 IL App (1st) 123654  Stone Street Partners, LLC v. The City of Chicago Department of Administrative Hearings  Filed 5-20-14 (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 further proceedings.

2. Bankruptcy Stay/Removal of State Claim to Federal Court: Affirmed: Defendant's repeated and unsuccessful attempts to remove state court claim by plaintiff attorney in suit for legal fees owed did not divest state court of jurisdiction over matter, and plaintiff's letter to defendant at post office box number on appearance was sufficient to apprise defendant of trial date, and jury verdict in favor of plaintiff upheld. Liu, J.

No. 2014 IL App (1st) 120597  Fryzel v. Miller  Filed 5-20-14 (TJJ)


The plaintiff, Michael E. Fryzel, filed a breach of contract complaint against the defendant, Sidney R. Miller, in May 2005. Following multiple continuances of the trial date and stays of the proceedings pending defendant's removal actions and bankruptcy cases, the court set a trial date of July 25, 2011. Defendant failed to appear at the jury trial. The trial proceeded in defendant's absence. Following a jury verdict in favor of plaintiff, the circuit court entered judgment against defendant in the amount of $38,074.43. On August 24, defendant filed a motion to stay and vacate the judgment. On January 13, 2012, at the hearing of defendant's motion to stay and vacate the judgment, the circuit court rejected defendant's motion and oral objection to jurisdiction, and ordered the judgment to issue. Defendant filed a timely notice of appeal on February 10, 2012. Ill. S. Ct. R. 303(a)(1). On appeal, defendant asserts that the judgment should be reversed because it is "void by absence of Circuit Court jurisdiction at the time of trial and afterward." Defendant contends that the July 25, 2011 and January 13, 2012 orders are void because: (a) the circuit court proceedings should have been stayed pending the appeals of the dismissed bankruptcy cases; (b) the circuit court lacked jurisdiction pending the appeals of the removal actions and the "August 26 removal of the Judgment"; (c) plaintiff's counsel failed to notify him of the date and time of the trial, which resulted in defendant's absence at trial; and (d) the breach of contract claim lacks merit.

3. Mortgage Foreclosure: Affirmed: Where defendants withdrew affirmative defenses, and were granted leave to file additional pleadings within 28 days, but never did so, any affirmative defenses claimed in withdrawn pleading could not defeat trail court grant of summary judgment and confirmation of judicial sale in mortgage foreclosure case; continued untenable arguments in appellate court led court to conclude that appeal was pursued solely to permit defendants to maintain possession of property and stall resolution of the case, and sanctions imposed by appellate court pursuant to SCR 375(b) sua sponte. McDade, J.

No. 2014 IL App (3d) 130204  Bank of America, N.A. v. Basile  Filed 5-20-14 (TJJ)


Defendants, Perry Basile and Erica Basile, were sued by plaintiff, Bank of America, N.A., under the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1101 et seq. (West 2008)). The circuit court entered judgment of foreclosure and sale in favor of plaintiff. We affirm.

4. Criminal Law: Affirmed: Trial court did not abuse its discretion in refusing to permit defendant to proffer testimony of a witness who claimed that she had seen victim point a gun at defendant 15 years before events giving rise to death of victim and defendant's claim of self-defense, autopsy photographs were properly admitted, and defendant not entitled to lesser instruction of theft on armed robbery charge. Goldenhersh, J.

No. 2014 IL App (5th) 120216  People v. Slack  Filed 5-20-14 (TJJ)


After a jury trial in the circuit court of Madison County, defendant, Ray Terrance Slack, was convicted of first-degree murder (720 ILCS 5/9-1(a)(2) (West 2010)) and armed robbery (720 ILCS 5/18-2(a)(1) (West 2010)). He was sentenced to consecutive terms of 40 years in the Department of Corrections on the murder conviction and 7 years on the armed robbery conviction. The two issues raised by defendant on direct appeal are: (1) whether defendant received a fair trial and (2) whether the trial court erred in refusing to instruct the jury on the lesser-included offense of theft. We affirm.

5. Pre-filing Discovery/Supreme Court Rule 224: In petitions filed against numerous John Doe defendants in which petitioner sought the identity and addresses of the John Doe defendants from respondent internet access provider, trial court erred in granting relief requested by petitioner, who alleged computer fraud by John Does, where it appeared that petitioner was in fact engaged in attempting to ascertain information in order to demand settlement from the John Does for alleged copyright violations stemming from John Does' viewing of pornographic material. Spomer, J.

No. 2014 IL App (5th) 130091  Guava LLC v. Comcast Cable Communications, LLC  Filed 5-20-14 (TJJ)


After considering the Doe appellants' appeal and motion for attorney fees on their merits, pursuant to the guidance of the Illinois Supreme Court in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 131-32 (1976), we reverse the orders of the circuit court and remand with directions that the circuit court dismiss Guava's petition for discovery before suit, proceed to an evidentiary hearing on the Doe appellants' petition for a rule to show cause, and compel the attendance of the persons named in the Doe appellants' Rule 237 notice to appear. Because we find that the circuit court is the proper arbiter of the Doe appellants' allegations of frivolous pleading, fraud, identity theft, and extortion, we deny the Doe appellants' motion for attorney fees pursuant to Illinois Supreme Court Rules 137, 375, and 366(a)(3)–(5). However, we note that because the Doe appellants are the prevailing party in this appeal, they may petition for their costs on appeal pursuant to Illinois Supreme Court Rule 374. In addition, attorney fees on appeal can be sought in the circuit court after the hearing on the petition for rule to show cause.


2 Appellate Cases Posted 5-19-14

1. Negligence Law: Affirmed in part reversed n part, and remanded: Defendant who built building on behalf of co-defendant where plaintiff fell and sustained injuries while seeking to visit adjacent building owed duty of reasonable care in construction of building, not only a duty to refrain from wilful and wanton conduct, but jury instruction regarding implied invitation even though plaintiff did not offer that theory required new trial only as to apportionment of damages, not liability. Cunningham, J. (modified on rehearing).

No. 2014 IL App (1st) 121845  Garest v. Booth  Filed 5-19-14 (TJJ)


This appeal arises from a November 22, 2011 judgment entered by the circuit court of Cook County which awarded damages in the amount of $140,388.78 to plaintiff-appellee Sandra M. Garest (Garest); and a May 23, 2012 order entered by the circuit court which denied the posttrial motions of defendants-appellants Brigham Construction Company (Brigham) and Barry E. Booth (Booth). Both defendants appeal raising different issues. We will consider each defendant's arguments in turn. On appeal, defendant Brigham argues that: (1) the trial court erred in denying its motion for summary judgment; motion for a directed verdict; and motion for judgment notwithstanding the verdict; and (2) based on the trial court's errors, it is entitled to a new trial. Defendant Booth argues that: (1) the trial court erred in allowing Garest to recover on a theory of "implied invitation" because Garest was a trespasser as a matter of law; (2) the trial court erred in giving improper jury instructions; (3) the trial court erred in denying Booth's motion for a directed verdict; and (4) based on the trial court's errors, Booth is entitled to a new trial. For the following reasons, we affirm in part and reverse in part the judgment of the circuit
court of Cook County.

2. Criminal Law: Affirmed: Trial court properly ruled on all issues raised by defendant at first stage of postconviction proceedings, despite defendant's argument that trial court order did not rule on all claims, and petition properly dismissed as defendant's counsel on direct appeal not ineffective for failing to raise issue on appeal regarding trial court failure to instruct jury as to the defenses of self defense and necessity in trial for felony murder. Cunningham, J.

No. 2014 IL App (1st) 110342  People v. Maclin  Filed 5-19-14 (TJJ)


This appeal arises from a December 17, 2010 order entered by the circuit court of Cook County which dismissed defendant-appellant George Maclin's pro se postconviction petition as frivolous and patently without merit. Maclin's postconviction petition followed his conviction for first-degree murder, which was affirmed by this court in People v. Maclin, No. 1-07-3460 (2009) (unpublished order under Supreme Court Rule 23). On appeal, Maclin argues that: (1) the trial court improperly dismissed his postconviction petition because the court's order failed to address all of the claims presented in his petition; (2) the trial court erred in dismissing his postconviction petition because the petition stated an arguable basis of a claim that appellate counsel was ineffective for failing to argue that the trial court erred in refusing a jury instruction on the defense of necessity; and (3) the trial court improperly dismissed his postconviction petition because the petition stated an arguable basis of a claim that appellate counsel was ineffective for failing to argue that the trial court erred in refusing a jury instruction on self-defense to felony murder. For the following reasons, we affirm the judgment of the circuit court of Cook County.



5 Appellate Cases Posted 5-16-14

1. Criminal Law: Reversed: Minor's acquiescence to officer's request to show his hands and to stop constituted a seizure, and absent a reasonable articulable suspicion to justify the stop recovery of heroin and cocaine should have been suppressed. Gordon, J.

No. 2014 IL App (1st) 133027  In re Rafeal E.  Filed 5-16-14 (TJJ)


Minor respondent Rafeal E. was adjudicated delinquent for possession of controlled substances (heroin and cocaine) and sentenced to 18 months' probation. On appeal, respondent contends that the trial court erred in denying his pretrial motion to quash his arrest and suppress evidence, and requests that the adjudication of delinquency entered on both counts of possession be reversed.

2. Automotive Repair Act: Reversed and remanded: In action for damages stemming from dispute regarding repairs to plaintiffs' automobile transmission, trial court erred in refusing plaintiffs' requested jury instruction based on Automotive Repair Act. Hall, J.

No. 2014 IL App (1st) 122123  Mobley v. Tramco Transmission, Inc.  Filed 5-16-14 (TJJ)


Plaintiffs Valerie Mobley and her daughter Michelle Mobley appeal from the judgment entered on the jury's verdict dismissing their claims against defendant TramCo Transmission, Inc. (Tramco), d/b/a Tramcar Transmission. Plaintiffs also appeal the jury's verdict finding in favor of Tramco and against Michelle Mobley on Tramco's counterclaim against plaintiffs. For the reasons that follow, we reverse and remand for a new trial.

3. Telecommunications Law: Vacated: Telecommunications company, which sought and received a "declaratory ruling" from the Illinois Commerce Commission regarding whether it was a provider of "operator services" in connection with plans to offer services to inmates in the Illinois Department of Corrections, was not "an affected person" under the Administrative Procedure Act and Commission's declaratory ruling was therefore vacated. Reyes, J.

No. 2014 IL App (1st) 131716  Securus Technologies, Inc. v. Illinois Commerce Commission  Filed 5-16-14 (TJJ)


Petitioner Securus Technologies, Inc., directly appeals to this court from orders of the respondent Illinois Commerce Commission entered upon a verified petition for a declaratory ruling filed with the Commission by respondent Consolidated Communications Enterprise Services, as well as an order denying rehearing on the matter. Securus argues: (1) the Commission lacked jurisdiction to enter the orders; (2) the Commission's orders violate Illinois law; (3) the Commission's procedures prior to entry of the orders violated Sercurus's right to due process of law; and (4) the Commission's findings were against the manifest weight of the evidence. The Commission not only takes the contrary position to all of the arguments raised by Securus, but also argues this court lacks jurisdiction to hear this appeal. For the following reasons, we conclude this court has jurisdiction to hear the appeal, the Commission lacked jurisdiction to enter the orders at issue, and the Commission's orders must be vacated.

4. Domestic Relations: Affirmed in part, reversed in part, and remanded: Trial court ruling that husband's bonus, awarded in 2010 but not received till 2011, was error, as bonus to be paid husband was not properly cognizable as income until it was actually received, but expenses reimbursed to husband, as to which employer was obligated to pay husband, were properly construed by trial court to be attributable to husband when they were "earned," not when they were received, and used to compute child support despite fact that child reached emancipation by the time the reimbursements were received but had not at the time employer was obligated to pay them. Spence, J.

No. 2014 IL App (2d) 130151  In re Marriage of Shores  Filed 5-16-14 (TJJ)


Petitioner, Clyde W. Shores, appeals the trial court’s award of an increase in child support, arguing that the trial court erred by including three items as income under section 505(a)(3) of the Illinois Marriage and Dissolution of Marriage Act in its child support calculation for January 1, 2010, through July 12, 2010. The three items were a bonus that petitioner received in 2011 for his performance in 2010 and two relocation reimbursements he received in the amounts of $20,355.21 and $14,487.62. In order to answer when an item counts as section 505(a)(3) income, we analogize child support income to the treatment of marital assets. We find that for purposes of child support, when future income is speculative, it is income not when earned but rather when received. Accordingly, we affirm in part, reverse in part, and remand.

5. Parental Rights: Affirmed: Trial court properly allowed into evidence still photos gleaned from a "live webcam" feed allegedly showing a child performing a sex act on respondent mother's paramour, testimony of witness who had first observed the video display of the feed and alerted authorities was admissible, and ruling that child was abused and neglected upheld. Steigmann, J.

No. 2014 IL App (4th) 131119  In re: L.S.  Filed 5-16-14 (TJJ)


In January 2013, the State filed a petition for adjudication of wardship pursuant to section 2-3 of the Juvenile Court Act of 1987, alleging that L.S. (born July 26, 2009), the minor child of respondent, Shyla Stoppelwerth, was neglected and abused. At an October 2013 hearing on the petition, Sheriff's Deputy Raymond Briant of Broward County, Florida, testified that while he was off duty on a family vacation in Tennessee in December 2012, he used an application on his iPad to watch several publicly viewable, live-feed webcams. One such webcam, listed under the name "Shyla," appeared to show a young boy and a female in a bed with an adult male, who was watching child pornography and masturbating. The young boy also appeared to perform oral sex on the male. Briant, who did not know the identity or location of the parties shown on the Shyla webcam, reported what he saw to the National Center for Missing and Exploited Children (NCMEC), the Federal Bureau of Investigation (FBI), and the Ireland-based private company that administered the webcam service. The FBI traced the source of the webcam to a house where respondent and L.S. were living with respondent's paramour, Craig Long. At the October 2013 hearing, respondent admitted that she, L.S., and Long were the persons appearing on the Shyla webcam. Over respondent's objection, the trial court admitted into evidence (1) Briant's testimony about what he viewed on the Shyla webcam and (2) 12 still images automatically archived from the webcam by the company that administered the webcam service. Based primarily upon the evidence from the Shyla webcam, the court adjudicated L.S. abused and neglected. Respondent appeals, arguing that (1) the trial court erred by admitting (a) Briant's testimony about what he viewed on the Shyla webcam and (b) the still images captured from the webcam, and (2) the court's adjudication of abuse and neglect was against the manifest weight of the evidence. We affirm.


2 Appellate Cases Posted 5-15-14

1. Domestic Relations: Appeal dismissed for lack of jurisdiction: In action where parties had been granted a divorce while residing in France, but were subsequently residents of Illinois when husband filed a petition in divorce court seeking child support, appellate court did not have jurisdiction to hear interlocutory appeal by husband seeking review of trial court's denial of his motion to stay discovery and to enjoin trial on wife's motion to allocate marital assets, as such was not final and appealable and in any event the trial court ruling was correct. Epstein, J.

No. 2014 IL App (1st) 132841  Marzouki v. Najar-Marzouki  Filed 5-15-14 (TJJ)


Petitioner, Jamel Marzouki (Jamel), filed this interlocutory appeal, pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010), from the August 14, 2013 order of the circuit court of Cook County denying his motion for a stay and to enjoin discovery and trial. He further appeals all underlying orders including the July 22, 2013 order of the circuit court denying his motion to dismiss respondent's motion to allocate the marital estate. For the reasons that follow, we conclude that we lack jurisdiction to address the circuit court's denial of Jamel's motion to dismiss, and we affirm the August 14, 2013 order denying his motion for a stay and to enjoin discovery and trial.

2. Municipal Ordinances: Reversed and remanded: Illinois Municipal Code provides that orders entered in an administrative adjudication proceeding by a hearing officer, including resultant fines, were enforceable in the same manner as judgment entered in a court of competent jurisdiction, and trial court order dismissing Village's petition for enforcement of fines against was error. Hudson, J.

No. 2014 IL App (2d) 130654  The Village of Lake in the Hills v. Niklaus  Filed 5-15-14 (TJJ)


Division 2.1 of the Illinois Municipal Code permits a home-rule municipality to establish an administrative adjudication hearing system to adjudicate the violation of certain municipal ordinances. In the present case, an administrative adjudication hearing officer for the Village of Lake in the Hills found defendant, Dennis Niklaus, liable for various municipal ordinance violations and assessed fines against defendant. Thereafter, the Village sought to enforce the hearing officer’s orders in the circuit court of McHenry County pursuant to division 2.1 of the Municipal Code. The court denied the Village’s petitions, finding that there is no statutory authority that would allow the Village to enroll and enforce the hearing officer’s orders in the circuit court. Thereafter, the Village initiated the present appeal. For the reasons set forth below, we disagree with the trial court and hold that an order rendered following an administrative adjudication proceeding held pursuant to division 2.1 of the Municipal Code is enforceable in the circuit court. We further hold that the method attempted by the Village to initiate enforcement in this case—filing exemplified copies of the hearing officer’s orders in the circuit court of the county in which the municipality is located—is appropriate under division 2.1 of the Municipal Code. Reversed and remanded.

3 Appellate Cases Posted 5-14-14

1.  Criminal Law: Remanded for resentencing:  Residential burglary expressly includes the offense of burglary, which a person commits when he or she "without authority *** knowingly enters or without authority remains within a building *** or any part thereof, with intent to commit therein a felony or theft."  For a house to qualify as a dwelling, the owners or occupants must reside in the house at the time of the offense or must intend to do so within a reasonable time.  A defendant is entitled to a reversal of his or her conviction without making the otherwise-requisite showing that the deprivation caused him prejudice where the complete absence of his or her right to counsel occurs at a critical stage of the case.  A critical stage exists when substantial rights of a criminal defendant may be affected; that is, when the defendant required aid in coping with legal problems or assistance.   Hyman, J.

No. 2014 IL App (1st) 112592  People v. Moore  Filed 5-14-14 (LJD)


Defendant Marcello Moore was found guilty of residential burglary after a bench trial. Moore then filed a pro se motion for the reduction of his sentence, which the trial court denied. In this consolidation of defendant's direct and postsentencing appeals, he contends the prosecution presented insufficient evidence at trial to find him guilty beyond a reasonable doubt of residential burglary. He also contends he should receive a new trial because the court did not properly admonish him before he waived counsel, which he did for a single pretrial motion before changing his mind and again being represented. Lastly, the parties agree that certain fines and fees were erroneously assessed. We agree that the trial evidence failed to establish beyond a reasonable doubt one of the elements of residential burglary—that an owner or a resident intended to reside at the building at the time of the burglary. Accordingly, we reduce the conviction from residential burglary to burglary and remand for sentencing. We agree that the trial court improperly admonished Moore regarding waiver of counsel, but under the circumstances of this case, that did not deprive Moore of counsel at a critical stage or prejudice him, as he acted pro se for one proceeding, a motion to quash, that never had a chance of success. As to the fines and fees, we modify the judgment.

2. Post Conviction Petition: Affirmed: Section 2-1401 provides a comprehensive, statutory procedure that allows for vacating a final judgment older than 30 days.  A petition must be filed within two years of that order or judgment, unless it alleges a claim of voidness, which can be raised at any time.  A single murder victim supports only one conviction of murder, which is on the most serious offense.  Among charges of intentional, knowing, and felony murder, intentional murder constitutes the most serious offense.   Hyman, J.

No. 2014 IL App (1st) 113335  People v. Bishop  Filed 5-14-14 (LJD)


Defendant, Robert Bishop, seeks to vacate his 1986 conviction and sentence for attempted armed robbery as void on the ground of double jeopardy. He contends that attempted armed robbery also served as the predicate offense for his felony murder conviction and thus cannot stand. His appeal arises from the circuit court's dismissal of his pro se petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)). We find that Bishop was not convicted of felony murder but, rather, intentional murder, and because attempted armed robbery is not a predicate offense, the trial court's conviction and sentence on both charges did not constitute a double jeopardy violation. This being the case, the statute of limitations in section 2-1401 had run, and his petition was untimely.

3.  Criminal Law: Affirmed in part, Reversed in Part and Remanded:  A defendant possesses both constitutional and statutory rights to a speedy trialIllinois's speedy-trial statute provides that a defendant in custody must be brought to trial within 120 days of the day he was brought into custody.  . The speedy-trial statute tolls during any period of delay occasioned by the defendant.   A defendant not tried within the statutory period must be released from custody and have the charges against him dismissed.  Pursuant to the compulsory joinder statute, the State must prosecute in a single criminal case all known offenses within the jurisdiction of a single court that " 'are based on the same act.' " Where new and additional charges arise from the same facts as did the original charges and the State had knowledge of these facts at the commencement of the prosecution, the time within which trial is to begin on the new and additional charges is subject to the same statutory limitation that is applied to the original charges."  Where the initial and subsequent charges are subject to compulsory joinder, delays attributable to the defendant on the initial charge are not attributable to the defendant on the new and additional charges " 'because these new and additional charges were not before the court when those continuances were obtained.' Holder White, J.

No. 2014 IL App (4tht) 120595  People v. Larue Filed 5-14-14 (LJD)


Defendant's jury trial began on April 30, 2012, and continued on May 2, 2012. The State elected to proceed only on the residential burglary and UPWF counts. Following the trial, the jury found defendant guilty of both charges. In June 2012, the trial court sentenced defendant to consecutive sentences of 10 years in prison for UPWF and 15 years in prison for residential burglary, ordering defendant to pay the "costs of prosecution herein." Following sentencing, the circuit clerk imposed various fines and fees.  Defendant appeals, arguing (1) his conviction for UPWF must be vacated because the State filed the charge after the 120-day speedy-trial term had run on the original charges; (2) his 10-year sentence for UPWF must be vacated because the sentence violates the proportionatepenalties clause of the Illinois Constitution; (3) his 10-year sentence for UPWF must be vacated because it violates the due process clause of the Illinois Constitution and the equal protection clauses of both the Illinois and United States Constitutions; and (4) the circuit court clerk imposed six void fines and seven duplicate fees that must be vacated.

3 Appellate Cases Posted 5-13-14

1. Tort Immunity/Municipal Negligence: Affirmed: Denial by first judge of City's motion for summary judgment in connection with action claiming injury from stepping into pothole on city street did not prevent second judge from reconsidering motion, and summary judgment in favor defendant City of Chicago was proper where pothole was outside crosswalk. Liu, J.

No. 2014 IL App (1st) 122769  Swain v. The City of Chicago  Filed 5-13-14 (TJJ)


Plaintiff, Randall Swain, filed a negligence action against the City of Chicago (the City) to recover for injuries that he sustained after stepping into a pothole while crossing a city street. The City moved for summary judgment, and the circuit court denied the motion on the ground that there was a genuine issue of material fact as to whether the pothole gave rise to a duty owed by the City. The case was subsequently reassigned to a different judge and set for trial. During a pretrial conference, the City made an oral "motion for a directed finding." The court granted this motion and found, as a matter of law, that the City did not owe a duty to plaintiff because the pothole was located outside of the crosswalk that plaintiff was using at the time of the incident. Plaintiff now contends that: (1) the circuit court was prohibited from entering a directed finding under the law of the case doctrine; and (2) the court erred in finding that the City did not owe him a duty as a matter of law. For the following reasons, we affirm.

2. Criminal Law: Affirmed as modified: Inquiry by trial court during trial for solicitation of murder for hire regarding prior representation of State witness by defense counsel wherein witness had previously pleaded guilty to misdemeanor before commission of crime at issue at this trial, was sufficient to establish that no conflict of interest existed, and defendant's post-conviction properly dismissed, but $50 court systems fee was actually a fine, and defendant therefore entitled to two days' credit. Carter, J. (Wright, concurring in part and dissenting in part).

No. 2014 IL App (3d) 120585  People v. Ackerman  Filed 5-12-14 (TJJ)

The defendant, Neil Ackerman, was convicted of solicitation of murder for hire and was sentenced to 30 years of imprisonment. On appeal, the defendant argues that: (1) the circuit court erred when it dismissed his post conviction petition as frivolous and patently without merit; (2) he is entitled to two additional days of sentencing credit for presentence incarceration; and (3) he is entitled to a $5-per-day credit toward his court systems fee and to a reduction in his Violent Crime Victims Assistance (VCVA) Fund fine. We affirm as modified and remand with directions.
3. Workers' Compensation: Affirmed in part, vacated in part, and remanded: Award by Industrial Commission in favor of employee stemming from injury suffered at work and subsequent infections purportedly caused by the injury was not against the manifest weight of the evidence, but matter remanded to Commission for it to consider employee's claim that he was entitled to be compensated for modifications to his home necessitated by his condition. The Commission's belief that that latter award could only be supported by a prescription from a physician was incorrect as a matter of law. Hudson, J.
No. 2014 IL App (2d) 121283WC  Compass Group v. Illinois Workers' Compensation Commission  Filed 3-28-14 (TJJ)

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. 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.

3 Appellate Cases Posted 5-12-14

1. Criminal Law/Postconviction Petition: Affirmed: Padilla announced a new rule and cannot be retroactively applied to Greco’s case. Accordingly, Greco is unable to make a substantial showing that defense counsel was ineffective, and the trial court did not err in dismissing his postconviction petition based on his ineffective assistance of counsel argument. Pursuant to Delvillar and its progeny, the trial court was not constitutionally required to admonish Greco of the possible immigration consequences of his guilty plea. Because Greco failed to present a claim of constitutional deprivation based on this issue, his argument is not supported by the Act.  When a plea is based on the promise or agreement of the State in any significant degree, so that it can be said to be part of the inducement or consideration, the promise must be fulfilled. Id. In that respect, the principal inquiry is whether the defendant received the benefit of his bargain. Greco received the benefit of his bargain and is not able to withdraw his guilty plea. Cunningham, J.

No. 2014 IL App (1st) 112582    People v. Greco  Filed 5-12-14 (RJC)


On March 30, 2005, defendant Franchino Greco (Greco) pleaded guilty to criminal drug conspiracy (720 ILCS 570/405.1(a) (West 2004)) predicated on the delivery of 15 to 100 grams of cocaine. On April 19, 2005, the circuit court of Cook County sentenced Greco to seven years' imprisonment. On July 24, 2008, Greco filed a petition to withdraw his guilty plea and vacate the judgment against him pursuant to section 122-1 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 (West 2008)) and section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2008)). On August 27, 2008, the trial court summarily dismissed Greco's postconviction petition. On appeal, this court reversed the trial court's summary dismissal of Greco's petition, and remanded the petition for second-stage proceedings. People v. Greco, No. 1-08-2457 (Sept. 21, 2010) (unpublished order pursuant to Supreme Court Rule 23). On remand, the State filed a motion to dismiss Greco's postconviction petition. On August 18, 2011, the trial court granted the State's motion to dismiss Greco's postconviction petition. Greco now appeals the trial court's judgment which dismissed his postconviction petition at the second stage of proceedings. Affirmed.

2. Adminstrative Hearings: Affirmed in part, reversed in part, and remanded for further proceedings: The DOAH correctly determined it had no jurisdiction to consider Stone Street’s motion to vacate, and the circuit court correctly confirmed that administrative decision on review.  Because some sort of equitable relief must be available to remedy the alleged wrong suffered by Stone Street, the circuit court erred in dismissing count II. However, the relief available in count II on remand, should Stone Street prove the underlying facts, may not include damages for slander of title, as that claim is barred for the reasons set forth below.  As to Count III, because section 2-107 of the Local Governmental and Governmental Employees Tort Immunity Act immunizes the city from liability for libel and slander,  the trial court was correct in dismissing this count. Delort, J. with Connors, J. concurring in part and dissenting in part.

No. 2014 IL App (1st) 123654    Stone Street Partners, LLC v. The City of Chicago Department of Administrative Hearings - Modified upon denial of rehearing 5/12/14   Filed 5-12-14 (RJC)


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 further proceedings.

3. Unified Code of Correction/private cause of action.: Reversed and remanded: Section 5-4-1(e)(4) of the Unified Code of Corrections places the duty of assembling and transmitting the prisoner's sentencing data to the IDOC on the sheriff and the circuit court clerk–the sheriff to assemble the credit against sentence data and transmit that information to the clerk, and the clerk to transmit the information received from the sheriff to the IDOC. At the pleading stage we view the facts and their inferences in a light most favorable to Cowper and find that he has adequately pled duty, breach, proximate cause, and damages sufficient to state a cause of action implied by the statute. Chapman, J. 

No. 2014 IL App (5th) 120415     Cowper v. Nyberg    5/12/14   Filed 5-12-14 (RJC)


Deangelo M. Cowper was convicted of retail theft in 2003, which resulted in a probation violation. The trial court sentenced Cowper to 27 months of imprisonment for the probation violation. In 2012, Cowper filed his complaint alleging negligence against the Saline County circuit clerk, Randy Nyberg, and the Saline County sheriff, Keith Brown, for not transmitting to the Illinois Department of Corrections (IDOC) the accurate number of days he had served in jail for which he was to receive credit against the 27-month sentence. As a result of the incorrect credit against his sentence, Cowper was incarcerated beyond his legal release date. The defendants filed a motion to dismiss Cowper's complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)). The trial court granted the motion and dismissed Cowper's complaint. Cowper appeals and argues that section 5-4-1(e)(4) of the Unified Code of Corrections (730 ILCS 5/5-4-1(e)(4) (West 2010)) imposes legal duties upon the defendants to compile and transmit to the IDOC the days of credit against a sentence of imprisonment. He also claims that he has a right to pursue a private cause of action against these defendants for breach of those duties.

4 Appellate Cases Posted 5-9-14

1. PI/Summary Judgment: Affirmed: Here, the evidence established that plaintiffs were injured by a near collision between two vehicles, one controlled by a person other than defendants. Under these circumstances, defendants would be liable to plaintiffs only if defendants were negligent. However, after considering the pleadings, depositions, and videotape in the light most favorable to plaintiffs, we conclude that no genuine issue of material fact exists because no evidence supports plaintiffs’ assertion that defendants breached the duty owed to plaintiffs. The record shows that defendants’ conduct satisfied the duty they owed plaintiffs, and summary judgment was properly granted. Lampkin, J.

No. 2014 IL App (1st) 12463    Carlson v. Chicago Transit Authority   Filed 5-9-14 (RJC)


In this personal injury action, plaintiffs Rolland and Barbara Carlson sued defendants, the Chicago Transit Authority (CTA) and Steven Mixon, a CTA employee, for negligence concerning injuries plaintiffs sustained when they were passengers on a CTA bus driven by Mixon. Defendants moved for summary judgment, and the trial court granted that motion. Plaintiffs appealed, contending summary judgment was precluded by the existence of genuine issues of material fact as to whether the driver was negligent for overreacting to a potential collision and slamming on the brakes in a hard and sudden manner.  We affirm the judgment of the circuit court, which did not err in granting summary judgment in favor of defendants. We hold that there was no evidence establishing any negligent conduct by defendants, there were no genuine issues of material fact, and defendants were entitled to judgment as a matter of law.

2. Construction Negligence/Premises Liability.: Affirmed: The record does not establish a genuine issue regarding Six Flags' actual or constructive knowledge of the conditions that resulted in the incident at issue in this case. Similarly, the record does not establish a genuine issue regarding Six Flags' actual or constructive knowledge of the creation of the condition by the decision to remove the gearbox first, given Six Flags' awareness that Campanella provided fall-protection equipment to its employees working at heights. Reyes, J.

No. 2014 IL App (1st) 130771    Lee v. Six Flags Themes Parks, Inc.   Filed 5-9-14 (RJC)


Plaintiff Donna L. Lee, personal representative of the estate of the late Thomas J. Lee, appeals orders of the circuit court of Cook County granting summary judgment in favor of defendant Six Flags Theme Parks, Inc. (Six Flags) on counts I, II, III and IV of plaintiff's complaint, which alleged wrongful death and survival claims based on theories of construction negligence and premises liability. Counts I and II were brought on behalf of the estate, while counts III and IV were brought as survival actions. On appeal, Donna argues Six Flags retained sufficient control over the work performed by its contractor to owe a duty of care to Thomas. Donna also argues there are genuine issues of material fact precluding the entry of summary judgment on her premises liability claims. For the following reasons, we affirm the judgment of the circuit court.

3. Med. Mal./Experts/Discovery Sanctions: Affirmed: Here, the trial court did not specifically enter a sanction against plaintiff under Rule 219 for the failure to disclose an expert. Instead, it granted summary judgment on the basis that, without an expert, plaintiff could not prove his case. There is ample authority for the proposition that, when the record lacks evidence that the plaintiff can obtain an expert, summary judgment is appropriate. That is the case here. Plaintiff did not provide evidence that he could obtain an expert, and the delays indicated that he was unable to do so. Jorgensen, J.

No. 2014 IL App (2d) 130891    Smith v. Bhattacharya   Filed 5-9-14 (RJC)


Plaintiff, Dayton B. Smith, Jr., individually and as special administrator of the estate of Leanne Johnson, appeals the trial court’s order granting summary judgment in favor of defendants, Sumoulindra T. Bhattacharya, M.D., and Rockford Health Physicians. He contends that the trial court improperly granted summary judgment based on his lack of an expert when, although he had missed deadlines for disclosure of experts, the overall time for discovery had not passed and trial was still six months away. Because plaintiff did not show any circumstances under which fairness would dictate that he be allowed additional time and the record does not show that he had the ability to obtain an expert, we affirm.

4. Insurance Code/Illinois Income Tax Act: Affirmed: The retaliatory tax statute unambiguously specifies that the income-tax component of the retaliatory tax is the income tax that accrued under section 201(a) through (d) of the Income Tax Act, not the income tax paid.  The circuit court did not err by reversing the Department Director's decision because section 2515.50(b) of Title 50 of the Illinois Administrative Code does not conflict with section 444(3) of the Insurance Code, as section 444(3) merely identifies the types of taxes, charges, and fees included in the scope of the retaliatory tax.  Holder White, J.

No. 2014 IL App (4th) 121125    United States Liability Insurance Company v. The Department of Insurance    Filed 5-9-14 (RJC)


Plaintiffs are a group of insurance companies owned by National Indemnity Company that do business in Illinois. The Illinois Insurance Code (Insurance Code) requires insurance companies domiciled outside Illinois that conduct business in Illinois to pay a retaliatory tax. 215 ILCS 5/444(1) (West 2010). The dispute in this case centers on how, for retaliatory tax purposes, plaintiffs should have treated an approximately $8.6 million refund that they received in 2004 for overpayments they made on their income taxes in 1999, 2000, and 2001.

3 Appellate Cases Posted 5-8-14

1. Criminal Law: Affirmed: Trial court erred in refusing to instruct jury as to definition of "reckless" per I.P.I Criminal Instruction no. 5.01 in first degree murder case where jury was also instructed on involuntary manslaughter, but any error was harmless beyond a reasonable doubt in light of evidence against defendant, and trial court did not err in refusing to hold Frye hearing on shaken baby syndrome. Howse, J.

No. 2014 IL App (1st) 113079  People v. Cook  Filed 5-8-14 (TJJ)


The State charged defendant, Anthony Cook, Jr., with first degree murder in the death of four-month-old Anthony Cook III. The infant, Anthony, born March 5, 2006, died July 9, 2006 as the result of subdural hematoma after having been placed on life support on June 16, 2006, when defendant discovered the infant to be in distress and took him to the hospital. Following trial, a jury convicted defendant of involuntary manslaughter. Defendant appeals, arguing the trial court erred in failing to instruct the jury as to the meaning of recklessness for purposes of involuntary manslaughter and in failing to conduct a hearing to determine whether evidence concerning shaken baby syndrome (SBS) is admissible scientific evidence. For the following reasons, we affirm.

2. Defamation: Affirmed: In proceeding under Supreme Court Rule 224 requesting Internet service provider to give last known address and subscriber information to plaintiff claiming that anonymous internet post that plaintiff "was a Sandusky waiting to be exposed" was not subject to an innocent construction, and trial court order ordering disclosure upheld. Trial court order was properly appealable despite procedural ambiguities, as a final order under SCR 304. Jorgensen, J. (Birkett, J., dissenting).

No. 2014 IL App (2d) 130489  Hadley v. Doe  Filed 5-8-14 (TJJ)


Pursuant to Illinois Supreme Court Rule 224 (eff. May 30, 2008), the trial court granted the motion of plaintiff, Bill Hadley, requesting the court to direct Comcast Cable Communications, LLC, to provide the identity and last known address of defendant, subscriber Doe, a/k/a “Fuboy.” Hadley wished to pursue a defamation claim against Fuboy for statements posted on an Internet message board. Fuboy appealed the order that Comcast provide the information. We affirm.

3. Workers' Compensation: Reversed and remanded: In case where employee was walking on a public sidewalk (which had a defect leading to her injury when she fell) returning from a work meeting outside her her regular place of work, where the employee encountered a special hazard of risk using a regular or sole access route, her injury arose out of her employment, and Commission contrary decision reversed. Stewart, J. (Harris, J., sp. concurring).

No. 2014 IL App (3d) 120820WC  Brais v. The Illinois Workers' Compensation Commission  Filed 5-8-14 (TJJ)


The claimant, Jane R. Brais, filed an application for adjustment of claim against her employer, the Kankakee County Circuit Clerk's Office, seeking workers' compensation benefits for an injury to her left wrist she allegedly sustained at work on December 20, 2006. The claim proceeded to an arbitration hearing under the Workers' Compensation Act. The arbitrator found that the The claimant appealed to the Illinois Workers' Compensation Commission (Commission), which affirmed and adopted the decision of the arbitrator. The claimant filed a timely petition for review in the circuit court of Kankakee County. The circuit court confirmed the Commission's decision, and the claimant appealed. Reversed and remanded.

1 Appellate Cases Posted 5-7-14

1. Juvenile Delinquency: Affirmed in part and vacated in part: Mandatory minimum five-year probation period for juveniles adjudicated delinquent for forcible felonies did not violate equal protection, but finding of delinquency for battery vacated under one act, one crime rule in light of finding of delinquency of aggravated battery. Hyman, J.

No. 2014 IL App (1st) 123579  People v. J.F.  Filed 5-7-14 (TJJ)


Respondent, J.F., was 15 years old when adjudicated delinquent for a forcible felony. She raises an equal protection challenge to her mandatory minimum probation term of five years required under the Juvenile Court Act of 1987. The gist of her argument is that the mandatory minimum treats juveniles who commit forcible felonies (i) worse than those who commit nonforcible felonies despite their otherwise being similarly situated and (ii) harsher than adult offenders for the same offense. We find the mandatory minimum does not violate the equal protection clause because J.F. cannot establish that she is similarly situated to juveniles who commit nonforcible felonies or that a criminal conviction of an adult offender equates to a finding of delinquency. In addition, J.F. asserts, and the State concedes, that the juvenile court departed from the one-act, one-crime doctrine when it adjudicated her delinquent of both aggravated battery and battery for the same physical act. We agree, and vacate the lesser offense of battery.

4 Appellate Cases Posted 5-6-14

1. Retaliatory Discharge/Illinois Whistleblower Act: Affirmed in part, vacated in part, and remanded: Plaintiff assistant principal was not an "at will" employee and therefore could not maintain a claim for damages on the tort of retaliatory discharge, but could recover under Illinois Whistleblower Act per his claim that he was discharged for reporting a teacher's actions in physically striking a student, but award of damages vacated and matter remanded for hearing on damages attributable to the whistleblower claim, as distinguished from retaliatory discharge claim. Hoffman, J.

No. 2014 IL App (1st) 123744  Taylor v. The Board of Education of the City of Chicago  Filed 5-6-14 (TJJ)


The plaintiff, Kenneth Taylor, filed suit against the defendant, the Board of Education of the City of Chicago (Board), seeking damages for retaliatory discharge and violation of the Illinois Whistleblower Act, claiming that he was discharged from his employment and subjected to an ongoing campaign of retaliatory acts by the Board because he reported an act of alleged abuse perpetrated on a student by a special education teacher. A jury awarded the plaintiff $1,000,500 in damages, which includes compensatory damages arising from the discharge, and damages for emotional distress resulting from the discharge and from the Board's retaliatory conduct in the period leading to the discharge, from January 1, 2008, through June 30, 2009. On appeal, the Board argues that: (1) the circuit court erred in denying its motions for summary judgment, directed verdict, and judgment n.o.v. on the plaintiff's claim for retaliatory discharge; (2) the court's erroneous denial of its motion in limine seeking to exclude evidence of retaliatory acts occurring outside of the statute of limitations tainted the jury's verdict; and (3) a new trial is required because the verdict form submitted to the jury allowed one recovery for two distinct claims that arose from separate occurrences. For the reasons that follow, we reverse the judgment of the circuit court on the plaintiff's claim for retaliatory discharge, affirm the finding of the Board's liability for the claim under the Act, vacate the damage award, and remand this case for a new trial exclusively on the question of damages under the Act.

2. Domestic Relations: Affirmed: Trial court finding that post-nuptial agreement was unenforceable as a matter of public policy upheld, where it gave husband sole power to determine child custody issues, whether parties could seek dissolution at all, and what was in best interest of the children. Additionally, trial court order regarding distribution of assets upheld over husband's claims that order was improper. Schostok, J. (Burke, J. sp. conc.)

No. 2014 IL App (2d) 131306  In re Marriage of Iqbal  Filed 5-6-14 (TJJ)


The respondent, Mohammad Khan, appeals from certain rulings the trial court entered during the proceedings dissolving Mohammad’s marriage to the petitioner, Uzma Iqbal. We affirm.

3. Labor Relations: Reversed and remanded: Illinois Labor Relations Board decision to dismiss employee's complaint that his statutory right of "nonassociation" based upon a bona fide religious tenet that his "fair share" payments to a union that represented his collective bargaining unit should otherwise be paid to a charitable organization, reversed for Board's failure to place employee's deducted union dues into an escrow account and give employee a hearing to determine whether he qualified for such treatment under the Illinois Public Labor Relations Act. Steigmann, J.

No. 2014 IL App (4th) 130505  Trygg v. The Illinois Relations Board  Filed 5-6-14 (TJJ)


These consolidated appeals involve section 6(g) of the Illinois Public Labor Relations Act (5 ILCS 315/6(g) (West 2008)), which allows public employees who desire nonassociation with a labor union "based upon bona fide religious tenets or teachings of a church or religious body of which such employees are members" to pay an amount equal to their "fair share" dues to a nonreligious charity instead of to the union. The proper interpretation of section 6(g) of the Act presents an issue of first impression.

4. Criminal Law: Affirmed: Defendant not provided ineffective assistance of counsel in case where defense counsel failed to seek suppression of allegedly non-Miranda-ized statement where suppression of statement would not have changed outcome of case; provision of Controlled Substance Act increasing penalty for drug sales within 1,000 feet of a place of worship not unconstitutional; building at issue was properly shown to be used primarily for religious worship; and trial court conducted Krankel hearing properly. Appleton, J.

No. 2014 IL App (4th) 130568  People v. Sims  Filed (TJJ)


A jury found defendant, Jerry Wayne Sims, guilty of all four counts of the indictment: counts I and III, which charged him with unlawful delivery of a controlled substance within 1,000 feet of a church, and counts II and IV, which charged him with unlawful delivery of a controlled substance. Because counts I and III were based on the same drug sales as counts II and IV, the trial court imposed sentences only for the more serious offenses, those in counts I and III. The court sentenced defendant to concurrent prison terms of 22 years. Defendant appeals on four grounds. First, he argues he received ineffective assistance of counsel. We find no prejudice, however, from the allegedly deficient performance of which defendant complains. Second, defendant argues that section 407(b)(2) of the Illinois Controlled Substances Act is unconstitutionally vague as applied to the facts of his case. We disagree. The language of the statute is unambiguous. Defendant did not have to guess whether the statute applied to the facts of his case. Third, defendant argues the State failed to prove that, at the time of the drug sales, the building at 411 East Mulberry Street in Bloomington was "used primarily for religious worship." On the contrary, when the evidence is regarded in the light most favorable to the prosecution, a rational trier of fact could find, beyond a reasonable doubt, that 411 East Mulberry Street was used primarily for religious worship on the dates of the drug sales. Fourth, defendant argues that, in the Krankel hearing (see People v. Krankel, 102 Ill. 2d 181 (1984)), which the trial court held on remand from the previous appeal in this case, the court should have appointed new counsel to represent defendant in a posttrial hearing on his claims of ineffective assistance. We find no manifest error in the court's decision that there was no possible neglect of the case by trial counsel and that the appointment of new counsel was unnecessary. Therefore, we affirm the trial court's judgment.

1 Appellate Case Posted 5-5-14

1. Insurance Coverage: Affirmed: "Targeted tender doctrine," applicable where an insured has multiple policies with different insurers and permits insured to "deselect" an insurer at the choice of the insured, does not permit a selected insurer to seek contribution as to payment of any amount paid by the selected insurer in settlement of an injury claim under the policy from an insurer "deselected" by the insured. Cunningham, J.

No. 2014 IL App (1st) 122856  Amco Insurance Company v. Cincinnati Insurance Company  Filed 5-5-14 (TJJ)


This appeal arises from an August 24, 2012 order entered by the circuit court of Cook County which granted defendant-appellee Cincinnati Insurance Company's (Cincinnati) motion to dismiss with prejudice. The trial court's order was entered pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). On appeal, plaintiff-appellant AMCO Insurance Company (AMCO) argues that the trial court erred in granting Cincinnati's motion to dismiss. For the following reasons, we affirm the judgment of the circuit court of Cook County.

6 Appellate Cases Posted 5-2-14

1. Negligence Law: Reversed: Actions by volunteer in hugging another volunteer (plaintiff) at a charitable event run by defendant, leading to injury of plaintiff, were not of such a nature so as to render charity vicariously liable for volunteer's actions, and trial court erred in not granting defendant's motion for judgment notwithstanding the verdict. Schostok, J.

No. 2014 IL App (2d) 130633  Parks v. Brinkman  Filed 5-2-14 (TJJ)  

This appeal arises from an incident in which Dennis Brinkman, a volunteer at an event staffed by the defendant, the Crystal Lake Jaycees, hugged and picked up another volunteer, the plaintiff, Penny Parks. Brinkman lost his balance and fell to the ground, injuring Parks. Parks sued, and the case went to a jury trial. The jury found the Jaycees vicariously liable for Brinkman’s conduct. The Jaycees appeal, arguing that the verdict was against the manifest weight of the evidence. We reverse, holding that the Jaycees were entitled to judgment notwithstanding the verdict.

2. Insurance Coverage: Reversed: In class action against insured for "blast faxes" relating to unsolicited advertisements, policy exclusion in insurance policy that policy would not apply to violations of Telephone Consumer Protection Act applied and insurer not obligated to indemnify insured as to class action settlement. Zenoff, J.

No. 2014 IL App (2d) 130593  G.M. Sign, Inc. v. State Farm Fire and Casualty Company  Filed 5-2-14 (TJJ)

This is a blast-fax case that presents an insurance-coverage issue. The question is whether defendant State Farm Fire and Casualty Company’s policy exclusion (hereinafter Endorsement FE-6655) applied to the amended complaint in the underlying action. If Endorsement FE-6655 applied, then defendant’s duty to defend was never triggered. The circuit court of Lake County ruled that defendant had a duty to defend and to indemnify. We reverse.

3. Landlord-Tenant Law: Affirmed: In action by tenant for damages allegedly sustained in connection with water damage in apartment, trial court did not err in granting landlord's motion to preclude tenant from introducing receipts for items replaced after alleged damage, jury verdict awarding judgment in favor of tenant but awarding $0 not against manifest weight of the evidence, but order reflecting judgment in favor of landlord vacated in light of jury's verdict for tenant notwithstanding no award. Palmer, J.

No. 2014 IL App (1st) 130314  Benford v. Everett Commons, LLC.  Filed 5-2-14 (TJJ) (Benford I)

Plaintiff Pamela Benford filed an action against her landlord, defendant Everett Commons, LLC, seeking damages for defendant's failure to maintain her rental apartment in compliance with the Chicago Residential Landlord and Tenant Ordinance and the implied warranty of habitability. The court granted defendant's motion for a directed verdict on property damage. A jury entered a verdict "for the plaintiff and against the defendant," found that plaintiff suffered "$0" damages as a result of the occurrence and assessed her recoverable damages as "$0." The trial court entered judgment on the jury verdict "in favor of defendant" and denied plaintiff's motion to reconsider its grant of a directed verdict. Plaintiff appeals the court's order denying her motion to  reconsider, its grant of a directed verdict to defendant and the jury verdict. She argues that (1) the court erred in barring jury consideration of her lay testimony regarding her property damage, (2) the jury's verdict was against the manifest weight of the  evidence and (3) the jury's verdict was legally inconsistent. We affirm and remand for correction of the court order entering judgment in favor of defendant. We deny plaintiff's motion taken with the case.

4. Landlord-Tenant Law/Attorneys' Fees: Reversed and remanded: Where landlord-defendant put forth affirmative defenses, but no counterclaim in response to plaintiff's action for damages under City of Chicago Residential Landlord and Tenant Ordinance, under particular verdict returned in favor of plaintiff but awarding no damages, plaintiff was prevailing party and landlord not entitled to award of attorneys' fees and costs. Palmer, J.

No. 2014 IL App (1st) 131231  Benford v. Everett Commons, LLC.  Filed 5-2-14 (TJJ) (Benford II)

Plaintiff Pamela Benford appeals from an order of the trial court awarding defendant Everett Commons, LLC, reimbursement of the attorney fees and costs it incurred in defending against plaintiff's landlord-tenant action. We reverse and remand.

5. Mortgage Foreclosure Law: Affirmed: Bank officer's affidavit contained sufficient factual detail to satisfy the requirements of Supreme Court Rule 191 , and the software used to generate business records showing amount owed by mortgagor was sufficient to justify trial court award of summary judgment to mortgagee and confirmation of judicial sale of foreclosed property. Palmer, J.

No. 2014 IL App (1st) 121759  US Bank v. Avdic  Filed 5-2-14 (TJJ)

In this mortgage foreclosure action, defendant, Asim Avdic, appeals following the circuit court of Cook County's entry of an order approving the sale of his property. Avdic challenges the court's orders granting summary judgment for plaintiff, US Bank, N.A., denying his motion to strike US Bank's affidavit, denying his motion to reconsider, and approving the sale of the property. Affirmed.

6. Condominium Law: Affirmed: Trial court grant of summary judgment that condominium board was conducting its affairs in violation of bylaws, Illinois Condominium Property Act, and General Not for Profit Act, and injunctive relief prohibiting such, upheld. Palmer, J. (Gordon, separate concurring opinion)

No. 2014 IL App (1st) 111290  Palm v. 2800 Lake Shore Drive Condominium Association  Filed 5-2-14 (TJJ)

Plaintiff Gary Palm filed an action against defendants the 2800 Lake Shore Drive Condominium Association, the board of directors of the association and Kay Grossman, individually and as board president (collectively, defendants) seeking declaratory and injunctive relief for assorted violations of the association's declaration and bylaws, the Illinois Condominium Property Act and the General Not for Profit Corporation Act of 1986. The court granted partial summary judgment to Palm on several issues and issued declaratory and injunctive orders. After a hearing, it found for Palm on various remaining issues and again entered declaratory and injunctive relief. Defendants raise 12 issues on appeal. We affirm.

 6 Appellate Cases Posted 5-1-14

1. Criminal Law: Affirmed: Consistent with the Illinois Supreme Court decision in People v. Easley, 2014 IL 115581, defendant properly charged with unlawful use of  weapon by a felon, predicate forcible felony of aggravated battery did not render Class 2 sentence an impermissible double enhancement, and fact that charging document did not include State's intention to have defendant sentenced as a Class 2 felon did not prohibit such sentence. Neville, J.

No. 2014 IL App (1st) 111497  People v. Wilbourn  Filed 4-30-14 (TJJ)


Following a bench trial, the trial court found the defendant, Valentino Wilbourn, guilty of unlawful use of a weapon by a felon and possession of marijuana with intent to distribute. On appeal, Wilbourn seeks to challenge only the sentence on the weapons charge. Wilbourn argues that charging instrument did not adequately notify him of the State's intention to seek an enhanced sentence, and the court impermissibly used his prior conviction first as an element of the offense and second as grounds for  enhancing his sentence. We find that our supreme court's decision in People v. Easley, 2014 IL 115581, resolves both issues adversely to Wilbourn's arguments. Therefore, we affirm the trial court's judgment.

2. Insurance Coverage: Affirmed: Trial court properly dismissed plaintiff's declaratory judgment action claiming that she was entitled to uninsured motorist coverage as a "permissive passenger" under umbrella policy of driver whose car she was in when car was struck by another's car and other driver was at fault where umbrella policy limited the definition of "insured" to policyholders and relations. Lavin, J.

No. 2014 IL App (1st) 123204  Pang v. Farmers Insurance Group  Filed 5-1-14 (TJJ)


Plaintiff Mei Pang sustained an injury while riding as a passenger in a vehicle that was not her own (permissive passenger) following a vehicle collision. Plaintiff filed a declaratory action against defendant Farmers Insurance Group, and defendant subsequently filed a motion to dismiss the complaint under section 2-619(a)(9) of the Code of Civil Procedure, contending plaintiff did not qualify as an "insured" under the umbrella policy. Plaintiff now appeals from the trial court's order granting defendant's motion to dismiss. Although she cites no specific statute, she argues, as she did below, that as a permissive passenger she was entitled to underinsured motorist (UIM) coverage under the umbrella policy. She also challenges the validity of the reconstructed insurance policy. In addition, plaintiff asserts that the trial court erred in denying plaintiff's motion to compel the production of relevant documents. We affirm.

3. Estates and Trusts: Affirmed: Attempt by trust beneficiary to have additional trustee appointed was not proper under the circumstances and the plain meaning of the trust itself, and prior court order eliminating position of corporate trustee prevented beneficiary's attempt to have successor corporate trustee appointed. Lavin, J.

No. 2014 IL App (1st) 121173  Spencer v. Di Cola  Filed 5-1-14 (TJJ)


In the matter before us, we confront an appeal by beneficiaries of a trust, who claim that they ought to be able to appoint a corporate trustee to effectively replace an individual trustee, without any proof of cause for removal, in a manner that they suggest is consistent with the trust's terms. The original trust documents provided for both an individual trustee and a corporate trustee. Many years before the action triggering this appeal was filed, however, the original corporate trustee filed suit asking to be removed because of a perceived conflict between the corporate trustee, the appointed individual trustee and several beneficiaries (No. 82 CH 436). More than two decades later, disputes arose concerning the amount of distributions by the individual successor trustee, which led the beneficiaries to file the present action (No. 09 CH 41964). The beneficiaries, led by plaintiff Lyle Spencer, Jr., initially wanted to remove the trustee but ultimately changed course, asserting that they were merely attempting to appoint a corporate trustee, notwithstanding the 1982 action. The beneficiaries also executed documents attempting to appoint a "successor" or "substitute" corporate trustee. After cross-motions for summary judgment were filed, the trial court denied the beneficiaries relief. This appeal followed. Affirmed.

4. Criminal Law: Reversed and remanded: Questions asked of defendant during execution of search warrant constituted interrogation, and where defendant was deemed to have been in police custody at time of questioning failure to advise her of Miranda warnings required suppression of her statement regarding location of narcotics. Neville, J. (Mason, J., dissenting).

No. 2014 IL App (1st) 120037  People v. Fort  Filed 4-30-14 (TJJ)


After a bench trial, the trial court found Tashawnda Fort guilty of possessing cocaine. On appeal, Fort contends that the trial court should have granted her motion to suppress evidence of statements she made to police before police reminded her of her right not to answer questions. We find that police obtained the evidence by means of a custodial interrogation conducted without Miranda warnings, and therefore, the trial court should have granted the motion to suppress. Because we find the error prejudicial, we reverse and remand for further proceedings in accord with this opinion.

5. Criminal Law: Affirmed in part, and vacated and remanded in part: Trial court properly denied defendant's motion to suppress evidence where informant, whether deemed a citizen informant or a confidential informant, provided detailed information of defendant's possession of crack cocaine while in the informant's car, and several details were corroborated, and informant had given reliable information to police in the past, but matter remanded for resentencing in light of trial court comment that he generally considered "first offender" probation for persons who pleaded guilty. Birkett, J.

No. 2014 IL App (2d) 120873  People v. Miller  Filed 5-1-14 (TJJ)


Following a bench trial, defendant, Rhonda Miller, was convicted of unlawful possession of a controlled substance and unlawful possession of drug paraphernalia. After refusing to place defendant on first-offender probation and failing to address her eligibility for Treatment Alternatives for Safe Communities (TASC) probation, the court sentenced defendant to, among other things, 24 months of probation for unlawful possession of a controlled substance and 1 year of conditional discharge for unlawful possession of drug paraphernalia. Prior to trial, defendant had filed a motion to quash her arrest and suppress the evidence seized, arguing that the arresting officer lacked a proper basis to stop the car in which she was a passenger. The court denied that motion. On appeal, defendant contends that (1) the motion to quash and suppress should have been granted; (2) the court improperly refused to consider first-offender probation at her sentencing hearing; and (3) the court erred when it failed to admonish her about TASC probation. We affirm the court’s ruling on the motion to quash and suppress, vacate defendant’s sentence of 24 months of probation for unlawful possession of a controlled substance, and remand this cause for a new sentencing hearing.

6. Negligence Law: Affirmed: Defect in concrete leading to difference in height of less than one inch between concrete slabs was de minimis, and as such defendant owed no duty to plaintiff who allegedly tripped as a result of the variance, and trial court's grant of summary judgment to defendant upheld. Hudson, J.

No. 2014 IL App (2d) 130505  St. Martin v. First Hospitality Group, Inc.  Filed 5-1-14 (TJJ)


Plaintiff, Charles L. St. Martin, appeals the trial court’s summary judgment for defendant, First Hospitality Group, Inc. Plaintiff alleged that he was injured when he tripped and fell on an uneven portion of sidewalk outside of a hotel owned by defendant. The trial court determined that defendant did not owe plaintiff a duty of care, because the defect was de minimis. We affirm.