Illinois Supreme and Appellate Court Case Summaries

By  Robert Clifford( RJC) ,Timothy J. Joyce(TJJ) and Jean M. Cocozza(JMC),

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People v. Garcia, 2015 IL App (1st) 131180

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2015 IL App (5th) 120401

1 Appellate Case Posted 7-29-16

1. Workers Compensation:  Reversed and Remanded.   When the facts are in dispute or conflicting inferences may be drawn from the facts, this court will not disturb the Commission's decision unless it is against the manifest weight of the evidence. A decision is against the manifest weight of the evidence only where an opposite conclusion is clearly apparent. Although we are reluctant to conclude that a factual determination of the Commission is against the manifest weight of the evidence, we will not hesitate to do so when the clearly evident, plain, and undisputable weight of the evidence compels an opposite conclusion.  An employee who suffers a sudden, severe emotional shock traceable to a definite time, place and cause which causes psychological injury or harm has suffered an accident  within the meaning of the Act, though no physical trauma or injury was sustained.  Stewart, J.

No. 2016 IL App (1st ) 151366 WC  Moran v. Illinois Workers' Compensation Comm'n  Filed 7-29-16 (LJD)

The claimant, Scott Moran, filed an application for adjustment of claim pursuant to the Workers' Compensation Act against his employer, the Village of Homewood, seeking workers' compensation benefits for post traumatic stress disorder (PTSD) allegedly caused by a March 30, 2010, work- related accident. After an arbitration hearing, the arbitrator found that the claimant did not sustain an accidental injury that arose out of and in the course of his employment. The claimant sought review of the arbitrator's decision before the Illinois Workers' Compensation Commission (Commission). The Commission struck one sentence from the arbitrator's decision and otherwise affirmed and adopted her decision. The claimant filed a timely petition for judicial review in the circuit court of Cook County. The circuit court confirmed the Commission's decision,and the claimant appealed.

Appellate Cases Posted 7-28-16

1.  Fines and Fees:  Remanded: The imposition of a fine is a judicial act.  The circuit clerk has no authority to levy fines, therefore,  any fines imposed by the circuit clerk are void from their inception.  Lytton, J.,  Schmidt, J.,  concurred in part and dissented in part,.

No. 2016 IL App (3rd) 150417 People v. Wade  Filed 7-28-16 (LJD)

Defendant, Donald Jerome Wade, argues on appeal that this cause must be remanded for a proper entry of an order of enumerated costs. Defendant does not challenge his conviction or sentence of imprisonment. Because the circuit clerk improperly imposed certain fines, we remand for entry of such an order.

2.  Standing/Civil Procedure: Reversed:  It is well settled that a court may not depart from the plain language of a statute by reading into it exceptions, limitations, or conditions that the legislature did not express.”  Section 27A-8(h) authorizes the Commission to reverse a local school board decision not to grant an initial charter proposal—a procedure that is not repeated each time the charter is renewed—and section 27A-9(e) addresses a final decision by the Commission to reverse a local school board’s decision to deny, revoke, or not to renew. Nothing in the language of either section addresses a decision by the Commission to renew a charter as the school’s authorizer nor broadens the scope of the Administrative Review Law language to the entire Charter Schools Law.   Howse, J.

No. 2016 IL App (1st ) 151375 The Board of Education of Woodland Community Consolidated School District 50 v. The Illinois State Charter School Commission  Filed 7-28-16 (LJD)

Plaintiff, the Board of Education of Woodland Community Consolidated School District 50 (Woodland) filed a complaint for, inter alia, administrative review of the decision of defendant, the Illinois State Charter School Commission (Commission) to renew the charter of Prairie Crossing Charter School pursuant to the Charter Schools Law (105 ILCS 5/27A-1et seq.(West 2012)). The complaint named as defendants the Commission and the Illinois State Board of Education (Board) (collectively, “the State defendants”), as well as the Board of Directors of Prairie Crossing Charter School (Prairie Crossing). The circuit court of Cook County granted plaintiff the relief sought and reversed the Commission’s decision, which would result in the closing of the school. Defendants filed a motion to reconsider. Prior to ruling on the motion, the State defendants filed a notice of appeal. The trial court denied the motion to reconsider.
We agree with defendants that under the circumstances presented here plaintiff lacked standing to challenge the Commission’s decision to renew Prairie Crossing’s charter. Accordingly, we have no need to reach any of the parties’ other arguments. For the following reasons, we reverse the trial court’s judgment denying defendants’ motion to dismiss plaintiff’s complaint.

5 Appellate Cases Posted 7-27-16

1.  Criminal Law: Sentencing: Affirmed: Atrial court’s sentencing decisions are entitled to deference on appeal.  Absent an abuse of discretion, a reviewing court will not disturb the sentence imposed by the trial court.  Where the sentence falls within the prescribed statutory limits, an abuse of discretion occurs only if the sentence imposed is greatly at variance with the purpose and spirit of the law or is manifestly disproportionate to the offense. The defendant was eligible for an extended sentence within the 7-to 14-year statutory range in light of  his criminal history. 730 ILCS 5/5-4.5-35(a) (West 2012); 730 ILCS 5/5-5-3.2et seq.(West 2012).. The trial court expressly considered all the statutory mitigating factors.   Mason, J.

No. 2016 IL App (1st) 141494 People v. Chew  Filed 7-27-16 (LJD)

Following a bench trial, defendant Diamond Chew was found guilty of robbery and sentenced to an extended term of 10 years’ imprisonment. On appeal, Chew contends that his sentence is excessive in light of certain mitigating factors. We disagree and affirm.

2.  Domestic Relations: Affirmed in part and reversed in part:  A court order awarding interim attorney fees under section 501(c-1) of the Act is not an appealable interlocutory order.However, when a party appeals from a contempt sanction imposed for violating an interim fee order, the contempt finding is final and appealable and presents to the reviewing court the propriety of the underlying order.” In construing a statute, the goal of the court is to effectuate the legislature’s intent.   To this end, a court may consider the reason and necessity for the statute and the evils it was intended to remedy, and will assume the legislature did not intend an absurd or unjust result. Any inquiry into legislative intent, however, must begin with the language of the statute, which is the surest and most reliable indicator of legislative intent. Under the guise of construction, a court may not supply omissions, remedy defects,annex new provisions, substitute different provisions, add exceptions, limitations, or conditions, or otherwise change the law so as to depart from the plain meaning of language employed in the statute.  Mason, J.  Pucinski, J. concurs in part and dissents in part.

No. 2016 IL App (1st) 143076   In re Marriage of Altman Filed 7-27-16 (LJD)

At issue in this appeal are the “leveling of the playing field” provisions of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/501(c-1) (West 2012)) providing for interim attorney fee awards, and, in particular, we are asked to resolve whether, in cases where both parties lack the financial ability or access to assets or income to pay for reasonable attorney fees and costs, (i)one spouse can be required to utilize a nonmarital retirement account attorney fees and (ii) funds already paid to a party’s attorney for past services rendered are “available” to be allocated within the meaning of the Act. We agree with the trial court’s conclusion that, under the circumstances presented here, a spouse cannot be required to access a nonmarital retirement account to pay interim attorney fees, but determine that sums paid to a lawfirm for services already rendered are not “available” to be allocated, and, therefore, we reverse the order holding respondent’s former counsel in contempt for failing to comply with an order directing him to disgorge sums paid to him by respondent for past services rendered.

3.  Domestic Relations: Affirmed: Where child support is being set for one child, as is the case here, section 505(a)(1)  provides a guideline of 20% of the supporting party’s “net income” as the minimum amount of support. Section 505(a)(3) of the Act defines “net income” as “the total of all income from all sources ” minus certain deductions. The statutory child support guidelines shall be applied unless the court finds a deviation is appropriate after considering the best interest of the child in light of the evidence, including, but not limited to one or more of the following: (1) the financial resources and needs of the child; (2) the financial resources and needs of the custodial parent; (3) the standard of living the child would have enjoyed had the marriage not been dissolved; (4) the physical, mental and emotional needs of the child; (5) the educational needs of the child; and (6)the financial resources and needs of the noncustodial parent.   Carter, J.

No. 2016 IL App (3rd) 140276 In re Marriage of Blume Filed 7-27-16 (LJD)

The trial court entered a judgment dissolving the marriage of the parties, petitioner TamiBlume and respondent Brad Blume. On appeal, Brad argues the trial court abused its discretion by: (1) ordering him to pay child support in an amount below the statutory guidelines resulting in an improper maintenance award, (2) imputing income to him for farming in addition to the income he earned from his regular job as a farmhand, and (3) ordering him to pay Tami an excessive amount of maintenance. We affirm.

4.  Criminal Law:Affirmed:The admission of an expert’s testimony requires the proponent to lay an adequate foundation establishing that the information upon which the expert bases his opinion is reliable. To lay an adequate foundation for expert testimony, it must be shown that the facts or data relied upon  by the expert are of a type reasonably relied upon by [experts] in that particular field in forming opinions or inferences.  It is the function of the trial court to determine whether the foundational requirements are met, which we review de novo.  Experts may premise their testimony on information and opinions obtained from the reading of standard publications on which their opinions are based.   However, while an expert does not have to name the publication upon which she relied, the expert must show that the general consensus of the medical and forensic community recognizes the study upon which the expert relies.  An evidentiary error is harmless if the other properlyadmitted evidence is overwhelming.  O'Brien, J.

No. 2016 IL App (3rd) 140462  People v. Burhans  Filed 7-27-16 (LJD)

Defendant, Jonathan Burhans, appeals his convictions of predatory criminal sexualassault of a child and aggravated criminal sexual abuse. Defendant argues that he is entitled to a new trial because the trial court improperly allowed expert testimony without the State first laying anadequate foundation for the witness’s opinion. We affirm.

5. Post Conviction Petition: Reversed.  A defendant is only entitled to a reasonable level of assistance from [postconviction] counsel. Sureme Court Rule 651(c) (eff. Feb. 6, 2013) requires postconviction counsel to: (1) consult with the petitioner to ascertain his contentions of constitutional deprivation; (2) examine the record of the proceeding of the original trial; and (3)make any amendments to the pro se petition necessary to adequately present the petitioner’s constitutional contentions. O'Brien, J.

No. 2016 IL App (3rd) 150644 People v. Thompson  Filed 7-27-16 (LJD)

Defendant, Jimmy E. Thompson, appeals from the second-stage dismissal of his pro se postconviction petitions. Defendant argues that his postconviction counsel failed to provide reasonable assistance because counsel did not obtain and review defendant’s pretrial mental health records to shape defendant’s pro se claim that he was unfit to waive his constitutional right to trial counsel. We reverse the order dismissing defendant’s pro se postconviction petitions and remand the matter for further second-stage proceedings for postconviction counsel.

2 Appellate Cases Posted 7-26-16

1.  Appellate Procedure.  Appeal dismissed: A postjudgment motion to amend the pleadings does not extend the time for filing a notice of appeal. Neville, J.

No. 2016 IL App (1st) 152830 Brennan v. Travelers Home and Marine Insurance Company Filed 7-26-16 (LJD)

The circuit court entered a judgment dated June 18, 2015, granting a motion of the defendant, Travelers Home and Marine Insurance Company, to dismiss the complaint filed by the plaintiffs, Marty and Megan Brennan. The plaintiffs filed a “ Motion to Reconsider,” asking for leave to file an amended complaint. 

2.  Partnership: reversed and Remanded: An order granting or denying a motion to compel or stay arbitration is an interlocutory order appealable under Rule 307(a)(1). . The respondents, though, did not appeal the denial of their motion to dismiss within the 30 days required by Rule 307(a). However, Rule 307 does not require that a party file an interlocutory appeal; the party has the option of waiting until after final judgment has been entered.  Rule 304(b)provides that a judgment or order entered in the administration of a receivership, rehabilitation, liquidation, or other similar proceeding which finally determines a right or status of a party and which is not appealable under Rule 307(a).  An appeal from the denial of a motion to compel arbitration, without an evidentiary hearing, is reviewed de novo.  O'Brien, J. 

No. 2016 IL App (3rd) 150744 MHR Estate Plan, LLC v. K&G Partnership Filed 7-26-16 (LJD)

In an action regarding a partnership dissolution and liquidation, respondent partners appealed the circuit court’s order authorizing a liquidator to sell the partnership assets.

1 Appellate Case Posted 7-25-16

1.  Criminal Law: Sentencing: Affirmed.  Evidence of the crime of attempted escape and the related crime of flight is admissible for the purpose of showing a defendant's consciousness of guilt. Other-crimes evidence is admissible only if the probative value of the evidence is not outweighed by its prejudicial effect.  Although relevant, evidence may be excluded if it is probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.   Carter, J. dissent by Wright, J.

No. 2016 IL App (3rd) 1401966 People v. Carter  Filed 7-25-16 (LJD)


Defendant, Cornelius D. Carter, argues on appeal that his conviction for aggravated battery with a firearm should be reversed because the trial court abused its discretion in allowing the State to present an excessive amount of other-
crimes evidence related to an alleged escape attempt from the county jail. We affirm defendant's conviction. We also vacate the fines and fees imposed by the circuit clerk pursuant to the State's confession of error and remand with directions.


2 Appellate Cases Posted 7-22-16

1. Domestic Relations Law: Affirmed: Maintenance ordered by trial court payable by husband to wife in dissolution proceedings was not excessive. Carter, J.

No. 2016 IL App (3d) 140276  In re Marriage of Blume  Filed 7-22-16 (TJJ)

The trial court entered a judgment dissolving the marriage of the parties, petitioner Tami Blume and respondent Brad Blume. On appeal, Brad argues the trial court abused its discretion by: (1) ordering him to pay child support in an amount below the statutory guidelines resulting in an improper maintenance award, (2) imputing income to him for farming in addition to the income he earned from his regular job as a farmhand, and (3) ordering him to pay Tami an excessive amount of maintenance. We affirm.

2. Tort Immunity: Affirmed: Trial court properly dismissed complaint for wrongful death as barred by doctrine of tort immunity, where complaint for wrongful death alleged that "trail sentinels" used by defendant forest preserve in bike event on preserve trails had discretion with respect to how they conducted themselves, and their actions which allegedly led to decedent's death were therefore immune from suit. Holdridge, J.

No. 2016 IL App (3d) 150424  Lorenc v. Forest Preserve District  Filed 7-22-16 (TJJ)

The plaintiff, Kathleen Lorenc as special administrator of the estate of James F. Lorenc, appeals from the trial court’s dismissal of her second amended complaint. On appeal, the plaintiff argues that the court erred when it ruled that: (1) the second amended  complaint failed to allege facts to support a claim for willful and wanton misconduct, and (2) the plaintiff’s claim is barred by the Local Governmental and Governmental Employees Tort Immunity Act. Affirmed.

2 Appellate Cases Posted 7-21-16

1. Criminal Law: Reversed and remanded: Trial court erred in denying defendant's post-conviction motion under Section 116-3 for forensic testing in predatory criminal sexual assault case; simply because case against defendant was purportedly "strong," identification was still an issue, and testing had the potential to exonerate defendant. Lytton, J.

No. 2016 IL App (3d) 130784  People v. Perez  Filed 7-21-16 (TJJ)

Defendant, Jesse R. Perez, appeals from the trial court’s order denying his motion for forensic testing. We reverse the judgment of the trial court and remand for forensic testing on the evidence identified in defendant’s motion.

2. Workers' Compensation: Affirmed: Arbitrator and Commission decisions that employee did not prove that his chronic obstructive pulmonary disease was caused by workplace exposure were affirmed over claim that arbitrator erred in refusing employee's doctor's opinion evidence re causation and that decision was against the manifest weight of the evidence. Harris, J.

No. 2016 IL App (4th) 150088WC  Durbin v. Illinois Workers' Compensation Comm'n  Filed 7-21-16 (TJJ)

On October 15, 2004, claimant, Michael K. Durbin, filed an application for adjustment of claim pursuant to the Workers' Occupational Diseases Act, seeking benefits from the employer, Archer Daniels Midland. (We note, however, the application for  adjustment of claim erroneously reflected it was brought pursuant to the Workers' Compensation Act.) He alleged to have suffered injury to his lungs in the form of chronic obstructive pulmonary disease (COPD) due to exposure to irritants, and he listed  the date of injury as June 11, 2003. Following a hearing, the arbitrator found that claimant failed to prove an occupational disease caused by workplace exposure and denied him benefits under the Act. On review, the Illinois Workers' Compensation  Commission (Commission) affirmed and adopted the decision of the arbitrator. On judicial review, the circuit court of Macon County confirmed the Commission's decision. On appeal, claimant argues the Commission erred in (1) barring the causation  opinion of his treating physician pursuant to Illinois Rule of Evidence 702 and (2) finding that he failed to prove an occupational disease caused by workplace exposure. We affirm.

5 Appellate Cases Posted 7-20-16

1. Insurance Coverage: Affirmed: Trial court properly determined that insurance company had no duty to defend additional insured (condominium developer) in connection with litigation arising from construction of condominium roof, where lawsuit alleged that developer intentionally failed to disclose defects in the roof, where policy was deemed to apply only to the character of the roof constructed, and not to ancillary damages suffered to individual condominiums. Lavin, J. (Pucinski, J., dissenting).

No. 2016 IL App (1st) 140862  Westfield Insurance Co. v. West Van Buren, L.L.C.  Filed 7-20-16 (TJJ)

This case involves an insurance coverage dispute. The insurance company filed a declaratory judgment action seeking a determination that it had no duty to defend the additional insured in an underlying lawsuit. The parties filed cross-motions for summary  judgment, and the trial court ultimately ruled in favor of the insurance company. The additional insured now appeals contending the insurance company had a duty to defend it in the underlying lawsuit. We disagree and therefore affirm the trial court’s judgment in favor of the insurance company.

2. Negligence/Property Damage: Affirmed: Trial court properly dismissed plaintiffs' suit against several defendants alleging that construction defects in wood flooring installed in condominium led to other damages to unit, as such claim was barred by the doctrine in Moorman Manufacturing prohibiting recovery under tort law for economic damages. Fitzgerald Smith, J.

No. 2016 IL App (1st) 151459  Hecktman v. Pacific Indemnity Co.  Filed 7-20-16 (TJJ)

In this appeal, we are asked to determine whether the circuit court properly dismissed the plaintiffs’ negligence claims on the basis they were barred by the economic loss doctrine articulated by our supreme court in Moorman Manufacturing Co. v. National  Tank Co., 91 Ill. 2d 69 (1982). The plaintiffs argue that the Moorman doctrine does not apply to claims for injury to “other property,” such as theirs, but is limited to barring damages for economic loss stemming solely from the “defective property” itself.  For the reasons that follow, we affirm.

3. Public Schools/Employment: Reversed and remanded: Trial court erred in dismissing suit filed by citizen complaining of school board action reinstating third party's employment with the school, allegedly in violation of board's anti-nepotism policy, as Administrative Review Act did not prohibit such suit, but plaintiff did not allege sufficient facts to establish standing to sue as a "taxpayer"; matter remanded to permit plaintiff to file amended complaint. Mason, J.

No. 2016 IL App (1st) 151795  Veazey v. Rich Township High School District 227  Filed 7-20-16 (TJJ)

Plaintiff Frederick Veazey filed suit seeking, among other relief, a declaratory judgment that a vote by defendant Rich Township High School District 227 Board of Education (Board) to reinstate defendant Dr. Bridget Imoukhuede’s employment with back pay and attorney fees was illegal because the Board allowed Imoukhuede’s husband and Board member, defendant Emmanuel Imoukhuede, to cast the tie-breaking vote in violation of defendant Rich Township High School District 227’s (District) anti-nepotism policy. The trial court sua sponte invoked the Administrative Review Law (Review Law) (735 ILCS 5/3-101 et seq. (West 2014)) and dismissed Veazey’s second amended complaint, finding that he lacked standing to challenge the Board’s vote because he was not a party to the administrative proceedings. But because Veazey’s second amended complaint fails to sufficiently plead facts supporting taxpayer standing, an issue not addressed by the trial court, we remand and direct the trial court  to grant leave to amend. Consequently, we reverse the trial court’s dismissal of Veazey’s second amended complaint and remand for further proceedings.

4. Criminal Law: Affirmed: Trial court properly suppressed PBT test given in connection with traffic stop in face of decision that motorist did not consent to its being given, and trial court properly determined that officer did not have probable cause to arrest motorist for DUI. Jorgensen, J.

No. 2016 IL App (2d) 150634  People v. Taylor  Filed 7-20-16 (TJJ)

Defendant, Aaron Taylor, was arrested for driving under the influence (DUI) with a blood alcohol concentration (BAC) of 0.08 or more. 625 ILCS 5/11-501(a)(1) (West 2014). The trial court suppressed defendant’s portable breath test (PBT) results. The State raises two issues. First, it challenges the trial court’s suppression of the PBT results, arguing that the trial court should not have relied on Rozela for the proposition that the PBT statute requires consent. The State contends that, per People v. Gutierrez, 2015 IL App (3d) 140194, ¶ 20, which was released after the court’s ruling in the instant case, Rozela is no longer good law. We disagree, and determine that Rozela is still good law, though we take the opportunity to clarify its use of the word consent. Thus, we hold that the court did not err in suppressing the PBT results. Alternatively, the State argues that, even absent the PBT results, there was probable cause to arrest for DUI. The State likens this case to People v. Rush, 319 Ill. App. 3d 34 (2001), where the appellate court reversed the trial court’s finding of no probable cause. We find Rush distinguishable, and we reject the State’s probable-cause argument.

5. Criminal Law: Reversed and remanded: Defendant's trial counsel failed to render effective assistance of counsel in murder case where counsel failed to proffer a jury instruction on accomplice testimony offered against defendant. O'Brien, J.

No. 2016 IL App (3d) 140178  People v. Zambrano  Filed 7-20-16 (TJJ)

Defendant Jesus Zambrano was found guilty after a jury trial of first degree murder and sentenced to 45 years’ imprisonment. He appealed his conviction, arguing his trial counsel was ineffective for failing to impeach a witness as to the grant of use immunity he received before testifying and for failing to submit a jury instruction on accomplice witness testimony. We find that the record is insufficient on direct appeal to address Zambrano’s claim regarding impeachment. We further find that Zambrano received ineffective assistance of counsel when defense counsel failed to submit an accomplice witness jury instruction. We reverse and remand.

2 Appellate Cases Posted 7-19-16

1.  Tort Law:  Affirmed: In considering summary judgment, we determine whether a genuine issue of material fact exists and whether the moving party will prevail solely as a matter of law. In assessing injury claims derived from an elevation difference of adjoining municipal sidewalk slabs, Illinois courts apply the de minimis rule. This well-established rule provides that, as a matter of law, defects found in frequently traversed areas are not actionable. A sidewalk defect will be considered de minimis if a reasonably prudent person would not foresee some danger to persons walking on it. Because there is a difference of opinion as to what a minor defect entails and no bright-line test or mathematical formula to discern defects, each case turns on its own facts.  Hyman, J.

No. 2016 IL App (1st) 151925  Burns v. City of Chicago   Filed 7-19-16 (LJD)

This is a trip and fall case involving a crosswalk with a surface in compliance with Americans with Disabilities Act requirements.Plaintiff , Lloyd Burns, alleges the defendant, City of Chicago (i) negligently installed the ADA sensory tiles; (ii) failed to inspect the area of sidewalk where he tripped; (iii) failed to repair that portion of sidewalk; and (iv) failed to warn him of the dangerous nature of the sensory tiles. After the trial court dismissed Burns’ allegations with regard to failure to warn, the City moved for and was granted summary judgment. Burns challenges these rulings.  We affirm, finding (i) exposure of the raised ADA sensory tiles was de minimis; (ii) the trial court properly dismissed Burns’ failure to warn allegations; (iii) the City lacked constructive notice of the raised tiles; and (iv) the tiles were an open and obvious condition.

2. Administrative Review: Affirmed:  The statutory 30-day time limit to commence a hearing as provided in section 10 -2.1-17of the Illinois Municipal Code is mandatory, and a failure of the Board to commence a hearing within that time period causes the Board to lose jurisdiction of the case.  Where the delay in commencing the hearing is attributable to the plaintiff, however, the statute is not violated. Lytton, J., dissent by Wright, J.

No. 2016 IL App (3rd) 150520  Lopez v. Board of Fire & Police Commissioners  Filed 7-19-16 (LJD)

Plaintiff, Salvador Lopez, appeals from the order of the trial court granting the motion for summary judgment filed by defendant, the Board of Fire and Police Commissioners of the Village of Bartonville (the Board). Specifically, plaintiff challenges the trial court’s finding that the delay in commencing his termination hearing was attributable to plaintiff. We affirm

4 Appellate Cases Posted 7-18-16

1. Criminal Law: Affirmed: Trial court properly dismissed post-conviction petition which claimed that trial counsel was ineffective for failing to call certain witnesses, where review of witnesses' affidavits led to conclusion that the result at retrial would not have been different.Gordon, J.

No. 2016 IL App (1st) 152425  People v. Lee  Filed 7-18-16 (TJJ)

Defendant Anthony Lee was convicted after a bench trial of five counts of aggravated criminal sexual assault and one count of aggravated kidnapping, and sentenced to a total of 100 years in the Illinois Department of Corrections (IDOC). Defendant’s convictions and sentences were affirmed on direct appeal. People v. Lee, No. 1-96-3069 (1998) (unpublished order under Supreme Court Rule 23). On this postconviction appeal, defendant claims that the trial court erred in dismissing his successive petition  at the second stage, because he made a substantial showing of ineffective assistance of trial counsel. Defendant included supporting affidavits from five affiants with his petition, and he claims that his counsel was ineffective for failing to call these  individuals at trial. Defendant’s postconviction proceedings have been the subject of two separate supervisory orders from the Illinois Supreme Court directing this court to vacate our prior orders affirming dismissal and to reconsider defendant’s petition  and supporting affidavits. Thus, we have quoted below the supporting affidavits in full. However, even after considering carefully both our supreme court’s orders and the petition and supporting affidavits, we find that we have no choice but to affirm this  dismissal.

2. Criminal Law: Reversed and remanded: Dismissal of post-conviction petition reversed where defendant's post-conviction counsel failed to comply with SCR 651(c), where counsel's certificate tracked the language of SCR 604(d) governing motions to withdraw guilty pleas, rather than the requirements of SCR 651 governing post-conviction petitions and laying out counsel's obligations therein. Holder White, J.

No. 2016 IL App (4th) 140517  People v. Mason  Filed 7-18-16 (TJJ)

In August 2012, defendant, Eric J. Mason, pro se, filed an amended petition for postconviction relief. Therein, he alleged his trial counsel provided ineffective assistance of counsel. In November 2012, the trial court advanced defendant's petition to the second stage of postconviction proceedings and appointed counsel to represent defendant. In January 2014, postconviction counsel filed a certificate of compliance pursuant to Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013), even though the certificate should have been filed under Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013). During the postconviction proceedings, defendant complained his postconviction counsel was providing unreasonable assistance by failing to properly communicate with him and inadequately representing his interests. In February 2014, the State filed a motion to dismiss defendant's postconviction petition, which the trial court granted in May 2014. Defendant appeals, asserting (1) postconviction counsel provided unreasonable assistance of counsel, and (2) the trial court erred in dismissing his postconviction petition at the second stage of proceedings. Because we conclude postconviction counsel's certificate failed to substantially comply with Rule 651(c), we reverse and remand for further proceedings.

3. Criminal Law: Affirmed: Although trial court erred at second stage of post-conviction proceedings in making credibility determination of affidavit put forth in support of post-conviction petition, affidavit was not of such conclusive character as to change result on retrial, so dismissal of post-conviction petition affirmed. Harris, J.

No. 2016 IL App (1st) 132573  People v. Rivera  Filed 7-18-16 (TJJ)

Defendant Michael Rivera appeals from the circuit court's granting of the State's motion to dismiss his post-conviction petition. Defendant, John Crowe and four others were charged with first degree murder in the 1998 shooting death of Marcus Lee. To support a claim of actual innocence, defendant attached to his petition Crowe's affidavit in which he attested that he, and not defendant, shot the victim. In this appeal, defendant contends the circuit court erred in dismissing his petition at the second stage of post-conviction proceedings after reviewing the transcript of Crowe's guilty plea hearing and finding Crowe's affidavit was not credible. He further asserts his post-conviction counsel provided unreasonable assistance under Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984) by failing to object to the circuit court's consideration of that transcript. Affirmed.

4. Domestic Relations: Affirmed: Trial court properly ruled that jointly held certificate of deposit was marital property, despite wife's claim that it consisted of her pre-marital property, and wife's non-marital funds that were used to pay down parties' mortgage on primary residence constituted a gift to the marital estate. Harris, J.

No. 2016 IL App (1st) 150793  In re Marriage of Vondra  Filed 7-18-16 (TJJ)

Respondent, Mika J. Vondra, appeals the circuit court’s judgment in a marriage dissolution proceeding, specifically the court’s characterization and distribution of various assets pursuant to section 503 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/503 (West 2014)). On appeal, respondent contends (1) she is entitled to the reimbursement of $253,000 she contributed in nonmarital funds to pay down the mortgage on the marital residence and (2) the trial court erred in classifying respondent’s Madison Avenue IRA No. 6863 (IRA 6863) and the American Enterprise CD No. 6714 (6714 CD) as marital property. For the following reasons, we affirm.

3 Appellate Cases Posted 7-15-16

1. Medical Negligence: Reversed and remanded: In action for medical negligence in which plaintiff won a verdict for general damages and for medical expenses. trial court erred in reducing verdict by amount of medical bills, even though medical bills were not paid to medical providers or payable to the plaintiff, and trial court directed to reinstate full verdict without a reduction for the medical bills. Pope, J.

No. 2016 IL App (4th) 150728  Miller v. Sarah Bush Lincoln Health Center  Filed 7-15-16 (TJJ)

On June 29, 2015, a jury returned a verdict in plaintiff Harold Miller's favor in his medical malpractice action against defendants, Dr. Curtis Green, D.O., and Sarah Bush Lincoln Health Center. The jury awarded plaintiff $638,347.91, with $133,347.91  itemized for medical expenses. On July 17, 2015, defendants filed a motion to enter judgment and reduce the jury's verdict by $91,724.03 pursuant to section 2-1205 of the Code of Civil Procedure. On August 3, 2015, the trial court granted defendants' motion and reduced the jury's verdict by $91,724.03. Plaintiff appeals, arguing the trial court erred in reducing the judgment by $91,724.03. We reverse the trial court's order reducing the verdict in this case and remand with directions for the trial court to  reinstate the jury's verdict without any reduction.

2. Criminal Law: Reversed and remanded: Trial court erred in denying defendant leave to file a successive post-conviction petition where defendant alleged that his confession was coerced and presented affidavit of an eyewitness who purported to exonerate defendant. Gordon, J. (Lampkin, J., dissenting).

No. 2016 IL App (1st) 123371  People v. Jones  Filed 6-30-16 (TJJ)

Defendant Anteleto Jones was convicted by a jury on January 30, 2003, of first-degree murder and sentenced on March 28, 2003, to 44 years in the Illinois Department of Corrections (IDOC). This appeal concerns defendant’s pro se motion for leave to file a second postconviction petition. As we explain below, the only evidence connecting defendant to this murder was his own confession, which he has consistently claimed was coerced and which is not corroborated by some of the physical evidence. Now, an eyewitness, who is the only known eyewitness to the murder, has come forward to exonerate defendant. This eyewitness is in addition to the two exculpatory witnesses discovered and disclosed by the prosecutor immediately after the trial ended. For the following reasons, we reverse and remand for appointment of postconviction counsel and second-stage proceedings.

3. Citation to Discover Assets: Affirmed: In face of incomplete appellate record, appellate court could not conclude that trial court order requiring citation respondent to turn over funds in joint account held by respondent with judgment debtor was against the manifest weight of the evidence, and turn-over order affirmed. Reyes, J.

No. 2016 IL App (1st) 151281  Gataric v. Colak  Filed 7-15-16 (TJJ)

The citation respondent, Vanya Khoury (Khoury), appeals from the circuit court of Cook County’s order denying her claim to funds held in a joint checking account with defendant, Adrian Colak (Colak), and ordering those funds be turned over to plaintiff,  Cedo Gataric (Gataric), in satisfaction of an underlying judgment obtained by Gataric against Colak. On appeal, Khoury argues that in rendering this determination the trial court applied an improper burden of proof. Khoury further argues that the trial  court’s finding that she was not the sole owner of the funds contained in the joint checking account was against the manifest weight of the evidence. For the following reasons, we affirm.

2 Appellate Cases Posted 7-14-16

1. Civil Procedure/Default Judgments: Reversed and remanded: Trial court erred in granting defendant's motion to vacate default judgments pursuant to Section 2-1401 where defendant failed to claim a meritorious defense in pleadings requesting vacature. Schmidt, J. (Carter, J., dissenting).

No. 2016 IL App (3d) 140487 Lyons Lumber and Building Center, Inc. v. 7722 North Ashland, LLC Filed 7-14-16 (TJJ)

This appeal arises out of a breach of contract action filed by plaintiff, Lyons Lumber & Building Center, Inc., against defendants, 7722 North Ashland, LLC (Ashland), Ashland- Juneway, LLC (Juneway) (collectively “the defendant LLCs”), and Jay  Johnson, who personally guaranteed the two loans each of the defendant LLCs made with plaintiff. The trial court entered a default judgment against the defendant LLCs and granted plaintiff’s motion for summary judgment against Johnson, individually,  with a resulting judgment of $165,806.84, jointly and severally, against all the defendants. More than 30 days following the judgment, defendants filed a motion to vacate the judgment pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735  ILCS 5/2-1401 (West 2012)), which the trial court granted. On appeal, plaintiff argues the trial court erred in granting defendants’ motion to vacate. We agree and reverse.

2. Criminal Law: Affirmed: Defendant's conviction for aggravated battery affirmed over claim that Speedy Trial Act was violated, where defendant, arrested for domestic battery, was transferred from State custody to federal custody as a result of his alleged violation of a federal mandatory supervised release, and was thus not in "state custody" for the purposes of computing his speedy trial term. Goldenhersh, J.

No. 2016 IL App (5th) 130223  People v. Mosley  Filed 7-14-16 (TJJ)

After a jury trial in the circuit court of St. Clair County, defendant, Bernard Mosley, was convicted of aggravated battery and sentenced to two years in the Department of Corrections followed by one year of mandatory supervised release. The only issue in  this appeal is whether defendant's conviction should be vacated on the basis that his right to a speedy trial was violated. We affirm.

3 Appellate Cases Posted 7-13-16

1. Criminal Law: Reversed and remanded: Despite grant of immunity, where co-defendant witness was called to testify at defendant's murder trial, but claimed fifth amendment refusal to testify, prosecutor's conduct in asking repeated questions relating to witness's prior statements implicating defendant warranted reversal of defendant's conviction for murder. Carter, J. (Schmidt, J., dissenting).

No. 2016 IL App (3d) 140120  People v. Evans  Filed 7-13-16 (TJJ)

Defendant was found guilty of first degree murder. 720 ILCS 5/9-1(a)(3) (West 2008) (a person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death, he is attempting or committing  a forcible felony). Defendant was sentenced to 58 years of imprisonment. On appeal, defendant argues, inter alia, that his constitutional right to confront witnesses was violated where the prosecutor continued to question a witness, in the  presence of the jury, and the witness refused to testify and repeatedly asserted his fifth amendment privilege against self-incrimination. U.S. Const., amend. V. We reverse and remand for a new trial.

2. Juvenile Delinquency: Reversed and remanded: Trial court finding of delinquency in sexual assault case reversed where court erred in finding that juvenile was not in custody at time of interogation, and juvenile, a special needs student who participated in "Special Olympics"-type activities and had below average cognitive ability, did not have the capacity to knowingly and intelligently understand the Miranda warnings administered. Lytton, J.

No. 2016 IL App (3d) 160080  In re S.W.N.  Filed 7-13-16 (TJJ)

Respondent, S.W.N., appeals from his adjudication for delinquency based on the offense of criminal sexual assault. Respondent argues that his confession, which was admitted at trial, should have been suppressed because he did not knowingly and  intelligently waive his Miranda rights. We vacate the trial court's adjudication of delinquency, reverse its order denying respondent's motion to suppress his confession, and remand the matter for further proceedings.

3. Juvenile Delinquency: Affirmed as modified: In connection with custodial sentence imposed against juvenile respondent for indirect criminal contempt for failing to comply with the terms of dispositional orders stemming from his adjudications of guilty in connection with several offenses, juvenile was only entitled to sentencing credit for those days spent in custody after he was found to be in contempt. O'Brien, J.

No. 2016 IL App (3d) 160092  In re L.W.  Filed 7-13-16 (TJJ)

L.W. appeals from the trial court's order that lifted the stay on the sentence imposed on the fourth petition for indirect criminal contempt. Specifically, L.W. argues he is entitled to a credit for time spent in custody on multiple proceedings associated with his  two juvenile delinquency cases. We affirm as modified.

3 Appellate Cases Posted 7-12-16 

1. Criminal Law: Affirmed: Trial court properly denied post-conviction petition following evidentiary hearing over claim that defendant's plea of guilty was void in the alleged absence of a proper charging document, and defendant held to have abandoned claim that defense counsel rendered ineffective assistance of counsel in connection with advice about effects of defendant's plea on his immigration status. Jorgensen, J.

No. 2016 IL App (2d) 140332  People v. Sandoval-Carrillo  Filed 7-12-16 (TJJ)

Defendant, Gustavo Sandoval-Carrillo, appeals the denial, after an evidentiary hearing, of his petition for relief under the Post-Conviction Hearing Act. Defendant contends that (1) his conviction, on a guilty plea, of unlawful possession of more than 10 but  not more than 30 grams of cannabis with the intent to deliver, a Class 4 felony, is void, because the State never charged him by indictment or information, as required by statute; and (2) his guilty plea violated due process, as the trial court did not admonish  him properly. We affirm.

2. Forum non Conveniens: Affirmed: Trial court properly denied defendant railroad motion to transfer FELA case to a different county based on forum non conveniens where no factors showed that the matter was more readily tried in Marion County rather than St. Clair County. Cates, J.

No. 2016 IL App (5th) 150116  Decker v. Union Pacific Railroad Company  Filed 7-12-16 (TJJ)

The defendant, Union Pacific Railroad Company, filed a petition for leave to appeal from an order of the circuit court of St. Clair County, denying its motion to transfer this case to Marion County based on forum non conveniens. The petition for leave to  appeal was filed pursuant to Illinois Supreme Court Rule 306 (eff. Feb. 16, 2011). We granted the petition, and for reasons that follow, we affirm.

3. Workers' Compensation: Affirmed: Police officer driving to his station for training session was not acting within the scope of his empployment when he was injured commuting to work in connection with an accident in hazardous driving conditions, and was not a "traveling employee" so as to permit him to recover under the Act, and the Industrial Commission properly reversed arbitrator's award in favor of employee. Hudson, J.

No. 2016 IL App (3d) 150284WC  Allenbaugh v. Illinois Workers' Compensation Comm'n  Filed 7-12-16 (TJJ)

Claimant, Jason Allenbaugh, appeals a decision of the circuit court of Peoria County confirming a decision of the Illinois Workers’ Compensation Comm’n (Commission) denying his claim for benefits under the Illinois Workers’ Compensation Act (Act)  (820 ILCS 305/1 et seq. (West 2012)). For the reasons that follow, we affirm.

2 Appellate Cases Posted 7-11-16

1. Construction Law: Affirmed in part, reversed in part, and remanded: In large-scale condominium construction project, where sub-contractor was not a party to previous arbitration (even though arbitration ruling impacted global settlement agreement later reached by many parties involved) judicial estoppel and collateral estoppel would not apply in subsequent court case, and trial court grant of summary judgment to contractor reversed. Connors, J.

No. 2016 IL App (1st) 142754  Pepper Construction Company v. Palmolive Tower Condominiums, LLC  Filed 6-20-16 (TJJ)

This appeal involves a dispute between the general contractor for a construction project, Pepper Construction Company (Pepper), and one of its subcontractors, Bourbon Marble, Inc. (Bourbon). Beginning in 2004, Pepper and Bourbon worked on an interior  build-out of approximately 96 condominium units in a building owned by Palmolive Tower Condominiums, LLC (Palmolive), and located at 919 North Michigan Avenue in Chicago. The arbitration proceedings involved Palmolive, Pepper, and  Bourbon, along with several other subcontractors of Pepper. The arbitration award was confirmed in the circuit court, and following a global settlement agreement, only issues between Pepper and Bourbon remained. Bourbon attempted to pursue damages  against Pepper, but Pepper successfully contended at the summary judgment stage that Bourbon was judicially estopped from pursuing those damages. The remaining issues were resolved at a bench trial, where Pepper was awarded $36,312 in backcharges. Both parties appeal. Bourbon asserts that: (1) judicial estoppel should have applied to Pepper, but not Bourbon; (2) the judicial estoppel ruling should be reversed because the court misapplied the rules pertaining to judicial admissions; (3) the trial judgment  should be reversed because the trial court failed to enforce Pepper’s judicial admissions; and (4) the trial court improperly denied Bourbon’s petition for attorney fees. For its part, Pepper: (1) maintains that Bourbon’s claims were barred by  judicial estoppel, res judicata, collateral estoppel, and an agreement between the parties; and (2) asserts that the court improperly granted a directed verdict at trial to Bourbon; and (3) Pepper was the prevailing party and entitled to attorney fees. Affirmed in part, reversed in part, and remanded.

2. Federal Employers' Liability Act: Reversed and remanded: Trial court grant of summary judgment to defendant railroad in connection with injury claim brought by employee-conductor reversed, as locomotive plaintiff was working at was "in use" as a matter of law, and there was a genuine issue of fact as to whether plaintiff's injury was caused by the negligent operation and condition of the locomotive. Carter, J.

No. 2016 IL App (3d) 150464  Davis v. Burlington Northern Santa Fe Railway Company  Filed 7-11-16 (TJJ)

Plaintiff, Stephen Davis, a locomotive conductor, brought suit under the federal Employers' Liability Act (FELA) (45 U.S.C. § 51 et seq. (2012)) against his employer, defendant, Burlington Northern Santa Fe Railway Company, to recover damages for an  injury he allegedly suffered at work when he attempted to step up onto the bottom step of a locomotive and pull himself up and his knee gave out. Both sides filed motions for summary judgment. After a hearing, the trial court granted defendant's motion  for summary judgment and denied plaintiff's. Plaintiff appeals. We reverse the trial court's judgment and remand for further proceedings.

2 Supreme Court Cases Posted 7-8-16

1. Criminal Law/Traffic: Appellate court and circuit court reversed: Absent a showing of prejudice suffered by a defendant, failure of municipality to forward traffic tickets to circuit court within 48-hour period following issuance, dictated by SCR 552, did not warrant dismissal of ticket at request of defendant. Kilbride, J.

No. 2016 IL 119095  People v. Geiler  Filed 7-8-16 (TJJ)

In this case, the circuit court of Madison County dismissed the defendant’s traffic citation based on a violation of Illinois Supreme Court Rule 552 (eff. Sept. 30, 2002), requiring the arresting officer to transmit specified portions of the citation to the circuit  court clerk within 48 hours after the arrest. The appellate court affirmed, holding that when, as here, there is a pattern of a clear and consistent violation of Rule 552, the trial court may dismiss a citation without considering whether the defendant was  prejudiced by the violation. 2015 IL App (5th) 140423. For the following reasons, we reverse the judgments of the circuit and appellate courts and remand to the circuit court for further proceedings.

2. Flooding/Due Process/"Taking": Certified question answered: Illinois caselaw never held that temporary flooding allegedly caused by government agency actions in dealing with water from heavy rainstorm cannot be a compensable "taking" so as to permit financial recovery by affected property owners, but owners in this case did not allege sufficient facts to show that agency "radically interfered" with property so that alleged actions constituted a taking, but matter remanded for resolution of claim that plaintiffs were entitiled to damages for property damage. Garman, C.J.

No. 2016 IL 119861  Hampton v. Metropolitan Water Reclamation District  Filed 7-8-16 (TJJ)

Plaintiffs, a class of property owners, filed complaints against the Metropolitan Water Reclamation District of Greater Chicago (the District), based on allegations of flooding on their properties following a rainstorm. The circuit court consolidated the  complaints. Plaintiffs assert that the District caused the flooding by diverting stormwater into nearby creeks. Plaintiffs claim that the flooding constitutes a taking for which they are entitled to just compensation under the Illinois takings clause. The District  moved to dismiss the consolidated complaint based on this court’s decision in People ex rel. Pratt v. Rosenfield, 399 Ill. 247 (1948). The District contends that, based on Pratt, a temporary flooding can never constitute a taking under the Illinois  Constitution. More recently, however, the United States Supreme Court concluded that temporary flooding can constitute a taking under the federal constitution. Arkansas Game & Fish Comm’n v. United States, 568 U.S. ___, 133 S. Ct. 511 (2012). The Cook County circuit court denied the District’s motion to dismiss the Illinois takings clause claim and certified the following question pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010): “Does Arkansas Game and Fish Commission v. U.S.[,]  133 S. Ct. 511 (2012), overrule the Illinois Supreme Court’s holding in People ex rel. Pratt v. Rosenfield, 399 Ill. 247 (1948)[,] that temporary flooding is not a taking?”

4 Appellate Cases Posted 7-8-16

1. Administrative Review:  On review, this court reviews the decision of the Board, not the circuit court. . In reviewing the Board’s decision, this court employs a two-step analysis. We first determine whether the agency’s factual findings are against the manifest weight of the evidence.  Then, this court must determine whether the findings of fact provide sufficient basis for the agency’s determination that there is cause for discharge.  Affirmed; Burke, J.

No. 2016 IL App (1st) 151979 McDermott v. The City of Chicago Police Board Filed 7-8-16 (LJD)

Plaintiff, Timothy McDermott, appeals from an order of the circuit court of Cook County affirming the decision of the City of Chicago Police Board (Board) that found him in violation of three Chicago police department (Department or CPD) rules and ordered him discharged.

2. Freedom of Information Act:  The purpose of a preliminary injunction is to preserve the status quo pending a decision on the merits of the case. A preliminary injunction is an extraordinary remedy applicable only in extreme emergency situations where serious harm would result if not issued. A circuit court’s decision to grant or deny a preliminary injunction is generally reviewed for an abuse of discretion.  However, where as here, when the circuit court’s determination regarding the grant of a preliminary injunction involves statutory interpretation, the appropriate standard of review is de novo.   Public records are presumed to be open and accessible.   The purpose of the FOIA is 'to open governmental records to the light of public scrutiny.' The FOIA is given a liberal construction in furtherance of the legislative objective of providing easy public access to governmental information.   Reversed and Remanded: Hall, J.

No. 2016 IL App (1st) 143384 Fraternal Order of Police v. The City of Chicago Filed 7-8-16 (LJD)

In these consolidated interlocutory appeals, defendants the City of Chicago (City) and the Chicago police department (CPD) argue that the circuit court erred in granting preliminary injunctions in favor of plaintiff, Fraternal Order of Police, Chicago Lodge No. 7. The preliminary injunctions enjoin defendants from releasing certain information contained in records generated by police oversight agencies’ investigations of citizen complaints of alleged police misconduct.1 These records, commonly referred to as "Complaint Registers" or "CRs," were requested by defendant-intervenor Chicago Tribune Company, LLC (Tribune), and the Chicago Sun-Times (Sun-Times) pursuant to the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2012)).  The Attorney General of Illinois filed an amicus brief in support of defendants’ position. The Better Government Association along with journalist and author Jamie Kalven and journalist John Conroy also filed an amicus brief in support of defendants’ position. For the reasons that follow, we vacate the circuit court’s grant of the preliminary injunctions.

3. Administrative Review/Concealed Carry Permit: An aggrieved party may petition the circuit court for judicial review of the Board's decision (430 ILCS 66/87(a) (West 2014)), but such review is subject to the provisions of the Administrative Review Law (430 ILCS 66/87(b) (West 2014)). Certified Queation Answered: Knecht., J.

No. 2016 IL App (4th) 150661 Merritt v. The Department of State Police Filed 7-8-16 (LJD)

Plaintiff, Michael L. Merritt, filed a petition in the circuit court of McLean County, seeking judicial review of a decision by the Concealed Carry License Review Board (Board) denying him a license to carry a concealed firearm. Before the circuit court, Merritt and defendants, the Department of State Police, Leo Schmitz (its Director), and the Board, disputed the type of judicial review that court may undertake in considering Merritt's claims.

4.  Workers Compensation:  Wage differential duration and Amount reviewed. Reversed and Remanded Holdridge, J. 

No. 2016 IL App (4th) 150122WC Chlada v. Illinois Workers' Compensation Comm'n Filed 7-8-16 (LJD)

The claimant sought judicial review of the Commission's remand order in the circuit court of Cook County, arguing that his wage differential benefits should continue indefinitely and should not cease on April 22, 2004, because his disability from the July 15, 1999, work injury had not ended. Neither party contested the Commission's finding that the claimant was entitled to wage differential benefits at the rate of $485.65 per week. The circuit court found that the Commission's decision to extend the claimant's wage differential award through April 22, 2004, was against the manifest weight of the evidence because the claimant's entitlement to wage differential benefits terminated on January 13, 2003, "at which time PTD benefits began." Accordingly, the circuit court set aside the Commission's remand order. The circuit court's order also stated, without analysis or explanation, that "the A.W.W. [average weekly wage] pursuant to Section 8(d)(1) is $455.65."

2 Appellate Cases Posted 7-7-16

1.  Domestic Relations: Where custody is shared, the trial court is not obligated to determine child support according to statutory guidelines. Rather, "the court may apportion the percentage between the parents [citation], or may disregard the statutory guidelines in the Act and instead consider the factors listed in section 505(a)(2) [of the Act]. Affirmed, O'Brien, J.

No. 2016 IL App (3rd) 150717 In re Marriage of Vance Filed 7-7-16 (LJD)

Respondent, Stephen R. Vance, appeals the trial court's order: (1) directing Stephen to pay child support to petitioner, Cecilia Vance, in the amount of $825 per month; (2) characterizing a house as marital property and awarding one-third of the equity in the house to Cecilia; and (3) directing Stephen to pay Cecilia's attorney fees in the amount of $5,000. We affirm.

2.  Probate/Real Estate:Section 2-7 of the Act (755 ILCS 5/2-7 (West 2012)) concerns the right to disclaim an interest in property. Section 2-7(a) provides: "A person to whom any property or interest therein passes, by whatever means, may disclaim the property or interest in whole or in part by delivering or filing a written disclaimer as hereinafter provided." 755 ILCS 5/2-7(a) (West 2012). Section 2-7(e) of the Act provides that: "The right to disclaim property or a part thereof or an interest therein shall be barred by *** an assignment, conveyance, encumbrance, pledge, sale or other transfer of the property, part or interest, or a contract therefor, by the disclaimant or his representative ***."  Affirmed.   Holdridge, J.

No. 2016 IL App (3rd) 150483 In re Estate of Sterba Filed 7-7-16 (LJD)

The Estate of Catherine Sterba (Estate) appeals the trial court's ruling that a disclaimer of interest in certain devised real estate executed by Jason Dearth, the son of the decedent, was invalid.

1 Appellate Case Posted 7-1-16

1. Labor Law:  After either party requests arbitration, the arbitrator first identifies the economic issues in dispute and then directs the parties to submit their last offers of settlement on each issue. 5 ILCS 315/14(g) (West 2014). After a hearing, the arbitrator adopts the offer of settlement that more nearly complies with the factors listed in section 14(h) of the Act.  On review, the arbitrator's order can be disturbed for only the following reasons: (1) the arbitrator was without authority or exceeded his or her authority; (2) the order is arbitrary or capricious; or (3) the order was procured by fraud, col- - 6 - lusion, or other similar and unlawful means. Affirmed: Steigman, J.

No. 2016 IL App (4th) 150573 International Association of Firefighters Local 49 v. The City of Bloomington  Filed 7-1-16 (LJD)

In 2012, plaintiff, International Association of Firefighters Local 49 (Union), and defendant, the City of Bloomington (City), began renegotiating their collective bargaining agreement. During negotiations, the parties were unable to agree on the extent to which the City would continue to pay retiring Union members for their unused sick leave. Unable to resolve that dispute, the parties referred the issue to mandatory arbitration. In November 2013, the arbitrator entered a written order adopting the City's final proposal. The Union petitioned for review of the arbitrator's decision in the circuit court. Both parties filed motions for summary judgment. In June 2015, the circuit court entered a written order granting the City's motion for summary judgment and denying the Union's. In addition, the court denied the Union's motion for an award of statutory interest