Illinois Supreme and Appellate Court Case Summaries

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

 

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6 Appellate Cases Posted 11-26-13

1.  Domestic Relations/PMA: Affirmed: The terms of the PMA are clear and unambiguous. The PMA provides only that joint property would be equally divided between the parties with no mention of costs or from whose funds the purchase of the joint property originated.  The joint tenancy provision of the PMA specifically states that "[u]nless the parties agree otherwise in writing to the contrary, any *** property as to which the parties take title in joint tenancy *** shall be hereinafter referred to as 'Joint Property' and upon dissolution of marriage, "all Joint Property shall be divided equally between the parties." Any testimony regarding payments related to the Carmel property, however, referred to oral agreements allegedly made by the parties. The provision requires that any agreements made between the parties that amend the clear meaning of joint property must be in writing. Therefore, Katherine's testimony regarding any oral agreements is not relevant to the interpretation of the PMA. Harris, J.

No. 2013 IL App (1st) 120550    In re Marriage of Chez   Filed 11-26-13 (RJC)

Respondent, Ronald L. Chez, appeals the order of the circuit court entering judgment on the dissolution of his marriage to petitioner Katherine L. Chez (now known as Katherine Malkin). On appeal, Ronald contends that the trial court (1) erred in finding that the joint property provision of
the parties' premarital agreement was clear and unambiguous, where the agreement was silent on how to apportion costs when distributing joint property upon dissolution of marriage; and (2) abused its discretion in allowing Katherine to testify in contradiction to her prior judicial admissions
regarding the parties' Carmel property. For the following reasons, we affirm.

2.  Criminal Law/Post-Conviction Hearing Act: Affirmed: Defendant not only received a discretionary life sentence, but his youth was also a mitigating factor considered by the court in its sentencing determination.  In the case at bar,  there is no basis for collateral relief where a juvenile's natural life sentence was imposed as a result of the sentencing court exercising its discretion, as opposed to mandatorily sentencing defendant to natural life. Quinn, J.

No. 2013 IL App (1st) 121473   People v. Croft    Filed 11-26-13 (RJC)

Defendant Curtis Croft appeals from the second-stage dismissal of his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). He contends that the circuit court erred in dismissing his petition where his sentence of natural life without parole was imposed without consideration of the factors cited in Miller v. Alabama, 567 U.S. __, 132 S. Ct. 2455 (2012). For the reasons stated, we affirm.

3.  Declaratory Judgment/Tax objections: Reversed and remanded:  No indication that a challenge to the validity of an SSA ordinance must be brought under the provisions of the Code. The plaintiff's declaratory judgment action was proper in the instant case and the circuit court erred in dismissing his amended complaint pursuant to the tax objection procedures of the Code. Quinn, J.

No. 2013 IL App (1st) 121707   Hawkins v. Far South CDC, Inc.   Filed 11-26-13 (RJC)

The question before this court on appeal is whether a challenge to an ordinance creating a special service area (SSA) under article 27 of the Property Tax Code (Code) (35 ILCS 200/art. 27 (West 2010)) must be brought pursuant to the provisions of the Code. The circuit court in this case held that it must and dismissed plaintiff Raymond Hawkins' first amended class action complaint (amended complaint) pursuant to section 2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(5) (West 2010)) on the grounds that it was not brought within the time limits for a tax objection under the Code. On appeal, plaintiff contends that the circuit court erred in dismissing his amended complaint pursuant to the provisions of the Code where SSA 45 is "unauthorized by law." For the following reasons, we reverse and remand.

4.  Criminal Law/Habeas Corpus Act: Affirmed: In the present case, defendant makes a collateral attack on the trial judge's authority as a de facto officer which he cannot do in a habeas corpus proceeding. The trial court had subject matter jurisdiction and personal jurisdiction over the defendant; therefore, defendant's conviction and sentence are not void.  Defendant's original judgment of conviction is not void, his maximum term has not yet expired, and nothing has occurred to warrant defendant's immediate discharge. Therefore, the
trial court is without jurisdiction to grant habeas corpus relief.
Pierce, J.

No. 2013 IL App (1st) 121072    People v. Rios   Filed 11-26-13 (RJC)

Defendant Don Juan Rios appeals from the denial of his petition for habeas corpus relief.  Defendant argues that the circuit court erred in finding that it lacked jurisdiction to grant relief under the Habeas Corpus Act (Act) (735 ILCS 5/10-124 (West 2012)), where defendant asserted that his judgment of conviction was void because the judge who presided over his bench trial lacked the constitutional mandated qualifications to be a judge. Affirmed.

5.  Criminal Law: Affirmed in part, vacated in part and remanded: The characterization of the defendant's initial statement as a lie was opinion testimony. This testimony removed from the jury's consideration the veracity of the defendant's statement to the police. As this testimony was rendered by a lay witness, it was erroneously admitted.  The defendant, however, has not demonstrated that the evidence was so closely balanced that the error requires reversal.  The defendant has not shown that defense counsel's performance was deficient. Defense counsel's decision not to object to Hoyle's opinion testimony was arguably strategic. Overall, the trial court did not abuse its discretion in sentencing the defendant.  The defendant had a serious criminal history, including a prior conviction for murder, which warranted a lengthy sentence. The defendant's sentence was not excessive. Holdridge, J.

No. 2013 IL App (3d) 120205    People v. Jackson   Filed 11-26-13 (RJC)

After a jury trial, the defendant, Mark A. Jackson, was found guilty of attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2010)) and aggravated battery (720 ILCS 5/12-4(a) (West 2010)). The trial court sentenced the defendant to 60 years' imprisonment. On appeal, the defendant argues: (1) he was denied a fair trial when the State elicited opinion testimony from a lay witness; (2) he received ineffective assistance of counsel because his trial attorney did not object to the opinion testimony; (3) his sentence was excessive; and (4) the trial court miscalculated certain fines and fees and did not apply his $5-per-day credit to his fines. We affirm in part, vacate in part, and remand with instruction.

6.  Probate: Affirmed:  Charles raises a narrow question of law, that a standard of fairness that is less stringent than that applied by the trial court in determining the validity of the antenuptial agreement should be applied in this case because the agreement was triggered by the death of one of the spouses and not by the dissolution of the marriage.  Charles has forfeited his argument by not raising it in the trial court.  Even if we were to consider the merits of Charles's argument on appeal, we would still have to uphold the trial court's ruling because there is simply no support in the law for Charles's position that a different standard of fairness should be applied. Carter, J. with Holdridge, J. dissenting.

No. 2013 IL App (3d) 120565   In re Estate of Chaney  Filed 11-26-13 (RJC)

In the context of a probate proceeding, petitioner, Charles Chaney, as the executor of the estate of his late father, Laverne G. Chaney, filed a petition for miscellaneous relief, seeking, among other things, a declaration from the trial court that the antenuptial agreement entered into between Laverne and respondent, Sherry S. Chaney, was valid and binding and that it precluded Sherry from renouncing Laverne's will and taking her statutory forced share of the estate as Laverne's surviving spouse (755 ILCS 5/2-8(a) (West 2010)). After an evidentiary hearing, the trial court found that the antenuptial agreement was not fair and reasonable and that it was invalid and unenforceable and denied Charles's request for declaratory relief. Charles appeals. We affirm the trial court's ruling.

8 Supreme Court Cases Posted 11-21-13

1. Criminal Law: Appellate Court affirmed: At issue in this appeal is whether, pursuant to the crime-fraud exception to the attorney-client privilege, attorney Mark Helfand may testify regarding communications with Budimir Radojcic, a former client, at Radojcic’s criminal trial.  No trial has yet occurred.   The crime-fraud exception to the attorney-client privilege is applicable when a client seeks or obtains the services of an attorney in furtherance of criminal or fraudulent activity.  In this case, what was available to the circuit court for making its ruling was the grand jury testimony in transcript form, rather than live testimony. However, the supreme court said that the available grand jury testimony met the standard of providing a reasonable basis to suspect the perpetration, or attempted perpetration, of a crime or fraud by Radojcic and also a reasonable basis to suspect that his communications with Helfand were in furtherance of the mortgage fraud scheme. The State had thus met its evidentiary burden of overcoming the privilege, and the court found no need for Helfand to be examined in camera prior to testifying at trial. The only attorney-client communications which are subject to disclosure are those which relate to the real estate transactions identified in the indictment. Justice Theis delivered the judgment of the court, with opinion.  Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Burke concurred in the judgment and opinion.

No. 2013 IL 114197    People v. Radojcic     Filed 11-21-13 (RJC)


Budimir Radojcic, two daughters of his, his attorney Mark Helfand, and Christa Patterson, the office manager of one of his companies, were indicted by a grand jury of 52 financial crimes. In 2009, after discovery, the State indicated its intent to call Helfand as a witness in exchange for use immunity. Both Helfand and Radojcic objected, asserting the attorney-client privilege, and the circuit court struck Helfand’s name from the State’s witness list. The appellate court reversed and the Illinois Supreme Court, in this decision, affirmed the appellate court.  The scheme alleged involved the defrauding of several mortgage lenders including Wells Fargo Bank, Credit Suisse Financial Corporation, Countrywide Mortgage Corporation, and others. It was also alleged that Radojcic, at a time when he owed the Internal Revenue Service over $2 million, had fraudulently obtained rental checks exceeding $500,000 from the United States Department of Housing and Urban Development.

2. Prevailing Wage Act: Appellate Court reveresed and the circuit court affirmed: The principal issue before the court in this appeal is whether E.R.H. Enterprises, Inc. (E.R.H.), is subject to the provisions of the Prevailing Wage Act (Wage Act) (820 ILCS 130/0.01 et seq. (West 2008)) by reason of its contract with, and work performed on behalf of, the Village of Bement (Village).  The Prevailing Wage Act does not provide a definition of the term “public utility company” used in the statute’s exemption language. This absence has brought the language of the Public Utilities Act into dispute in this appeal.  In this decision, the supreme court said that E.R.H. is clearly not regulated by the Illinois Commerce Commission, but is simply an outside contractor. The appellate court erred in concluding that E.R.H. was entitled to an exemption as a public utility in circumstances in which there was no supporting evidence that it was a regulated utility. Justice Karmeier delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke, and Theis concurred in the judgment and opinion.

No. 2013 IL 115106    People v. E.R.H. Enterprises    Filed 11-21-13 (RJC)


      The Village of Bement, in Piatt County, uses a company known as E.R.H. Enterprises, Inc., to assist in fulfilling its obligation to operate and maintain the Village’s potable water facility and parts of the water delivery infrastructure. The company has a five-year contract. In 2008, the Department of Labor issued a subpoena to defendant company’s attorney seeing employment records and other documents as part of an investigation under the Prevailing Wage Act. After unsuccessful attempts to secure compliance, the Department filed a verified complaint for an adjudication of civil contempt against E.R.H., seeking enforcement of the subpoena. As a response, E.R.H. asserted that it was exempt from the Act as a public utility. Ultimately, the circuit court ruled in favor of the Department. It ordered E.R.H. to provide the requested documents after concluding that it was not an exempt public utility as it claimed, noting, among other things, that it was not regulated by the Illinois Commerce Commission. E.R.H. appealed, and the appellate court reversed, finding that E.R.H. was a public utility exempt from the Act. With this proposition, the Illinois Supreme Court did not agree, and, when the appeal was brought before it, it reversed the appellate court.  The circuit court’s ruling in favor of the Department of Labor was affirmed.

3. Jurisdiction/retail occupation taxes: Appellate Court affirmed in part and reversed in part: In this decision, the Illinois Supreme Court, court disagreed with the “Jurisdictional Questions” regulations of the Administrative Code. The court found them inconsistent with the statutes and with case law. The court said that the legislature has not adopted a single-factor test for the situs of retail activity. The supreme court’s own precedent calls for a fact-intensive inquiry to find the proper situs where there is a composite of many activities, and the legislature, by consistently employing the “business of selling” language, has effectively invoked the supreme court’s precedent in this regard. The supreme court said that the Department of Revenue has a duty to abate Hartney’s penalties and retail occupation tax liability for the relevant period because Hartney’s actions were consistent with the Department of Revenue’s regulations in effect at the time. Chief Justice Garman delivered the judgment of the court, with opinion. Justices Freeman, Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2013 IL 115130    Hartney Fuel Oil Company v. Hamer    Filed 11-21-13 (RJC)                           


This case concerns the proper situs for tax liability under retail occupation taxes arising under three Illinois statutes: the Home Rule County Retailers’ Occupation Tax Law, the Home Rule Municipal Retailers’ Occupation Tax Act, and the Regional Transportation Authority Act. Plaintiff, Hartney Fuel Oil Company, is a retailer of fuel oil with a home office in Forest View, in Cook County. During the tax period in question, January 1, 2005, to June 30, 2007, Hartney accepted purchase orders in the Village of Mark, in Putnam County, through a local business with which it contracted. No Hartney employees were involved there. By structuring its sales in this way, Hartney avoided liability for the retail occupation taxes of Cook County, the Village of Forest View, and the Regional Transportation Authority. Hartney’s interpretation of the law was that there is a bright-line test that the situs of a sale is where the seller accepts a purchase order, in this case, the Village of Mark. This position was consistent with the regulations which were published at the time. However, in this case, the Department of Revenue found the situs of the selling activity to be Forest View, a finding which would create liability for the retail occupation taxes of that village, Cook County, and the Regional Transportation Authority. Hartney paid taxes, interest and penalties of $23,111,939 under protest and sought relief in the circuit court of Putnam County. That court agreed that the bright-line test for the situs of sale is where purchase orders are accepted and found for Hartney. The appellate court affirmed.

4. Criminal Law: Appellate Court reversed and case remanded: The Illinois Supreme Court said that the appellate court had erred in analyzing the issue under the rules concerning evidence of other offenses committed by a defendant with which he had not been charged. Since the defendant had no involvement in the earlier incident, those rules do not apply here. Rather, the question is one of relevance. Evidence of a continuing gang war and a motivation for shooting at a group containing a rival gang member was admissible, and the trial court did not abuse its discretion.  Because the appellate court had reversed without addressing other issues raised by the defendant in his appeal, the cause was remanded to the appellate court so it could give consideration to those other issues.   Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Burke and Theis concurred in the judgment and opinion.

No. 2013 IL 114171   People v. Pikes     Filed 11-21-13 (RJC)


On August 21, 2006, a drive-by shooting occurred in Chicago in which Lorne Mosley was killed. At the subsequent trial arising from his murder, there was testimony that he had been in a group which included Quentez Robinson, a member of the Gangster Disciples street gang. There was also testimony that a car drove toward the group and that this defendant, Keith Pikes, and his codefendant, Lamont Donagen, were in the vehicle and began shooting at the group. Both of these last-named individuals were members of the rival Four Corner Hustlers gang. They were both charged in the murder and were tried simultaneously before separate juries in the circuit court of Cook County. Pikes, the defendant whose cause is at issue in this appeal, was convicted and received a 27-year prison term.  Evidence had been introduced at trial concerning a previous incident in which only the codefendant, Donagen, was involved. In that event, which occurred a few days earlier, Donagen had begun shooting, without success, at Robinson, who was on a scooter. A car with Gangster Disciples in it which was following the scooter then drove into Donagen.

The appellate court was of the view that other-crimes evidence had been improperly introduced and it reversed, remanding for a new trial. In this decision, the Illinois Supreme Court did not agree. It said that the appellate court had erred in analyzing the issue under the rules concerning evidence of other offenses committed by a defendant with which he had not been charged. Since the defendant had no involvement in the earlier incident, those rules do not apply here. Rather, the question is one of relevance. Evidence of a continuing gang war and a motivation for shooting at a group containing a rival gang member was admissible, and the trial court did not abuse its discretion. Because the appellate court had reversed without addressing other issues raised by the defendant in his appeal, the cause was remanded to the appellate court so it could give consideration to those other issues.

5. Mortgage Foreclosure: Appellate court reversed and the circuit court affirmed: In this residential mortgage foreclosure action, the question is whether, after a judicial sale of property, a party may seek to vacate an underlying default judgment of foreclosure under section 2-1301(e) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1301(e) (West 2010)) or whether the Illinois Mortgage Foreclosure Law (the Foreclosure Law) (735 ILCS 5/15-1101 et seq. (West 2010)) governs the mode of procedure.   The supreme court held that, after a motion to confirm a judicial sale has been filed, the foreclosure statute governs and provides the standards for a court’s exercise of discretion in dealing with a motion to vacate. At this point, it is not sufficient under the mortgage statute to merely raise a meritorious defense to the complaint. However, that is not what happened here because the motion to vacate preceded the motion to confirm. Here, the circuit court could consider the motion to vacate under civil procedure law. However, under these facts, the circuit court did not err in denying the motion, even under that more liberal standard. The defendant, who admitted her default, was properly served, and had notice of the default, the judgment of foreclosure, and the sale. What she later raised were pleading defenses asserted for the first time.Justice Theis delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, and Burke concurred in the judgment and opinion. Justice Thomas took no part in the decision.

No. 2013 IL 115469     Wells Fargo Bank, N.A., v. McCluskey     Filed 11-21-13 (RJC)


This mortgage foreclosure case comes from Du Page County and involves a residential property located in Naperville. In 2009, defendant McCluskey executed a promissory note for $330,186, on the property, with Wells Fargo Bank as the mortgage holder. Foreclosure proceedings were begun in 2010 for nonpayment, but defendant, after service, did not answer or plead. An order of default and judgment of foreclosure were entered in 2011. This appeal involves the interplay of the Mortgage Foreclosure Law and the Code of Civil Procedure when vacation of a default judgment is sought. After negotiations on a loan modification collapsed and a rescheduled sale date arrived, Wells Fargo was the successful bidder on the property for a price of $235,985.69, but, before Wells Fargo moved to confirm the sale, the defendant filed a motion to vacate the default judgment and set aside the sale under the law of civil procedure, rather than mortgage law. The circuit court denied her motion and, later, confirmed the sale.  The defendant appealed, challenging the denial of her motion to vacate. In opposition, Wells Fargo argued that mortgage law, which is more restrictive than civil procedure law, takes precedence here and limits a court’s discretion to refuse confirmation of a sale to four specific grounds. The appellate court reversed and remanded, holding that the circuit court could exercise its discretion under civil procedure law, even after a judicial sale, if the movant could present a compelling excuse for lack of diligence and a meritorious defense. Wells Fargo appealed to the Illinois Supreme Court.

The supreme court held that, after a motion to confirm a judicial sale has been filed, the foreclosure statute governs and provides the standards for a court’s exercise of discretion in dealing with a motion to vacate. At this point, it is not sufficient under the mortgage statute to merely raise a meritorious defense to the complaint. However, that is not what happened here because the motion to vacate preceded the motion to confirm. Here, the circuit court could consider the motion to vacate under civil procedure law. However, under these facts, the circuit court did not err in denying the motion, even under that more liberal standard. The defendant, who admitted her default, was properly served, and had notice of the default, the judgment of foreclosure, and the sale. What she later raised were pleading defenses asserted for the first time.  The appellate court was reversed and the circuit court was affirmed.

6. Property Tax Code/EPA/Appeals: Appellate court affirmed: The supreme court said that the time at which a taxing body such as this board of education may have a voice in how certified pollution control facilities within their borders are taxed is when value has actually been assessed by the Department of Revenue. At that time, school boards may apply for review and correction of assessments, ask for a hearing, and seek review in the circuit court. Even in such a situation, the law does not authorize direct review in the appellate court.  The supreme court also pointed out that the question of whether an item qualifies as a pollution control facility for tax purposes is a technical one between the entity seeking certification and regulatory officials. Statute makes no provision for involvement of any other parties in the certification process, and concerns arising from this arrangement are for the legislature to resolve. Justice Karmeier delivered the judgment of the court, with opinion.  Chief Justice Garman and Justices Freeman, Thomas, Kilbride, and Theis concurred in the judgment and opinion. Justice Burke took no part in the decision.

No. 2013 IL 115473   The Board of Education of Roxana Community Unit School District No. 1 v. The Pollution Control Board    Filed 11-21-13 (RJC)


In Madison County, a company known as WRB owns the Wood River Petroleum Refinery. Hoping to secure preferential tax assessments under the Property Tax Code, WRB applied to the Illinois Environmental Protection Agency to have several newly made renovations at the refinery certified as “pollution control facilities.” Ultimately, on that agency’s recommendation, the Pollution Control Board granted the requested certifications as to 28 separate facilities.  The Board of Education of Roxana Community School District No. 1 was of the view that the certifications in question would ultimately deprive it of tax revenue. The school board had sought to intervene in the proceedings on certification, raising a substantive challenge as to whether the requirements of the tax code had been met, but the Pollution Control Board denied it leave to intervene. The school board sought administrative review in the appellate court, but that court dismissed the appeal for lack of jurisdiction. The Illinois Supreme Court, in this decision, affirmed the dismissal, although reasoning differently than the appellate court.  The school board had argued that the Environmental Protection Act provided a proper basis for challenging the Pollution Control Board’s decisions through direct appeal to the appellate court. The school board claimed status as “any party adversely affected by a final order or determination” of the Pollution Control Board. However, the supreme court said that the school board had never been a party and it had been denied leave to intervene. Thus, the Environmental Protection Act did not afford the school board any basis for seeking administrative review in the appellate court. The appellate court’s judgment was affirmed.

7. Child Support: Appellate court affirmed: The central issue in this case is whether a notice of withholding that is statutorily deficient because it fails to include the required social security number of the obligor can nonetheless be deemed sufficient to impose a duty on an employer to withhold the obligor’s income. In this decision, the Illinois Supreme Court held that the requirements of the statute are mandatory.  The plaintiff’s failure to comply with the mandatory requirement of section 20(c)(9) of the Act, requiring inclusion of the obligor’s social security number, rendered the notice invalid. Plaintiff consequently could not maintain her action seeking the penalties allowed by the Act in the absence of a conforming withholding notice. Moreover, the statute in effect at the time relevant here did not place any burden on defendant to respond to the invalid notice.  Although there are recent legislative amendments in this area that were effective in August of 2012, they have no impact here.  Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2013 IL 115738    Schultz v. Performance Lighting, Inc.,    Filed 11-21-13 (RJC)


This Lake County litigation arises from an ex-wife’s failure to receive child support. The defendant is the ex-husband’s employer, a company for which he worked until May of 2010. In 2009 dissolution proceedings, he was ordered to pay $600 every two weeks. The ex-wife sought to obtain these support payments by means of the Income Withholding and Support Act. In November of 2011, she filed the instant complaint, alleging her failure to receive payments, defendant employer’s duty to withhold, and defendant’s obligation to pay a $100 per day statutory penalty for that failure to withhold. However, the notices provided to the employer had not provided the father’s social security number, as required by statute. The notices were, thus, not “regular on their face.” The circuit court dismissed the action with prejudice for lack of statutory compliance, and the appellate court affirmed.

8. Dramshop Act/Illinois Insurance Guaranty Fund: Appellate court’s reversed and the cause remanded Certified Question.  The sole issue in this appeal is whether, in a Dramshop Act case where a bar owner is defended by the Illinois Insurance Guaranty Fund,  the reduction for “other insurance” recoveries under section 546(a) of the Illinois Insurance Code applies against the jury’s verdict or against the bar owner’s maximum statutory liability. In this decision, the Illinois Supreme Court said that the Fund, now defending the claim, is legally liable only up to the maximum recovery possible under the Dramshop Act, i.e., to a maximum of $130,338.51. The setoff for insurance proceeds should be applied against that maximum liability. The availability of a jury trial is not relevant to this determination, and the amount of a jury verdict cannot expand the Fund’s obligation. The plaintiffs had theorized that, if the jury award were far in excess of the statutory cap, the setoff could first be applied to the award, and the award could then be brought down to allow them to recover the full amount of the statutory cap itself. This interpretation was rejected by the supreme court here.  Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Burke concurred in the judgment and opinion.

No. 2013 IL 115860    Rogers v. Imeri    Filed 11-21-13 (RJC)


In 2009, there was a fatal collision on a rural highway in Effingham County. A young man who was 18 years old and who was not intoxicated was killed. The other driver was a 60-year-old man who was intoxicated and who had been drinking in the named defendant’s tavern, known as Johnny’s Bar and Grill.  The decedent’s parents, the plaintiffs here, filed an action under the Dramshop Act and sought a jury trial. They had already obtained $106,550 in insurance recoveries. The Dramshop Act had a statutory cap on recovery of $130,338.51, and the defendant had insurance for that amount, but his insurer later became insolvent and was liquidated. The Illinois Insurance Guaranty Fund then assumed his defense.  The wording of the Guaranty Fund statute is at issue here. It provides that the Fund’s obligation shall be reduced by a plaintiff’s other insurance recoveries. The parties disagreed as to the proper procedure for applying this setoff, but agreed that the question should be certified to the appellate court. There, a ruling was obtained that the reduction should be applied to the jury’s verdict. The Dramshop Act provides for a jury trial.

The appellate court’s ruling on the certified question was reversed and the cause was remanded to the circuit court for further proceedings.

9.  Criminal Law: Appellate Court Reversed, Trial Court Affirmed:  Acardinal rule of statutory construction is that a court can consider thereason for the law, the problems sought to be remedied, the purposesto be achieved, and the consequences of construing the statute oneway or another.  In interpreting a statute, wepresume the legislature did not intend absurdity, inconvenience, orinjustice.  One spouse may testify for or against the other spousein criminal cases. However, section 115-16 of the Code provides thatneither “may testify as to any communication or admission made byeither of them to the other or as to any conversation between themduring marriage, except in cases in which either is charged with anoffense against the person or property of the other.”  The purpose of this privilege, derived from commonlaw, is to promote marital harmony and stability.  Burke, J.


3 Appellate Cases Posted 11-25-13

1.  Expert Witnesses: Affirmed: Here, Dr. Mowrer testified on a matter that was not within the common knowledge of laypersons – the determination of the cause and origin of a fire through the application of NFPA 921. Dr. Mowrer was a qualified expert to testify as to such a matter. The purpose of the testimony was to aid the trier of fact in coming to the conclusion of where and how the fire started. Thus, Dr. Mowrer’s testimony falls squarely within the parameters of expert testimony by aiding the jury in a matter an ordinary
citizen would be unfamiliar with.  Dr. Mowrer’s testimony did not usurp the role of the jury resulting in prejudice to Unitrin.  Cunningham, J.

No. 2013 IL App (1st) 121364   Unitrin Preferred Insurance Company v. Dobra   Filed 11-25-13 (RJC)

Plaintiff-appellant, Unitrin Preferred Insurance Company (Unitrin), appeals from a judgment entered by the circuit court of Cook County, which denied Unitrin’s motion for a new trial following a jury verdict in favor of defendant-appellee, FGD Construction (FGD). Unitrin’s action arose as
a result of a fire which damaged the home of Unitrin’s insured, the Tuluce family. The jury found that FGD’s actions in applying flooring finish to the Tuluce home was not a proximate cause of the fire and ruled in favor of FGD. At trial, the trial court admitted testimony of FGD’s expert witness who opined on the issue of the cause and origin of the fire. On appeal, Unitrin contends that: (1) the trial court erred in allowing FGD’s proffered expert witness to testify as to the cause and origin of the fire; and (2) the expert witness’s testimony usurped the role of the jury and prejudiced Unitrin. For the following reasons, we affirm the judgment of the circuit court of Cook County.


2.  Child Support: Affirmed in part and reversed in part: Shangwé is entitled to deduct the health insurance premiums he pays even though there is no additional cost for adding Aaliyah to his plan, which covers himself and his dependents. Accordingly, the trial court erred by failing to deduct Shangwé’s $485 monthly health insurance premiums to determine his monthly net income. Thus, the trial court’s finding that Shangwé’s monthly net income was $3,695 was erroneous.  The trial court  did not abuse its discretion by ordering Shangwé to
pay half of the total daycare expenses. McLaren, J.

No. 2013 IL App (2d) 120414    In re Aaliyah L.H.    Filed 11-25-13 (RJC)

Respondent, Shangwé P., appeals from the trial court’s order related to child support and daycare expenses for his daughter with petitioner, Lacisha H. On appeal, Shangwé argues that the trial court erred by: (1) failing to deduct health insurance premiums in calculating his net income;
and (2) ordering him to pay half of the total daycare expenses. We affirm in part and reverse in part, and we modify the amount of child support from $739 per month to $642 per month.


3.  Guardianship/Estates:  Affirmed in part and reversed in part and remanded:  Section 24-11(b) of the Probate Act of 1975 (Probate Act) (755 ILCS 5/24-11(b) (West 2012)) and res judicata bar plaintiffs from recovering management fees, the hourly charges for work a contractor did on a condominium in Champaign, and losses from the failure to implement an investment model. Plaintiffs are not barred, however, from recovering any losses that resulted from failing to keep Ruby Kanfer's condominiums in adequate repair.  Appleton, J.

No. 2013 IL App (4th) 121144    Kanfer v. Busey Trust Company     Filed 11-25-13 (RJC)

Plaintiffs, Lawrence Kanfer and Ruth Kanfer, are the coexecutors of Ruby Kanfer's will. She was their mother. During the final 2 1/2 years of her life, Main Street Bank and Trust Company (Main Street) and, later, its successor, Busey Trust Company (Busey), were the guardians of her estate. Plaintiffs seek to surcharge Busey for mismanaging the estate. On Busey's motion (735 ILCS 5/2-619.1 (West 2012)), the trial court struck some of the paragraphs of the second amended petition for surcharge. The court made a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010), and plaintiffs appeal.  We affirm the trial court's judgment in part and reverse it in part, and we remand this case for further proceedings.

3 Appellate Cases Posted 11-22-13

1.  Contracts/Insurance: Reversed: The instant case presents the question of whether the innocent insured doctrine protects an innocent co-insured where a material misrepresentation was made during the formation of the policy.  The stated policy of Illinois is to "favor[] coverage under an insurance policy whenever the facts justify such coverage."  Given the existing case law regarding the innocent insured doctrine, Illinois courts' overall inclination to protect the insured, and the persuasive authority from other jurisdictions,  the innocent insured doctrine preserves coverage for Terpinas under these facts. Reyes, J.

No. 2013 IL App (1st) 122660    Illinois State Bar Association Mutual Insurance Company v. Law Office of Tuzzolino and Terpinas    Filed 11-22-13 (RJC)


Defendants Will Terpinas, Jr. (Terpinas), and Antonio Colletta (Colletta) (collectively, defendants) appeal the trial court's entry of summary judgment in favor of the plaintiff, ISBA Mutual Insurance Company (plaintiff). After considering cross-motions for summary judgment, the trial court rescinded Terpinas' contract with plaintiff. Defendants argue the trial court improperly rescinded the contract because the innocent insured clause in the insurance policy and the common law innocent insured doctrine preserve Terpinas' coverage. For the following reasons, the judgment of the circuit court of Cook County is reversed.

2. PI/Tort Immunity: Reversed and remanded: After viewing this evidence in the light most favorable to plaintiff, Smith's account of his conduct does not provide sufficient detail and is susceptible to more than one interpretation as to whether he was actually executing or enforcing a law at the time of the accident. Because the interrogatories consist mostly of legal conclusions and lack sufficient facts, the dismissal was not appropriate at this stage. Since section 2-202 only applies to acts or omissions that occur while in the execution or enforcement of a law (745 ILCS 10/2-202 (West 2010), we conclude that the dismissal of plaintiff's complaint was premature at this point in the case and plaintiff should be given the opportunity for additional discovery to determine whether section 2-202 is applicable.
Therefore, we reverse the trial court's order dismissing the complaint with prejudice and reinstate plaintiff's complaint. McBride, J.

No. 2013 IL App (1st) 123653    Betts v. The City of Chicago    Filed 11-22-13 (RJC)


Plaintiff Dominique Betts appeals the trial court's order dismissing her complaint filed against defendants, the City of Chicago and Darrell Smith, alleging negligence in a car accident in which Smith, a Chicago police officer, backed into plaintiff's vehicle and caused injury to plaintiff. On appeal, Betts argues that the trial court erred in dismissing her complaint because the record does not support defendants' assertion of immunity under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 2010)) and she was denied her right to discovery and due process.

3. IL Wage Payment and Collection Act : Affirmed: Under our interpretation of the plain language of the Act, unpaid future compensation for the remainder of a terminated contract where there is a question as to whether the employee was terminated for cause does not fall under the Act's definition of "final compensation." Therefore, under the present circumstances, defendant did not violate the Act when it did not pay plaintiff the unpaid future compensation for the remainder of plaintiff's terminated contract. Plaintiff has put forth no other basis to claim defendant violated the Act and, therefore, plaintiff is not entitled to relief under the Act. McBride, J.

No. 2013 IL App (1st) 130292    Majmudar v. House of Spices (India), Inc.    Filed 11-22-13 (RJC)


This appeal arises out of a dispute between plaintiff Subhash Majmudar and defendant House of Spices (India), Inc., after plaintiff's employment with defendant was terminated approximately 15 months into a 5-year employment contract. On appeal, plaintiff’s sole contention is that the trial court erred in finding that he was not entitled to relief pursuant to the Illinois Wage Payment and Collection Act (Act) (820 ILCS 115/1 et seq. (West 2006)). We affirm.

3 Appellate Cases Posted 11-21-13

1.  Criminal Law:  Affirmed as modified.: We affirm Williams' convictions finding, first, that the trial court did not abuse its discretion by admitting testimony of Williams' prior aggravated criminal sexual assault of N.H., where Williams asserted a consent defense and the evidence was presented to show propensity, and where its probative value outweighed its prejudicial effect. We find, second, that Williams did not properly preserve his claim that he should have been allowed to present DNA evidence from the assault of N.H. to rebut the evidence of his assault on N.H. Further, we find that the trial court's denial of Williams' request to present evidence relating to another male DNA profile in N.H.'s sexual assault kit was not an abuse of discretion. This evidence was not relevant to the issue of whether N.H. consented to sexual intercourse with Williams. Finally, we modify Williams' sentence for aggravated criminal sexual assault to run consecutively rather than concurrently to the sentence for aggravated kidnaping. Hyman, J.

No. 2013 IL App (1st) 112583    People v. Williams   Filed 11-20-13 (RJC)


Williams had previously been convicted, on August 23, 1985, for aggravated criminal sexual assault and sentenced to 25 years in prison. He was paroled on February 4, 1997, and on August 3, 2000, arrested and charged with aggravated criminal sexual assault of a 16-year-old African-American girl, N.H. Later, DNA extracted from semen on oral swabs taken from N.H. matched Williams' DNA. Williams' DNA also matched evidence recovered from the aggravated criminal sexual assaults of four other women, A.M., S.R., L.J., and E.B.  On June 13, 2001, Williams was arrested and charged for the assault of E.B. The matter proceeded to jury trial. Williams asserted a consent defense and, in response, the State presented testimony regarding Williams' prior criminal sexual assault of N.H. Williams.

2.  Criminal Law:  Affirmed as modified.:  The issue is whether the error in the instructions requires outright reversal of defendant’s conviction.  Here, the grand jury indicted defendant under section 18-2(a)(2), armed robbery with a firearm. By referring to a “dangerous weapon,” the jury instructions did not reflect the substantive change in the law.  Under the current statute, armed robbery with a “dangerous weapon” no longer exists.  There exists a plethora of unpublished orders from other districts in which this same error occurred.  This  opinion is being published to alert trial judges, defense lawyers, and prosecutors that, until the committee updates the IPI instructions, the instructions must be modified to reflect the 2000 amendment to the statute. For these reasons, we find that the trial court erred in giving IPI Criminal 4th Nos. 14.05 and 14.06.  In finding that defendant was armed with a “dangerous weapon,” the jury implicitly found that defendant was armed with a firearm. The error did not  create a serious risk that the jurors incorrectly convicted defendant  because they did not understand the applicable law, so as to severely threaten the fairness of the trial.  Consequently, defendant cannot prevail under a plain-error analysis. Accordingly, the armed robbery conviction is affirmed. With respect to the fines, fees, and costs, defendant and the State agree that defendant is entitled to a $40.75 reduction. Zenoff, J.

No. 2013 IL App (2d) 120183    People v. Watt   Filed 11-21-13 (RJC)


Defendant, Tyrone D. Watt, and three codefendants were charged in an 18-count indictment with offenses arising out of events on February 24, 2010, in Waukegan, Illinois. Defendant, alone, stood trial on counts I through V of the indictment. The record indicates that the three codefendants’
cases were disposed of separately. Defendant appeals from the February 3, 2012, judgment order showing that he was convicted of armed robbery (720 ILCS 5/18-2(a)(2) (West 2010)), aggravated kidnapping (720 ILCS 5/10-1(a)(1) (West 2010)), and home invasion (720 ILCS 5/12-11(a)(2) (West 2010)). For the reasons that follow, we affirm as modified.

3.  Criminal Law/Hearsay:  Affirmed as modified.:  In this case, the parties dispute whether the statements made by MeLisa, the murder victim, qualify as testimonial. This case calls for a determination as to whether the statements admitted against defendant were testimonial. Applying the test set out in People v. Stechly, 225 Ill. 2d 246 (2007),  the hearsay statements at issue were not testimonial.  The trial court did not err by admitting the statements against Cleary, and we reject his argument that section 115-10.2a was unconstitutional as applied. Accordingly, the  confrontation clause does not bar their admission against defendant. McDade, J.  with special concurrence by Schmidt, J.

No. 2013 IL App (3d) 110610    People v. Clearly    Filed 11-21-13 (RJC)


Following a jury trial, defendant Daniel Cleary was convicted of murdering his wife and sentenced to 60 years' imprisonment. During the trial, the State admitted hearsay statements made by the victim pursuant to section 115-10.2a of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10.2a (West 2010)). In these statements, the victim told her friends and family that defendant had stated he would kill her if she tried to end their marriage and that she wanted to leave defendant but was afraid to do so. On appeal, defendant contends that pursuant to Crawford v. Washington, 541 U.S. 36 (2004), admitting these statements violated his rights under the confrontation clause of the sixth amendment to the United States Constitution. He argues that section 115-10.2a was unconstitutional as applied to him because it allowed testimonial hearsay statements to be admitted against him when he had no prior opportunity to cross-examine the declarent. 

5 Appellate Cases Posted 11-20-13

1.  Professional Malpractice: Affirmed as modified.:  Expert witness did not render an opinion that was a misstatement of the law and the trial court did not err in allowing his testimony.  The record supports the jury's finding of fact that the plaintiffs would have realized damages from the LeFevours, in whole or in part, but for defendants' negligence, thereby satisfying the solvency component of the damage element in a legal malpractice action. The trial court properly denied defendants posttrial motion for judgment notwithstanding the verdict, but reduce the award by $24.66 to represent the actual amount of damages sustained by the plaintiffs. Pierce, J.

No. 2013 IL App (1st) 122067    Brannen v. Seifert    Filed 11-19-13 (RJC)


Plaintiffs, Adriana Brannen, the sole beneficiary of Standard Bank and Trust, trust No. 3265, and Standard Bank and Trust brought a legal malpractice action against the defendants, Joerg Seifert, Brannen's former attorney, and his law firms, Joerg Seifert, Ltd., P.C., and Joerg Seifert Law Offices, P.C., alleging professional negligence. In March 2012, a jury found in favor of plaintiffs, awarding damages in the amount of $199,500.

2.  Post Conviction Petition: Reversed and Remanded: Discussion of the difference in opinions between different Districts of the Appellate Court and different panels of the Scond District regarding whther the trial court has the authority to dismiss a post conviction petition if it is only accompanied by a Section 1-109 Certification reather than a n affidavit sworn before a notary public.  The Soupreme Court has not deicided the issue as between Districts ( see discussion in the opinion).  A etition may not be summarily dismissed only in part, not “every allegation in a petition must have evidentiary support.” McLaren, J., dissent by Schostok, J.

No. 2013 IL App (2nd) 122746 People v. House  Filed 11-20-13 (LJD)


Defendant, Christopher House, appeals the trial court’s summary dismissal of his petition filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). Applying People v. Carr, 407 Ill. App. 3d 513, 515-16 (2011), the trial court dismissed the petition because it was not verified by a notarized affidavit. The court made no determinations on the merits. We reverse and remand to the trial court for second-stage proceedings.

3.  Criminal Procedure/Traffic Court: Reversed and Remanded: [ S]tare decisis requires courts to follow the decisions of higher courts, but does not bind courts to follow decisions of equal or inferior courts.” ’  Thus, the opinion of one district, division, or panel of the appellate court is not binding on other districts, divisions, or panels.   Court discussses the revocation statute and ultimately rejects the defendants argument that since his license was revoked he can not be charged with a violation of driving while license was statutorily summarily suspended because of a failure to comply with the implied consent law.   Although amendatory acts are ordinarily presumed to change the law, “that presumption is overcome where the nature of [the] amendment suggests that its drafters intended to interpret or clarify the original statute.”    Birkett, J.

No. 2013 IL App (2nd) 121164  People v. Smith   Filed 11-20-13 (LJD)


Defendant, George Smith, was charged by indictment with, inter alia, driving while his license was suspended (DWLS) (625 ILCS 5/6-303(a) (West 2012)). That offense was charged as a Class 2 felony pursuant to section 6-303(d-5) of the Illinois Vehicle Code (Code) (625 ILCS 5/6-303(d-5) (West 2012)). The State appeals from an order of the circuit court of Kane County modifying the indictment by reducing the charge to a misdemeanor. We reverse and remand.

4.  Juvenile Court: Remanded:  A parent’s right to raise his or her biological child is a fundamental liberty interest, and the involuntary termination of such right is a drastic measure. Accordingly, the Juvenile Court Act of 1987 (Juvenile Court Act) provides a two-stage process for involuntary termination of parental rights. 705 ILCS405/2-29(2) (West 2012). Initially, the State must prove that the parent is unfit. 705 ILCS 405/2-29(2), (4) (West 2012); 750 ILCS 50/1(D) (West 2012). If the court finds the parent unfit, the State must then show that termination of parental rights would serve the child’s best interests. A trial court’s determination of a parent’s unfitness will not be reversed unless it is contrary to the manifest weight of the evidence.  The trial court failed to set forth any factual basis for its decision. Given these circumstances, we are unable to determine whether the trial court’s finding that respondent is unfit is against the manifest weight of the evidence. Accordingly, we arecompelled to remand this cause for further proceedings. As we did in In re Abel C., 2013 IL App(2d) 130263, ¶ 22, we retain jurisdiction over this appeal and enter a limited remand, strictly for the entry of the express factual basis supporting the trial court’s finding of unfitness, not for the taking of evidence or for additional argument. Hudson, J.

No. 2013 IL App (2nd) 130558  In re B'Yata I.  Filed 11-20--13 (LJD)


In May 2013, the circuit court of Winnebago County found respondent, Kenyatta B., to be an unfit parent with respect to her minor daughter, B’yata I., on three separate grounds. The court later concluded that the termination of respondent’s parental rights was in B’yata’s best interests. On appeal, respondent challenges the findings of the trial court with respect to both unfitness and best interests. For the reasons set forth below, we remand this cause for further proceedings.

5.  Negligence: Affirmed: In a common-law negligence action, a plaintiff injured by an animal cannot recover unless the animal had a dangerous disposition and the owner knows of the dangerous disposition.  Ordinarily, if a party fails to plead an affirmative defense, the defense is waived and cannot be considered even if the evidence suggests the existence of the defense.  An argument not raised by the appellant in the trial court and presented for the first time on appeal is generally considered waived.  Primary implied assumption of risk is an affirmative defense that arises where the plaintiff's conduct indicates that he "has implicitly consented to encounter an inherent and known risk, thereby excusing another from a legal duty which would otherwise exist."  If the doctrine applies, primary assumption of the risk operates as a complete defense to a negligence action because the defendant is said not to owe any duty to the plaintiff.   McDade, J.

No. 2013 IL App (3rd) 120518    Edwards v. Lombardi    Filed 11-20--13 (LJD)


Plaintiff Justin Edwards was attacked by a llama owned by defendants James and Colleen Lombardi while cleaning the Lombardis' barn. Subsequently Edwards filed a complaint against the Lombardis alleging both ordinary negligence and a violation of the Animal Control Act (510 ILCS 5/16 (West 2008)). The trial court granted summary judgment in favor of the Lombardis on both counts, concluding that Edwards assumed the risk of being attacked. Edwards appeals from the trial court's grant of summary judgment on the negligence count only.  We affirm because primary assumption of the risk bars Edwards from recovering.

5 Appellate Cases Posted 11-19-13

1.  Legal Negligence/Contribution: Affirmed:  To go forward on an accounting malpractice contribution claim, Sumner must first establish the existence of an accountant-client relationship that gave rise to a duty of care on the part of the accountant.  The question of whether a duty existed between plaintiff and any of the accounting firms, or Sumner and any of the accounting firms for the benefit of plaintiff, is one of law that the circuit court should have answered in the first instance.  The well-known discovery rule is incorporated into section 13-214.2(a) of the Code "which delays commencement of the statute of limitations until the plaintiff knows or reasonably should have known of the injury and that it may have been wrongfully caused."  A contribution action can proceed only if the plaintiff could have timely proceeded against the third-party defendants directly when plaintiff filed his underlying complaint.  Quinn, J.

No. 2013 IL App (1st) 122802  Kadlec v. Sumner Filed 11-19-13 (LJD)


The plaintiffs filed a legal malpractice action against the estate’s attorney, Sara E. Sumner (Sumner), alleging the attorney failed to timely file the estate's federal and state estate tax returns which caused damage to the estate. The attorney for the estate then filed a third-party complaint against certain accountants for contribution alleging accounting malpractice. All accountants denied being retained for the purpose of preparing the estate tax returns for the estate. All accountants moved to dismiss the attorney's third-party contribution claim against them on statute of limitations  rounds. The circuit court held that the attorney's thirdparty claim was time-barred by the two-year statute of limitations governing claims for accountant malpractice. 735 ILCS 5/13-214(a) West 2012). Additionally, the circuit court held that because the plaintiff in the underlying legal  alpractice action could not have timely filed an accounting malpractice action directly against these accountants at the time his legal malpractice action was filed against the attorney, the statute of limitations for contribution actions, (735 ILCS 5/13-204(c) (West 2012)), did not apply. For the following reasons, we affirm the circuit court ruling.

2.  Appellate Procedure: Rule to show cause dismissed:  Our supreme court stated "Judges are not exempt from just criticism, and whenever there is proper ground for serious complaint against a judge it is the right and duty of a lawyer to submit his grievances to the proper authorities, but the public interest and the administration of the law demand that the courts should have the confidence and respect of the people. Unjust criticism, insulting language and offensive conduct toward the judges, personally, by attorneys, who are officers of the court, which tend to bring the courts and the law into disrepute and to destroy public confidence in their integrity, cannot be permitted."   Pierce, J.

No. 2013 IL App (1st) 121201  Talamine v. Apartment Finders, Inc.    Filed 11-19-13 (LJD)


Two intemperate submissions filed in this court caused us to issue an order to show cause why sanctions should not be imposed on the attorney who prepared and filed them. The timely filed response contained an apology to the court; however, the response indicates a lack of appreciation of the harm inflicted on the judicial system by incivility and unprofessional conduct. We review what occurred as a reminder to all attorneys and litigants of the necessity of civility and professionalism in all aspects of litigation, including appellate advocacy.

3.  Legal Negligence: Affirmed:  The trial court's decision to allow an amendment to the pleadings lies within the discretion of the trial court and the decision will not be overturned absent an abuse of discretion.  The failure to present expert testimony in a legal malpractice action is usually fatal to the claims.  Expert testimony is admissible if the expert is qualified by knowledge, skill, experience, training, or education, and the testimony would assist the jury in understanding the evidence.   A witness may be qualified as an expert once it is shown that he or she possesses special knowledge beyond that of an average person on a factual matter relevant to the litigation.    Pierce, J.

No. 2013 IL App (1st) 122067  Brannen v. Seifert   Filed 11-19-13 (LJD)


Plaintiffs, Adriana Brannen, the sole beneficiary of Standard Bank and Trust, trust No. 3265, and Standard Bank and Trust brought a legal malpractice action against the defendants, Joerg Seifert, Brannen's former attorney, and his law firms, Joerg Seifert, Ltd., P.C., and Joerg Seifert Law Offices, P.C., alleging professional negligence in: (a) failing to advise Brannen as to the ramifications of each available remedy under the articles of agreement for deed entered into with a third party and (b) electing to forfeit the agreement without her consent. In March 2012, a jury found in favor of plaintiffs, awarding damages in the amount of $199,500.  We affirm.

4.  Criminal Law: Revered and Remanded :  A reviewing court faced with a challenge to the sufficiency of the evidence must view the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found the elements of the crime proven beyond a reasonable doubt. Determinations of witness credibility, the weight to be given testimony, and the reasonable inferences to be drawn from the evidence are responsibilities of the trier of fact, not the reviewing court.  Thus, the Collins standard of review gives " 'full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.' " Failure to properly voir dire the panel discussed and analyzed together with the plain error rule.    Carter, J, concurred in par and disseted in by Wright, J.

No. 2013 IL App (3rd) 110833 People v. Belknap   Filed 11-19-13 (LJD)


After his convictions for first degree murder and a related offense were reversed by this court and remanded for a new trial, defendant, Daniel Belknap, was found guilty again by a jury of first degree murder and was sentenced to 24 years' imprisonment. Defendant appeals his conviction, arguing that: (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt of first degree murder; (2) he was denied a fair trial because of the trial court's failure to strictly comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) in admonishing the potential jurors  uring voir dire; and (3) he was denied a fair trial because of certain improper remarks made by the prosecutor in opening statement and in closing argument. For the reasons that follow, we agree with defendant's second argument and, therefore, we reverse defendant's conviction and remand this case for a new trial.

5.  Post Conviction Petition: Reversed and Remanded:  A defendant may proceed under the Act by alleging that "in the proceedings which resulted in his or her conviction[,] there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both." "In noncapital cases, the Act establishes a three-stage process for adjudicating a postconviction petition."  To withstand dismissal at the first stage, the petition need only state the gist of a constitutional claim for relief and have an arguable basis in law  or in fact.  Here, defendant has raised the gist of a constitutional claim. His attorney allowed the trial judge's husband to be seated as a juror at a time he still possessed peremptory challenges. Other courts have found a violation of a defendant's constitutional right to a fair trial where a spouse or other close relative of the presiding trial judge serves as a juror in the case, regardless of whether peremptory challenges existed or not.  Pope, J., Steigmann, J., dissents

No. 2013 IL App (4th) 120860  People v. Bowens   Filed 11-19-13 (LJD)


In May 2012, defendant pro se filed a postconviction petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 through 122-7 (West 2012)), following his conviction and subsequent appeal, which affirmed the trial court, alleging ineffective assistance of trial counsel because his lawyer failed to use a peremptory challenge to excuse the prospective juror who was the trial judge's husband. In August 2012, the trial court dismissed defendant's petition, concluding it was frivolous and patently without merit.  Defendant appeals. We reverse and remand with directions.

2 Appellate Cases Posted 11-18-13

1.  Workers Compensation: Appeal Dismissed:  This requirement of Section 19(f)2) that an Appeal bond must be files is jurisdictional.  Section 19(f)(2) expressly exempts certain local government entities from the appeal bond requirement. Specifically, it provides that "[e]very county, city, town, township, incorporated village, school district, body politic or municipal corporation against whom the Commission shall have rendered an award for the payment of money shall not be required to file a bond[.]"  However, it does not exempt the Treasurer acting as ex officio custodian of the Fund.  Holdridge, J.

No. 2013 IL App (1st) 120549WC Illinois State Treasurer v. The Illinois Workers' Compensation Commission  Filed 11-18-13 (LJD)

The Treasurer, as ex officio custodian of the Injured Workers' Benefit Fund,, sought judicial review on behalf of the employer  of the Commission's decision in the circuit court of Cook County, which confirmed the Commission's decision. This appeal followed. On January 7, 2013, we issued an unpublished order reversing the Commission's award of benefits. The claimant filed a timely petition for rehearing arguing, for the first time, that we lack jurisdiction to decide this appeal. We ordered the parties to brief the jurisdictional issues raised by the claimant. We hold that, because the Treasurer did not file an appeal bond as required by section 19(f)(2) of the Act (820 ILCS 305/19(f)(2) (West 2012)), we lack jurisdiction to decide the Treasurer's appeal. We therefore withdraw our prior order and dismiss the appeal for lack of jurisdiction.

2.  Tort Liability: Affirmed: To succeed in an action for negligence, the plaintiff must establish that: (1) the defendant owed the plaintiff a duty; (2) the defendant breached that duty; and (3) the breach proximately caused injury to the plaintiff.  Whether a duty exits under a particular set of circumstances is a question of law for the court to decide. If a duty does not exist, the plaintiff cannot recover as a matter of law. Id. While the existence of a duty is a question of law, the issues of whether the defendant breached that duty and whether the breach proximately caused the plaintiff’s injury are factual matters for the trier of fact to decide, provided there is a genuine issue of material fact regarding those issues.  In determining whether a duty exists, courts look to four factors: (1) the reasonable foreseeability of injury; (2) the likelihood of injury; (3) the magnitude of the burden of guarding against injury; and (4) the consequences of placing that burden on the defendant.   These four factors encompass the “relationship” between the plaintiff and the defendant, and the court must determine whether the plaintiff and the defendant stood in such a relationship that the law imposed upon the defendant an obligation of reasonable conduct for the plaintiff’s benefit. Id. “The determination of such a ‘relationship,’ as sufficient to establish a duty of care,  requires considerations of policy inherent in the consideration of these four factors and the weight accorded each of these factors in any given analysis depends on the circumstances of the case at hand.”   Certain special relationships, including the relationship between a business invitor and invitee, can give rise to an affirmative duty to protect another against an unreasonable risk of physical harm.  Spence, J.

No. 2013 IL App (2nd) 130270    Hougan v. Ulta Salon Cosmetics and Fragrance, Inc.  Filed 11-18-13 (LJD)


This case arises from injuries sustained by Susan Hougan when she was standing on the sidewalk outside a storefront owned by Fridh Corporation (Fridh) and leased to Ulta Salon, Cosmetics & Fragrance, Inc. (Ulta1). Joseph Biddle drove into a parking space facing the store but then accidentally pressed the accelerator rather than the brake, causing the car to jump the curb and injure two pedestrians, including Susan. Plaintiffs, Susan and her husband, Thomas Hougan, brought suit against defendants, Ulta, Fridh, and Joseph. The trial court granted Ulta’s motion for summary judgment, reasoning that any duty to protect Susan from the risk of being struck by an out of control vehicle when she was standing on a common area owned, maintained, and exclusively controlled by Fridh did not extend to Ulta. The trial court further entered a finding under Illinois
Supreme Court Rule 304(a) (eff. Feb. 26, 2010), allowing plaintiffs to appeal its ruling. We affirm.

2 Supreme Court Cases Posted 11-15-13

1. Criminal Law: Appellate Court reversed: Statements between a husband and wife covered by the marital communication privilege are only those statements "prompted by the affection, confidence, and loyalty engendered by such relationship," and husband's statements to wife threatening to kill wife and her paramour were properly admitted in husband's trial for killing wife's paramour. Burke, J. (Theis, sp. conc.).

No. 2013 IL 114491  People v. Trzeciak  Filed 11-14-13 (TJJ)


Defendant, Joseph Trzeciak, was convicted of the murder of Donald Kasavich. The appellate court, with one justice dissenting,reversed defendant’s conviction, holding that a threat made by defendant to his wife, Laura Nilsen, that he would kill her and Kasavich, was inadmissible under Illinois’ marital privilege, section115-16 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-16 (West 2010)), and that defendant was prejudiced by the statement’s introduction at trial. 2012 IL App (1st) 100259. For the reasons set forth below, we find that the threat was not barred by the marital privilege and, therefore, reverse the judgment of the appellate court.

2. Attorney Discipline: Charge dismissed: Conduct by attorney in connection with distribution of family trust as to which attorney was an executor and potential beneficiary, but never acted as an attorney, while potentially a breach of fiduciary duty, did not involve any violation of the Rules of Professional Conduct, and the complaint by the Administrator of the ARDC was dismissed. Garman, C.J. (Thomas, J., dissenting).

No. 2013 IL 115767  In re Karavidas  Filed 11-14-13 (TJJ)


The Administrator of the Attorney Registration and Disciplinary Commission (ARDC) filed a one-count complaint against respondent,Theodore George Karavidas, charging him with various violations of the Illinois Rules of Professional Conduct. The Hearing Board found that he breached his fiduciary duty to the beneficiaries of his father’s estate by converting funds from the estate and recommended that he be suspended for four months. The Review Board reversed and recommended that the charges be dismissed. The Administrator filed a petition for leave to file exceptions pursuant to Supreme Court Rule753(e) (Ill. S. Ct. R. 753(e) (eff. Sept. 1, 2006)), which this court allowed.

3 Appellate Cases Posted 11-15-13

1.  Criminal Law/Indrect Criminal Contempt of Court: Affirmed in PArt and Reversed in Part:The admissibility of evidence is within a trial court's sound discretion.  A trial court's decision regarding the admission of evidence will notbe overturned absent an abuse of discretion.  Indirect criminal contempt requires (1) the existence of a clear court order, and (2) thewillful violation of that order.   As to the first prong, would-be contemnors must receive fair and precise notice of what an order prohibits.  Courts must not punish the violation of "a command that defies comprehension."  The mandate of the court must be clear before disobedience can subject aperson to punishment.  Where a writing is unambiguous on its face, it must be interpreted withoutreliance on parol evidence.  If, however, the writing is susceptible to multiple meanings, parol evidence may be admissible toresolve the ambiguity.   Illinois applies the "four corners rule," in which courts look to the language of the writing alone to determine whether it is ambiguous.  Extensive discussion and review of the jury instructions in the criminal contempt trial.  Criminalcontempt is a crime in the normal sense and is punishable by fine or imprisonment.  The power of courts to punish for contempt is inherent andcan be neither created nor limited by statute.  Because itis not subject to legislation, contempt has no sentencing classification or range. When imposing a sentence for contempt, court should keep in mind that '[t]he contempt poweris an extraordinary one that should be used sparingly and with the utmost sensitivity.  Criminal contempt, unlike civil contempt, is punitive in nature.   Sentences for criminal contempt are intended to vindicate thedignity and authority of the court.  Because the offense of criminal contempt is not bound by sentencing ranges, appellate courts have a " 'special responsibility for determining that the [contempt] power is not abused.  Punishment of criminal contempt should reflect the "least possible power adequate to the end proposed.  Epstein, J.

No. 2013 IL App (1st) 093547  People ex rel. City of Chicago v. Le Mirage, Inc. Filed 11-15-13 (LJD)


Respondents Dwain J. Kyles and Calvin Hollins, Jr., owned and operated a first-floorrestaurant (Epitome) and second-floor nightclub (Epitome 2 or E2) at 2347 South MichiganAvenue in Chicago, Illinois. On July 19, 2002, the circuit court ordered respondents to vacatethe second floor because of building code violations. They continued to operate E2 untilFebruary 17, 2003, when 21 people were crushed to death in a panic after security guards sprayedpepper spray in an attempt to subdue a fight. Following a jury trial, respondents were convicted of indirect criminal contempt and sentenced to two years' imprisonment based on their violationof the circuit court's order.  Upon remand from the Supreme Court, they now raise evidentiary, jury instruction, and sentencingchallenges. We affirm their convictions, but, because the trial court improperly relied on thenightclub tragedy in aggravation, we vacate respondents' sentences and remand for a new sentencing hearing.

2.  Criminal Law: Affirmed:  Rulings on evidentiary matters, including motions in limine, are within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion.  An abuse of discretion occurs when the trial court's decision is arbitrary, fanciful, unreasonable, or when no reasonable person would take the same view as the trial court.  Under the exclusionary rule, evidence seized in violation of a defendant's fourthamendment rights is generally inadmissible at trial.  However, an exception to the exclusionary rule allows the prosecution to introduceillegally obtained evidence for the limited purpose of impeaching the credibility of a defendant'sown testimony.   The Illinois Supreme Court extended the impeachment exception to the exclusionary rule to "permit the prosecution to impeach thetestimony of all defense witnesses with illegally obtained evidence."  Anindividual commits the offense of first degree murder when he or she intends to kill or do greatbodily harm and knows that his or her acts will cause death, or knows that the acts create a strongprobability of death or great bodily harm. 720 ILCS 5/9-1(a)(1), (2) (West 2010). UnderIllinois's accountability statute, a person is legally accountable for the conduct of another when"either before or during the commission of an offense, and with the intent to promote or facilitate[such] commission, he or she solicits, aids, abets, agrees, or attempts to aid that other person inthe planning or commission of the offense."   Palmer, J.

No. 2013 IL App (1st)110413  People v. Morris Filed 11-15-13 (LJD)


Following a jury trial, defendant Antonio Morris was found guilty of first degree murderbased on a theory of accountability. Defendant was sentenced to a term of 30 years'imprisonment. On appeal, defendant contends that: (1) the trial court erred when it ruled that theState could use portions of defendant's suppressed videotaped statement to impeach two medicalexperts that defendant intended to call on his behalf; (2) he was denied a fair trial when the court prevented him from eliciting evidence that a prior statement of one of the participants in the crime, who testified at defendant's trial, was given in exchange for a plea to a lesser offense and areduced sentence; (3) he received ineffective assistance of counsel; and (4) the court failed toproperly admonish the potential jurors pursuant to Illinois Supreme Court Rule 431(b) (eff. May1, 2007). For the reasons that follow, we affirm.

3.  Construction Liability: Affirmed: Judgments notwithstanding the verdict are proper only where all the evidence viewedmost favorably to the opponent so overwhelmingly favors the movant that no contrary verdictcould ever stand.  “Generally, one who employs an independent contractor is not liable for the latter’s actsor omissions.”  However, section 414 of the Restatement(Second) of Torts (1965), “which has long been recognized as an expression of law in Illinois,”provides an exception to the general rule, referred to as the “retained control” exception.  “The Restatement describes a continuum of control, explaining [that] the employer issubject to liability as master under the principles of agency where the employer retains controlover the operative detail of any part of the contractor’s work. If the employer retainsonly supervisory control, i.e., power to direct the order in which work is done, or to forbid itsbeing done in a dangerous manner, then the employer is subject to liability under section 414unless he exercised supervisory control with reasonable care.  A judgment notwithstandingthe verdict is proper only where all the evidence viewed most favorably to the opponent sooverwhelmingly favors the movant that no contrary verdict could ever stand.   Gordon, J.

No. 2013 IL App (1st)123663  Ramirez v. FCL Builders, Inc.   Filed 11-15-13 (LJD)


Plaintiff Teodoro Ramirez was injured while employed as a roofer for Sullivan Roofing, anonparty to this litigation. At the time of plaintiff’s injury, Sullivan Roofing was operating as asubcontractor for defendant FCL Builders, Inc., the general contractor for a warehouse project. Plaintiff filed suit against defendant, alleging that defendant was negligent and, after a jury trial,the jury found defendant liable, awarding plaintiff damages in the amount of $1.588 million. Defendant appeals, arguing that (1) the trial court erred in not granting judgment notwithstandingthe verdict in favor of defendant, where defendant had no liability for plaintiff’s injuries as amatter of law; and, alternatively, (2) the trial court should have granted defendant a new trialwhere the trial court improperly instructed the jury, made errors in the admission of evidence,and failed to sanction plaintiff for several discovery violations. For the reasons that follow, weaffirm.

3 Appellate Cases Posted 11-14-13

1.  Freedom of Information and  Opening Meeting Acts: Reversed:  Purpose of Freedom of Information Act discussed.  Open Meetings Act discussed. Steigmann, J.

No. 2013 IL App (4th) 120825   Roxana Community Unit School District No. 1 v. Environmental Protection Agency  Filed 11-14-13 (LJD)


In March 2012, plaintiffs, Roxana Community Unit School District No. 1 (Roxana), Wood River-Hartford School District No. 15, East Alton-Wood River Community  High School District No. 14, Roxana Community Park District, South Roxana Fire Protection District, and Wood River Township Hospital District, filed a complaint for declaratory and injunctive relief against defendants, the Illinois Environmental Protection Agency (Agency), the Illinois Pollution Control Board (Board), the Illinois Department of Revenue (Department), and WRB Refining, LLC (WRB). The complaint alleged, in part, that (1) the Agency violated the Illinois Freedom of Information Act (FOIA) (5 ILCS 140/1 to 11.5 (West 2010)) (count I) and (2) the Board violated the Open Meetings Act (5 ILCS 120/1 to 7.5 (West 2010)) (count II).  Summary judgement granted the defendants.

2.  Workers COmpaensation: Reversed and Remanded:  When Manpower loaned the claimant to the State, the claimant became an employee of the State.  "In identifying the employer of a loaned employee the dominant circumstance has been the right to control the manner in which the work is to be done."  When an employer loans an employee to another employer and the loaned employee sustains a compensable injury and the borrowing employer does not pay the benefits due, the loaning employer is liable to pay all benefits due. The phrase 'in the course of' refers to the time, place, and circumstances under which the accident occurred."  "Injuries sustained on an employer's premises, or at a place where the claimant might reasonably have been while performing his duties, and while a claimant is at work, or within a reasonable time before and after work, are generally deemed to have been received in the course of the employment."  When an employee slips and falls, or is otherwise injured, at a point off of the employer's premises while traveling to or from work, her injuries are ordinarily not compensable under the Act."  Two exceptions to that rule are: First, "recovery has been permitted for off-premises injuries when 'the employee's presence at the place where the accident occurred was required in the performance of his duties and the employee is exposed to a risk common to the general public to a greater degree than other persons.' "  Second, there is a "parking lot exception" where courts have allowed recovery when the employee is injured in a parking lot provided by and under the control of the employer.  Stewart, J.

No. 2013 IL App (4th) 130049 WC Suter v. Illinois Workers' Compensation Commission   Filed 11-14-13 (LJD)


After claim filed for injury to claimant fell on ice and  snow in employer's parking lot, arbitrator and Commission found a failure to prove the injury arose out of the claimants employment.  Following circuit court's confirmance of the award, the claimant appealed and the Appellate Court reversed and remanded.

3.  Criminal Law: Reversed and Remanded:  A per se conflict arises where defense counsel has a tie to a person or entity which would benefit from an unfavorable verdict for the defendant."  New counsel is not automatically required in every case in which a defendant presents a pro se posttrial motion alleging ineffective assistance of counsel. Rather, when a defendant presents a pro se posttrial claim of ineffective assistance of counsel, the trial court should first examine the factual basis of the defendant's claim. If the trial court determines that the claim lacks merit or pertains only to matters of trial strategy, then the court need not appoint new counsel and may deny the pro se motion. However, if the allegations show possible neglect of the case, new counsel should be appointed." This rule has been applied in the context of motions to withdraw a guilty plea as well.    Carter, J.

No. 2013 IL App (3rd) 1110912  People v. Gabrys  Filed 11-14-13 (LJD)


The defendant, Richard Gabrys, pled guilty to criminal damage to property (720 ILCS 5/21-1(1)(a) (West 2006)) and was sentenced to 24 months of probation and 180 days in jail. On appeal, the defendant argues that: (1) the circuit court erred when it denied his motions to withdraw his guilty plea because defense counsel labored under a conflict of interest when representing the defendant on his motions; and (2) defense counsel failed to strictly comply with Illinois Supreme Court Rule 604(d) (eff. July 1, 2006). We vacate the circuit court's judgments on the motions to withdraw the guilty plea and remand with directions.

5 Appellate Cases Posted 11-13-13

1.  Criminal Law: Reversed and Remanded:  While it may be arguable that the court's asking for disagreement, and getting none, is equivalent to juror acceptance of the principles, the trial court's failure to ask jurors if they understood the four Rule 431(b) principles is error in and of itself."  Plain Error Rules and elements discussed and analyzed.  The trial court misapplied the rules of evidence and thus abused its discretion when it prevented the jury from learning about the available alternative methods for taking a statement from Richardson as part of the relevant circumstances of the statement.  Neville, J., dissent by Mason, J.

No. 2013 IL App (1st) 111788    People v. Richardson   Filed 11-13-13 (LJD)


A jury found Jenise Richardson guilty of the aggravated battery of a child. In this appeal, Richardson contends that the trial court committed plain error by failing to ask the venire members whether they understood that the defendant had no burden of proving her innocence and the jury must not hold it against the defendant if she decides not to testify. Richardson also contends that the trial court improperly restricted cross-examination of prosecution witnesses about the circumstances under which Richardson signed the statement the prosecution put into evidence. Because we find both arguments meritorious, we reverse the conviction and remand for a new trial.

2.  Civil Rights Act: Reversed and Remanded:  If the court allows the suit to proceed under the Act, and plaintiffs can prove their allegations, "the burden shifts to the City to demonstrate that its policy or practice had ' "manifest relationship" ' to a legitimate,  non-discriminatory policy objective and was necessary to the attainment of that objective.  If the City shows that its actions were justified, then the burden shifts back to Appellants to show 'a viable alternative means' was available to achieve the legitimate policy objective without discriminatory effects."   Courts may take judicial notice of facts proven by "immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy."  However, courts " 'will not take judicial notice of critical evidentiary material not presented in the court below, and this is especially true of evidence which may be significant in the proper determination of the issues between the parties.'  Extensive discussion of the guidelines for determining whether a case presents a nonjusticiable political question.  Neville, J.

No. 2013 IL App (1st) 123041    Central Austin Neighborhood Association v. City of Chicago   Filed 11-13-13 (LJD)


Two organizations whose members include African-Americans and Hispanics sued the City of Chicago (City), alleging a violation of the Illinois Civil Rights Act (Act) (740 ILCS 23/5 (West 2012)), and seeking a change in the way the City responds to emergency calls to 911. The organizations alleged that, on average, persons in neighborhoods populated mostly by African-Americans and Hispanics wait longer than persons in neighborhoods populated mostly by whites for police to arrive in response to a 911 call. The trial court granted the City's motion to dismiss the complaint, holding that regardless of the extent of the systematic disparity in response times, because the complaint raised only a nonjusticiable political question, the complaint did not state a claim for which the court could grant the complainants relief. On this appeal, we hold that the political question doctrine does not divest a court of jurisdiction to address plaintiffs' claim that the City's allocation of resources to respond to 911 calls results in a disparate impact on residents of police districts populated largely by African-Americans and Hispanics, and, therefore, the trial court should not have dismissed the complaint for failure to state a justiciable claim. Accordingly, we reverse the trial court's judgment and remand for further proceedings on the complaint.

3.  Criminal LAw: Affirmed in part but Crimestoppers fee assessment reversed: It is incumbent upon both parties to bring the error to the court's attention in order for the court to seek further emendations, i.e., clarification, from the jury.  Plain error elements discussed.  "The test of the sufficiency of a verdict is whether the jury's intention can be ascertained with reasonable certainty from the language used."   Holder White, J.

No. 2013 IL App (4th) 120343    People v. Kirkland     Filed 11-13-13 (LJD)


In June 2011, the State charged defendant, Ronald H. Kirkland, by information with two counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(b) (West 2010)) against his two stepdaughters, S.C. and B.C., both of whom were under the age of 17. The case proceeded to jury trial in January 2012. Following deliberations, the jury returned guilty verdict forms for both victims. The guilty verdict as to S.C. contained no errors. The guilty verdict form with regard to B.C., however, stated the offense as "criminal sexual abuse," without the word "aggravated" preceding it. The  parties did not bring the error to the trial court's attention. The court entered judgment against defendant for both counts of aggravated criminal sexual abuse and sentenced defendant to five years in the Illinois Department of Corrections (DOC) on each count with the sentences to run concurrently.

4.  Insurance LAw: Affirmed in part and reversed in part: As a general matter, the construction of an insurance contract is a matter to be determined by the court as a question of law and is subject to de novo review.   Where a policy provision is clear and unambiguous, its words must be given their plain, ordinary, and popular meaning.   However, if the terms of a policy are ambiguous, the language will be strictly construed against the insurer that drafted the policy. "In addition, provisions that limit or exclude coverage will be interpreted liberally in favor of the insured and against the insurer."  Pollution exclusions in insurance policies analayzed and discussed.  The supreme court has held the pollution exclusion only applies to those injuries caused by "traditional environmental pollution."   The court went on to discuss whether odors from hog farms are traditional pollution.   Pope, J.

No. 2013 IL App (4th) 130124    Country Mutual Insurance Company v. Hilltop View, LLC  Filed 11-13-13 (LJD)


On October 26, 2012, the trial court denied plaintiff Country Mutual Insurance Company's (Country) motion for partial summary judgment, finding the pollution exclusion clause in Country's farm umbrella policy (umbrella policy) was ambiguous. On the same day, the court entered an order granting defendants Hilltop View, LLC's (Hilltop) and Professional Swine Management, LLC's (PSM) respective cross-motions for partial summary judgment to the extent Country is responsible for defending Hilltop and PSM (the insureds) in the underlying lawsuit (Schuyler County case No. 08-L-02) filed against them by 14 neighbors of Hilltop's confinement hog farm. Pursuant to the court's Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) finding,  Country appeals, arguing the court erred in (1) denying its motion for summary judgment, which relied on the umbrella policy's pollution exclusion clause; and (2) granting the insureds' respective cross-motions for partial summary judgment to the extent Country is responsible for defending the insureds against the neighbors' lawsuit because Country alleged additional, and still unresolved, defenses to coverage  under the umbrella policy. We affirm in part, reverse in part, and remand for further proceedings.

5.  Election Code: Affirmed:  Generally, a reviewing court will not decide moot questions and a case that is moot will be dismissed on appeal.  "A case is moot when it presents no actual controversy or when the legal issue involved has ceased to exist."    The conclusion of an election cycle normally renders an election contest moot.  However, a reviewing court may address an otherwise moot issue pursuant the public-interest exception to the mootness doctrine.  "The public interest exception *** allows a court to reach the merits of a case which would otherwise be moot if the question presented is of a public nature, an authoritative resolution of the question is desirable for the purpose of guiding public officers, and the question is likely to recur."  "Illinois courts do not have general jurisdiction over election cases, but may only review them pursuant to statute, namely, sections 10-10 and 10-10.1 of the [Election] Code."  Courts interpreting section 10-10.1(a) have found that a petitioner must satisfy four explicit jurisdictional prerequisites to obtain judicial review of an electoral board  decision, including that the petitioner "must (1) file his challenging petition with the clerk of the court within five days after the Board's service of its decision; (2) serve copies of the petition on the Board and the other parties to the proceedings by registered or certified mail  within five days after the Board's service of its decision; (3) state in that petition why the Board's decision should be reversed; and (4) file proof of service with the clerk of the court."  Harris, J.

No. 2013 IL App (4th) 130145    Bettis v. Marsaglia  Filed 11-13-13 (LJD)


Plaintiff, Carolyn Bettis, filed a petition for judicial review of a decision of the Education Officers Electoral Board (Electoral Board) for North Mac Community Unit School District No. 34, Macoupin, Montgomery and Sangamon Counties, Illinois (School District), pursuant to section 10-10.1(a) of the Election Code (10 ILCS 5/10-10.1(a) (West 2012)). On the motion of defendants Charles M. Marsaglia and Melissa O'Neal, the circuit court dismissed plaintiff's petition pursuant to section 2-619 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-619 (West 2012)). Plaintiff appeals, arguing the court erred by granting defendants' motion to dismiss. We affirm.

4 Appellate Cases Posted 11-12-13

1.  Criminal Law: Affirmed: Here, no sentence was imposed on defendant's AUUW conviction. Instead, the trial court merged that conviction into, and then imposed sentence upon, the UUWF conviction. Moreover, defendant's UUWF conviction has not been reversed. As a result, no challenge to his unsentenced conviction for AUUW is properly before app. crt.  Therefore, defendant's challenges to his unsentenced AUUW conviction will not be considered.  The trial court was aware of the Montgomery rule. The record shows that the trial
court considered whether defendant's prior convictions fell within the 10-year limitation period.  In receiving two of defendant's prior convictions, the court noted that it was excluding his 1992 possession of a controlled substance conviction because it was beyond the 10-year limit.  Moreover, there is no indication in the record that the trial court did not properly perform the balancing test. Harris, J.

No. 2013 IL App (1st) 120043    People v. Neely    Filed 11-12-13 (RJC)


Following a bench trial, defendant Orlando Neely was convicted of unlawful use of a weapon by a felon (UUWF) and sentenced to three years' imprisonment. On appeal, defendant contends that his conviction for UUWF must be vacated because the statute creating the offense violates the second amendment right to bear arms for self-defense. Defendant also contends that the trial court abused its discretion by admitting his prior convictions for impeachment purposes without determining whether the danger of unfair prejudice substantially outweighed their probative value. We affirm.

2.  Domestic Relations/Maintenance: Reversed and remanded: It is well established in Illinois that social security benefits cannot be divided directly or used as an offset during state dissolution proceedings.  However, such a restriction does not apply to maintenance
awards, and social security benefits may be considered in determining maintenance awards. The trial court abused its discretion because in determining the maintenance award, it failed to consider that Paul received $24,510 in social security disability payments.  Since the trial court failed to consider the amount of Paul's nontaxable social security disability payments, the court's maintenance award was unreasonable. Thus, the trial court abused its discretion in excluding Paul's nontaxable social security disability payments from consideration in determining the amount of money available to meet his needs and in determining a maintenance award.  Accordingly, the trial court abused its discretion in awarding Paul permanent maintenance of $1,600 per month.  The matter is remanded to the circuit court with instructions to specifically consider all of Paul's 2010 social security disability payments, including nontaxable payments, in the amount of $24,510 in calculating how much money he has available to meet his living expenses. Additionally, the circuit court is instructed to consider the money available to Paul when compared to his expenses, and Dana's income when compared to her expenses, in determining an appropriate maintenance award, if any.  Cunningham, J.

No. 2013 IL App (1st) 122213   In re Marriage of Dea  Filed 11-12-13 (RJC)


This appeal arises from an April 3, 2012 order entered by the circuit court of Cook County which granted a judgment of dissolution of marriage for petitioner-appellant Dana Dea (Dana) and respondent-appellee Paul Dea (Paul), and awarded Paul permanent maintenance in the amount of
$1,600 per month; and a June 19, 2012 order entered by the circuit court which denied Dana's petition for modification of judgment. On appeal, Dana argues that: (1) the trial court abused its discretion because it failed to consider Paul's nontaxable social security disability payments as part
of his income for the purpose of determining the maintenance award; (2) the trial court's maintenance award was an abuse of discretion because it causes Dana's monthly expenses to significantly exceed her net monthly income; and (3) the trial court's maintenance award was an abuse of discretion considering the age of the parties and that Paul has significantly greater retirement assets than Dana. For the following reasons, we reverse the judgment of the circuit court of Cook County and remand the matter for further proceedings.

3.  Insurance/Illinois Insurance Guaranty Fund (IIGF): Affirmed: The circuit court correctly ruled in favor of the borrowing employer’s insurance company on its motion to dismiss for failure to state a claim in an action brought by the Illinois Insurance Guaranty Fund (IIGF) seeking reimbursement from the borrowing insurance company for workers’ compensation benefits IIGF paid to an injured worker after the insurance company for the lending employer that was obligated to make payments was liquidated. The additional defense of the expiration of the statute of limitations as well as other defenses raised by the borrowing employer's insurance company were also valid bases for dismissal. Quinn, J.

No. 2013 IL App (1st) 123345   Illinois Insurance Guaranty Fund v. Liberty Mutual Insurance Company  Filed 11-12-13 (RJC)


This action concerns IIGF’s efforts to attempt to be reimbursed for workers’ compensation payments from a company that borrowed an employee after the insurance company for the employee’s lending employer became insolvent.  On June 1, 2012, the circuit court ruled that IIGF did not plead a subrogation claim in its second amended complaint. The circuit court further noted that IIGF’s brief in opposition to dismissal made clear that IIGF’s request for reimbursement is a claim for subrogation and the second amended complaint failed to plead facts to support the elements of such a claim. The court further noted that IIGF did not argue in its response to Zurich’s motion to dismiss that it could assert facts to support a subrogation claim if it was given leave to amend its complaint yet a third time. Therefore, it dismissed the second amended complaint with prejudice. The circuit court ruled that other arguments made by Zurich in its motion to dismiss were moot because the second amended complaint was dismissed for failure to state a claim. On October 11, 2012, the circuit court ruled on IIGF’s timely filed and fully briefed motion for reconsideration. It stated that IIGF violated the purpose of a motion for reconsideration, which is to apprise the court of newly discovered evidence or a change in the law or errors in the court’s earlier application of the law. Because IIGF’s motion for reconsideration accomplished none of these purposes, the circuit court denied IIGF’s motion. IIGF filed a timely notice of appeal from the circuit court’s adverse decision.

4.  Criminal Law: Reversed in part and affirmed as modified; cause remanded:  The only issue on appeal is whether defendant committed the offense within 1,000 feet of a school.  Officers testified that the drug transaction took place within 1,000 feet of a "school," but there was no evidence presented to show how those officers had personal knowledge of the operation of that building. The officers did not testify that they lived in the area or that they regularly patrolled the neighborhood, so as to allow an inference that they had personal knowledge as to whether the school was in operation on the date of the offense.  Moreover, the evidence presented in this case did not establish that the building's name included any signifier that would identify it as a school. The only evidence that the building's name included the
word "school" was officer Miller's affirmative response to the leading question about whether he was referring to "Our Lady of Peace school." In such circumstances,  the evidence is insufficient to prove beyond a reasonable doubt that "Our Lady of Peace" was a school on the date of the offense. Simon, J.

No. 2013 IL App (1st) 112696   People v. Boykin  Filed 11-12-13 (RJC)


Following a bench trial, defendant, Randall Boykin, was found guilty of delivery of a controlled substance within 1,000 feet of a school under the Illinois Controlled Substances Act (Act) (720 ILCS 570/407(b)(2) (West 2008)), and was sentenced to two years of felony probation. On appeal, defendant does not challenge the sufficiency of the evidence to prove him guilty of delivery of a controlled substance under section 401(d) of the Act. Rather, he challenges only whether the State provided sufficient evidence to prove that the offense was committed within 1,000 feet of a school for purposes of enhancement under section 407(b)(2). Accordingly, he asks this court to reverse the enhanced Class 1 felony conviction and enter judgment on the unenhanced Class 2 felony conviction of delivery of a controlled substance.

6 Appellate Cases Posted 11-08-13

1.  DUI: Affirmed: In this case, defendant's blood alcohol results were admitted under the business records exception to the rule against hearsay pursuant to section 11-501.4 of the Illinois Vehicle Code.  The State satisfied the foundational requirements for the admissibility of the report of defendant's blood alcohol test under section 11-501.4 of the Vehicle Code.  Also, the statutory provision allowing the introduction of medical records in the prosecution of DUI cases promulgated in section 11-501.4 survives the enactment of the Illinois Rules of Evidence and is not affected or modified thereby.The evidence presented was sufficient for the trier of fact to infer that the blood alcohol level contained in the report and testified to at trial by Parker Little was the result of testing done on the blood taken from defendant in the emergency room. The evidence presented at trial was sufficient to find defendant guilty beyond a reasonable doubt. Palmer, J.

No. 2013 IL App (1st) 102332    People v. Hutchinson    Filed 11-08-13 (RJC)


Following a bench trial, defendant Catherine Hutchison was found guilty of driving under the influence of alcohol (DUI).1 See 625 ILCS 5/11-501(a)(1) (West 2008). The trial court sentenced her to 18 months of supervision. Defendant appeals, arguing that the trial court improperly admitted the results of a lab report showing her blood alcohol level as a business records exception to the hearsay rule and that the State did not prove her guilty beyond a reasonable doubt because it failed establish a sufficient chain of custody over the blood drawn from defendant.

2.  Criminal Law: Affirmed: Mob action is not listed among the crimes classified as forcible felonies.  However, our courts have determined that mob action qualifies as a forcible felony because the term "forcible felony" includes not only those listed, but also those felonies coming within the purview of the statute's catch-all clause which reads, " 'any other felony which involves the use or threat of physical force or violence against any individual.' "  The evidence indicates defendant participated in the mob action with the independent felonious purpose of physically intimidating and harassing fellow students from a rival neighborhood and that the mob action escalated to the point where defendant and his codefendants struck the victim multiple times, causing his death. Therefore, based on the facts of this case, the mob action properly served as a predicate felony for felony murder.  Also, the trial court did not err by not instructing the jury regarding the existence of an independent felonious purpose.  The trial judge considered both mitigating and aggravating factors and arrived at a balance between society's need for protection and defendant's rehabilitative potential.   There is nothing in the record which indicates that the trial judge ignored defendant's rehabilitative potential or any mitigating factors before he imposed sentence. Hall, J.

No. 2013 IL App (1st) 112935     People v. Colbert    Filed 11-08-13 (RJC)


Following a jury trial, defendant Lapoleon Colbert was found guilty of first degree felony murder based on the predicate felony of mob action in connection with the beating death of Derrion Albert. Defendant was sentenced to 32 years' imprisonment. The trial court denied defendant's motion to reconsider sentence. He now appeals his conviction and sentence. We affirm.

3.  Criminal Law: Affirmed: The trial court assessed the credibility and demeanor of the witnesses and found that the three eyewitnesses were credible.  We cannot say that the evidence is so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of the defendant’s guilt.  It can't be said that the record evidence compels the conclusion that no reasonable person could accept their testimony beyond a reasonable doubt.  The State’s evidence was sufficient to support a conviction here because Fox testified that he actually observed defendant firing the handgun somewhere between the second and third shots. Moreover, a trial court may draw reasonable inferences from the evidence.  To sustain a conviction, the evidence must show that defendant knowingly or intentionally fired the gun in the direction of another person or in the direction of an occupied vehicle and the State need not prove that the bullets actually struck the vehicle or that the bullets struck near a window of the vehicle. Poor marksmanship is not an affirmative defense, and it is a question of fact for the fact finder to determine whether defendant lacked the intent to shoot the vehicle or whether he was simply unskilled with his weapon and missed his targets. Gordon, J.

No. 2013 IL App (1st) 122333    People v. Daheya    Filed 11-08-13 (RJC)


Following a bench trial, defendant Saber Daheya was convicted of four counts of aggravated discharge of a firearm and sentenced to seven years in the Illinois Department of Corrections. On this direct appeal, defendant claims that the State failed to prove him guilty beyond a reasonable doubt because there is no physical evidence that links defendant to the crime, and that Fox and Padilla are biased witnesses since they are affiliated with a street gang that is a rival with defendant’s gang. Defendant also points to inconsistencies in Fox's and Padilla’s testimony to argue that they are not credible, such as the misidentification of Ramos and Russell at the scene of the crime. Defendant also argues that Corneh’s testimony alone is not sufficient to affirm the conviction because she testified that she did not actually observe defendant fire the handgun. Affirmed.

4.  Property Tax Code/tax deeds: Affirmed: Section 22-5 of the Property Tax Code imposes a minimal burden on tax purchasers to provide parties with an interest in property the correct notice regarding the exact due date when the redemption period expires excluding weekends and holidays.  Requiring tax purchasers to exclude holiday and weekend dates for the purpose of determining the correct redemption date was "precisely" what the General Assembly intended.  The Saturday date listed on the section 22-5 notice was not correct because that date and the following date were to be excluded from the calculation of the expiration of the redemption period. Gordon, J.

No. 2013 IL App (1st) 130103   In re Application of the County Treasurer   Filed 11-08-13 (RJC)


Petitioner Matthew Flamm, as receiver for Salta Group, Inc. (Salta), and Marshall Atlas, appeals the decision of the trial court denying Salta's application for the issuance of a tax deed. For the following reasons, we affirm.

5.  Illinois Public Labor Relations Act: Affirmed:  The issue on appeal is whether the ILRB erred when it affirmed the ALJ’s dismissal of MAP’s unfair labor practice charge. As concluded by the ALJ, the nature of confinement is the critical distinction between the Center and a correctional facility. Because the supervisors here do not work at a correctional facility, they do not meet the definition of security employees and are not entitled to interest arbitration.  Had the legislature intended the staff at juvenile detention homes to be considered correctional officers and the detention homes to be correctional facilities, it would have done so. Instead, the legislature expressly differentiated between detention homes and correctional facilities.There was no unfair labor practice in Chief Judge Kinney's refusal to proceed with interest arbitration. The MAP’s unfair labor practice charge was properly dismissed. O'Brien, J.

No. 2013 IL App (3d) 120308    Metropolitan Alliance of Police v. Illinois Labor Relations Board   Filed 11-08-13 (RJC)


Petitioner Metropolitan Alliance of Police, River Valley Detention Center, Chapter 228 (MAP), brought this petition for review of the dismissal of its unfair labor practice charge against respondents, the Illinois Labor Relations Board (ILRB), the River Valley Juvenile Detention Center
(Center) and Gerald Kinney, Chief Judge of the Twelfth Judicial Circuit, by an ILRB administrative law judge (ALJ), and affirmance of the dismissal by the ILRB. We affirm.

6.  Criminal Law: Affirmed: Here, it may be inferred from the circumstances surrounding the incident, defendant's conduct, and the nature and severity of the victim's injuries that defendant acted knowing of a strong probability of death or great bodily harm.  The evidence supported a finding that he knew his actions created a strong probability of death or great bodily harm for the baby.  There was no abuse of discretion by the trial court in sentencing Kibayasi to 35 years in prison. The sentence is within the statutory range and the trial court considered proper factors in aggravation and mitigation. Hyman, J.

No. 2013 IL App (1st) 112291    People v. Kibayasi   Filed 11-06-13 (RJC)


Defendant, Ibrahim Kibayasi, was found guilty of the first degree murder of his infant son and sentenced to 35 years in prison. Kibayasi shook the crying baby in a fit of anger, inflicting injuries consistent with shaken baby syndrome as the cause of death. Kibayasi appeals, arguing that the trial court erred by convicting him of first degree murder because the evidence only supports the mental state of the lesser offense of involuntary manslaughter where he was not consciously aware that his actions would create the strong possibility of death or great bodily harm. We disagree and affirm. 

3 Appellate Cases Posted 11-07-13

1.  Mortgage Foreclosure: Affirmed: Clearly, defendant’s brief is in severe violation of Illinois Supreme Court Rule 341(h) (eff. July 1, 2008). Our “rules of procedure are rules and not merely suggestions.”  Consequently, Rule 341's mandates detailing the format and content of appellate briefs are compulsory.   It is of no matter that a party appears pro se; regardless of his status, no party is relieved of the duty to comply, as closely as possible, with the rules of our courts. Where an appellant's brief contains numerous Rule 341 violations and, in particular, impedes our review of the case at hand because of them, it is our right to strike that brief and dismiss the appeal. The court then reviews the brief and denies all of the points raised by the appellant. Fitzgerald Smith, J.

No. 2013 IL App (1st) 123422   Rosestone Investments, LLC v. Garner  Filed 11-07-13 (LJD)


The instant cause involves a mortgage foreclosure case that has been ongoing for several years. Ultimately, defendant-appellant James Garner (defendant) appeals pro se from a trial court order confirming the sale of the subject property. He raises myriad contentions for our review and,  hroughout his brief on appeal, makes several accusations of impropriety against opposing counsel and the multiple trial court judges before whom his case appeared. As for the relief he seeks, he asks that we reverse several of the trial court's orders and judgments, remand the matter with directions to dismiss the foreclosure case in its entirety, and for any other relief deemed appropriate. For its part, plaintiff-appellee Rosestone Investments, LLC (plaintiff), which obtained the order of sale from the trial court, has chosen not to file a brief in this cause.  Therefore, we consider the instant appeal on appellant's brief only.  We affirm.

2.  Criminal Law/ Sentencing: Affirmed: Plain error waiver and by failing to object discussed.  Section 111-3(c) notice provision with which defendant is concerned only applies when the prior conviction that would enhance the sentence is not already an element of the offense. Specifically, the language of the section 111-3(c) notice provision itself implies as much when it states "the fact of such prior conviction and the State's intention to seek an enhanced sentence are not elements of the offense and may not be disclosed to the jury during trial unless otherwise permitted by issues properly raised during such trial."  Fitzgerald Smith, J.

No. 2013 IL App (1st) 1113209   People v. Nowells Filed 11-07-13 (LJD)


Following a bench trial, defendant Curtis Nowells was convicted of unlawful use of a weapon by a felon (UUW by a felon). The trial court sentenced defendant to a Class 2 sentence of 54 months in prison. Defendant appeals, contending that he was improperly sentenced to a Class 2 sentence where the State allegedly failed to give him proper notice of his potential sentence. Defendant asks that we vacate his sentence and remand this cause for a new sentencing hearing. For the following reasons, we affirm.

3.  Soveirgn Immunity: Reversed and Remanded: Sovereign immunity, as it existed at common law, barred lawsuits against the government unless the government consented to be sued. Whether an action is against the State of Illinois does not depend on the formal identification of the parties as they appear in the record; it depends on the issues involved and the relief sought.  Under the "officer suit" exception, an action against a state official for conduct in his official capacity may withstand a motion to dismiss on sovereign immunity grounds if the plaintiff alleges that the officer is enforcing an unconstitutional law, violating a law of Illinois, or otherwise acting beyond his authority.  Where a state official violates the Illinois Constitution or statutes, or acts in excess of his statutory authority, our courts have found that a plaintiff's right to be free from the consequences of the state official's action generally outweighs the State's interests in controlling its purse and being free from interference with its governmental functions.  Cates, J.

No. 2013 IL App (1st) 120337 Wilson v. Quinn   Filed 11-07-13 (LJD)


The plaintiffs, George Wilson, sheriff of Franklin County, Illinois, and Michael Huff, sheriff of Rock Island, Illinois, filed an action in the circuit court of Franklin County against the defendant, Patrick Quinn, Governor of the State of Illinois, seeking a judgment declaring that the failure of the Governor to authorize full payment of a statutorily mandated annual stipend in 2010 was contrary to the law and the constitution of Illinois. The trial court dismissed the action, finding that it was barred under the State Lawsuit Immunity Act (745 ILCS 5/1 (West 2010)). On appeal, the  laintiffs assert that the trial court erred in finding that the action was barred by sovereign immunity because their claim was brought against the Governor, not the State of Illinois, and because the suit was brought to obtain declaratory relief, and not to enforce a present claim to remedy a past  rong committed by the State. We reverse and remand for further proceedings.


3 Appellate Cases Posted 11-06-13

1.  Criminal Law: Affirmed: In Illinois, second degree murder is defined as a first degree murder during which one of two mitigating factors, serious provocation or unreasonable belief in the need for self-defense, are present.  Attempt is defined as follows: "A person commits the offense of attempt when, with intent to commit a specific offense, he or she does any act that constitutes a substantial step toward the commission of that offense."  The only categories of serious provocation our supreme court has identified are substantial physical injury or assault, mutual quarrel or combat, illegal arrest, and adultery with the offender's spouse.   Neville, J.

No. 2013 IL App (1st) 110309   People v. Harris   Filed 11-06-13 (LJD)


Following a bench trial, Hiram Harris, the defendant, was found guilty of the 2008 attempted murder of Carlee McKinney. Defendant elected to be sentenced under the version of the attempt statute that went into effect on January 1, 2010, which allows the trial court to impose a Class 1 sentence rather than the otherwise mandated Class X sentence, if the trial court finds by a preponderance of the evidence that defendant acted under a sudden and intense passion resulting from serious provocation. The trial court found that defendant was not acting under a sudden and intense passion resulting from a serious  rovocation, and refused to sentence defendant as a Class 1 offender. Instead, the trial court imposed a Class X sentence of eight years' imprisonment. On appeal, defendant contends that the trial court erred   and that brandishing a weapon is sufficient to constitute serious provocation. We affirm.

2.  Criminal Law/ Evidence: Reversed and Remanded: Relevant evidence is "evidence having any tendency to make the existence of a fact that is of consequence to the determination of the action  more or less probable than it would be without the evidence." Our supreme court has held "any evidence which tends to show that an accused had a motive for killing the deceased is relevant because it renders more probable that the accused did kill the deceased."  Generally, evidence a defendant was a gang member or involved in gang-related activities is admissible to show a common purpose or design or to provide a motive for an otherwise inexplicable act.  There may be a strong prejudice against street gangs, however, so a trial court should take great care when exercising its discretion to admit gangrelated testimony.  A defendant cannot automatically be assumed to be guilty based on membership in an undesirable group.  Evidence a defendant is a gang member or is involved in gang activity is admissible only where there is sufficient proof "membership or activity in the gang is related to the crime charged." Hyman, J.

No. 2013 IL App (1st) 110882   People v. Roman  Filed 11-06-13 (LJD)


Determining whether the State is introducing evidence of gang membership for a relevant and permissible purpose or for an illegitimate and highly prejudicial effect can present the trial judge with a difficult task. At issue, of course, is the fundamental right to a fair trial. The admission of gang-related evidence is at the core of this appeal, in which a jury convicted the defendant, Martin Roman, of murder.  The record reveals that the gang evidence had nothing to do with witness identification of Roman Martin, or with any other issue. Accordingly, his conviction must be reversed and the case remanded for a new trial.

3.  Highway Code/Road Jurisdiction: Affirmed: On motion for summary judgment, mere suggestion that issue of material fact exists, without supporting evidence, is insufficient to create one); (summary judgment proper where speculation would be necessary to prove element of cause of action alleged.  Conclusory statements lacking a factual basis are insufficient to raise an issue of material fact.   Schostok, J.

No. 2013 IL App (2nd) 121042    The Village of Lomard v. The Department of Transportation   Filed 11-06-13 (LJD)


This case involves a dispute among the parties over which of them has jurisdiction (i.e., authority and responsibility) over that portion of Highland Avenue in Lombard running from Roosevelt Road south to 20th Street (the Subject Road). The plaintiff, the Village of Lombard (Village), sued the Illinois Department of Transportation (State or IDOT) and the County of Du Page (County), seeking a declaratory judgment that one of those bodies (and not the Village) had jurisdiction over the Subject Road. The trial court granted summary judgment in favor of the Village and the County, ruling that the evidence showed that the State had jurisdiction over the Subject Road and that there were no questions of material fact. The State appeals, and we affirm.

1 Appellate Cases Posted 11-04-13

1.   Inusrance/Indemnification: Reversed and remanded: The narrow question here is whether the policy in this case required the filing of a "suit" before Cherrytree could seek indemnification for the damages it agreed to pay to AGP.  The word "suit" does not appear in the first sentences of either the CGL or the umbrella liability sections of the policy in this case, which are the sentences that refer to Selective's duty to indemnify. Rather, "suit" appears in the second sentences of these sections, which are the sentences that refer to Selective's duty to defend.  The indemnification provision in the policy in this case did not require the filing of a "suit" before Cherrytree could seek indemnification for the damages it agreed to pay to AGP.  Carter, J. with Schmidt, J. specially concurring.

No. 2013 IL App (3d) 120959   Selective Insurance Company of South Carolina v. Cherrytree Companies, Inc.    Filed 11-04-13 (RJC)
 

The plaintiff and counterdefendant-appellee, Selective Insurance Company of South Carolina (Selective), filed a complaint for declaratory judgment against the defendant and counterplaintiff-appellant, Cherrytree Companies, Inc., d/b/a Macon General Contractors (Cherrytree), which requested the circuit court to rule on whether the insurance policy Cherrytree had with Selective provided coverage for problems Cherrytree had with a grain storage facility it had built for another company in Fairfield, Nebraska. Along with its answer, Cherrytree filed two counterclaims, alleging that Selective breached its contract with Cherrytree and that Selective acted in bad faith in denying coverage for the Fairfield incident and another incident with a grain storage facility in Chester, Nebraska. After a hearing, the circuit court dismissed Cherrytree's counterclaims with prejudice on the pleadings. Later, the court denied Cherrytree's motion to consider and granted Cherrytree's motion for a finding pursuant to Supreme Court Rule 304(a) (eff. Feb. 26, 2010), thereby allowing Cherrytree to take this appeal. On appeal, Cherrytree argues that the court erred when it dismissed the counterclaims with prejudice. We reverse and remand for further proceedings. 

1 Appellate Cases Posted 11-01-13

1.   Jurisdiction/Trusts: Reversed and remanded: The issue on this appeal is solely a legal question. It is whether, by itself, an interest in a trust administered in Illinois may qualify as "minimum contacts" with the State of Illinois, such that the due process clause is not offended by haling a nonresident defendant into court here concerning that trust.  The nonresident defendant beneficiaries had sufficient minimum contacts with the State of Illinois, such that this State's exercise of personal jurisdiction over them did not offend federal due process. Gordon, J.

No. 2013 IL App (1st) 132068    Kaufman v. Barbiero    Filed 11-01-13 (RJC)
 

The circuit court of Cook County dismissed this suit solely against defendant Anthony V. Barbiero on the ground that it lacked personal jurisdiction over him. This appeal is based on only three facts; none of which are in dispute. The facts are that: (1) defendant is the beneficiary of a land trust; (2) the trust is administered in Illinois; and (3) defendant has no other contacts with the State of  Illinois other than his ownership interest in a trust administered here.  The Illinois long-arm statute specifically provides for personal jurisdiction over a nonresident defendant who owns "an interest in any trust administered within this State," where the cause of action concerns this interest. 735 ILCS 5/2- 209(a) (West 2012). Since personal jurisdiction is specifically provided for by our state's long-arm statute, the only question before us is whether constitutional due process is also satisfied when the beneficiary's ownership interest in a trust administered here creates the beneficiary's only points of contact with our state. We granted plaintiffs' motion to accelerate this appeal, an action which was also requested by defendant Barbiero. For the following reasons, we reverse and remand for further proceedings consistent with this opinion.


2 Appellate Cases Posted 10-31-13

1.   Civil Rights Act (§1983): Affirmed: Plaintiffs' second amended complaint fails to allege facts sufficient to establish liability under section 1983 because it fails to allege any recognizable violation of plaintiffs' constitutional rights.  The plaintiffs have failed to state a cause of action under section  1983 and the trial court correctly dismissed their complaint. “An attorneys' fees award pursuant to § 1988 rests within the sound discretion of the district court because that court is particularly well-qualified to make the partially subjective findings necessary for an award of fees and to perform the balancing of equities that is an integral part of the proceeding for an award of fees.”  The trial court did not abuse its discretion in denying defendant's request for attorney fees. Epstein, J.

No. 2013 IL App (1st) 122351   Peraica v. Riverside-Brookside High School District No. 208    Filed 10-31-13 (RJC)
 

Plaintiffs, Anthony Peraica and Taxpayers United of America, appeal the circuit court of Cook County's decision to dismiss, pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 2-615 (West 2010)), their second amended complaint against defendant Riverside-Brookfield High School District No. 208. Plaintiffs had alleged that defendant violated state laws, i.e., section 18-115 of the Property Tax Code (35 ILCS 200/18-115 (West 2010)) and section 9-25.1 of the Election Code (10 ILCS 5/9-25.1 (West 2010)), as well as “the 1st, 9th and 14th Amendment rights of the plaintiffs as guaranteed under the United States Constitution and under the parallel provisions of the Illinois Constitution of 1970 (Article 1, §§ 2, 4, 5 and 24),” article 3, section 3, of the Illinois Constitution (Ill. Const. 1970, art. III, § 3), and the guarantees of the Civil Rights Act of 1871 (42 U.S.C. § 1983 (2000)). Defendant cross-appeals the circuit court's order denying its request for attorney fees pursuant to section 1988 of the Civil Rights Act (42 U.S.C. § 1988 (2000)). For the reasons that follow, we affirm.

2.   Criminal Law/DUI: Affirmed: In this case, the trial court responded to the jury's question with the language the parties agreed to. To allow defendant to benefit on appeal based on a response he agreed to "would offend all notions of fair play." Under these circumstances, we cannot say the court abused its discretion in the answer given.  General violations of section 11-501, specifically nonaggravated DUIs, may be used to elevate an offense to a Class X felony for sentencing purposes.  The statute uses the term "violation" and not "conviction." Accordingly, dispositions resulting in supervision would also count toward the sentencing calculus. Here, the fact the instant offense was not defendant's sixth aggravated DUI did not prevent the court from imposing a Class X sentence.  Defendant does not argue on
appeal his prior violations of section 11-501 number less than six. Accordingly, defendant was properly subjected to Class X sentencing. Pope, J.

No. 2013 IL App (4th)   120388   People v. Halerewicz    Filed 10-31-13 (RJC)
 

In February 2012, a jury convicted defendant, John J. Halerewicz, of driving under the influence of alcohol (DUI), aggravated DUI with a revoked license, and driving while his driver's license was revoked. In April 2012, the trial court sentenced defendant to concurrent terms of 10 years' imprisonment for aggravated DUI and 3 years for driving while his license was revoked.  Defendant appeals, arguing (1) the trial court erred in refusing to define the term "ordinary care" for the jury, (2) Class X sentencing was improper where it only applies to six or more aggravated DUI convictions and defendant's instant aggravated DUI conviction was not his sixth such conviction, and (3) the court abused its discretion in sentencing defendant to a term of imprisonment. We affirm.

2 Appellate Cases Posted 10-30-13

1.  Criminal Law: Reversed:  Given the lack of any other evidence that Alicea resided at 3036 North Knox, the State failed to prove beyond a reasonable doubt that Alicea was in constructive possession of the weapons and ammunition found in the bedroom.  Given the reversal of Alicea's conviction, the order imposing related fines and fees is vacated. Mason, J.

No. 2013 IL App (1st)   112602    People v. Alicea    Filed 10-30-13 (RJC)
 

Following a bench trial, defendant Jesus Alicea was found guilty of two counts of unlawful possession of a weapon by a felon and sentenced to concurrent terms of five years' imprisonment. On appeal, Alicea challenges the sufficiency of the evidence to sustain his convictions and the propriety of two fees imposed by the circuit court.

2.  Negligence/premises: Affirmed: A party in possession has a duty to provide a reasonably safe means of ingress and egress. By operation of the lease, plaintiff, as the lessee, is the party in possession. Plaintiff was a tenant, not a visitor to a business establishment, and the alleged injury occurred on a driveway, not a public sidewalk. Defendant did not owe a duty of care to plaintiff.   By operation of the lease, defendant was no longer in control of the leased premises and no evidence indicates defendant retained control of the driveway. Knecht, J.

No. 2013 IL App (4th) 130136    Nida v. Spurgeon    Filed 10-30-13 (RJC)

On August 10, 2011, plaintiff, Marcia Nida, filed a two-count complaint against defendant, Marlene Spurgeon, individually and as adminstratrix of the estate of Lorene D. Hart, for injuries suffered at a rental property owned by defendant. In November 2012, defendant filed a motion for summary judgment. In February 2013, the trial court granted the motion for summary judgment, concluding defendant did not owe a duty of care to plaintiff.  Plaintiff appeals, arguing the trial court erred in granting defendant's summary judgment motion. Plaintiff contends defendant owes her a duty of care and factual issues exist as to whether a dangerous condition was open and obvious and de minimis. We affirm.

5  Appellate Cases Posted 10-28-13

1.  Contribution & Indemnity: Affirmed:  The doctrine of res judicata provides that "a final judgment on the merits rendered by a courtof competent jurisdiction bars any subsequent actions between the same parties or their privies onthe same cause of action."  Three requirements must be satisfied in order for res judicata to apply:"(1) a final judgment on the merits has been reached by a court of competent jurisdiction; (2) anidentity of cause of action exists; and (3) the parties or their privies are identical in both actions." Id. Res judicata bars not only what was actually decided in the first action, but also those mattersthat could have been decided in that lawsuit.  Generally, orders dismissing an action with prejudice constitutes a final judgment on themerits for the purposes of res judicata.   Under SC Rule 273, unless the order of dismissal or a statute of this [s]tate otherwise specifies, aninvoluntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue,or for failure to join an indispensable party, operates as an adjudication upon the merits."   Illinois applies the more liberal "transactional test" in determining whether identity of causeof action exists for the purposes of res judicata. Under thetransactional test, "separate claims will be considered the same cause of action for purposes of resjudicata if they arise from a single group of operative facts, regardless of whether they assertdifferent theories of relief." To determine whether there is an identity of cause of actionbetween the first and second lawsuits, a court " 'must look to the facts that give rise to plaintiffs' rightto relief, not simply to the facts which support the judgment.' "  An identity of cause of action is established "if two claims are based on the same, ornearly the same, factual allegations."  Cunningham, J.

No. 2013 IL App (1st) 121589 Camper v. Burnside Construction Co.   Filed 10-28-13 (LJD)


This appeal arises from the December 21, 2011, February 27, 2102 and May 11, 2012 ordersentered by the circuit court of Cook County, which collectively dismissed with prejudice a third-party action filed by third-party plaintiff Welch Brothers, Inc. (Welch), against third-party defendantNeptune Construction Company (Neptune).  We affirm the judgment of the circuit court of Cook County.

2.  Franchise Agreements: Affirmed:  Elements of Fraudulent inducement which is a form of common-law fraud are listed and discussed in the opinion.   Fraud claims must be pleaded with sufficient specificity, particularity, and certaintyto apprise the opposing party of what he is called upon to answer.  The basis of a fraud or negligent misrepresentation claim must be a statement of fact, not anexpression of opinion.   Generally, financial projections areconsidered to be statements of opinion, not fact. However, "although representations of future income are notactionable, representations as to past income of a business constitute statements of fact."   The "bespeaks caution"doctrine provides that cautionary language in a securities offering document can negate themateriality of any alleged misrepresentation or omission.  Under the doctrine,statements must be analyzed in context, and "cautionary language, if sufficiently substantive andtailored to the projections, estimates, and opinions contained in an offering document, can renderalleged misrepresentations and omissions immaterial as a matter of law."     Hoffman, J.

No. 2013 IL App (1st) 130750   Avon Hardware Co. v. Ace Hardware Corp.  Filed 10-28-13 (LJD)


The plaintiffs, Avon Hardware Company, doing business as Avon Ace Hardware, MichaelA. Clark, Beverly A. Clark, Yido, Inc. (Yido), doing business as Mr. Mike's Ace Hardware, DebbiePasciak, and Michael Pasciak, appeal from the circuit court order which dismissed their complaintalleging various claims of common law and statutory fraud based on statements made by thedefendant, Ace Hardware Corporation (Ace), in connection with the parties' franchise agreement.  We affirm.

3.  Post Conviction Petition: Affirmed:  At the first stage, the trial courtindependently determines, without input from the State, whether the petition is “frivolous or is patently without merit.”  A petition is frivolous or patently without merit only if it has no arguable basis in law or fact.   At the first stage, the petition’s allegations, liberallyconstrued and taken as true, need to present only “the gist of a constitutional claim.” The petition needs to set forth just a limited amount of detailand does not need to set forth the claim in its entirety.   The trial court is not allowed to engage in any fact finding or credibility determinations atthis stage, and all well-pleaded facts not positively rebutted by the record are taken as true.   As to clain that trial counsel was ineffective, the defendant must first establish that, despite the strong presumption that counsel acted competently and that the challenged action was the product of sound trial strategy,counsel’s representation fell below an objective standard of reasonableness under prevailing  professional norms such that he or she was not functioning as the counsel guaranteed by the sixthamendment.   Spence, J.

No. 2013 IL App (2nd) 120439   People v. Harmon   Filed 10-28-13 (LJD)


Following a jury trial, defendant, Ryan T. Harmon, was convicted of three counts ofaggravated kidnaping (720 ILCS 5/10-2(a) (West 2006)) and one count of arson (720 ILCS 5/20-1(a)(West 2006)). Defendant later filed a petition under the Post-Conviction Hearing Act (Act) (725ILCS 5/122-1 et seq. (West 2010)), which the trial court dismissed at the first stage of proceedings. On appeal, defendant challenges the trial court’s summary dismissal of his postconviction petition. Defendant argues that the petition presented arguable claims that his trial counsel was ineffectivefor failing to investigate and call Willie Gulley as a witness at trial and for failing to challenge expertfingerprint testimony, and that appellate counsel was ineffective for not raising these issues on direct appeal. Defendant further argues that the exclusive-jurisdiction provision of the Juvenile Court Actof 1987 (Juvenile Court Act) (705 ILCS 405/5-120 (West 2006)) is unconstitutional. We affirm.

4.   Domestic Relations:  Affirmed:  The purpose of a section 2-1401 petition is for a party to bring to the court’s attention factsthat, if known to it at the time it rendered its judgment, would have changed the court’sdetermination.   To present a claim forrelief under section 2-1401, the petitioner must set forth factual allegations supporting: (1) theexistence of a meritorious defense or claim; (2) due diligence in presenting the defense or claim in the original proceedings; and (3) due diligence in filing the section 2-1401 petition.  “The term ‘unconscionability’ includes ‘an absence of a meaningful choice on the part of oneof the parties together with contract terms which are unreasonably favorable to the other party.’ ” There are two types of unconscionability:procedural and substantive.   Procedural unconscionability involves “impropriety during the process of forming a contract that deprives a  party of [a] meaningful choice.”  Substantive unconscionability involves a situation in which aclause or term in the contract is totally one-sided or harsh.  A finding of unconscionability canbe based on either procedural or substantive unconscionability, or a combination of both.    Schostok, J. 

No. 2013 IL App (2nd) 120639   In re Marriage of Arjmand   Filed 10-28-13 (LJD)


On July 22, 2009, the circuit court of Du Page County entered a judgment dissolving themarriage of the petitioner, Masud M. Arjmand, and the respondent, Muneeza R. Arjmand. Thejudgment incorporated a marital settlement agreement that resolved issues as to custody, childsupport, and disposition of the parties’ assets. On April 4, 2011, Muneeza filed a petition undersection 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)) to vacatethe judgment. In granting the petition, the trial court upheld the judgment but vacated the maritalsettlement agreement. Masud appeals from the trial court’s order. We affirm.

5.  Workers Compensation: Affirmed:  Theclaimant in an occupational disease case has the burden of proving both that he suffers from anoccupational disease and that a causal connection exists between the disease and his employment. Whether an employee suffersfrom an occupational disease and whether there is a causal connection between the disease and theemployment are questions of fact.  It is the function of the Commission to decide questionsof fact, judge the credibility of witnesses, and resolve conflicting medical evidence.  The  Commission’sdetermination on a question of fact will not be disturbed on review unless it is against the manifestweight of the evidence.  A claimant can establishdisablement by showing “an impairment or partial impairment, temporary or permanent, in the function of the body or any of the members of the body.” 820 ILCS 310/1(e) (West 2006). Alternatively, section 1(e) defines disablement as “the event of becoming disabled from earning fullwages at the work in which the employee was engaged when last exposed to the hazards of theoccupational disease by the employer from whom he or she claims compensation, or equal wagesin other suitable employment.”  Hudson, J., with special concurrence by Hoffman, J. joind by Holderidge, PJ and Stewart, J.

No. 2013 IL App (2nd) 120564WC   Freeman United Coal Mining Co. v. Illinois Workers' Compensation Comm'n Filed 10-28-13 (LJD)


On December 19, 2007, claimant, David Sims, filed an application for adjustment of claimpursuant to the Workers’ Occupational Diseases Act (Act) (820 ILCS 310/1 to 27 (West 2006))seeking benefits from respondent, Freeman United Coal Mining Company. The Illinois Workers’ Compensation Commission (Commission) reversed the arbitrator's findings that claimant failed to prove his case, finding that claimant met his burden of proving he has coalworkers’ pneumoconiosis (CWP) and that the disease is causally connected to his employment asa coal miner. The Commission further determined that claimant established disablement within twoyears after the date of his last exposure to the hazards of the occupational disease (see 820 ILCS310/1(f) (West 2006)) and that claimant provided timely notice of the disablement to respondent (see820 ILCS 310/6(c) (West 2006)). The Commission awarded claimant 50 weeks of permanent partialdisability (PPD) benefits, representing 10% of the person as a whole (see 820 ILCS 305/8(d)(2)(West 2006); 820 ILCS 310/7 (West 2006)). The circuit court of Christian County confirmed the decision of the Commission.  We affirm.

4 Appellate Cases Posted 10-25-13

1. Breach of Contract Damages: Affirmed: In contract claim for breach of contract stemming from defendant's breach of contract for failing to deliver two taxicab medallions per the terms of the parties' contract, trial court did not err in refusing to permit plaintiff from testifying regarding lost profits in view of plaintiff's failure to comply with pre-trial request for documents purportedly supporting that claim, and proper measure of damages was based on the medallions' market price at time of the breach, not at time of trial. Lampkin, J.

No. 2013 IL App (1st) 122070  Santorini Cab Corporation v. Banco Popular North America  Filed 10-25-13 (TJJ)


Plaintiff Santorini Cab Corp. (Santorini) sued defendant Banco Popular North American (Banco) for breach of contract concerning the sale of two taxicab medallions. Following a bench trial, the trial court found that Banco had breached the contracts and  awarded Santorini $37,550 in damages. Santorini appeals, contending the trial court made erroneous partial summary judgment rulings in Banco's favor prior to the bench trial. Specifically, Santorini argues the trial court erred by precluding lost profit  damages and by failing to calculate Santorini's damages by using the market price of the medallions at the time the case went to trial. For the reasons that follow, we affirm the judgment of the circuit court.

2. School Code/Tenure: Affirmed: State Board of Education decision upholding administrative law judge determination that tenured school psychologist should be reinstated to her position for failure of school district to comply with procedures mandated by School Code upheld, where evidence failed to show that "consulting teacher" appointed by District to seek to remedy psychologist's deficiencies was qualified to do so; 30-day period for ALJ's decision was directory, not mandatory; and decision of hearing officer and Board was not against manifest weight of the evidence. Wright, J.

No. 2013 IL App (3d) 120373  The Board of Education of Valley View Community Unit School District No. 365-U v. Illinois State Board of Education  Filed 10-25-13 (TJJ)


In 2010, defendant-appellee Lynn Reid (Reid), a tenured school psychologist and employee of plaintiff-appellant, Board of Education of Valley View Community Unit School District 365-U (the District) received an unsatisfactory performance evaluation  from her principal, Donna Nylander. The District established a remediation plan for Reid but, eventually, the District terminated Reid's employment claiming Reid unsuccessfully completed the plan. After a lengthy process, based on a voluminous record, the administrative hearing officer determined the District terminated Reid based on a less than fair remediation process initiated and managed by Nylander. The hearing officer reversed the District’s decision and ordered the District to reinstate Reid with  full back pay. The District now challenges ISBE’s administrative decision before this court. We confirm.

3. Sexually Violent Persons Commitment Act: Appeal dismissed: Respondent's Section 2-1401 petition seeking to vacate initial detention order resulting from State's petition to have him adjudicated a sexually violent person was in reality a motion to dismiss the proceedings, and the Appellate Court lacked jurisdiction to hear an appeal, as the matter was still proceeding in the trial court and had not yet resulted in any final order. Schmidt, J. (Carter, J., sp. concurring).

No. 2013 IL App (3d) 120563  In re Commitment of DeSilvestro  Filed 10-25-13 (TJJ)


The State of Illinois filed a petition seeking to commit respondent, Joseph DeSilvestro, pursuant to the Sexually Violent Persons Commitment Act. Respondent eventually filed a "motion to dismiss pursuant to 2-1401(f)" seeking dismissal of the entire  commitment proceeding. Following a hearing and argument, the circuit court of La Salle County denied respondent's motion. Respondent appeals, claiming he was not in lawful custody at the time the State filed its petition and, therefore, the trial court  erred in denying his motion to dismiss. Appeal dismissed.

4. Negligence/Snow and Ice Removal: Affirmed in part and reversed in part and remanded: Trial court erred in dismissing count of complaint alleging that plaintiff's injuries stemming from accumulation of ice and snow were the result of allegedly defective construction of premises or improper or insufficient maintenance of the premises, as Snow and Ice Removal Act does not provide immunity from such alleged conduct, but other counts alleging that defendants' conduct was "wilful and wanton" properly dismissed as insufficiently pled. Harris, J.

No. 2013 IL App (4th) 130036  Greene v. Wood River Trust  Filed 10-25-13 (TJJ)  


On February 12, 2010, plaintiff, Mitzi O. Greene, slipped and fell on an icy walkway near the entrance of a residence she leased from defendants, Wood River Trust; Taylor Realty, Inc., d/b/a/ Wood River Trust; Richard W. Taylor, d/b/a Wood River Trust;  and Russell H. Taylor, d/b/a Wood River Trust. After plaintiff filed a complaint alleging negligence, defendants moved to dismiss plaintiff's complaint pursuant to section 2-619 of the Code of Civil Procedure, arguing plaintiff's negligence claims were barred by the Snow and Ice Removal Act. The trial court dismissed plaintiff's complaint but allowed plaintiff to amend to allege willful and wanton misconduct, an exception to the immunities otherwise provided by the Act. Defendants moved to dismiss  plaintiff's first amended complaint pursuant to section 2-615 of the Code, which the court granted. In addition, the court allowed plaintiff to further amend her complaint to allege willful and wanton misconduct. Defendants moved to dismiss plaintiff's  second amended complaint pursuant to section 2-615 of the Code, which the court granted. Plaintiff appeals, arguing the trial court erred in (1) determining that the Act barred her negligence claims against defendants, (2) dismissing her second amended  complaint because she properly pled a willful and wanton exception to the immunity otherwise provided by the Act, and (3) denying her request for additional time to locate individuals to aid in providing factual support for her claims. We affirm in part,  reverse in part, and remand.


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