Illinois Supreme and Appellate Court Case Summaries


By Laurence J. Dunford (LJD), Matthew Bertani (MB), Anne Therieau Hayes and Timothy J. Joyce(TJJ)

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

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2015 IL App (5th) 120401

7 Appellate Cases Posted 8-31-16

1.  Civil Jury: Verdict for Defendant Reversed and Remanded with directive that Trial Court  enter Judgment for Plaintiff and hold trial on damages, only:   General Verdict in favor of Defendant was against manifest weight of the evidence where chiropractic and orthopedic  doctors presented unrebutted testimony that Plaintiff sustained injuries and incurred damages as a result of a rear end collision.  Under such circumstances,  a reasonable inference could not be drawn to concluded Plaintiff had not  actually suffer injury and damages due to Defendant's negligence.  Goldenhersh, J.

No. 2016 IL App (5th) 150557 Claro v. DeLong     Filed 8-31-16 (MGB)

Plaintiff's vehicle was struck from behind. It in intersection. Defendant claimed she rolled 3 feet forward from a stop striking the Plaintiff at low speed. Plaintiff claimed Defendant was traveling 15 to 20 mi./h when his vehicle was struck. He incurred in excess of $17,000.00 in medical expenses, and  received steroid injections for a cervical disc herniation. His orthopedic physician testified he may need a disk replacement surgery. General verdict form was presented to the jury over the objection of Plaintiff.

2.  Criminal Law: Speedy Trial, Constitutional Claim and Statutory Claim: Affirmed:  Dismissal  on Constitutional and Statutory Speedy Trial Grounds  upheld where over a year passed subsequent to arrest and nearly a year expired post dismissal of initial information for failure to hold preliminary hearing within 30 days on Felony Obstructing Justice charge. De Novo review where facts were uncontested. Facts demonstrated Clinton County transferred the Defendant to St. Louis, Missouri shortly after his arrest without Court Order or Extradition Process, Defendant filed pro se Speedy Trial Demand from Missouri jail shortly after initial charges were dismissed, State had no explanation for delay and Defendant alleged actual prejudice.   Moreover, voluntary transfer by Clinton County to St. Louis without process or Order releasing Defendant from Custody of Clinton County, Statutory 120 Speedy Trial period was not tolled.   Cates, J.

No. 2016 IL App (5th) 1405267 People v. Kilcauski    Filed 8-31-16 (MGB)

"In summary, the length of the delay was presumptively prejudicial; the State presented no facts to justify the delay; the defendant made the attempt to request a speedy trial and a disposition of the charges; and the defendant made an affirmative showing of actual prejudice in that he endured a lengthy period of incarceration during the period between the dismissal of the information and the filing of the indictment. In addition, the defendant's other allegations of prejudice were not contested by the State. In our view, under these unique facts, (emphasis supplied) the delay resulted in a violation of the defendant's constitutional right to a speedy trial."

3.  Mortgage Foreclosure: Affirmed:   Holding of title as Tenants by the Entirety does not preclude foreclosure when one spouse signed the Promissory Note, and both spouses executed the Mortgage. Note and affidavits established standing in successor mortgagee to sue for foreclosure. McDade, J.

No. 2016 IL App (3rd) 150224 OneWest Bank Fsb v. Cielak    Filed 8-31-16 (MGB)

Wife signed the mortgage, knew the amount owed under the note, and consented to creating a lien on the real estate to secure the same. Tenancy by the Entirety "protected innocent spouse from losing the marital home because of the individual debts of his or her spouse."

4.  Election Law: Disqualification Affirmed: Section 7-43 of the Election Code, prohibited the inclusion of a candidate as in independent on the General Election ballot where he filed nominating documents for the Democratic Party in the immediately preceding Primary Election for both Coroner and Precinct Committeeman, but had withdrawn the nominating petitions following the filing of an objection to those documents, and did not vote in the Primary Election. Statutory exclusion from independent candidacy during the subsequent General Election did not violate candidate's right to equal protection, or rights to free association or speech. Hutchinson, J.

No. 2016 IL App (2nd) 160649  Rudd v. The Lake County Electoral Board   Filed 8-31-16 (MGB)

This matter involved the sitting Coroner of Lake County who whose nomination papers or reelection appear to have been lacking. The fact of Rudd’s earlier established-party candidacy in this election cycle simply is not Rudd’s to “take back.” Once Rudd filed his nominating papers, his sworn statement of candidacy and his sworn statement of party affiliation were matters of public record, precisely because Rudd had publicly expressed them.  Section 7-43 does not similarly prohibit the filing of a candidate of a "new political party." Overall, the distinction between the necessarily affiliated and the necessarily unaffiliated, suffices for us to determine that independent and new-political-party candidates are not similarly situated.  That section 7-43 does not disqualify new-party candidates on the same basis as independents can be seen as encouraging the post-primary formation of alternative political parties by voters and candidates who may be either dissatisfied with the status quo or disappointed with the results of the primary. We also reject Rudd’s contention that section 7-43 violates his associational and free speech rights. The disqualification statute is, to be sure, a restriction on Rudd’s right to access the ballot, but it is not a severe one. Only those laws that make ballot access “virtually impossible'" or condition ballot access on an arbitrary factor, or otherwise “prevent persons who wish to be independent candidates from entering the political arena, will be invalidated on constitutional grounds.

5.  Municipal Zoning : Reversed:  Section 11-13-25 of the Illinois Municipal Code (65 ILCS 5/11-13-25 (West 2012) does not create a new, private right of action to challenge zoning decisions of a municipality.  Rather, it clarifies that such decisions are to be reviewed not as administrative decisions, but as legislative decisions under the rubric of whether such action was arbitrary and capricious. . Birkett, J.

No. 2016 IL App (2nd) 151034  Conaghan v. The City of Harvard    Filed 8-31-16 (MGB)

Plaintiff Steven Conaghan purchased a house in Harvard, renting it out to separate tenants on the two floors as a legal nonconforming use. After property damage rendered it uninhabitable, Conaghan hired a contractor to rehabilitate the property. The contractor’s permit lapsed and the property remained vacant for more than a year. Acting on the recommendation of defendant the Planning and Zoning Commission of the City of Harvard (Zoning Commission), defendant the Harvard City Council (City Council) passed an ordinance denying the petition of Conaghan and plaintiff Bertram P. Irslinger, who had become the property’s joint owner, to 2 allow the continued use of the property as a multifamily residence. The City Council declared that the nonconforming use had been discontinued and it restricted the use of the building to a single-family residence. Plaintiffs filed a complaint against the Zoning Commission, the City Council, and defendant the City of Harvard (City), under section 11-13-25 of the Illinois Municipal Code (65 ILCS 5/11-13-25 (West 2012)), challenging the City Council’s act. We decline to read an enactment that was aimed primarily at easing the burden on counties and municipalities as creating a right of action that could potentially increase the burden on these same bodies. We agree with defendants that section 11-13-25 does not create a right of action for property owners to challenge zoning decisions. As the viability of plaintiffs’ complaint depended on a contrary premise, we must reverse the trial court’s judgment outright. We intimate no position on whether plaintiffs could have based their action on something other than section 11-13-25, such as the declaratory judgment act. Plaintiffs never attempted to use any key to the courthouse door other than section 11-13-25.

6.  Criminal Law: Post Conviction Relief: Reversed:  Prior Aggravated Unlawful Use of  Weapon and Unlawful Use of Weapon by Felon could serve as predicates for Armed Habitual Criminal conviction, even though the Statute resulting in those prior convictions was found unconstitutional under People v. Aguilar,  2013 IL 112116,  where the prior convictions had not yet been vacated.   Mason, J.

No. 2016 IL App (5th) 150889  People v. Perkins    Filed 8-31-16 (MGB)

After a bench trial, Perkins was convicted of several offenses, including armed habitual criminal, unlawful possession of a weapon and firearm ammunition by a felon (UUWF), aggravated unlawful use of a weapon (AUUW), and failure to possess a valid firearm owner’s identification (FOID) card. The trial court merged all of the counts and sentenced Perkins to seven years’ imprisonment on the armed habitual criminal count. The predicate convictions for these offenses included Perkins’ earlier convictions for UUWF and AUUW
At the time of Perkins’ armed habitual criminal conviction, he had prior UUWF and AUUW convictions. Because those convictions had not been vacated at the time Perkins possessed a firearm on October 17, 2010, they could properly serve as the predicates for his armed habitual criminal conviction. Consequently, we reverse the judgment of the circuit court of Cook County granting Perkins’ post-conviction petition. N.B.  Aguilar found a blanket prohibition the possession of ready to use handguns outside the home unconstitutional on 2nd Amendment grounds.

7.  Sexually Dangerous Persons Act; Evidence: Instructions:  Reversed in Part:  Trial Court erred  and abused its discretion in  1) allowing testimony of a 1997 incident which occurred when Defendant was 13, for which he was not charged or convicted and where there was ambiguity regarding the sexual nature of the acts; 2)  allowing a the victim of a home invasion to testify on her perception of Defendant's intent and  experience as a victim; and admitting Defendant's videotaped confession to the home invasion incident.  While evidence of prior sex crimes should be limited to certified copies of the relevant convictions, the State can present witnesses  to explain the sexual components of the incidents surrounding home invasion and residential burglary convictions where the sexual context of those crimes would not be apparent by the charges on which convictions were entered. However, the testimony of investigating officers in this regard should be limited to the basic facts of those events.  Trial Court not required to instruct jury on meaning of "clear and convincing evidence," or to provide non-pattern instructions defining terms not defined in the Act. Chapman, J.

No. 2016 IL App (5th) 130416-B People v. Grant     Filed 9-01-16 (MGB)

Committed in 2000 under the SDP Act, Respondent filed a Recovery Petition in 2012 resulting in a Jury Determination that he remained a SDP.  Following an initial appeal wherein the Supreme Court found the Trial Court erred in appointing an "independent expert" of the State's choosing, and directed the appellate Court to resolve those issues which might recur in the new trial. On remand, the court should exclude the testimony of Sonny Warren and Heather Pearman and the video recording of the respondent's confession. In addition, the court should limit the testimony of Sheriff Faulkner and Deputy Jordan to the facts of the underlying offenses. We note that some of these matters were considered by the experts in evaluating the respondent. As discussed previously, the experts may testify about facts they relied on in reaching their 14 diagnoses, even if those facts are not themselves admitted into evidence. However, they may not be admitted as substantive evidence, as happened here. Once the court determines the issues on which jurors will be instructed, it must give the Illinois pattern jury instructions applicable to those issues unless the court determines that any of those instructions do not accurately reflect the law. Bowman, 357 Ill. App. 3d at 294. However, if there is no applicable pattern instruction, the court has the discretion to give a nonpattern instruction. We will not reverse its decision absent an abuse of that discretion. Id. ¶ 37 We find no abuse of discretion. As previously mentioned, the respondent's tendered instructions would have defined various terms that are not defined in the SDP Act. Terms that are not defined by statute are to be given their ordinary and commonly understood meanings.

8.  Criminal Law: Sentencing : Youthful Offenders:  Affirmed:  People v. Castleberry, 2015 IL 116916 did not create a new rule with respect to avoid sentences. Rather, it abolished the "void sentence rule" which stated a sentence not authorized by law is voiding can be attacked at any time. As a result, the law reverted to the previous rule that a sentence may only be challenged as void if the court lacks personal or subject matter jurisdiction. Defendant not entitled to attack alleged void sentence worthy Petition does not attack the jurisdiction of the sentencing Court.  Youthful offender's discretionary life sentence imposed for murder perpetrated at age 17 was not unconstitutional cruel and unusual punishment under the 8th Amendment of our Constitution. Sentencing complied with Miller v. Alabama, 567 U.S. ____, 132 S. Ct. 2455 (2012) in that Trial Court considered youth of the defendant, the viciousness of the crime, his disturbing history, and the many failed attempts to correct his behavior.  Knecht, J.

No. 2016 IL App (4th) 140309 People v. Stafford    Filed 9-01-16 (MGB)

Discretionary life sentence imposed on Defendant following a jury verdict in 2003 was upheld by the Appellate Court in 2006. Petitioner filed a pro se postconviction proceeding in 2013 alleging his life sentence was unconstitutional under Miller. The Trial Court dismissed the Petition at the second stage. We agree with the First District—Castleberry did not create a new rule but merely abolished one. However, we decline to adopt its conclusion. Because Castleberry did not create a new rule, its holding does apply retroactively. See Teague, 489 U.S. at 301. Due to the abolition of the void sentence rule in Castleberry, the rule pre-Arna is reinstated: a sentence can only be challenged at any time as void if the court lacked personal or subject matter jurisdiction. People v. Davis, 156 Ill. 2d 149, 156, 619 N.E.2d 750, 754 (1993). Because defendant does not challenge the trial court’s personal or subject matter jurisdiction, under Castleberry, we need not address whether his sentence is void. Under Millerand its progeny, life sentences for youthful offenders should be reserved for the rarest of juveniles whose crime show that he was permanently in critical or displayed your parable corruption, rather than unfortunate, yet transient immaturity. Although the trial court did not explicitly state defendant was one of the rarest of juvenile offenders whose crime showed a life sentence is appropriate, the court’s reasoning certainly conveys the same conclusion.

9.  Criminal Law: DUI:  Affirmed:   The brief crossing of the white fog line and touching of the gravel shoulder by Defendant's passenger side tires, provided reasonable, articulable suspicion to conduct an investigatory stop for a violation of 625 ILCS 5/11-709(a).   Lytton,  J.

No. 2016 IL App (3rd) 150813 People v. Lubienski     Filed 9-01-16 (MGB)

Defendant  Found guilty of DUI following bench trial. On appeal, he asserted He was denied effective assistance of counsel because his attorney did not file a motion to quash arrest and suppressed evidence. The only issue presented was whether there was grounds for the investigatory stop.  Defendant attempts to distinguish Hackett, stating that Hackett dealt with two deviations over the center line, which defendant did not do here. We believe that two deviations over the center line as opposed to one deviation over the fog line is a distinction without significance. Both Hackett and the instant case involve a defendant that deviated from his lane, thereby vesting the officer with grounds to effectuate an investigatory stop.

8 Appellate Cases Posted 8-26-16

1.  Insurance Law: Affirmed: he construction of an insurance policy and a determination of the rights and obligations thereunder are questions of law for the court and, thus, are appropriate subjects for disposition by way of summary judgment. In construing an insurance policy, the primary function of the court is to ascertain and enforce the intentions of the parties as expressed in the agreement. To ascertain the intent of the parties and the meaning of the words used in the insurance policy, the court must construe the policy as a whole, taking into account the type of insurance for which the parties have contracted, the risks undertaken and purchased, the subject matter that is insured, and the purposes of the entire contract. If the words in the policy are clear and unambiguous, the court will afford them their plain, ordinary meaning and will apply them as written.   Lampkin, J.

No. 2016 IL App (1st) 141171  Allstate Insurance Company v. Mack   Filed 8-26-16 (LJD)

Defendant, Vanity Mack, appeals a number of circuit court orders, which ultimately barred an underinsured motorist (UIM) claim she had initiated against plaintiff, Allstate Insurance Company. Plaintiff filed the underlying declaratory judgment in the circuit court, seeking a declaration that defendant breached the parties’ contract by refusing to provide executed HIPAA authorization forms and to submit to an oral examination under oath. The circuit court granted summary judgment in favor of plaintiff and against defendant and denied defendant’s requests for reconsideration of those decisions. On appeal, defendant contends that the rules of the American Arbitration Act (AAA) precluded her from complying with plaintiff’s discovery requests because she already had demanded arbitration proceedings.Based on the following, we affirm.

2.  Substiution of Judge: Affirmed: A motion for substitution of judge as of right must be (1) filed at the earliest practical moment before commencement of trial or hearing and (2) before the trial judge considering the motion rules upon any “substantial issue” in the case.  Reyes, J.

No. 2016 IL App (1st) 151861 Petalino v. Williams Filed 8-26-16 (LJD)

Respondent Le Dominic Williams (Williams) appeals from a plenary order of protection issued by the circuit court of Cook County pursuant to the Illinois Domestic Violence Act of 1986 (Domestic Violence Act) (750 ILCS 60/101et seq. (West 2014)) in favor of Gilda Petalino(Petalino). Williams argues that the circuit court abused its discretion when it denied his motion for substitution for judge. Williams also argues the circuit court erred in denying his motion for a continuance of the hearing to provide him the opportunity to subpoena his witnesses. For the reasons that follow, we affirm.

3.  Civil Procedure: Affirmed: It is well-settled that it is the plaintiff who“bears the burden of establishing a prima facie basis upon which jurisdiction over an out-of-state resident may be exercised ” and that burden is “minimal.” The “defendant may overcome [the] plaintiff’s prima facie case for jurisdiction by offering uncontradicted evidence that defeats jurisdiction. On appeal, we “resolve in favor of the plaintiff any conflicts in the pleadings and affidavits."  “When the circuit court decides a jurisdictional question solely on the basis of documentary evidence,” and without an evidentiary hearing, as it did in this case, our review is de novo. De novo consideration means we perform the same analysis that atrial judge would perform.  Section 2-209 of the Code of Civil Procedure (Code), “commonly referred to as the Illinois long-arm statute, governs the exercise of personal jurisdiction by an Illinois court over a nonresident defendant.” Subsection (a) of section 2 -209, which governs specific jurisdiction, lists 14 different actions by a defendant that will subject him or her to Illinois jurisdiction.  Gordon, J.

No. 2016 IL App (1st) 151909 M.M. v. GlaxoSmithKline LLC Filed 8-26-16 (LJD)

In this lawsuit, eight minor plaintiffs from six states, including Illinois, filed a products liability suit in the circuit court of Cook County against defendant GlaxoSmithKline LLC (GSK), a pharmaceutical company, and others. The suit alleges that the minor plaintiffs suffered catastrophic birth defects as a result of their mothers’ ingestion of defendant GSK’s psychiatric drug, Paxil. Defendant GSK moved to dismiss the claims of the out -of-state plaintiffs due to lack
of personal jurisdiction, arguing that the court lacked both general and specific jurisdiction. However, the trial court found that Illinois had specific personal jurisdiction over defendant GSK based on (1) defendant GSK’s substantial in-state contacts, namely its contracts with 17 Illinois physicians to run 18 to 21 clinical trials on Paxil in Illinois as part of a multicenter study and (2) the fact that plaintiffs’ claims arose from defendant GSK’s acts or omissions related to those trials. On this permissive interlocutory appeal, pursuant to Illinois Supreme Court Rule 306(a)(3), defendant GSK argues that the trial court erred in denying its motion to dismiss the out-of-state plaintiffs’ claims due to lack of personal jurisdiction. Ill. S. Ct.R. 306(a)(3) (eff. July 1, 2014) (“[a] party may petition for leave to appeal *** from an order of the circuit court denying a motion to dismiss on the grounds that defendant has done nothing which would subject defendant to the jurisdiction of the Illinois courts”). For the following reasons, we affirm.

4.  Criminal Law:Affirmed:  To determine whether a defendant was denied his or her right to effective assistance of counsel, an appellate court must apply the two-prong test set forth in Strickland v. Washington. Under Strickland, a defendant must prove both (1) that counsel"s performance was deficient and (2) that the deficient performance prejudiced the defendant. Under the first prong of the Strickland test, the defendant must prove that his counsel’s performance fell below an objective standard of reasonableness “under prevailing professional norms.”  Under the second prong, the defendant must show that, “ but for” counsel’s deficient performance, there is a reasonable probability that the result of the proceeding would have been different.  Gordon. J.

No. 2016 IL App (1st) 151913  People v. Wilkerson Filed 8-26-16 (LJD)

Following a bench trial, defendant was convicted of being an armed habitual criminal, possession with the intent to deliver 900 grams or more of heroin, and unlawful use of a weapon by a felon, but found not guilty of armed violence. Defendant was sentenced on June 24, 2015, to the minimum sentence of 15 years for possession of a controlled substance with intent to deliver, and 7 years for being an armed habitual criminal with the unlawful use of a weapon count to merge into that count. The court ordered both sentences to run concurrently. For the following reasons, we affirm defendant’s convictions and sentence

5.  Civil Law: UCC: Certified Question Answered in the Affirmative. Confession of Judgment under a note drafted under the UCC is valid where the note references a variable interest rate, yet has a definite principal sum.  Gordon J.

No. 2016 IL App (1st) 152716  Cole v. Davis  Filed 8-26-16 (MGB)

Plaintiff's confession of Judgment vacated on Motion of Defendant, and issue certified for review. The certified question is an issue of first impression. We have found that a note containing a confession of judgment clause with a fixed principal amount due and a variable interest rate is not legally insufficient under Illinois case law interpreting the statutory right to confess judgment. We have further concluded that section 3-112 of the UCC is applicable and explicitly allows for negotiable instruments, like the note in question, to contain a fixed principal and a variable interest rate.

6.  Civil Law: Personal Injury; Summary Judgment. Reversed and Remanded.   Trial Court abused its discretion in denying Plaintiff's Motion to Reconsider the Grant of Summary Judgment in favor of Defendant where an interlocutory appeal was pending regarding certain Interrogatories Defendant was direct to answer and which concerned Interrogatories that would elicit information regarding Defendant's knowledge and were relevant to the issue of  whether Defendant had a Duty to Plaintiff. Trial Court  contravened rule that  the pendency of an interlocutory appeals "restrains the trial court from entering any order which would change or modify the order on appeal or that would have the effect of interfering with the review of that order."  Gordon, J.

No. 2016 IL App (1st) 1152823  Jones v. Live Nation Entertainment, Inc.  Filed 8-26-16 (MGB)

Plaintiff sued Live Nation, the promoter of a concert at the United Center. Plaintiff was injured during a crowd surge alleged to have been initiated by the performers' entreaty that the concert attendees "come on down" resulting in a rush of attendees to the stage. The Trial Court was made aware of the Rule 23 Order (affirming the Order that Live Nation answer Interrogatories regarding other claims of injuries at promoted events) that came down shortly before it heard the Motion to Reconsider the Grant of Summary Judgment. The Trial Court found Plaintiff waived the issue by not asserting the pending Answers to Interrogatories in its Motion to Reconsider. The Appellate Court disagreed stating: " In sum, without the answers to plaintiff’s interrogatories, we cannot conclude as a matter of law that defendant Live Nation owed no duty of care to plaintiff. The answers speak directly to defendant Live Nation’s notice and knowledge of the frequency with which its performers encourage a crowd of people to leave their seats and move down toward the stage and concert attendees’ injuries that may result therefrom.

7.  Probate: Guardianship of Disabled Child: Claim of Judicial Bias:  Affirmed.  Trial Court did not abuse its discretion in awarding Guardianship of Person and Estate of Autistic Adult Child to mother rather than father. Fact that Trial Judge did not disclose he had a profoundly disabled child who had died several years prior to trial in question does not establish undisclosed judicial bias or require that the Trial Court's judgment be reversed.   Carter, J.

No. 2016 IL App (3rd) 140913  In re Estate of McHenry  Filed 8-26-16 (MGB)

Following a bench trial in which former spouses each sought guardianship of an autistic child who had recently reached the age of majority, Trial Court found for  Wife.  The Parties divorced when the child was approximated 4 years old. Reviewing an extensive record and applying the abuse of discretion standard, the Appellate Court Affirmed.  Evidence indicated Wife had been extensively involved in the child's upbringing, education and therapy. Husband was living with new Wife in Florida. Principal dispute was the level of placement and the independence the child might achieve, Father positing that Mother was limiting the child's potential. Trial Court granted Mother the power to place the child, subject to the Court's approval with notice of hearing to Father.

8. Civil: Adjudication of Liens under the Health Care Services Act: Judgment Modified: The Health Care Services Lien Act does not allow the inclusion of Medicare, Medicare Part D or Medicaid Claims in the 40% limitation on liens that must be paid out of settlement proceeds under the Act.  Moreover, attorneys fees and Court costs can not be deducted from the funds available to the lien holders under the Act on the Common Fund or  any other theory. Chapman, J.

No. 2016 IL App (5th) 140405  McKim v. Southern Illinois Hospital Services   Filed 8-24-16 (MGB)

Following the settlement of the personal injury action,the Trial Court improperly included Medicare, Medicare Part D and Medicaid claims in what it concluded was the 40% of the proceeds available to the lien holders, and in deducting attorneys fees and costs from the gross settlement before applying that percentage. The Appellate Court vacated the judgment and issued its own judgment properly calculating the amount due under the Act to the lien holders. In doing so, it determined that the hospital and ambulance service or both "health care providers" under the Act, and thus subject to limitation of one third of the proceeds, rather than 40%.  The Court noted that McVeigh v MLK Enterprises LLC, 2015 IL 118143 was controlling in determining lien holders under the Act were not subject to reimburse fees or costs of suit.

2 Appellate Cases Posted 8-23-16

1.  Criminal Law: Affirmed: In multiple Murder and Armed Robbery Case: 1) Trial Court did not err in granting  one day continuance of Trial where State disclosed revised DNA reports correcting errors in the initial report from 5 years earlier, yet reaching the same conclusion that Defendant could not be excluded. 2) Defense Counsel's failure move to exclude DNA evidence was not ineffective assistance of counsel where evidence only determined DNA did not exclude Defendant, counsel called own expert and effectively cross-examined the weakness and flaws in State's DNA evidence. 3) No Frye hearing required for testimony of State witness as to historical data re: cell tower's accessed by Defendants phone establishing the phone was in the vicinity of the crime scene at time of crime. Such evidence is not new or novel, but is widely accepted as reliable by numerous courts. 4) FBI expert properly testified that Defendant's phone moved from the general vicinity of his girlfriend's home to the general vicinity of the crime scene and back based on the cell phone tower historical data. 5) No reversible error in testimony of Detective that he compared the lottery number purchased by the assailant to the address using the Departments database of criminal histories where Court struck the reference to criminal histories following Counsel's objection. 5) State's Rebuttal argument that Defense theory was one of grand conspiracy of all of the State's witness, did not improperly shift burden, and was invited by Defense arguments attacking each State witness in turn.

No. 2016 IL App (1st) 131474 People v. Fountain  Filed 8-23-16 (MGB)

Following a jury trial, defendant Timothy Fountain was found guilty of two counts of murder and one count of armed robbery. The trial court sentenced defendant to a mandatory term of natural  life in prison for the two counts for murder concurrent with a 30-year sentence for armed robbery. Case was tried about 7 years after the date of the crime.  Dissent asserted the Trial Court should have granted a continuance of 3 weeks to allow meaningful opportunity to address new DNA Reports, particularly where Dissent felt the eyewitness and cell tower evidence much less compelling than did the Majority. It is of note that Defense Expert's Report noted the deficiencies in the original State DNA Report one year prior to trial, and that Defense Counsel only asked for a one day continuance.

2.  Premises Liability:  Affirmed:  Trial Court properly entered summary judgment for Defendant in slip and fall case where Plaintiff had no memory of how he fell and there were no other occurrence witnesses.  While Expert Affidavits identified alleged defective conditions, they merely speculated that those conditions caused Plaintiff to fall.

No. 2016 IL App (1st) 150397  Berke v. Manilow  Filed 8-23-16 (MGB)

Plaintiff Raymond Berke fell in the vestibule of an apartment building where he and his wife were staying with friends. A doorman heard but did not see Berke fall and there were no 1-15-0397 2 eyewitnesses. Raymond sustained spinal injuries rendering him quadriplegic. He has no memory of the incident. Absent any evidence of the cause of Raymond’s fall, there is no genuine issue of material fact for the trier of fact to determine.

4 Appellate Cases Posted 8-22-16

1.  Criminal Law: Reversed adn Remanded: When a charging instrument fails to state an offense, this constitutes a defect implicating due process concerns, and the defective charge may be attacked at any time.”  A defendant has a “fundamental due process right to notice of the charges brought against him” and “may not be convicted of an offense he has not been charged with committing.” This constitutional right to be adequately informed of the charged offense with sufficient specificity to form a defense “applies to the predicate felony in a count *** just as it does to a count charging the underlying felony alone.”  Cunningham, J.

No. 2016 IL App (1st) 131944  People v. Carey   Filed 8-22-16 (LJD)

Defendant,Robert Carey, was tried by a jury, found guilty of first degree felony murder while armed with a firearm, and sentenced to 25 years’ imprisonment for the murder and an additional 15 years for the firearm sentencing enhancement. Following our review of the supplemental briefing after both parties filed petitions for rehearing, we granted both parties’ petitions for rehearing and withdrew our original decision. This opinion now stands as our resolution of this matter. For the reasons that follow, we reverse defendant’s conviction and remand to the circuit court for further proceedings consistent with this opinion

2.  Criminal Law: Affirmed:  Under U.S.Supreme Court guidelines: if the legislature has clearly prescribed the temporal reach of the statute, the legislative intent must be given effect absent a constitutional prohibition. Where there is no express provision regarding the temporal reach, the court must determine whether applying the statute would have a ‘retroactive’ or ‘retrospective’ impact; that is, ‘whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.’  Where there would be no retroactive impact, as defined in Landgraf, the court may apply the statute to the parties. [Citation.] However, if applying the statute would have a retroactive impact, then the court must presume that the legislature did not intend that it be so applied.  The language of Public Act 99-69 demonstrated its temporal reach by stating, in relevant part, that “on or after the effective date,” when an individual “commits an offense” and was under the age of 18 at the time it was committed, the sentencing court must consider the additional mitigating factors listed and could decline to impose any otherwise applicable firearm sentencing enhancement.  Lampkin, J.

No. 2016 IL App (1st) 141500 People v. Wilson  Filed 8-22-16 (LJD)

Following a jury trial, defendant, Drashun Wilson, was found guilty of attempted first degree murder and aggravated battery with a firearm. The jury found that, during the attempted first degree murder, defendant personally discharged a firearm and proximately caused great bodily harm. Defendant was 17 years old at the time of the offense.

3.  Traffic Court: Affirmed in Part and Reversed in Part: Our courts have long recognized that a defendant's refusal to take a breathalyzer test is “relevant as circumstantial evidence of his consciousness of guilt.”  The admission of evidence is generally within the sound discretion of the circuit court, and we will not disturb a court’s evidentiary rulings, absent an abuse of discretion. However, to the extent that admissibility of evidence requires the interpretation of a statute and its intended scope, our review is de novo.  Evidence is considered relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  Mikva, J.

No. 2016 IL App (1st) 142360  People v. Romanowski   Filed 8-22-16 (LJD)

Following a jury trial, defendant, Weston Romanowski, was convicted of aggravated driving while under the influence of alcohol and sentenced to 18 months in prison and 1year of mandatory supervised release. In this direct appeal, Mr. Romanowski contends that his conviction should be reversed because the circuit court erroneously permitted the arresting officer to testify that Mr. Romanowski was told of the civil penalties that he would be subject to if he refused to submit to a blood-alcohol test. Mr. Romanowski also contends that the circuit court’s order requiring him to pay a public defender fee in the amount of $450 should be vacated, because no hearing was held concerning his ability to pay such a fee. For the reasons that follow, we affirm Mr. Romanowski’s conviction and sentence for aggravated driving while under the influence of alcohol and we vacate the $450 public defender fee.

4. Post Conviction Petition:   Affirmed:  Section 122-1(f) does not prohibit input from the State on a motion for leave to file a successive petition.   We have held that it was not error for the trial court to allow arguments from the State as well as the defendant in determining whether the defendant satisfied the cause and prejudice test for filing a successive petition. 

Holdridge, J., with dissent by McDade, J.

No. 2016 IL App (3rd) 140207  People v. Bailey Filed 8-22-16 (LJD)

The defendant, Dennis Bailey, appeals the trial court ’s denial of his motion for leave to file a successive postconviction petition. Because we find that (1) the trial court did not err in allowing the State to respond to the defendant’s motion for leave to file a successive postconviction petition and (2) the defendant’s motion for leave to file a successive petition failed to state a colorable claim of actual innocence, we affirm the trial court’s denial of the motion.

4 Appellate Cases Posted 8-19-16

1.  Administrative Review: Reversed:  Procedural due process claims question the constitutionality of the procedures used to deny a person of life, liberty, or property. While the core of due process is the right to notice and a meaningful opportunity to be heard, it is a flexible concept and requires those procedural protections demanded by fundamental principles of justice and the particular situation.  Laches is an equitable doctrine that precludes the assertion of a claim by a litigant whose unreasonable delay in raising that claim has prejudiced the opposing party. Two elements must exist for laches to apply: (1) lack of diligence by the party asserting the claim and (2) prejudice to the opposing party resulting from the delay.  As a general rule, the doctrine of laches is inapplicable to governmental entities absent extraordinary circumstances because laches could impair the functioning of the government, which, in turn, would adversely affect the public.  Hyman, J.

No. 2016 IL App (1st) 121709   Orsa v. Police Board of the City of Chicago   Filed 8-19-16 (LJD)

This case arises out of an assault by three off-duty Chicago police officers on a civilian. The incident, which happened over 10 years ago, took place inside a fast food restaurant and was captured on videotape. One of the officers pointed his service weapon at the head of the victim, Obed DeLeon, and shoved him against a wall. The two other officers, along with a friend, then punched and kicked DeLeon until Chicago police officers arrived and took DeLeon into custody. Because the video has no audio, what provoked the assault is in dispute. The officers contend DeLeon shouted gang slogans and threatened to kill a cop; eyewitnesses contend DeLeon made no threats. We reverse.

2.  Criminal Law: Reversed: Our review of the trial court’s ruling on defendant’s motion to quash arrest and suppress evidence presents questions of both fact and law.  The trial court’s factual findings are given great deference and will not be disturbed on review unless they are against the manifest weight of the evidence; however, the court’s ruling on the motion is a question of law which we review de novo.  At a hearing on a motion to quash and suppress evidence, the trial court is responsible for determining the credibility of the witnesses, weighing the evidence, and drawing reasonable inferences therefrom.  A person is “seized” when an officer has in some manner restrained the citizen’s liberty by physical force or show of authority.  A consensual encounter, on the other hand, does not involve coercion or detention, and, therefore, does not constitute a seizure.  Our supreme court adopted the following four factors identified as indicative of a seizure: (1) the threatening presence of several police officers, (2) an officer’s display of a weapon, (3) an officer’s physical touching of the person, and (4) the use of language or tone of voice which indicates that compliance with the officer’s request may be compelled.  Gordon, J.

No. 2016 IL App (1st) 132615   People v. Williams   Filed 8-19-16 (LJD)

Following a jury trial, defendant Ronnie Williams was convicted of possession of a controlled substance with intent to deliver and sentenced to three years’ probation. On appeal, defendant contends that the trial court erred when it denied his motion to quash arrest and suppress evidence because the police illegally seized him immediately when they arrived on the scene, despite a complete lack of reasonable suspicion that he was engaged in criminal activity. Defendant also contends that the State failed to prove him guilty beyond a reasonable doubt and that a portion of the police officer’s testimony at trial was improperly admitted.  We reverse the trial court’s ruling on that motion, thereby suppressing the recovered narcotics, and reverse defendant’s conviction.

3.  Medical Negligence: Answered Question: “The scope of review in an interlocutory appeal under Rule 308 is ordinarily limited to the question certified by the trial court, which is reviewed de novo."  Three elements must be met:“ ‘(1) the hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital; (2) where the acts of the agent create the appearance of authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence."  Burke, J.

No. 2016 IL App (1st) 141585  Yarbrough v. Northwestern Memorial Hospital  Filed 8-19-16 (LJD)

This interlocutory appeal arises from a medical negligence action that plaintiffs ChristinaYarbrough and David Goodpaster brought against Northwestern Memorial Hospital (NMH) and Northwestern Medical Faculty Foundation (NMFF), stemming from the premature birth of their daughter, Hayley Joe Goodpaster.  Following this court’s denial of NMH’s subsequent petition for leave to appeal, the Illinois Supreme Court directed us to consider the question certified by the trial court.   "Can a hospital be held vicariously liable under the doctrine of apparent agency set forth in Gilbert v. Sycamore Mun. Hosp., 156 Ill. 2d 511 (Ill. 1993), and its progeny for the acts of the employees of an unrelated, independent clinic that is not a party to the present litigation?" We answer the question in the Affirmative.

Conversion: Affirmed: A release “ ‘is the abandonment of a claim to the person against whom the claim exists. ’ ”  It is a contract and is therefore governed by contract law.  Where a contract is clear and explicit, a court must enforce it as written, and the meaning of the contract, as well as the intention of the parties, must be gathered from the document without the assistance of extrinsic aids.    Gordon, J.

No. 2016 IL App (1st) 142051 Miller v. Lawrence  Filed 8-19-16 (LJD)

The instant appeal arises from the dismissal of plaintiff James Miller’s complaint for conversion, which plaintiff filed against defendants Stanley and Shari Lawrence based on their actions after the death of defendants’ mother, for whom plaintiff had been a caregiver. The trial court dismissed the complaint with prejudice after (1) granting defendant Stanley Lawrence’s motion for summary judgment and (2) granting defendant Shari Lawrence’s combined motion to dismiss the complaint pursuant to sections 2-615 and 2-619(a)(6) of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619(a)(6) (West 2012)). Plaintiff appeals, arguing that (1) his lawsuit was not barred by the doctrine ofres judicata and (2) his lawsuit was not encompassed by a release plaintiff had previously executed. For the reasons that follow, we affirm the trial court’s judgment.


1 Supreme Court Case Posted 8-18-16

1. Domestic Relations: Appellate court judgment vacated in part and reversed in part, circuit court affirmed: In action seeking resolution of property rights claims stemming from end of unmarried same-sex cohabitants' relationship, as the court's decision in Hewitt v. Hewitt is still applicable, and prevents theories of relief predicated on implied contracts to achieve results prohibited by the abolition of common law marriage, the circuit court properly dismissed most of claimant's claims. Karmeier, J. (Theis, J., concurring in part and dissenting in part).

No. 2016 IL 118781  Blumenthal v. Brewer  Filed 8-18-16 (TJJ)

In this case we are called on to consider the continued viability and applicability of our decision in Hewitt v. Hewitt, 77 Ill. 2d 49 (1979), which held that Illinois public policy, as set forth in this State’s statutory prohibition against common-law marriage, precludes unmarried cohabitants from bringing claims against one another to enforce mutual property rights where the rights asserted are rooted in a marriage-like relationship between the parties.

1 Appellate Case Posted 8-18-16 

1. Criminal Law: Affirmed: Defendant properly proved guilty beyond a reasonable doubt of delivery of a controlled substance where evidence relating to three prior drug transactions, together with all the evidence, established that defendant was the person who utilized particular telephone to facilitate fourth transaction, even though communications in that transaction were by text message, whereas the earlier transactions were by defendant's recognized voice over typical telephone calls with undercover offiecer. Birkett, J.

No. 2016 IL App (2d) 140566  People v. Walker  Filed 8-17-16 (TJJ)

Following a jury trial in the circuit court of Kane County, defendant, Ladell Walker, was found guilty of two counts of unlawful delivery of a controlled substance within 1000 feet of a public park and two counts of unlawful delivery of a controlled  substance within 1000 feet of a school. He was sentenced to concurrent 12-year prison terms. The convictions stemmed from sales of cocaine to an undercover police officer that took place on October 9, October 12, October 23, and November 5, 2012. The  sole question raised on appeal is whether the State proved beyond a reasonable doubt that defendant was guilty of the November 5, 2012, offense. We affirm.

1 Appellate Case Posted 8-17-16

1. Criminal Law: Affirmed: Defendant properly found guilty of unlawful possession of a firearm by a felon, over claim that predicate felony of aggravated use of a weapon conviction was an improper predicate in light of Aguilar decision holding that offense unconstitutional, as recent Illinois Supreme Court decision in McFadden held that such a "conviction" was properly deemed a qualifying felony until such time, if ever, that the defendant's prior conviction was vacated. Scmidt, J.

No. 2016 IL App (3d) 120840  People v. Williams  Filed 8-17-16 (TJJ)

Defendant, Michael L. Williams, challenges his conviction for unlawful possession of a weapon by a felon (UPWF) (720 ILCS 5/24-1.1(a) (West 2010)). He argues that the State relied on a void conviction to prove the element of a prior felony conviction,  and therefore failed to prove defendant guilty beyond a reasonable doubt. We affirm.

3 Appellate Cases Posted 8-16-16

1. Domestic Relations: Affirmed: Trial court properly prohibited wife of seven months from making a claim for property and maintenance based on 13 years of pre-marital cohabitation that were allegedly "not unlike a marriage," where Illinois Supreme Court decision in Hewitt prohibits such. McBride, J.

No. 2016 IL App (1st) 151620  In re Marriage of Allen  Filed 8-16-16 (TJJ)

Keith M. Allen and Debra Durham Allen had been married for less than seven months when they cross-petitioned for dissolution of their marriage pursuant to the Illinois Marriage and Dissolution of Marriage Act. 750 ILCS 5/401 (West 2012). Shortly  before their property and maintenance dispute went to trial, Debra sought leave to amend her petition with common law claims based on 13 pre-marital years of cohabitation that were "not unlike a marriage." The trial court denied the motion and declined  the offer of proof Debra made during the trial, then dissolved the marriage and awarded property and maintenance on the basis of the brief marriage. Debra appeals the two adverse rulings. Affirmed.

2. Criminal Law: Affirmed: Trial court's comments at sentencing did not evince a mistaken belief that defendant was also eligible for an extended term sentence on second, less serious offense, nor did trial court improperly conclude that element of "great bodily harm" in aggravated battery case warranted a greater sentence where that fact was an element of the offense. Schmidt, J.

No. 2016 IL App (3d) 121014-B  People v. Arbuckle  Filed 8-16-16 (TJJ)

Defendant, Aaron M. Arbuckle, appeals his sentences for aggravated domestic battery and aggravated battery. He argues that the matter should be remanded for resentencing because the trial court committed plain error when it sentenced him while under  the misapprehension that defendant was eligible for an extended-term sentence on the aggravated battery conviction. Defendant further contends that counsel was ineffective for failing to raise that issue before the trial court. Finally, defendant argues that he  was subjected to an improper double enhancement in that the trial court considered the harm done to the victim despite the fact that “great bodily harm” was an element of the charged offense. We affirmed in a prior opinion. Subsequently, the supreme court issued a supervisory order directing us to vacate our judgment and reconsider in light of People v. Clark, 2016 IL 118845, to determine if a different result is warranted. And so we do. After reconsidering, we find that a different result is not warranted. We affirm.

3. Criminal Law: Affirmed: Police failure in residential burglary case to photograph evidence before its return to alleged owners would not have warranted trial court to bar testimony relating to the evidence, so failure of defendant's lawyer to seek to bar such testimony was not ineffective assistance of counsel. Holdridge, J.

No. 2016 IL App (3d) 150406  People v. Garman  Filed -16-16 (TJJ)

The defendant, John D. Garman, was convicted of residential burglary. He now appeals, arguing his counsel provided ineffective assistance in failing to object to testimony identifying the stolen property. The defendant believes the testimony is inadmissible  because police unlawfully returned the property to the victims. Affirmed.

5 Appellate Cases Posted 8-15-16

1. Criminal Law: Affirmed: In reviewing a sufficiency of the evidence claim, the relevant inquiry is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the defendant guilty of the essential elements of the crime beyond a reasonable doubt.  To sustain a conviction for possession of a stolen motor vehicle the State must prove beyond a reasonable doubt that (1) the defendant was in possession of a motor vehicle, (2) the vehicle was stolen, and (3) the defendant knew it was stolen. Illinois law defines, in relevant part, a motor vehicle as “[e]very vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overheard trolley wires, but not operated upon rails,except...."  Police officers may testify to information they received during the course of an investigation to explain why they arrested a defendant or took other action, and such testimony is not hearsay as it is offered to show the steps an officer took, rather than for the truth of the matterasserted.    Cunningham, J.

No. 2016 IL App (1st) 140911   People v. Frazier    Filed 8-15-16 (LJD)

Following a bench trial, defendant Terrell Frazier was convicted of possession of a stolen motor vehicle and sentenced, as a Class X offender, to 6½ years’ imprisonment. On appeal, defendant contests the sufficiency of the evidence supporting his conviction, arguing that the evidence failed to show that the motor scooter he possessed qualified as a motor vehicle, that it was stolen, and that he knew it was stolen. We affirm the judgment of the circuit court of Cook County.

2.  Domestic Violence: Affirmed: A constitutional challenge to a statute may be raised at any time and is subject to de novo review. Statutes carry a strong presumption of constitutionality and a party challenging the constitutionality of a statute has the burden of rebutting that presumption. To rebut the presumption, the challenging party must clearly establish a constitutional violation. We must construe a statute so as to uphold its constitutionality, if reasonably possible to do so.Thus, any doubt as to the construction of a statute will be resolved in favor of its validity.  It is well settled that as a common -law rule of evidence, evidence of other crimes is admissible if relevant for any purpose other than to show a defendant’s propensity to commit crimes. Such purposes include, but are not limited to show motive, intent, identity, and accident or absence of mistake.  Even if offered for a permissible purpose, such evidence will not be admitted if its prejudicial effect substantially outweighs its probative value.  We find the defendant’s argument to be without merit as it has already been squarelyrejected by our supreme court in Dabbs.  Cunningham, J.

No. 2016 IL App (1st) 143177   People v. Jenk  Filed 8-15-16 (LJD)

Following a bench trial, the circuit court of Cook County found defendant David Jenk guilty of misdemeanor domestic battery and sentenced him to one year of probation. On direct appeal, the defendant argues that: (1) the statute allowing for the admission of his prior offenses of domestic violence (725 ILCS 5/115-7.4 (West 2012)) was unconstitutional; (2) the trial court erred in admitting into evidence his prior acts of domestic violence against the victim; and (3) the trial court erred in finding the victim credible at trial. For the following reasons after allowing the defendant’s posttrial argument motion to cite additional authority and having included that authority in our analysis, we affirm.

3.  Labor Relations: Affirmed:  Standard of Review of Administrative Decisions set out and discussed.   Illinois courts have not hesitated to recognize the validity of the panel’s decision, so long as a quorum was maintained.  Birkett, J.

No. 2016 IL App (2nd) 150849   The Clerk of the Circuit Cout of Lake County v. The Illinois Labor Relations Board Filed 8-15-16 (LJD)

Petitioner, the Clerk of the Circuit Court of Lake County (Clerk), appeals the final decision and order of respondent the Illinois Labor Relations Board, State Panel (Board),certifying respondent theAmerican Federation of State, County and Municipal Employees, Council 31 (Union), as the exclusive representative of a bargaining unit composed of certain of the Clerk’s employees. On appeal, the Clerk challenges the propriety of the Board’s decision, contending that it was not properly adopted. The Clerk also argues that the Board misapprehended the pleading requirements to challenge a majority-interest petition and that the Clerk produced sufficient evidence of fraud or coercion to warrant an evidentiary hearing. We confirm the Board’s decision.

4.  Trusts: Reversed and Remanded: Our goal, in construing the Trust,  is to ascertain and effectuate the settlor’s intent, if not contrary to public policy.  We consider the entire document, giving words their plain and ordinary meaning to the extent possible.We note that our interpretation is consistent with the Restatement(Third) of Trusts § 50 cmt. d(2) (2003), which explains that provisions for using trust assets for the support and maintenance of a beneficiary do not authorize distributions in order to enlarge the beneficiary’s personal estate or to enable the making of extraordinary gifts.    Zenoff, J.

No. 2016 IL App (2nd) 150851 Gwinn v. Gwinn  Filed 8-15-16 (LJD)

Plaintiffs, Kenneth Gwinn, Jr., George Gwinn, and Robert Gwinn, filed a four-count complaint against Kenneth Gwinn, Sr. (defendant), and Maria May Fritz—their father and his wife. Plaintiffs’ action centered on distributions that defendant made as both the trustee and the primary beneficiary of the Betty M. Gwinn Trust, which his late wife (Betty) established. The trial court dismissed plaintiffs’ complaint for failure to state a claim upon which relief could be granted (735 ILCS 5/2- 615 (West 2014)). Plaintiffs appeal the dismissal only of the first two counts, directed against defendant but not Fritz. They contend that these counts stated causes of action for, respectively, breach of the trust and breach of fiduciary duty. We reverse and remand.

5.  Domestic Relations:  Affirmed: A procedural change in the law prescribes a method of enforcing rights or involves pleadings, evidence, and practice, whereas a substantive change in law establishes, creates, or defines rights. The new maintenance guidelines are substantive in nature because they alter the method for determining a maintenance award and address the rights underlying a dissolution proceeding. The new version creates a formula for calculating maintenance based on the gross income of theparties and the length of the marriage, after considering the factors of the old statute to determine whether maintenance is appropriate.     Cates, J.

No. 2016 IL App (5th) 150224    In re Marriage of Cole Filed 8-15-16 (LJD)

Donald D. Cole(Husband) sought to dissolve his marriage to Brenda J. Cole (Wife). The circuit court of Montgomery County entered judgment granting the dissolution of the parties’ marriage and awarded Wife maintenance. Husband appeals the award of maintenance. We affirm.

3 Appellate Cases Posted 8-12-16

1.  Legal Negligence: Affirmed:A motion to dismiss under section 2-619 of the Code “admits the legal sufficiency of the plaintiffs’ complaint, but asserts an affirmative defense or other matter that avoids or defeats the claim.”  When considering such a motion, a court must accept as true all well pled facts in the complaint and any reasonable inferences drawn therefrom.  The fundamental rule of statutory interpretation is to ascertain and give effect to the intent of the legislature. [Citation.] The most reliable indicator of that intent is the language of the statute itself. [Citation.] In determining the plain meaning of statutory language, a court will consider the statute in its entirety, the subject the statute addresses, and the apparent intent of the legislature in enacting the statute.  A legal malpractice action shall “be commenced within 2 years from the time the person bringing the action knew or reasonably should have known of the injury for which damages are sought.”  Second, the section includes a statute of repose providing that a legal malpractice action “ may not be commenced in any event more than 6 years after the date on which the act or omission occurred.”   Rochford, J.

No. 2016 IL App (1st 153285    Terra Foundation for American Art v. DLA Piper LLP   Filed 8-12-16 (LJD)

Plaintiffs-appellants, Terra Foundation for American Art, a not-for-profit organization, and Terra Michigan Avenue Property, LLC (collectively referred to as Terra), brought this action alleging malpractice against defendant-appellee, DLA Piper LLP (US) (DLA), a law firm, which Terra had retained in connection with the sale of real estate. The circuit court dismissed Terra’s complaint finding that it was barred as a matter of law by the applicable statute of repose. 735ILCS 5/13-214.3(c) (West 2014). We affirm the dismissal of Terra’s action.

2.. JuvenileCourt: Abuse and Neglect: Affirmed:  The admission of evidence by the trial court will not be reversed absent an abuse of discretion. A trial court abuses its discretion when its ruling is fanciful, unreasonable, or when no reasonable person would adopt the trial court’s view. In any hearing under this Act, the court may take judicial notice of prior sworn testimony or evidence admitted in prior proceedings involving the same minor if (a) the parties were either represented by counsel at such prior proceedings or the right to counsel was knowingly waived and (b) the taking of judicial notice would not result in admitting hearsay evidence at a hearing where it would otherwise be prohibited.”  Hall, J.

No. 2016 IL App (1st) 153662  In re Aniylah B.   Filed 8-12-16 (LJD)

The respondent, Latasha C. (Latasha), appeals from an order of the circuit court of Cook County finding Aniylah B.(Aniylah), a neglected minor based on an injurious environment. On appeal, Latasha contends (1) the trial court erred when it took judicial notice of the transcript and exhibits admitted at a prior proceeding for temporary custody in the adjudication proceedings and (2) the trial court’s finding that Aniylah was neglected based on an injurious environment was against the manifest weight of the evidence. Latasha does not challenge the trial court’s dispositional order in this appeal.

3.  Juvenile Justice: Affirmed: When reviewing a claim of insufficient evidence,the court must view the evidence in the light most favorable to the State and determine if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. The same standard applies in delinquency proceedings: the State must prove the essential elements of the offense alleged in the delinquency petition beyond a reasonable doubt.  We will not reverse a finding of guilt “unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. ” In a bench trial, it is the trial judge who resolves any credibility conflicts in the evidence.  A reviewing court does not retry the defendant or substitute its judgment for that of the trier of fact with regard to the credibility of witnesses or the weight to be given to each witness's testimony. The five factors set forth by the United States Supreme Court for assessing the reliability of an identification are (1) the witness’s opportunity to view the suspect during the offense, (2) the witness’s degree of attention, (3) the accuracy of any prior descriptions provided, (4) the witness’s level of certainty at the time of the identification procedure, and (5) the length of time between the crime and the identification.  Gordon, J.

No. 2016 IL App (1st) 160379  In re Aniylah B.   Filed 8-12-16 (LJD)

Following a bench trial, defendant J.J., a minor, was adjudicated delinquent of the aggravated robbery of Chitra Gulati and adjudged a ward of the court. The trial court considered the sentencing for both this offense and an unrelated armed robbery during the same sentencing hearing. After imposing five years of probation for the unrelated offense, the trial court found it unnecessary to impose an additional sentence in the case at bar.   On this direct appeal, defendant claims that the victim’s identification was too unreliable to prove his guilt beyond a reasonable doubt, where the incident lasted less than a minute, where it was dark outside, and where the victim had a gun pointed at her during the encounter. For the reasons set forth below, we affirm the trial court’s adjudication.

1 Appellate Case Posted 8-11-16

1.  Administrative Review: Affirmed:  Commission orders are deemed prima facie reasonable and the burden is on the party appealing the order to overcome that presumption. Commission orders are subject to reversal when the Commission’s findings are not supported by substantial evidence. 220 ILCS 5/10-201(e)(iv)(A) (West 2012). However, the Commission’s factual findings must be upheld unless they are contrary to the manifest weight of the evidence.  McBride, J.

No. 2016 IL App (1st 150425  Comonwealth Edison Company v. Illinois Commerce Commission  Filed 8-11-16 (LJD)

Competing definitions of the term “ formula rate structure.” Specifically, ComEd argued that the term should be defined to mean all of the schedules and appendices that it uses to calculate its revenue requirement, whereas the Commission staff argued that it should include only two specific schedules—Schedules FR A-1 and FR A-1 REC—which reflect the format and organization of major elements of ComEd’s revenue requirement. The Commission agreed with its staff, and ComEd appeals that decision, claiming that it is contrary to law, not supported by substantial evidence, contrary to the manifest weight of the evidence, and arbitrary, capricious, and unreasonable.

1 Appellate Case Posted 8-10-16

1.      Administrative Review: Reversed and Remanded: On appeal, a reviewing court must reverse the Commission’s decision if it finds that (1) the findings of the Commission are not supported by substantial evidence, (2) the Commission lacked jurisdiction to enter the order or decision, (3) the order or decision is in violation of the state or federal constitution or laws, or (4) the proceedings violated the appellant’s constitutional rights. The standard of review of the Commission’s findings of fact is deferential. Orders of the Commission are deemed prima facie reasonable, and the Commission’s findings of fact are deemed prima facie true. The Commission’s interpretation of statutory standards is also entitled to deference; however, reviewing courts are not bound by its interpretation of law. Under the Act, a public utility must obtain a certificate of public convenience and necessity from the Commission before transacting any business or constructing a high-voltage transmission line. The Commission derives its authority to supervise public utilities and issue certificates of publicconvenience and necessity solely from the statute creating it and may not, by its own interpretation, extend its jurisdiction. Definition of Public utility and Public Use Without Discrimination discussed.      Lytton, J.

No. 2016 IL App (3rd) 150099  Illinois Landowners Alliance, NFP v. Illinois Commerce Commission  Filed 8-10-16 (LJD)

Illinois Landowners Alliance (ILA), Illinois Agricultural Association also known as Illinois Farm Bureau (IAA), and Commonwealth Edison Company (Com Ed) petition this court for review of an order of the Illinois Commerce Commission (Commission) allowing Rock Island Clean Line, LLC (Rock Island) to operate as a public utility under the Public Utilities Act (Act) (220 ILCS 5/1-101et seq.(West 2012)) and granting the company a certificate of public convenience and necessity to construct, operate, and maintain a high voltage electric transmission line across several counties in Illinois. On appeal, petitioners argue that (1) the application should have been dismissed as a matter of law because Rock Island is not a public utility and (2) the Commission’s findings in favor of a certificate of public convenience and necessity (CPCN) were not supported by substantial evidence. We reverse the Commission’s order  granting the certificate and remand for further proceedings.

3 Appellate Cases Posted 8-9-16

1.  Administrative Review: Reversed:   Procedural due process claims question the constitutionality of the procedures used to deny a person of life, liberty, or property. While the core of due process is the right to notice and a meaningful opportunity to be heard, it is a flexible concept and requires those procedural protections demanded by fundamental principles of justice and the particular situation. Under well -established constitutional jurisprudence, every citizen has the right to pursue a trade, occupation, business, or profession.   Hyman, J.

No. 2016 IL App (1st) 121709  Orsa v. The Police Board of the City of Chicago  Filed 8-9-16 (LJD)

This case arises out of an assault by three off-duty Chicago police officers on a civilian. The incident, which happened over 10 years ago, took place inside a fast food restaurant and was captured on videotape.  After a hearing, the Chicago Police Board (Board) found two of the officers guilty and discharged them. The third was suspended for 18 months . On administrative review of the discharged officers’ cases, the circuit court held that the Board violated the officers’ due process rights and the charges were barred by laches, as the superintendent waited more than four years after the assault to bring the charges.  We reverse.

2.  Criminal Law" Affirmed: A defendant is entitled to a jury instruction on the provocation theory of second degree murder when the evidence supports it.  The evidentiary threshold is low—as long as the evidence provides some foundation ‘ “however tenuous,’ ” the instruction should be given. Hyman, J.

No. 2016 IL App (1st) 140604  People v. Camacho Filed 8-9-16 (LJD)

Defendant Jose Camacho was sentenced to 32 years in prison after a jury found him guilty of first degree murder. On appeal, he contends the trial court erred in refusing to provide the jury with an instruction on mitigation from first degree murder to second degree murder due to provocation. We disagree.

3.  Discovery: Affirmed: A petition under section 2-1401, which provides relief from final orders and judgments more than 30 days after their entry, must be supported by affidavit or other appropriate showing as to matters not of the record and can be filed no later than 2 years after the entry of the contested order or judgment. To obtain relief under section 2-1401, petitioner needs to set forth specific facts showing (1) the existence of a meritorious defense, (2) due diligence in presenting this defense or claim that would have precluded the judgment, and (3) due diligence in filing the section 2-1401 petition for relief. The allegations of a section 2-1401 petition must be established by a preponderance of the evidence. Hyman, J. 

No. 2016 IL App (1st) 143008  PKNM Holdings, Inc. v. James Filed 8-9-16 (LJD)

Intentionally ignoring or flouting numerous discovery orders can lead to the entry of severe sanctions, including a default judgment. Here, repeated failures to comply with discovery ultimately led the trial court to enter an order of default judgment against defendants in the amount of about $1.2 million. Not until nearly two years later did defendants seek to vacate the default judgment under section 2-1401 of the Code of Civil Procedure. That petition, however, was dismissed on the grounds defendants did not exercise due diligence in the underlying proceeding or in filing the section 2-1401 petition. We affirm.

3 Appellate Cases Posted 8-8-16

1. Securities Fraud: Affirmed: Trial court properly dismissed action by plaintiffs claiming fraud in the selling of securities where plaintiff buyers signed subscription agreement containing a "non-reliance" clause acknowledging that they relied only on written materials tendered and not on any oral representations by defendants. Harris, J.

No. 2016 IL App (1st) 150614-B  Kim v. Song  Filed 8-8-16 (TJJ)

Plaintiffs brought suit against defendants seeking to recover damages and to rescind certain stock purchase transactions, alleging that defendants made false oral representations about the stock and the corporation. The circuit court granted defendants' motion to dismiss the complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)). On April 25, 2016, this court filed an opinion affirming the trial court's judgment in part but reversing the dismissal of count  I of plaintiffs' complaint alleging common law fraud. Defendants filed a petition for rehearing, arguing that plaintiff's claim for common law fraud cannot stand in light of the nonreliance clause in the agreement. This court granted the petition and requested  supplemental briefing by the parties. In their supplemental answer, plaintiffs for the first time alleged that defendants were not in an employment or agency relationship with American Metro Bancorp, Inc. (AMB)1 A party cannot raise new issues  in a petition for rehearing. People v. McNeal, 405 Ill. App. 3d 647, 682 (2010), citing Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016). Therefore, we do not consider plaintiffs' new argument, or any material not contained in the record below, upon  rehearing. For the following reasons, we now affirm the trial court's dismissal of counts I, III and IV.

2. Arbitration/Dissolution of Dental Practice: Affirmed: Trial court properly refused to vacate arbitrator's award in matter where dentists disputed the financial implications of dissolving their agreement to practice dentistry together; one dentist's request for "return of stock" justified arbitrator's award requiring that dentist to pay the stock's value. Hoffman, J.

No. 2016 IL App (1st) 152446  Weiss v. Fischl  Filed 8-5-16 (TJJ)

Paul Fischl, D.D.S. and Fischl & Weiss Dental Associates P.C. (FWDA) appeal from an order of the circuit court confirming an arbitration award requiring them to, inter alia, pay Brad A. Weiss, D.D.S. the sum of $410,119 for his shares of stock in FWDA  and denying their application to vacate the arbitration award and from an order denying their motion for reconsideration. For the reasons which follow, we affirm.

3. Negligence/Dead-Man's Act: Affirmed: Trial court properly granted defendant's motion for summary judgment in personal injury case stemming from motor vehicle accident where defendant's death during pendency of case, in face of arguments proferred by plaintiff, Dead-Man's Act prohibited plaintiff from proferring testimony regarding what had happened and there was thus no issue of material fact and no proof of neglligence by deceased plaintiff. Jorgensen, J.

No. 2016 IL App (2d) 151043  Peacock v. Waldeck  Filed 8-8-16 (TJJ)

Plaintiff, Andice Peacock, filed a complaint in the circuit court of Du Page County against defendant, Kathleen Waldeck, seeking recovery for personal injuries that plaintiff allegedly suffered as a result of a rear-end motor vehicle collision. Defendant died  during the pendency of the lawsuit (her death was unrelated to the motor vehicle accident), and the trial court appointed Barton Waldeck to serve as her special representative. The special representative successfully moved for summary judgment,  contending that plaintiff could not establish defendant’s negligence without testimony that would be inadmissible under the Dead-Man’s Act (Act) (735 ILCS 5/8-201 (West 2014)) at trial. Plaintiff appeals from the summary judgment, arguing that the pleadings establish the existence of a question of material fact. We affirm.

2 Appellate Cases Posted 8-5-16

1. Criminal Law: Affirmed: Trial court properly permitted State to introduce statements by defendant to her husband, as marital privilege did not apply where statments related to wife's murder of child, and trial court properly prohibited proferred testimony offered as an excited utterance where person making the statement did not witness the event giving rise to the utterance. Delort, J. 

Note opinion withdrawn on 9-27-2016

No. 2016 IL App (1st) 141583  People v. Garner  Filed 8-5-16 (TJJ)

Defendant Patrice Garner was convicted of murdering her six-year-old daughter, Kierra Garner, and sentenced to 35 years’ imprisonment. In this appeal, defendant argues that she is entitled to a new trial because the trial court improperly (1) excluded  expert testimony regarding her psychological make-up, (2) permitted testimony regarding communications between her husband and her, in contravention of the Illinois spousal privilege statute, and (3) permitted another witness to testify about statements  made by her mother that incriminated her. We affirm.

2. Veterans' Assistance Commission: Affirmed in part, reversed in part, and remanded: Trial court erred in dismissing suit brought by superintendent of county Veterans' Assistance Commission based on claim that county officials had no basis to prohibit him from entering offices (and getting paid), as plaintiff had standing to maintain action, and defendants' actions were not discretionary, and trial court also erred in dismissing count seeking attorneys' fees. Cates, J.

No. 2016 IL App (5th) 150401 Lavite v. Dunstan  Filed 8-5-16 (TJJ)

This appeal is brought by Bradley A. Lavite, in his capacity as superintendent of the Veterans Assistance Commission of Madison County, Illinois, from an order dismissing his three-count complaint with prejudice. Lavite filed an action against the named  defendants for a writ of mandamus, claiming, in count I, that the defendants had no authority to keep him from entering his office located in the Madison County Administration building. In count II, Lavite requested that the Madison County Board issue  checks for his salary as superintendent of the Veterans Assistance Commission of Madison County, Illinois. Count III sought payment of the attorney fee invoices submitted for Lavite's legal representation.

3 Appellate Cases Posted 8-4-16

1.  Criminal Law: affirmed in part, vacated in part, and remanded  Plain error doctrine reviewed and discussed. Under the silent witness theory, a surveillance video may be admissible as substantive evidence in the absence of authentication by an eyewitness with personal knowledge of the content if there is adequate proof of the reliability of the process that produced the recording. Under this theory, it is not necessary for a witness to testify to the accuracy of the images depicted in the video so long as the accuracy of the process used to produce the evidence is established with an accurate foundation.A significant majority of jurisdictions that have addressed lay opinion testimony have held a lay witness may testify regarding the identity of a person depicted in a surveillance video if there is some basis for concluding the witness is more likely to correctly identify the defendant from the videotape than the jury.  Long iscussion of this issue and alos of the minority view.  Knecht, J.

No. 2016 IL App (4th) 130180-B  People v. Mister  Filed 8-4-16 (LJD)

In January 2015, we affirmed in part, vacated in part, and remanded with directions the jury's conviction and sentence. People v. Mister, 2015 IL App (4th) 130180, 27 N.E.3d 97. Defendant filed a petition for leave to appeal with the Supreme Court of Illinois. On March 30, 2016, the supreme court denied defendant ’s petition for leave to appeal but issued a supervisory order.

2.  Criminal Law: Affirmed: Voir dire questioning is essential to ensuring that the jury is impartial. A juror may be partial by harboring “ strong prejudice against street gangs.”  As a result, “when testimony regarding gang membership and gang-related activity is to be an integral part of the defendant’s trial, the defendant must be afforded an opportunity to question the prospective jurors, either directly or through questions submitted to the trial court, concerning gang bias.” "[L]imitation of voir direquestioning may constitute reversible error where such limitation denies a party a fair opportunity to probe an important area of potential bias or prejudice among prospective jurors.”   Other crimes and relevant evidence rules discussed and analyzed togethrer with ineffective assistance of counsel Steigman, J.

No. 2016 IL App (4th) 140131  People v. Daniels Filed 8-4-16 (LJD)

After a conviction by jury, Defendant appeals, raising the following issues: (1) the trial court abused its discretion by denying defendant’s motion that the court question potential jurors about their gang bias, (2) the court abused its discretion by admitting specific acts of violence that occurred between the two groups, (3) the court abused its discretion by admitting evidence that defendant was visited in jail by his codefendants, (4) counsel was ineffective for failing to move to sever the charge of unlawful possession of a weapon by a felon, and (5) the evidence was insufficient to prove that defendant personally discharged a firearm that caused great bodily harm or permanent disfigurement. We disagree and affirm.

3.  Traffic/Ineffective Counsel: Affirmed in part and Remanded: A defendant's claim of ineffective assistance of counsel is analyzed under a two-pronged test.  To prevail on such a claim, "a defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defendant."   To establish deficient performance, the defendant must show his attorney's performance fell below an objective standard of reasonableness. "A defendant establishes prejudice by showing that, but for counsel's unprofessional errors, there is a reasonable probability that the result of the proceeding would have been different."  This court recently articulated three different categories of cases in which a defendant sets forth a claim of ineffective assistance of counsel on direct appeal.  Category A cases involve direct appeals raising ineffective assistance of counsel that the appellate court should decline to address. Category B cases involve direct appeals raising ineffective assistance of counsel that the appellate court may address because they are clearly groundless.  Category C cases involve direct appeals raising ineffective assistance of counsel that an appellate court may address because trial counsel's errors were so egregious.  Turner, J.

No. 2016 IL App (4th) 140486  People v. FellersFiled 8-4-16 (LJD)

In February 2014, the trial court found defendant, Karl J. Fellers, guilty of four counts of driving under the influence (DUI) and one count of unlawful possession of cannabis.  In May 2014, the court sentenced him to 24 months' probation and 180 days in jail for the DUI convictions and 30 days in jail for the cannabis conviction.  On appeal, defendant argues he was deprived of the effective assistance of counsel at trial.We affirm in part and remand with directi

4 Appellate Cases Posted 8-3-16

1.  Criminal Law:Affirmed in part and vacated in part:The trier of fact has the responsibility to determine the credibility of witnesses and the weight given to their testimony, to resolve conflicts in the evidence, and to draw reasonable inferences from that evidence. Steigman, J.

No. 2016 IL App (4th) 140321  People v. Morger  Filed 8-3-16 (LJD)

 Following a February 2014 bench trial, the trial court convicted defendant,Conrad Allen Morger, of (1) aggravated criminal sexual abuse (720 ILCS 5/11-1.60(d) (West2010))and (2) criminal sexual abuse. The court later sentenced defendant to(1)180 days in jail, which the court stayed, and (2) probation for 48months.  Defendant appeals, arguing that the State failed to prove him guilty beyond a reasonable doubt of either charge. Alternatively, defendant argues that (1) the conditions of his probation were unreasonable, overly broad, and unrelated to his conviction or rehabilitation; and (2) the trial court erred by delegating its judicial discretion to the McLean County court services departmentto determine an appropriate sentence. For the following reasons, we affirm in part and vacate in part.

2.  Public Defender Fee:  Vacated: Before ordering a defendant to pay reimbursement for appointed counsel, the trial court must conduct a hearing into the defendant’s financial circumstances and ability to pay. Prior to the required hearing, the defendant must be given notice that he will have an opportunity to present evidence concerning his ability to pay and any other relevant circumstances.  Holder-White, J.

No. 2016 IL App (4th) 140455  People v. Aguirre-Alarcon  Filed 8-3-16 (LJD)

In August 2012, the State charged defendant, Cleofas Aguirre-Alarcon, by information with aggravated domestic battery(count I)(720ILCS 5/12-3.3(a-5) (West 2010)),domestic battery (count II) (720 ILCS 5/12-3.2(a)(2) (West 2010)), and interfering with the reporting of domestic violence(count III)(720 ILCS 5/12-3.5(a) (West 2010)). Following a grand jury indictment, a fourth count of unlawful restraint (720ILCS 5/10-3 (West 2010)) was added. In November 2013, following a bench trial, the trial court found defendant guilty of counts I through III but not guilty of count IV. In February 2014, the court sentenced defendant to 24 months probation with 180 days imprisonment. In its supplemental sentencing order, the court imposed a public-defender-reimbursement fee. Defendant appeals, arguing the trial court erred by imposing a public-defender-reimbursement fee without notice or a hearing on his ability to pay. We vacate the court’s order.

3.  Right of Posse3ssion of Decedent: Reversed and Remanded: A section 2-615 motion to dismiss [citation] challenges the legal sufficiency of a complaint based on defects apparent on its face.” On review, we consider “whether the allegations of the complaint, construed in the light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted.  Further, we must take as true all well-pleaded facts and all reasonable inferences that may be drawn from those facts. While the plaintiff is not required to set forth evidence in the complaint [citation], the plaintiff must allege facts sufficient to bring a claimwithin a legally recognized cause of action [citation], not simply conclusions.” A complaint should be dismissed under section 2- 615 only if it is clearly apparent from the pleadings that no set of facts can be proven that would entitle the plaintiff to recover.”  Harris, J.

No. 2016 IL App (4th) 150791  Cochran v. Securitas Security Services USA, Inc.  Filed 8-3-16 (LJD)

Plaintiff, Donna Cochran, brought a cause of action against defendant, Securitas Security Services USA, Inc., alleging interference with her right to possession of the remains of her deceased son, Walter Andrew Cochran (decedent). The trial court granted defendant’s motion to dismiss plaintiff’s complaint, and she appeals. We reverse and remand for further proceedings.

4.  Criminal Law: Reversed:Where the evidence “produces conflicting inferences, the trier of fact resolves the conflict.”   A question regarding the sufficiency of the evidence based on the factual findings of a jury, presents a question of fact and not law.   Knowledge and possession are factual issues, and the trier of fact’s findings on these questions will not be disturbed unless the evidence is so unbelievable, improbable, or palpably contrary to the verdict that it creates a reasonable doubt of the defendant’s guilt.”  The appropriate question is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” It is the reviewing court’s duty to examine the evidence while giving due consideration to the fact that the jury and trial court heard the witnesses.  A reviewing court will not reverse a conviction unless the evidence is so contrary to the verdict, or so unreasonable, improbable, or unsatisfactory that it justifies a reasonable doubt regarding defendant’s guilt. But if the court is of the opinion that the evidence is insufficient, reversal is required.  Mason, J.

No. 2016 IL App (1st) 140619 People v. Tates  Filed 8-3-16 (LJD)

On July 26, 2012, Terry Tates was arrested after approximately 10 officers executed asearch warrant at 505 West 62nd Street in Chicago, Illinois. Tates was jointly charged with Walter Tates(Walter),and Robert Green, who were also arrested during the execution of the warrant. At a joint jury trial with Green,Tates was convicted of possession with intent to deliver heroin, cocaine and cannabis and simple possession of less than five grams of methamphetamines. He was acquitted of an armed violence charge. The jury acquitted Green of all charges. On appeal, among other arguments, Tates contends that the State failed to meet its burden to prove guilt beyond a reasonable doubt because the evidence of Tates’ possession of the narcotics located at the premises was insufficient. We agree and, therefore, reverse.

12 Appellate Cases Posted 8-2-16

1.  Nunc Pro Tunc Orders:  Affirmed in art and Vacated in part:  The use of nunc pro tunc orders or judgments is limited to incorporating into the record something which was actually previously done by the court but inadvertently omitted by clerical error.  A nunc pro tunc order is an entry now for something previously done, made to make the record speak now for what was actually done then. Because a nunc pro tunc amendment may reflect only what the trial court actually did, it must be based on some note, memorandum, or other memorial in the court record. Pierce, J.

No. 2016 IL App (1st) 142582  People v. Jones Filed 8-2-16 (LJD)

Following a bench trial, defendant Kenneth Jones was found guilty of retail theft and sentenced to three years in prison. The only issue on appeal is whether an order exonerating defendant’ s bond nunc pro tunc was effective to credit  defendant with additional presentence custody credit pursuant to section 5-4.5-100(b) of the Unified Code of Corrections (730 ILCS5/5-4.5-100(b) (West 2012). 

2.  Human Rights Act: Affirmed and Remanded:  The word indicates defined. The plain language establishes the legislative intent—that the Act protects a person whose arrest is not an accurate signifier of their character or potential, who was arrested without probable cause or was simply in the wrong place at the wrong time.   Hyman, J.

No. 2016 IL App (1st) 143002 Murillo v. City of Chicago Filed 8-2-16 (LJD)

Plaintiff Arcadia Murillo, after about three years working as a janitor at a Chicago police station, was required to submit to a background check to keep her job. The background check revealed a 1999 arrest for a drug charge, which had  been dismissed for lack of probable cause. The City of Chicago (City), however, refused to give Murillo security clearance, and eventually she was fired. The trial court held the City violated the Act by using the fact of Murillo ’s
arrest to alter the terms of her employment. We affirm; the City did indeed use the fact of Murillo’s arrest in violation of the Act. Further, we remand to the trial court(i)to reexamine the reductions of time spent by Murillov’s attorneys on the case and give reasons for any reductions, (ii) to adjust the fee calculation in light of the attorneys’ hourly rates, and (iii) to determine additional fees (and costs) for defending this appeal and the City’s section 2-1401 (735 ILCS 5/2-1401 (West 2014)) petition.

3. Administrative Review: Reversed:This court reviews the decision of the agency, rather than that of the circuit court. Judicial review of an agency’s decision extends to all questions of law and fact presented by the record.  The standard applied on review of an agency’s decision depends upon whether the issue presented is one of fact or of law.. When reviewing purely factual findings, the agency’s findings and conclusions are deemed to be prima facie true and correct and, thus, are reviewed under a manifest weight of the evidence standard. An agency decision is clearly erroneous where the entire record leaves the reviewing court with the definite and firm conviction that a mistake has been made.  Simon, J.

No. 2016 IL App (1st) 150435  E-Z Movers, Inc. v. Rowell  Filed 8-2-16 (LJD)

Plaintiff, E-Z Movers, Inc., sought administrative review in the circuit court of Cook County of a decision by defendants, Illinois Department of Employment Security (IDES), and its Director, Jay Rowell (together, the Department). Pursuant to an audit and an administrative hearing, the Department determined that E-Z Movers failed to establish that the exemptions from“employment” contained in section 212 of the Unemployment Insurance Act (Act) (820 ILCS405/212 (West 2006) applied to the workers in question. The Department found that the workers were “employees” and not “independent contractors” and issued an assessment in the amount of $25,014.70 in unemployment insurance contributions against E-Z Movers. The Director upheld the Department’s decision. On administrative review, the circuit court reversed the Director’s decision and concluded that the drivers and helpers were “independent contractors ” and not “employees” under section 212 of the Act.  The Department appeals, contending the circuit court erred in reversing the Director’s decision. For the following reasons, we reverse the circuit court’s judgment and affirm the Director’s decision.

3.  Promissory Estoppel, Affirmed: Promissory estoppel is an affirmative cause of action in Illinois, possibly allowing recovery despite the absence of a contract. To establish a claim for promissory estoppel, the plaintiff must prove (1) defendant made an unambiguous promise to plaintiff, (2) plaintiff relied on such a promise, (3) plaintiff’s reliance was expected and foreseeable by defendant, and (4) plaintiff relied on the promise to its detriment. Hyman, J.

No. 2016 IL App (1st) 151081  Centro Medico Panamericano, Ltd v. Benefits Management Group, Inc.  Filed 8-2-16 (LJD)

Plaintiff Centro Medico Panamericano, Ltd., an Illinois corporation, owned an outpatient surgical facility( Fullerton Kimball Medical &Surgical Center) providing services for a patient referred by his physician. Centro Medico billed defendant Benefits Management Group, Inc., the third-party administrator for the patient ’s insurer, over $85,000, expecting 60% reimbursement under the patient’s insurance plan. Benefits Management paid out a little more than $6000 after reducing the total billed by“usual, customary, and reasonable” limits and deducting the patient’s copay amount.  The trial court ruled that the cause was not preempted and granted summary judgment to Benefits Management based on the promissory estoppel theory.

4.  Mandamus: Affirmed:To be deemed a “qualified retired law enforcement officer” under LEOSA, a person must meet these seven requirements.  The requirements are listed in the opinion.  For mandamus to issue, a plaintiff must establish material facts that demonstrate (1) an unequivocal right to the requested relief, (2) an unequivocal duty on the defendant to act, and (3) defendant’s unequivocal authority to comply with an order granting mandamus relief.  Mandamus cannot be used to direct a public official or body to reach a particular decision or to exercise its discretionin a particular manner, even if the judgment or discretion has been erroneously exercised.  Hyman, J.

No. 2016 IL App (1st) 151814  Foley v. Godinez Filed 8-2-16 (LJD)

The Director of the Illinois Department of Corrections refused to certify that three former Corrections officers satisfied a set of requirements necessary for them to obtain a concealed carry permit under federal law. The officers then filed a complaint for mandamus relief to compel the Director to certify. The trial court granted the Director’s summary judgment motion and denied plaintiffs’ cross motion.

5. Civil Procedure: Estoppel: Reversed and Remanded:The disclosure requirements of Rule 213 are mandatory and subject to strict compliance by the parties. To allow a party to ignore its plain language “defeats its purpose and encourages tactical gamesmanship.”  Enforcing the rule may even go so far as to reverse a jury verdict and remand for a new trial. Estoppel is a defensive action that will “prevent a party’s disavowal of previous conduct if such repudiation would not be responsive to the demands of justice and good conscience."More specifically, it “prevents the assertion of a contractual condition by a party who, through words or conduct, has fostered the impression that the condition will not be asserted as a legal defense" Hyman, J,. 

No. 2016 IL App (1st) 152036  Harwell v. Fireman's Fund Insurance Co. - Filed 8-2-16 (LJD)

Plaintiff Brian Harwell appeals from the trial court’s grant of summary judgment in favor of defendant Fireman’s Fund, Inc., which insured Kipling Development Corporation. A jury found Kipling, as general contractor, negligent in supervising the construction site where Harwell was injured. Fireman’s Fund refused to pay damages to Harwell, an employee of a subcontractor, claiming that Kipling had not complied with an endorsement to the insurance policy. Because equitable principles estop Fireman’s Fund from asserting that endorsement against Harwell, we hold that the trial court erred in granting summary judgment for Fireman’s Fund and should have granted summary judgment to Harwell.

6. Qui Tam Action: Affirmed: Trial court properly determined that defendant retailer did not knowingly avoid or conceal "use tax" owed to State of Illinois and denied qui tam relief sought by plaintiff law firm. Harris, J.

No. 2016 IL App (1st) 150526  State of Illinois ex rel. Schad, Diamond and Shedden, P.C. v. National Business Furniture, LLC  Filed 8-2-16 (TJJ)

This is a qui tam action brought on behalf of the State of Illinois by relator, the law firm Schad, Diamond & Shedden, P.C., against defendant National Business Furniture, LLC, a retailer of business  furniture and office supplies. Relator alleged that, from January 2006 through August 2014, defendant knowingly failed to collect and remit use tax on shipping charges for Internet and catalog sales it  made to Illinois residents, a so-called “reverse false claim” for which relator contended defendant was liable for treble damages and penalties under the Illinois False Claims Act (740 ILCS 175/1 et seq.  (West 2010)). Following a two-day bench trial, the circuit court entered judgment in defendant’s favor, finding relator failed to prove that defendant knowingly concealed or avoided an established duty to  pay to the State. For the reasons that follow, we affirm the judgment of the circuit court.

7. Criminal Law: Reversed: State failed to prove defendant guilty beyond a reasonable doubt of offense of reckless discharge of a firearm where evidence tended to show only that shot fired by defendant that pierced wall and travelled into neighbor's apartment was result of a negligent accident rather than a reckless act. Hyman, J.

No. 2016 IL App (1st) 152137  People v. Olivieri  Filed 8-2-16 (TJJ)

Defendant Michael Olivieri was convicted of reckless discharge of a firearm (720 ILCS 5/24-1.5(a) (West 2012)) and sentenced to 24 months’ probation. On appeal, Olivieri challenges the sufficiency of  the evidence to sustain his conviction. We reverse the conviction on the basis of insufficient evidence to support Olivieri’s guilt, beyond a reasonable doubt, of reckless discharge of a firearm.

8. Negligence/Motor Vehicle Accident: Affirmed: Trial court properly granted summary judgment to defendant truck driver in wrongful death action where evidence showed no negligence on truck driver's behalf in connection with events that led to decedent's death. Birkett, J.

No. 2016 IL App (2d) 151147  In re Estate of Case  Filed 8-2-16 (TJJ)

Plaintiff, Jamie M. Myers, as administrator of the estate and personal representative of the deceased, Barbara A. Case, appeals the judgment of the circuit court of Winnebago County granting summary  judgment in favor of defendants, Johnny Hanneman, Alan Gorzlancyk Enterprises, Inc. (Gorzlancyk), and JMB Express, LLC (JMB), on the ground that plaintiff had not presented any evidence of  Hanneman’s negligence in operating the semi-tractor and trailer combination that collided with Case’s vehicle. On appeal, plaintiff argues that there was a genuine issue of material fact as to whether  Hanneman was negligent. We affirm.

9. Mechanics' Liens/Attorneys' Fees: Affirmed in part, reversed in part, and remanded: Trial court properly determined that plaintiff subcontractors were entitled to awards in connection with mechanics' liens placed in connection with commercial construction project, but erred in determining that plaintiffs were not entitled to attorneys' fees simply because plaintiffs were not entitled to "extras" under applicable contracts. Lytton, J.

No. 2016 IL App (3d) 140946  Roy Zenere Trucking & Excavating, Inc. v. Build Tech, Inc.  Filed 8-2-16 (TJJ)

Defendant, Jefferson Reger, LLC, appeals the trial court’s finding in favor of plaintiffs, Oak Lawn Blacktop Paving Company, Inc. (Oak Lawn) and Alpine Concrete, Inc. (Alpine) for the balance of the  subcontracts underlying their mechanics liens and denying defendant’s counterclaims for constructive fraud and slander of title. Plaintiffs cross-appeal from the trial court’s denial of attorney fees. We  affirm in part, reverse in part, and remand for calculation and imposition of attorney fees.

10. Criminal Law: Affirmed: In felony case of driving on a revoked or suspended license, State was not required pursuant to Apprendi case to prove at trial the underlying reason for the revocation, and State established such at defendant's sentencing hearing so as to uphold felony conviction for driving while revoked or suspended, rather than misdemeanor. Pope, J. (Appleton, J., dissenting).

No. 2016 IL App (4th) 140090  People v. Owens  Filed 8-2-16 (TJJ)

In July 2013, a jury convicted defendant, Andre M. Owens, of driving while his driver’s license was revoked (625 ILCS 5/6-303(a) (West 2012)). In October 2013, the trial court, finding statutory  aggravating factors, sentenced defendant to 18 months’ imprisonment for a Class 4 felony (625 ILCS 5/6-303(d-2), (d-3) (West 2012)). Defendant appeals, arguing his felony conviction must be reduced to  a Class A misdemeanor because the State failed to prove the reason for his license revocation beyond a reasonable doubt at trial in violation of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). In the alternative, defendant argues the State failed to establish the reason his license was revoked at sentencing. We affirm.

11. Taxpayer Actions: Reversed and remanded: Trial court erred in dismissing action by taxpayers seeking to complain that state agency improperly promulgated a regulation allegedly granting tax credits for businesses greater than that allowed by statute, as plaintiffs had standing to maintain such action contrary to trial court conclusion. Appleton, J.

No. 2016 IL App (4th) 150522  Jenner v. The Illinois Department of Commerce and Economic Opportunity  Filed 8-2-16 (TJJ)

Plaintiffs are a group of Illinois taxpayers: Christopher Jenner, Laurel Jenner, Thomas Klingner, Adam Liebmann, Kelly Liebmann, Michelle Mathia, Kristina Rasmussen, Jeffrey Tucek, Mark  Weyermuller, and Judi Willard. They brought this action in Sangamon County circuit court for declaratory and injunctive relief against defendant, the Illinois Department of Commerce and Economic  Opportunity, alleging that defendant had promulgated a regulation allowing tax credits greater than those allowed by statute. Defendant moved for the dismissal of the complaint on the ground that  plaintiffs lacked standing (735 ILCS 5/2-619(a)(9) (West 2014)), and the trial court granted the motion, dismissing the complaint with prejudice. Plaintiffs appeal. We reverse the trial court’s judgment and  remand this case for further proceedings, because taxpayers have standing to seek an injunction against the use of public funds to administer an allegedly illegal tax regulation.

12. Libel/Tort Immunity: Reversed and remanded: Trial court erred in dismissing libel action by professor at state university against other university employees, as tort immunity statute did not bar suit, nor was plaintiff limited to bring a claim in state Court of Claims. Stewart, J.

No. 2016 IL App (5th) 150472  Carstens-Wickham v. Sedycias  Filed 8-2-16 (TJJ)

The plaintiff, Belinda Carstens-Wickham, a tenured professor at Southern Illinois University Edwardsville, brought this action in the circuit court of Madison County, seeking damages for alleged libel,  slander, and intentional infliction of emotional distress. The defendants, Joao Sedycias, a former department chair at SIUE, and Aldemaro Romero, a former dean at SIUE, moved to dismiss the plaintiff's  complaint pursuant to section 2-619 of the Code of Civil Procedure. The defendants claimed that they were State employees immune from suit in court pursuant to the State Lawsuit Immunity Act and argued that the Illinois Court of Claims had exclusive jurisdiction over the plaintiff's tort claims. The circuit court agreed and dismissed the plaintiff's complaint for lack of subject matter jurisdiction. The  plaintiff appeals. For the reasons that follow, we reverse and remand for further proceedings.

5 Appellate Cases Posted 8-1-16

1. Criminal Law: Affirmed and modified: Conviction for unlawful sale of a firearm to a felon affirmed over claim that defendant was not proved guilty beyond a reasonable doubt on State's theory of accountability in absence of proof that he knew prospective seller was a felon, in view of evidence that defendant had shared jail cell with seller previously and knew of seller's intent to plead guilty to a felony and go to prison, but extended term sentence for that offense vacated since defendant could only receive extended term sentence for most serious offense, and defendant received such for armed habitual criminal conviction. Spence, J.

No. 2016 IL App (2d) 140479  People v. White  Filed 8-1-16 (TJJ)

On appeal, defendant claims that he was not proved guilty beyond a reasonable doubt of unlawful sale of a firearm to a felon, because (a) no evidence established that he was accountable for Morales’s action of actually selling the gun, and, in the  alternative, (b) if he can be held accountable, he cannot be convicted of that offense in the absence of evidence establishing that Morales knew that Grano was a felon. Defendant also argues that, if his conviction of unlawful sale of a firearm to a felon is  proper, his eight-year sentence for that offense must be reduced, as the extended term was improper in light of the fact that he also was convicted of a Class X felony. For the reasons that follow, we determine that defendant was proved guilty beyond a  reasonable doubt of unlawful sale of a firearm to a felon, but we agree that defendant’s sentence for that offense must be reduced. Accordingly, we affirm as modified.

2. Criminal Law: Affirmed: Denial of post-conviction petition at first stage affirmed over claims by defendant, a youth minister convicted of having sex with persons under the age of 13 in the church's parsonage, that at sentencing the trial court erred in considering that the offenses took place in a "house of worship," and that the trial court's comments at sentencing evinced a "religious bias." Scmidt, J. (Wright, J., sp. concurring). Modified on denial of rehearing.

No. 2016 IL App (3d) 130881  People v. Rademacher  Filed 4-4-16 (TJJ)

Defendant, Timothy J. Rademacher, appeals the first-stage dismissal of his pro se postconviction petition. On appeal, defendant argues that his petition stated the gist of a constitutional claim. We affirm.

3. Trusts and Estates: Affirmed in part and reversed in part: Trial court properly dismissed claim by executor of estate that executor's sibling acted in violation of subsequent power of attorney, where by terms of operative powers of attorney grantor could "only" be deemed incompetent upon a judicial determination of such, or after declaration of such by a physician, but trial court erred in dismissing second claim relating to defendant's alleged breach of fiduciary duty. Holdridge, J. (Carter, J., concurring in part and dissenting in part) (Schgmidt, J., cincurring in part and dissenting in part).

No. 2016 IL App (3d) 140163  In re Estate of Shelton  Filed 8-1-16 (TJJ)

In these consolidated cases, Ruth Ann Alford, as the executor of the estates of her late parents, Thomas and Doris Shelton, sued her brother, Rodney Shelton, to recover real estate that she alleged Rodney had wrongly received from both estates and for damages resulting from Rodney's alleged violation of his legal duties as successor power of attorney for Doris. In case No. 3-14-0144, Ruth Ann, as executor of Thomas's estate, filed an amended estate citation seeking the return to Thomas's estate of a  farm that Thomas had conveyed to Rodney in December 2011. Ruth Ann alleged that the conveyance was presumptively fraudulent because it occurred while Rodney was named as the successor power of attorney under Thomas's Illinois Statutory Short  Form Power of Attorney for Property (POA), and while Doris, Thomas's primary power of attorney under the POA, was incompetent. Rodney moved to dismiss the complaint under sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735  ILCS 5/2-615, 2-619 (West 2010)). The trial court granted Rodney's motion to dismiss under section 2-619 because it found that Ruth Ann had failed to establish that Doris was incompetent at the time of the conveyance and that Rodney owed Thomas a  fiduciary duty at that time. In case No. 3-14-0685, Ruth Ann, as executor of Doris's estate, sued Rodney for damages allegedly caused by Rodney's breach of a duty to Doris as a successor power of attorney. The trial court granted Rodney's motion and found as a matter of law that, at the time of the transaction at issue, Rodney had no duty to Doris. This appeal followed. Affirmed in part and reversed in part.

4. Criminal Law: Affirmed: Trial court properly dismissed inmate's habeas corpus action claiming that guilty plea to first degree murder was based upon a defective indictment alleedly not sworn to by the grand jury, a claim made in three separate prior appeals, and rule issued against inmate to show cause why sanctions should not be imposed under SCR 375(b) for filing a frivolous appeal. Schmidt, J.

No. 2016 IL App (3d) 150824  Johnson v. Williams  Filed 8-1-16 (TJJ)

In December 1997, plaintiff, Patrick Johnson, pled guilty to first degree murder. The Kane County circuit court sentenced him to 78 years’ imprisonment. See People v. Johnson, 2015 IL App (2d) 140388-U, ¶ 2. Plaintiff challenged his conviction on direct  appeal and in multiple postconviction petitions. The Second District denied all of his claims. Plaintiff ultimately filed this habeas corpus action in the circuit court of Will County, alleging the Kane County circuit court lacked jurisdiction over him due to a  defective indictment—an issue he already argued before the Second District three times. The trial court dismissed plaintiff’s complaint. Plaintiff appeals. We affirm the trial court’s ruling and sanction the plaintiff.

5. Stalking No Contact Order Act: Affirmed: Trial court properly denied, after an evidentiary hearing, request by petitioner for no contact order based on allegations of stalking where petitioner failed to show two or more acts of stalking arising out of "bad blood" between parties stemming from actions by one in investigating claim of sexual assault of a minor. Cates, J.

No. 2016 IL App (5th) 140407  Henby v. White  Filed 8-1-16 (TJJ)

The petitioner, Kelly A. Henby, appeals the circuit court's decision to dismiss with prejudice his third amended verified petition for a stalking no contact order against the respondent, Richard White. For reasons that follow, we affirm.