Illinois Supreme and Appellate Court Case Summaries

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


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10 Appellate Cases Posted 12-31-13

1. Individuals with Disabilities Education Act: Reversed and remanded:  Since the hearing officer must evaluate the IEP as it existed, and not a hypothetical IEP that never existed, the officer erred as a matter of law. Parents are not barred from reimbursement where a private school they choose does not meet the IDEA's definition of a free appropriate public education. Also, notwithstanding that this issue has been waived, the District failed to provide adequate notice of the limitations period and contributed to the delay in revising Jenna's IEP.  Thus, the two-year limitations period in the IDEA does not bar plaintiffs' action in this case.  Gordon, J. with Reyes, J. specially concurring in part and dissenting in part.

No. 2013 IL App (1st) 112247   Jenna R.P. v. The City of Chicago School District No. 229   Filed 12-31-13 (RJC)

Plaintiffs filed this lawsuit pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 et seq. (2006)) and the Illinois School Code (School Code) (105 ILCS 5/14-1.10 (West 2008)). Plaintiffs, Jenna R. P. (Jenna) and E. Scott P. (Scott), as her guardian and next friend, appeal an order of the circuit court of Cook County which found in favor of defendants City of Chicago School District No. 229 (District) and the Illinois State Board of Education (Board), denying plaintiffs reimbursement of  Jenna's tuition and expenses for her placement at a private boarding school. Reversed and remanded. 

2. Criminal Law/Post-conviction petition: Affirmed: The defendant failed to satisfy the cause prong of the cause and prejudice test for several reasons. The defendant asserts that the trial court and his defense counsel at the time of the plea are the cause of his failure to assert his claim.  What is in issue here is not the reason he didn't file the right motion after his guilty plea. What is at issue here is whether there was some external cause that prevented him from asserting his claims in his original postconviction petition. Neither the trial court nor his original defense counsel prevented defendant from presenting these claims in his original postconviction petition.The claims raised in the defendant's successive postconviction petition are procedurally barred and that he has not shown cause to avoid the default. As a result, the trial court's order dismissing the petition is affirmed.  Palmer, J.

No. 2013 IL App (1st) 113263     People v. Jones    Filed 12-31-13 (RJC)

Defendant, Tramaine Jones1 appeals from the September 30, 2011 order of the circuit court dismissing his successive postconviction petition. The summary dismissal of defendant's initial pro se postconviction petition was affirmed by this court (see People v. Jones, 341 Ill. App. 3d 103 (2003)), and ultimately by our supreme court (see People v. Jones, 213 Ill. 2d 498 (2004)). The trial court granted the State's motion to dismiss on the grounds that the claims brought in the successive postconviction petition were procedurally barred. We affirm the trial court's order dismissing this successive post conviction petition as procedurally barred.

3. Criminal Law: Affirmed:  If the State invokes the privilege against disclosure of the surveillance location, the State has the initial burden to demonstrate that the privilege applies.  That burden is satisfied by proof that the surveillance location was either on private property with the owner's permission, or in a useful location that would be compromised by disclosure.  A review of the record does not establish that the trial court abused its discretion in precluding disclosure of the officer's surveillance location. It is the appellant's burden to provide this court with a record adequate to support claims of error, and in the absence of an adequate record, we resolve all doubts against the appellant and presume that the trial court's ruling had a sufficient legal and factual basis. Therefore, it is presumed that, at the in camera hearing, the court heard information sufficient to sustain the State's burden that the privilege applied. Hyman, J.

No. 2013 IL App (1st) 113465     People v. Reed    Filed 12-31-13 (RJC)

Defendant Belton Reed was convicted of possession of a controlled substance, after a bench trial. The trial court sentenced Reed to a five-year extended prison term. On appeal, Reed contends the trial court impermissibly restricted Reed's sixth amendment right to confront the evidence against him by denying disclosure of the surveillance location of the only officer who saw Reed possess the narcotics. We affirm.

4. Criminal Law/UUW: Affirmed: The sole issue in this case is whether the Class 2 form of section 24-1.6(a)(1), (a)(3)(A), (d) of the AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)) violates the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution (U.S. Const., amend. II).  The history of prohibitions on the possession of firearms by felons has been expressly recognized by the United States Supreme Court and the Illinois Supreme Court. Thus, the possession of firearms by felons is conduct that falls outside the scope of the second amendment's protection.  In this case, the Class 2 form of AUUW at issue merely regulates the possession of a firearm by a person who has been previously convicted of a felony. Accordingly, defendant's constitutional challenge to the Class 2 form of the offense in the AUUW statute fails. Reyes, J.

No. 2013 IL App (1st) 120929    People v. Burns    Filed 12-31-13 (RJC)

Following a bench trial in the circuit court of Cook County, defendant Edward Burns (defendant) was found guilty of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1),(a)(2), (a)(3)(A), (d) (West 2008) and sentenced to 10 years in prison. Defendant was convicted of a Class 2 offense, based on a prior felony conviction, and sentenced as a Class X offender. On appeal, defendant argues his convictions must be reversed pursuant to the Illinois Supreme Court's decision in People v. Aguilar, 2013 IL 112116, reh'g denied (Dec. 19, 2013), which held the Class 4 form of section 5/24-1.6(a)(1),(a)(3)(A), (d) of the AUUW statute facially violates the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution (U.S. Const., amend. II). Aguilar, 2013 IL 112116, Affirmed.

5. Criminal Law/Post-conviction petition: Affirmed:  The defendant’s trial counsel did not render ineffective assistance because the “record here establishes that defense counsel thoroughly investigated and prepared defendant’s case and reasonably chose to argue defendant’s complete innocence in the shooting, rather than a justification for it.”  In turn, defendant’s appellate counsel was not ineffective in failing to raise the issue on direct appeal since there was no merit to defendant’s claim. As a result, the trial court did not err in denying
defendant leave to file a successive postconviction petition since defendant did not establish prejudice.  Gordon, J.

No. 2013 IL App (1st) 113263     People v. Morrow    Filed 12-31-13 (RJC)

Defendant requested leave to file his second postconviction petition in which he claimed for the first time that his appellate counsel provided ineffective assistance of counsel when he failed to argue on direct appeal that defendant’s trial counsel ineffectively failed to request a second-degree murder jury instruction. The trial court found that, although defendant established cause to file a successive petition, he did not show prejudice to support his claim because the evidence at trial did not support a finding of second-degree murder. As a result, the trial court denied defendant leave to file a successive postconviction petition, and defendant now appeals. On this appeal, defendant argues that the trial court erred since he established both cause and prejudice required to file a second postconviction petition. Affirmed.

6. FOIA: Affirmed as modified:  The PAC did not issue a binding opinion. Because the PAC issued a nonbinding opinion concerning the dispute between Garlick and the District, the Administrative Review Law does not apply to the dispute. Therefore, Garlick may sue the District directly, without filing an administrative review action. The dismissal of Garlick's complaint is modified to make it a dismissal with prejudice of only the claim against the PAC. The case is remanded to allow Garlick to amend his complaint to state a cause of action against the District for injunctive or declaratory relief. Pucinski, J.

No. 2013 IL App (1st) 122444   Garlick v. The Office of the Public Access Counselor   Filed 12-31-13 (RJC)

When Oak Park-River Forest High School District No. 200 (the District) denied Warren Garlick's request for some unredacted public documents, Garlick asked the Attorney General, through its Office of the Public Access Counselor (the PAC), to review the decision. The PAC issued a letter in which it found that the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2010)) permitted the District's redactions from the copies of the public documents sent to Garlick. Garlick then sued the District and the PAC in circuit court. The circuit court held that the PAC's letter qualified as a binding opinion, subject to review only under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2010)). The court then held that Garlick had not met the applicable standard for showing that the PAC erred, so the court dismissed the complaint.

7. Criminal Law: Reversed:  Although defendant drove the shooter to and from the crime scene, the State has failed to prove beyond a reasonable doubt that defendant knew that the shooter was armed and intended to murder the victim. Since the State failed to prove beyond a reasonable doubt that defendant intentionally facilitated the shooter before or during the commission of the offense, the State failed to prove defendant accountable for first-degree murder beyond a reasonable doubt.  The evidence at retrial was so lacking that a subsequent
retrial of defendant would violate his constitutional right against double jeopardy. Since defendant's conviction is reversed, no need to address defendant's other claims or his claim concerning sentencing.  Also, the App. crt. discussed the State's closing argument and found it to have no place in the courtroom.  Gordon, J.

No. 2013 IL App (1st) 122459    People v. Johnson    Filed 12-31-13 (RJC)

Defendant Anthony Johnson was 17 years old on October 1, 2003, when he allegedly drove away from the scene of a shooting, with the shooter in his motor vehicle. The shooter was acquitted, but defendant was convicted on October 10, 2007, by a separate jury in a simultaneous trial, of first-degree murder on a theory of accountability and sentenced to 30 years in the Illinois Department of Corrections (IDOC). Case was reversed and remanded on appeal.  Upon retrial, the defendant was again convicted and Defendant was sentenced to 47 years. The defendant raised numerous issues on appeal. Reversed.

8. Illinois Emergency Medical Services (EMS) Systems Act (EMS Act): Affirmed: Doctrines of res judicata or collateral estoppel did no bar the second administrative action.  The express content and the context of section 3.130 within the overall EMS Act indicate that section 3.130 concerns facility, system, and equipment issues rather than individual medical personnel problems. Section 3.130 unambiguously applies the plan of correction procedure to EMS entities and equipment only and not to EMS personnel.  The unavoidable conclusion is that section 3.130 is not relevant to individual lead instructors. McBride, J.

No. 2013 IL App (1st) 122969    Gallaher v. Hasbrouk   Filed 12-31-13 (RJC)

Plaintiff Victoria Gallaher, a paramedic and emergency medical services instructor, sought injunctive relief and a declaratory judgment from the circuit court of Cook County to suspend and ultimately dismiss an administrative action brought by the State of Illinois to revoke her instructor's license. The trial court enjoined the administrative action, but later rejected Gallaher's contention that the defendant State agency was misconstruing its statutory authority to revoke her license without first implementing a "plan of correction" to address her alleged misconduct. Gallaher appeals from the trial court's adverse ruling on cross-motions for summary judgment, primarily contending that a section of the Illinois Emergency Medical Services (EMS) Systems Act (EMS Act) entitled "Facility, system, and equipment violations; Plans of Correction" (210 ILCS 50/3.130 (West 2010)), applies to individuals and entitled Gallaher to a plan of correction. Affirmed.

9. Premises Liability/Immunity: Affirmed: No issue of material fact as to the “policy determination” requirement of section 2-201. Given the facts in this case, the handling of the sidewalk deviation was a discretionary act and not a ministerial one. College engaged in both the determination of policy and the exercise of discretion in handling this sidewalk deviation.  Therefore, the College was entitled to discretionary immunity under sections 2-109 and 2-201, and the court properly granted summary judgment in its favor on that basis. Spence, J.

No. 2013 IL App (2d) 130095   Richter v. College of Du Page   Filed 12-31-13 (RJC)

Plaintiff, Blanche Richter, filed suit against defendant, the College of Du Page, after falling on an uneven sidewalk. The College raised an affirmative defense under sections 2-109 and 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act)
(745 ILCS 10/2-109, 201 (West 2010)) and moved for summary judgment. At issue is whether the handling of the sidewalk deviation was a discretionary act under section 2-201 (745 ILCS 10/2-201 (West 2010)) or a ministerial act under section 3-102 (745 ILCS 10/3-102 (West 2010)) of the Tort Immunity Act. The trial court determined that the College was entitled to discretionary immunity under sections 2-109 and 2-201 because the handling of the sidewalk deviation was both an exercise of discretion and a policy determination, as opposed to a ministerial act. The court granted the College’s motion for summary judgment, and plaintiff appeals. We affirm.

10. Worker's Compensation: Affirmed: The claimant’s employment placed him in a position of greater risk of falling, satisfying the exception to the general rule of noncompensability for injuries resulting from a personal risk, and that the frequency with which the claimant was required to traverse the stairs constituted an increased risk on a quantitative basis from that to which the general public is exposed. The facts of this case support the Commission’s finding that the claimant’s fall and resulting injury arose both out of and in the course of his employment with the Village and that its holding in this regard is not against the manifest weigh of the evidence. Hoffman, J.

No. 2013 IL App (2d) 130038WC    Village of Villa Park v. The Illinois Workers' Compensation Commission     Filed 12-31-13 (RJC)

The Village of Villa Park (Village), appeals from an order of the circuit court confirming a decision of the Illinois Workers’ Compensation Commission (Commission) that awarded the claimant, John Simons, benefits under the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2006)), after finding that his injury arose out of and in the course of his employment. Affirmed.

4 Appellate Cases Posted 12-30-13

1. Contracts/Sales Representative Act: Affirmed:   No genuine issue of material fact exists to show that Safeguard was a purveyor of tangible goods, and, therefore, Safeguard was not a "principal" within the meaning of the Act. Therefore, Safeguard was not subject to the provisions of the Act. Accordingly, the circuit court properly granted summary judgment in favor of Safeguard on count I. Cunningham, J.

No. 2013 IL App (1st) 123616    Johnson v. Safeguard Construction Company, Inc.   Filed 12-30-13 (RJC)

This appeal arises from the October 31, 2012 order entered by the circuit court of Cook County, which granted summary judgment on count I of a complaint in favor of defendant Safeguard Construction Company, Inc. (Safeguard), and denied summary judgment on count II in favor of plaintiff Scott Johnson (Johnson). Following Johnson's voluntary dismissal of the surviving count of the complaint, the circuit court entered a final order. On appeal, Johnson argues that the circuit court erred in granting summary judgment on count I of the complaint. Affirmed.

2. Boat Registration Act/DUI: Affirmed: The only issue is whether section 2-2(a), as applied to defendant in this case, is unconstitutional. The nature of the officers’ questioning was not intrusive and that no search was conducted. Although the exact length of the stop of defendant’s boat is unknown, the evidence presented at trial demonstrates that the length of the stop was brief.  Based on the record, the objective intrusion in this case was minimal.  The boat safety check conducted by the officers was indicative not of unfettered or unconstrained discretion but of the execution of a regular and  systematic registration and safety enforcement operation.  The State’s interest in promoting the safety of persons and property in connection with boating outweighed the minimal intrusion occasioned by the officers’ stop of defendant’s boat,  the trial court’s judgment is affirmed. Zenoff, J. with McLaren, J. dissenting.

No. 2013 IL App (2d) 110953    People v. Butorac    Filed 12-30-13 (RJC)

Defendant was convicted of operating a watercraft while under the influence of alcohol (625 ILCS 45/5-16(A)(1)(b) (West 2010)). He was convicted of that offense after officers stopped his boat pursuant to section 2-2(a) of the Boat Registration and Safety Act (Act) (625 ILCS 45/2-2(a)
(West 2010)), which permitted the officers to “board and inspect any boat at any time” to determine if the Act was being complied with. On appeal, defendant argues that the trial court should have granted his motion to quash his arrest and suppress evidence because the stop of his boat was
unconstitutional. Before the trial court and in his briefs on appeal, defendant pursued both facial and as-applied challenges to section 2-2(a) of the Act. At oral argument, however, defendant withdrew his facial challenge.

3. Juvenile: Affirmed in part and vacated in part.: Where evidence permits multiple reasonable inferences, we will accept those inferences that support the trial court’s judgment. We cannot say that no rational trier of fact could have inferred that respondents acted with intent of sexual gratification or arousal; therefore, we find no error here.  As the legislature did not include persons who have been “adjudicated a delinquent minor and made a ward of the court” in the list of persons to whom section 5-9-1.7(b)(1) applies, we may infer that the legislature intended to exclude such persons from its application. The trial court’s assessment of the section 5-9-1.7(b)(1) sexual assault fine against respondents was, as a matter of law, in error. McLaren, J.

No. 2013 IL App (2d) 120347    In re Davontay A.    Filed 12-30-13 (RJC)

In these consolidated cases, respondents, Davontay A. and Donavon A., were adjudged to be delinquent minors, made wards of the court, and placed on probation. They now appeal, contending that: (1) the charges against them were not proven beyond a reasonable doubt; and (2) the trial court erred in assessing sexual assault fines. We affirm in part and vacate in part.

4. Criminal Law/Fines & fees: Affirmed as modified in part, vacated in part, and remand: $307 must be credited against defendant’s fines for the time he served in custody before sentencing and that defendant’s Violent Crime Victims Assistance Fund fine must be $32.  The probation and delinquency fees are vacated and remanded for recalculations. Also, because of a lack of jurisdiction to consider defendant’s public defender fee, it cannot be modified it in any way. Zenoff, J.

No. 2013 IL App (2d) 120575    People v. Wynn    Filed 12-30-13 (RJC)

Pursuant to a negotiated plea agreement, defendant, Brian N. Wynn, pleaded guilty to domestic battery (enhanced) (720 ILCS 5/12-3.2(a)(2) (West 2010)) in return for a sentence of 18 months’ probation. In sentencing defendant, the court also imposed various fines and fees that defendant never challenged. Soon thereafter, the State petitioned to revoke defendant’s probation when he failed to comply with several probationary terms. The trial court granted the petition to revoke and sentenced defendant to three years’ imprisonment. Defendant moved to reconsider, and, following a hearing, the court reduced defendant’s sentence to 2½ years. On appeal, defendant argues that (1) the clerk of the circuit court could not impose the $5 Children’s Advocacy Center fine; (2) he is entitled to a $5 credit against his fines for each day he served in presentencing custody; (3) the public defender fee the court imposed must be vacated because, before assessing that fee, the court failed to hold a hearing on defendant’s ability to pay; (4) any probation fees charged for the time defendant was not serving probation must be vacated; and (5) the delinquency fee assessed
against defendant must be vacated, as it is based on an incorrect unpaid balance amount. Affirmed as modified in part, vacated in part, and remand.

8 Appellate Cases Posted 12-27-13

1. Criminal Law: Sentence vacated; remanded for resentencing: When the State fails to state in the charging instrument its intention to seek an enhancement in the classification of offense from Class 3 to Class 2, the sentence must be vacated and remanded for sentencing as a Class 3 felony.  No reason to depart from established precedent. Gordon, J. with Palmer, J. dissenting.

No. 2013 IL App (1st) 121792    People v. Pryor    Filed 12-27-13 (RJC)

Defendant Anthony Pryor was convicted of one count of unlawful use or possession of a weapon (UUW) by a felon and sentenced to five years in prison.  On this direct appeal, defendant raises claims that challenge only his sentence. Defendant claims: (1) that his UUW conviction was improperly enhanced from a Class 3 to a Class 2 offense where the State's charging instrument failed to provide the notice required by the Code of Criminal Procedure of 1963 (the Act) (725 ILCS 5/111-3(c) (West 2010)) when the State was seeking an enhanced classification of the offense; and (2) that defendant was subjected to an improper double jeopardy enhancement because the same prior felony conviction was used both to prove an element of the offense and to elevate the class of offense from a Class 3 which constitutes a Class 2 felony.

2. Criminal Law/Juvenile: Reversed and remanded: The only issue on this appeal is whether or not a seizure occurred. The timing of the seizure is a critical issue in this case.  Respondent was not seized while he was still running away from the officers. The trial court erred when it held that respondent was seized during the officers' vehicular chase of respondent, as he continued to run on foot. Although there is no question that the shooting was a seizure, our remand  provides the State with an opportunity to respond to this evidence. Gordon, J. McBride, J. specially concurred, with opinion, joined by Palmer, J.

No. 2013 IL App (1st) 130421    In re Kendale H.    Filed 12-27-13 (RJC)

The trial court held that respondent Kendale H., a minor, was seized during the police's vehicular chase of him, while he was running on foot in a vacant lot. On appeal, respondent argues that a seizure occurred when the police subsequently shot him in the abdomen. On appeal, the State does not argue that the shooting was justified, but argues only that no seizure occurred during the chase. For the following reasons, we reverse the trial court's ruling that a seizure occurred during the chase and we remand for a suppression hearing at which the minor may introduce evidence that, at the end of the chase, he was shot by the police. Although there is no question that the shooting was a seizure, our remand  provides the State with an opportunity to respond to this evidence.

3. Tax Deed: Affirmed: Equity One's post-sale notice form to Williams was not "completely filled in," as required by our legislature.  because a deficient notice is not regarded as any notice within the meaning of the statute, the trial court properly denied the application for a tax deed.  Accordingly, we affirm on this basis and decline to reach the parties' additional arguments regarding the trial court's ruling. McBride, J.

No. 2013 IL App (1st) 130463   In re The Application of the Cook County Treasurer   Filed 12-27-13 (RJC)

Equity One Investment Fund, LLC (Equity One) paid the Cook County clerk $10,021.34 to satisfy the delinquent 2006 real estate taxes and then petitioned the circuit court for a deed. The property is part of Chicago's South Shore community, in the historic Jackson Park Highlands District, and has been designated as a Chicago Landmark by the city council of Chicago. Homeowner Harold Williams objected to Equity One's petition in part on grounds that a statutorily required notice omitted the name of the municipality in which the property is located and, therefore, the petitioner had not strictly complied with the provision in section 22-5 of the Illinois Property Tax Code (Code) that the notice form be "completely filled in." 35 ILCS 200/22-5 (West 2008). After briefing and oral arguments, the circuit court ruled in favor of homeowner Williams. Equity One appeals,
contending the name of the municipality was unnecessary because the notice included the 14-digit property index number or PIN issued by the Cook County clerk. Affirmed.

4. Criminal Law: Affirmed in part, vacated in part and remanded: Prior to imposing a felony sentence following revocation of a defendant's probation, the trial court must first consider the defendant's presentence investigation report.  Because of the statute's mandatory nature, strict compliance is required; substantial compliance does not suffice.  This requirement, that the trial court order a presentence investigation report, may only be waived where both parties agree to the imposition of a specific sentence and where an on-therecord
finding is made regarding the defendant's criminal history. Here, there is no indication that the parties agreed to the imposition of a specific sentence following revocation of the defendant's probation and there was no on-the-record finding regarding the defendant's criminal history. Hall, J.

No. 2013 IL App (1st) 110193    People v. Fischer    Filed 12-27-13 (RJC)

In this appeal, defendant Michael Fisher argues the trial court improperly extended his probation and he challenges the imposition of a three-year prison sentence for violations of his probation. For the reasons that follow, we affirm in part, vacate in part, and remand with

5. Contracts/SOL: Affirmed: Plaintiffs’ e-filed notice of appeal, although improperly filed, is sufficient to confer jurisdiction, particularly because the circuit court was required to maintain a backup paper copy in a parallel manual court file. Accordingly, plaintiffs’ motion to allow the e-filed notice of appeal to stand as effective is granted .The trial court did not err in dismissing the second amended complaint, because the claims are time-barred. Plaintiffs do not dispute that the five-year statute of limitations applies to all their claims. The statute of limitations was not tolled where the second amended complaint failed to  adequately plead a fiduciary duty, and there was no concealment where the allegedly concealed matters were of public record. Finally, plaintiffs do not assert that they should be allowed to replead their claims.  Burke, J.

No. 2013 IL App (2d) 111297    Diotallevi v. Diotallevi    Filed 12-27-13 (RJC)

This is a family dispute in which plaintiffs, Donald Diotallevi, Josephine Diotallevi, Richard Diotallevi, Camille Diotallevi, and Ronald Diotallevi, allege that defendants, Dennis Diotallevi and Pamela Diotallevi, failed to repay money received in the forms of loans and investments. The trial court dismissed with prejudice the second amended complaint on the grounds that (1) plaintiffs failed to allege the existence and breach of a fiduciary duty owed by defendants and (2) even if defendants breached such a duty, plaintiffs’ claims were untimely because defendants engaged in no concealment that would extend the five-year statute of limitations for contract actions (see 735 ILCS 5/13-205 (West 2010)). On appeal, plaintiffs argue that (1) the five-year limitations period of section 13-205 is not an “absolute bar” to their claims and (2) the second amended complaint states claims for constructive and resulting trusts, a claim for unjust enrichment, and shareholders’ derivative claims. We affirm.

6. Criminal Law/Post-Conviction Hearing Act: Once a petition is dismissed at the first stage, a defendant can either file a motion to reconsider or challenge the dismissal on appeal. Here, defendant did neither. Defendant’s motion to amend was filed after his original petition was dismissed as frivolous and patently without merit, and it was thus an impermissible attempt to amend under section 122-5. The proper resolution here is to modify the court’s rejection of the “successive postconviction petition” such that it is a denial of defendant’s motion for leave to amend. This modification properly disposes of the proposed amended petition. This disposition is without prejudice to defendant’s right to seek leave to file a successive petition as provided for by the Act. Burke, J.

No. 2013 IL App (2d) 120205    People v. White    Filed 12-27-13 (RJC)

A jury found defendant, Willie J. White, guilty of second-degree murder (720 ILCS 5/9-2(a)(1) (West 2006)), and the court sentenced him to 20 years’ imprisonment. He appealed, challenging the sentence only, and we affirmed. On December 21, 2011, defendant filed a petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)), asserting that he had received ineffective assistance of counsel. On January 6, 2012, the court entered an order dismissing the petition as frivolous and patently without merit pursuant to section 122-2.1(a)(2) of the Act. On February 6, 2012, defendant filed a notice of appeal relating to the dismissal of the original petition. On February 10, 2012, the court stated, “[t]he defendant has attempted to file a successive post-conviction petition without leave of court, without showing cause or prejudice,” so,
“[a]ccordingly, it is not filed.” In this appeal, defendant challenges the February 10, 2012 ruling.  

7. Domestic Relations/Child Support: Affirmed: The sole issue on appeal is whether money received by respondent from the postdissolution sale of certain shares of stock that he owned prior to the dissolution constitutes “income” for purposes of child support under section 505(a)(3) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/505(a)(3) (West 2012)).  Respondent’s postdissolution sale of certain shares of stock that he owned prior to the dissolution, from which sale no gain or profit was realized, did not constitute “income” for purposes of child support under section 505(a)(3) of the Act. Hudson, J.

No. 2013 IL App (2d) 130423    In re Marriage of Marsh    Filed 12-27-13 (RJC)

Petitioner, Susanne Marsh, filed a petition for a rule to show cause and for attorney fees against respondent, Thomas Marsh, claiming that respondent failed to comply with his child support obligations. The trial court denied the petition, and petitioner timely appealed.  We find that it does not, and thus we affirm.

8. TRO/Appeals: Appeal dismissed: The provisions of Rule 373 must yield to the more expedited requirements of Rule 307(d), and thus the mailbox rule does not apply to render this appeal timely. Where no timely notice of appeal has been filed, we lack jurisdiction and must dismiss the appeal.  It is well established that the supreme court rules “have the force of law and are binding on the court as well as the litigant, and that where there is a failure to comply with them the appeal will not be entertained.” Schostok, J.

No. 2013 IL App (2d) 131230    Nizamuddin v. Community Education in Excellence, Inc.   Filed 12-27-13 (RJC)

On November 22, 2013, the circuit court of Du Page County entered a temporary restraining order (TRO) requiring the defendant, Community Education in Excellence, Inc., the operator of a private school, to stay the expulsion of the plaintiff, Nadeem Nizamuddin, a student at the school. The TRO was to remain in effect until a hearing on the plaintiff’s request for a preliminary injunction could be held. Wishing to appeal the trial court’s grant of the TRO, on November 25, 2013, the defendant filed a notice of appeal in the circuit court. It then mailed—to both this court and the plaintiff—copies of: (1) the notice of appeal, (2) its petition for review, (3) its memorandum of  law in support of its petition, and (4) a proof of service for all of these items, stating that they had been served upon the plaintiff by being placed in the regular United States mail with proper postage prepaid. We dismissed the appeal on December 2, 2013. We now issue this opinion to explain why.

3 Appellate Cases Posted 12-26-13

1. Criminal Law/Post-Conviction Hearing Act: Affirmed: Performance was not so deficient that consel failed to provide a reasonable level of assistance.  Defendant's argument that counsel failed to consult with him fails because the argument is based primarily on counsel's failure to file a Rule 651(c) certificate. However, because Rule 651(c) does not apply here, counsel was not required to file a certificate.  Defendant adds that counsel's failure to raise additional issues in his postconviction petition further shows that counsel failed to consult with him. Again, defendant fails to state what issues counsel should have raised. Epstein, J.

No. 2013 IL App (1st) 113458    People v. Anguiano    Filed 12-26-13 (RJC)

Following a bench trial, defendant Alejandro Anguiano was found guilty of delivering more than 900 grams of cocaine and was sentenced to 15 years' imprisonment. We affirmed his conviction on direct appeal. People v. Anguiano, No. 1-10-0129 (2011) (unpublished order under Supreme Court Rule 23). He filed a counseled postconviction petition, which the circuit court dismissed at the second stage. Defendant argues on appeal that the private attorney who represented him both on direct appeal and in his postconviction proceedings failed to provide a reasonable level of assistance or comply with Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013), where he failed to consult with defendant and raised precisely the same issue in both proceedings. We affirm.

2. Criminal Law: Reversed and remanded: Here, the State presented very little evidence on the issue of accountability. Based on the record as a whole, the trial court made an unreasonable inference when it concluded that defendant conspired with his codefendants. This conclusion is simply improbable based on the evidence in this case and defendant's conviction cannot stand. Therefore, the evidence was insufficient to sustain defendant's conviction. Lavin, J.

No. 2013 IL App (1st) 112693    People v. Williams    Filed 12-26-13 (RJC)

Following a bench trial, defendant Clarence Williams was found guilty of one count of first-degree murder based on an accountability theory. Defendant received a sentence of 23 years in prison and an additional 20-year firearm enhancement.  On appeal, defendant asserts that (1) the evidence was insufficient to sustain his conviction; (2) the trial court erred by admitting gang evidence through an unqualified witness and a witness's prior consistent statement; (3) the murder was not sexually motivated and defendant should not be required to register as a sex offender; and (4) defendant's mittimus should be corrected to reflect that he was convicted of first-degree murder with a mandatory firearm enhancement, not two first-degree murder convictions. We reverse defendant's conviction for first-degree murder and remand for sentencing on the lesser offense of aggravated discharge of a firearm.

3. Criminal Law/Guilty pleas: Affirmed: When a defendant pleads guilty, he waives all nonjurisdictional issues.  The defendant's guilty plea is a break in the chain of events which preceded it in the criminal process. The defendant cannot then raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. Because the defendant's stipulation was tantamount to a guilty plea, he waived all nonjurisdictional issues, and we need not reach the issue he raises on appeal. Stewart, J.

No. 2013 IL App (5th) 120566    People v. Mueller    Filed 12-26-13 (RJC)

On November 24, 2010, the State charged the defendant, Robbie Mueller, with four counts of first-degree murder, one count of aggravated kidnapping, two counts of home invasion, one count of residential burglary, one count of kidnapping, and one count of concealment of a homicidal death. On September 13, 2012, the parties appeared in court and the State filed an amended information charging the defendant with first-degree murder (accountability) in violation of section 9-1(a)(1) of the Criminal Code of 1961 (720 ILCS 5/9-1(a)(1) (West 2010)). Before the trial court accepted the stipulation, the court admonished the defendant in accordance with Illinois Supreme Court Rule 402 (eff. July 1, 2012). The trial court entered an order stating that the defendant entered into a stipulation and that he agreed "that there is evidence sufficient to convict." The court found the defendant guilty of first-degree murder (accountability) and sentenced him to 37 years' imprisonment. On November 14, 2012, the defendant filed a motion to withdraw his guilty plea and to vacate judgment. The defendant filed a timely notice of appeal. We affirm.

6 Appellate Cases Posted 12-24-13

1. Criminal Law: Affirmed: Any alleged error by defendant's trial counsel or appellate counsel in failing to raise an issue regarding the use of "or" between the five identification factors listed in I.P.I. criminal jury instruction 3.15 was not cognizable in a post-conviction petition, as, in this case, defendant's trial and appeal took place before the caselaw requiring that the word "or" not be used. Harris, J.

No. 2013 IL App (1st) 120793  People v. Oliver  Filed 12-24-13 (TJJ)

Petitioner, Harold Oliver, appeals the judgment of the circuit court dismissing his post-conviction petition after the second stage. On appeal, Oliver contends the trial court erred in dismissing his post-conviction petition where he made a substantial showing that appellate counsel was ineffective for failing to argue on direct appeal that (1) the court gave improper jury instructions on how to evaluate eyewitness identification testimony; and (2) his trial counsel was ineffective in failing to challenge the improper instruction. For the following reasons, we affirm.

2. Criminal Law: AUUW Conviction vacated: In case where defendant pleaded guilty to AUUW, received probation, had probation revoked and was sentenced to prison, and the Illinois Supreme Court decided thereafter in People v. Aguilar that the statute defendant pleaded guilty to was unconstitutional, the Appellate Court refused defendant's request to "only" appeal the probation revocation, and refused the State's request to remand the matter to the trial court for nolle pros'd charges to be reinstated, but instead ruled that it had an obligation to vacate the now unconstitutional charge, and refused to offer any advisory opinion regarding whether the State could reinstate such nolle'd charges, or whether double jeopardy prohibited such. Hyman, J.

No. 2013 IL App (1st) 121170  People v. Dunmore  Filed 12-24-13 (TJJ)

Defendant pled guilty and was convicted of one count of aggravated unlawful use of a weapon, sentenced to 18 months' probation, and assessed $680 in fees and fines. On a later finding that he violated the terms of his probation by possessing a controlled substance, the trial court revoked his probation and sentenced defendant to two years in prison, which he has now served. Defendant appealed only the revocation of his probation and the assessment of the fees and fines. But, while his appeal was pending, the Illinois Supreme Court issued People v.Aguilar, 2013 IL 112116, which held that the exact statute defendant pled guilty to violating was unconstitutional on its face. Nevertheless, defendant asks us to leave the void conviction and sentence of probation in place, and limit our consideration solely to the subsequent revocation of his probation and the fees and fines. We conclude that we cannot ignore Aguilar, which put the parties in the same position as if no conviction had ever existed. Accordingly, we vacate defendant's conviction, the order of probation, the subsequent probation revocation, and the assessed fees and fines.

3. Negligence Law: Affirmed: In action for contribution for worker's injuries sustained in workplace accident by general contractor against sub-contractor supplying concrete services, where contract was ambiguous as to whether subcontractor had responsibility to "infill" gaps in poured floor concrete, trial court could look to extrinsic evidence relating to 20 prior contracts between sub-contractor and general contractor, and in absence of contractual obligation to provide for such on sub-contractor's part, trial court grant of summary judgment to sub-contractor was proper. Hyman, J.

No. 2013 IL App (1st) 130568  Gomez v. Bovis Lend Lease, Inc.  Filed 12-14-13 (TJJ)

A worker injured at the construction site for the 102-story Trump International Hotel and Tower brought a negligence claim against the construction manager and the contractor. They, in turn, brought a contribution claim, which was dismissed on a motion for summary judgment. Bovis Lend Lease, Inc., the construction manager, and James McHugh Construction Co., the contractor, now ask us to reverse the entry of summary judgment on their contribution claim against third-party defendant, PERI  Formwork System, Inc. Bovis and McHugh assert that the contract between McHugh and PERI required PERI to provide designs and support for the infill areas, and a genuine issue of material fact exists as to whether PERI's failure to provide that support  was a proximate cause of the worker being injured. We affirm the order of summary judgment on the basis that while the contract is ambiguous on the subject of PERI's contractual duties, the undisputed extrinsic evidence demonstrates that PERI had no  duty to provide support for the infill areas.

4. Criminal Law: Affirmed in part, vacated in part, and remanded: Defendant's conviction for AUUW under 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) vacated in light of Illinois Supreme Court opinion in People v. Aguilar, but remanded for re-sentencing on AUUW offense in 720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (regarding possession of gun without a firearm owner's identification card), as the jury had returned a verdict on that latter charge as well, but the trial court had merged that offense into the now unconstitutional charge; matter also remanded for proper hearing on defendant's ability to pay for services of public defender. Steigmann, J.

No. 2013 IL App (4th) 120635  People v. Campbell  Filed 12-24-13 (TJJ)

In April 2012, a jury found defendant, Johnathan Campbell, guilty of aggravated battery (720 ILCS 5/12-4(b) (West 2010)) and aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010)). In August 2012, the trial court  sentenced defendant to concurrent terms of five years in prison. Defendant appeals, arguing that (1) his conviction for aggravated unlawful use of a weapon is void because the supreme court has declared the provision of the statute at issue in this case  unconstitutional on its face, and (2) the trial court erred by ordering him to pay for the services of court-appointed counsel without first holding a hearing on his ability to pay. We affirm in part, reverse in part, vacate in part, and remand with directions.

5. Administrative Law (Medicaid ): Circuit court decisions reversed, administrative decisions affirmed: Decisions of Department of Human Services and Department of Healthcare and Family Services to impose penalties relating to Medicaid recipients who received "gift-backs" from relatives upheld by Appellate Court where recipient argument that purchased insurance policies were available for funeral expenses would not support trial court decision reversing departments, where no contracts for funeral services were extant to show that amount of policies would be utilized for funeral services. Pope, J.

No. 2013 IL App (4th) 120768  Tjaden v. State of Illinois  Filed 12-24-13 (TJJ)

These consolidated appeals arise from judgments entered by the circuit courts reversing the final administrative decisions of defendants, the Department of Healthcare and Family Services (HFS) and the Department of Human Services (DHS) (collectively,  the Departments) granting plaintiffs, Gloria Tjaden's and Willard Greer's, applications for Medicaid assistance while imposing penalty periods of noneligibility due to certain nonallowable asset transfers. The courts reversed the administrative decisions with  regard to those penalty periods. The Departments appeal, arguing the penalty periods imposed were proper where (1) the Departments were not required to recognize partially returned gifts for credit and (2) nonexempt burial contracts were purchased. We  reverse the circuit courts' judgments and affirm the administrative decisions.

6. Administrative Law (Medicaid): Affirmed: Decisions of Department of Healthcare and Family Services and Department of Human Services to grant Medicaid eligibility but impose penalty periods of ineligibility stemming from nonallowable asset transfers upheld where the transfers related to an insurance policy which obligated the insurer to pay the funeral and burial expenses totaling $12,000, but there was no contract for such services indicating that that money would in fact be used solely for such services, or would total that much. Pope, J.

No. 2013 IL App (4th) 121082  Evans v. State of Illinois  Filed 12-14-13 (TJJ)

In December 2008, defendants, the Department of Healthcare and Family Services (HFS) and the Department of Human Services (DHS) (collectively, the Departments) granted plaintiff, Peggy J. Evans', application for Medicaid assistance but imposed penalty periods of noneligibility, citing certain nonallowable asset transfers. Evans sought administrative review, and the circuit court affirmed. Evans appeals,arguing the Departments erred in (1) using Evans' long-term-care private-pay rate as of the date of her Medicaid application in calculating a one-month penalty period and (2) imposing a three-month penalty period where she created an exempt burial contract. We affirm.

6 Supreme Court cases Posted 12-19-2013

1. Juvenile: Vacated in part and reversed in part and remanded: In this decision, the Illinois Supreme Court said that the Juvenile Court Act has been interpreted to require that the possibility of supervision be broached and considered before proceeding to a finding of guilt and adjudication as to delinquency. Here, because supervision was not requested before the finding of guilt, any objection by the prosecutor had become irrelevant, and the circuit court should not have reached the constitutional issue concerning the approval provision because the minor lacked standing to raise it. The circuit court erred in reaching the constitutional issue, and its finding of unconstitutionality was vacated. The supervision order stands reversed as void. The question remains as to what disposition to enter concerning the minor. In this appeal, she alleged that she had received ineffective assistance of counsel because her attorney did not know at what point the issue of supervision had to be raised. She claimed that she did not know she was giving up the opportunity for supervision by rejecting the State’s plea offer, and that her attorney did not know that supervision had to be requested before a finding of guilt was entered. She alleged that the trial court was also unaware of the proper sequencing of events, and she also claimed plain error. In this decision, the supreme court agreed that the minor had been prejudiced. The cause was remanded for a new first-phase hearing, at which the minor can request supervision at the appropriate time. Should that occur, and should the State object, a challenge to the validity of the approval provision could properly be raised. Justice Burke 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 Karmeier concurred in part and dissented in part, with opinion.

No. 2013 IL App (1st) 110810    In re Danielle J    Filed 12-19-13 (RJC)

In January of 2010, there was a fistfight at Ace Technical Charter High School in Chicago. In juvenile proceedings seeking an adjudication of delinquency, this minor respondent, then 15, was charged with misdemeanor battery for allegedly striking a female classmate in the face and chest. The State’s offer to recommend a continuance under supervision in return for a guilty plea was rejected, and the case proceeded to a bench trial at which the victim and a security guard who had intervened testified. The accused minor also testified, claiming that she had acted in self-defense. The trial judge entered a finding of guilt.  At the sentencing hearing, the probation officer and the State both recommended probation, but defense counsel asked for a continuance under supervision. The judge said that the Juvenile Court Act precludes the granting of supervision to minors without the permission of the State’s Attorney, noting that this “approval provision” does not apply in the adult criminal system. The judge placed the minor on supervision (over the State’s objection) and held the approval provision unconstitutional on its face and as applied. This direct appeal from the finding of statutory unconstitutionality followed.

2. Criminal Law: Affirmed in part and reversed in part.: In this decision, the supreme court said that the defendant could not be found guilty of “making” the check. She had argued that she did not “make” the check when all she did was endorse it in her own name. With this proposition, the supreme court agreed, noting that, because the check was counterfeit, forgery by “making” was statutorily complete when the check was created, regardless of endorsement. In addition, on the question of evidentiary sufficiency, evidence that the defendant actually made the check is wholly absent from the record.  The conviction for forgery by making the check was reversed, but the conviction for attempted theft by delivering the check still stands, and the sentencing order was modified to reflect that it is the sole remaining conviction. Justice Freeman delivered the judgment of the court, with opinion.  Chief Justice Garman and Justices Karmeier, Burke, and Theis concurred in the judgment and opinion.  Justice Thomas specially concurred, with opinion, joined by Justice Kilbride.

No. 2013 IL App (1st) 114196   People v. Brown   Filed 12-19-13 (RJC)

 In 2006, Tiffany Brown, then a Chicago policewoman, entered the Chicago Patrolmen’s Federal Credit Union and presented for deposit a $1 million check made out to her which was purportedly drawn by Six Flags Great America on a JP Morgan Chase bank account. She endorsed it in her own name.  The check was counterfeit and did not make it through the clearing system. The defendant was charged with several offenses and, at her Cook County bench trial, testified that her mother had given her the check and had told her that it was the result of the defendant’s sister’s settlement of a lawsuit which was being passed on, in part, to the defendant. The sister already had a forgery conviction. After having been given two years of probation and fifty hours of community service by the circuit court, the defendant emerged from the appellate court with convictions for attempted theft by delivering the counterfeit check and for forgery by making the check. Only the latter conviction is challenged in this appeal to the Illinois Supreme Court. Appellate court judgment affirmed in part and reversed in part.  Circuit court judgment affirmed in part and reversed in part.

3. Pension: Reversed: In this decision, the Illinois Supreme Court said that the plaintiffs were not reading the statutory language correctly. Insofar as duty availability pay may be used for pension calculation, it must be pay that was actually received by the firemen, which in this case never occurred. The circuit court had not accepted the plaintiffs’ argument and, on this issue, had granted summary judgment for the Board. The appellate court reversed, but the supreme court said that the appellate court ruling cannot be upheld. Only duty availability pay that was actually received by firemen may be included in the salary calculation on which a pension is based. Justice Burke delivered the judgment of the court, with opinion.  Chief Justice Garman and Justices Freeman, Thomas, and Karmeier concurred in the judgment and opinion. Justice Theis dissented, with opinion, joined by Justice Kilbride.

No. 2013 IL App (1st) 114811    Hooker v. Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago    Filed 12-19-13 (RJC)

 These Cook County proceedings were initiated by the widows of two Chicago firefighters who suffered duty-related injuries and died some time later. Michael Hooker was awarded a duty disability benefit in 1989 and died in 2000. His widow, Elaine, received an ordinary widow’s pension from the Retirement Board of the Firemen’s Annuity and Retirement Benefit Fund of Chicago. James Murphy was awarded a duty disability benefit in 1985 and died in 1998. His widow, Jane, also received an ordinary widow’s pension. Later, in proceedings not contested here, the two widows were awarded the annuities available to widows of firemen who died in the line of duty, retroactive to the date of death of each spouse, plus interest, because the injuries were permanent and had prevented them from ever returning to active duty.

This appeal involves the widows’ additional request for duty availability pay, which is generally intended to compensate firefighters for being available for duty. This type of compensation was created in the early 1990s, after these firemen’s accidents, and neither of them ever received it.

The Pension Code provides that the annuity for widows of firemen is calculated based on the current salary attached to the classified position to which they were certified at the time of their death. Thus, when firefighters’ pay increases, widows may receive credit for increases for the positions to which their husbands were certified, and their pension annuities will increase based on those changes, even though the decedents never received them. These widows contended that duty availability pay should be included in the calculation on which such increases may be based. They pointed to Pension Code language added in 2004 that, they claimed, supported their argument.   The circuit court was affirmed and the appellate court was reversed. Class action certification, which the plaintiffs had sought, is not appropriate.

4.  Illinois Vehicle Code: Affirmed: In this decision, the Illinois Supreme Court explained that section 7-601(a) of the Illinois Safety and Family Financial Responsibility Law, a part of the Illinois Vehicle Code, requires liability insurance for vehicles on the road. This is for the protection of the public. Although the exclusion of named drivers is permitted, exclusion of a vehicle owner who is also the named insured is a violation of the public policy expressed in the statute. The appellate court had so held, and the supreme court affirmed it.  The circuit court had been incorrect, and the cause was to be remanded there for further proceedings.  Justice Burke delivered the judgment of the court, with opinion.  Chief Justice Garman and Justices Freeman, Thomas, Karmeier, and Theis concurred in the judgment and opinion.  Justice Kilbride dissented, with opinion.

No. 2013 IL App (1st) 115601   American Access Casualty Company v. Reyes    Filed 12-19-13

On October 30, 2007, Ana Reyes was driving her vehicle on a street in Elgin when she was involved in an accident with two pedestrians, a mother and her four-year-old son. The boy was seriously injured and died. The mother and her husband sued Reyes for negligence and wrongful death.

American Access Casualty Company is the plaintiff here. It filed an action seeking a declaration that the policy it had issued to Reyes provided no coverage. State Farm Insurance Company, which provided uninsured-motorist coverage to the mother and son, filed a counter complaint in that action, seeking a declaration that American Access’ attempt to exclude Reyes under its own insurance policy violated public policy and was unlawful. The circuit court of Kane County, however, agreed with American Access and granted it a summary judgment, finding that the insurance policy in question provided no coverage for the accident. The American Access policy had been issued to Ana Reyes on her 1999 Chrysler. She was identified as the titleholder of the vehicle, the named insured, and as “driver number one.” However, next to her name, where her driver’s license number should be, was the language “Title Holder Exclude.” Jose Cazarez, her friend, was listed as “driver number two” and identified as the primary driver. There was also an endorsement excluding vehicle operation by Reyes from coverage.

5.  Worker's Compensation: Reversed: In this decision, the Illinois Supreme Court held that the claimant was not a “traveling employee” and could not be compensated. The employer did not direct the employee to accept the position at this location, and he accepted it with full knowledge of the commute involved. His course or method of travel was not determined by the demands and exigencies of the job. He was not reimbursed for travel expenses or travel time or told what route to take. The Commission’s finding that the employee could be compensated was against the manifest weight of the evidence, and the circuit court’s judgment setting it aside was affirmed.  Chief Justice Garman delivered the judgment of the court, with opinion. Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion. Justice Kilbride dissented, with opinion.

No. 2013 IL App (1st) 115728    The Venture-New berg Perini Stone and Webster v. Illinois Workers' Compensation Commission    Filed 12-19-13 (RJC)         


The vicinity of Cordova, which is on the Mississippi River 200 miles from Springfield, was the scene of a 2006 automobile accident in which this workers’ compensation claimant was seriously injured. Springfield was where he resided and where his plumbers’ and pipefitters’ union was, but he had been unable to find work close to home. He arranged to work temporarily for The Venture, the plaintiff here, at this distant location where it had a facility. He stayed at a motel 30 miles from the worksite with a coworker, also from Springfield, who was driving when the accident occurred. The general rule of workers’ compensation is that an injury incurred by an

employee in going to or returning from the place of employment is not compensable, being viewed as not arising out of or in the course of employment. However, there is an exception for what are categorized as “traveling employees.” Various interpretations concerning the application of this exception determined the progress of this dispute through the courts.   The claim of Ronald Daugherty was first heard by an arbitrator, who denied it. The Illinois Workers’ Compensation Commission reversed, but, on administrative review, the circuit court of Sangamon County set aside the Commission’s finding. The Workers’ Compensation Division of the Appellate Court granted relief to Daugherty, and the employer appealed. The appellate court’s judgment is now reversed.

6.  Criminal Law/UUW: Reversed: There have been numerous developments concerning second amendment firearm rights since these events. This defendant was charged and convicted of carrying a firearm which was “uncased, loaded and immediately accessible” (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (b) (West 2008)). Although decisions of the appellate court in Illinois have upheld the constitutionality of this statute, on the federal level, the Seventh Circuit Court of Appeals held in 2012 that the statute under which the defendant was sentenced is effectively “a flat-ban on carrying ready-to-use guns outside the home” and, as such, violates the second amendment, which protects not only the right to keep but also the right to “bear” arms. This federal decision (Moore v. Madigan, 702 F.3d 933 (2012)) held that Illinois’ statute on aggravated unlawful use of a weapon is unconstitutional on its face. The State of Illinois did not appeal this decision, and the Illinois Supreme Court agreed in this opinion that this analysis is correct. However, the Illinois court said that it is in no way saying that the right to self-defense outside the home is unlimited or is not subject to regulation, but only that the comprehensive ban at issue here, which categorically prohibits the possession and use of an operable firearm for self-defense outside the home, is unconstitutional. The conviction for which the defendant was sentenced must be reversed. Aguilar was also convicted for the offense of unlawful possession of a firearm, but was not sentenced for it. Statute prohibits possession of a firearm of a size which may be concealed upon the person by one who is under 18 years of age. The defendant was 17. Despite historical arguments that 15-year-olds served in the early militias contemplated by the second amendment, the Illinois Supreme Court reiterated that the right to bear arms is not unlimited. Therefore, statutes may incorporate restrictions based on age. “Possession of handguns by minors is conduct that falls outside the scope of the second amendment’s protection,” said the court.   Although the conviction for aggravated unlawful use of a weapon must be reversed, on remand, the circuit court should impose sentence for unlawful possession of a firearm.  Justices Freeman, Kilbride, Karmeier, and Burke concurred in the judgment and opinion. Chief Justice Garman dissented upon denial of rehearing, with opinion.  Justice Theis dissented upon denial of rehearing, with opinion.

No. 2013 IL App (1st) 112116    People v. Aguilar   Modified Upon Denial of Rehearing   Filed 09-12-13 (RJC)          

This defendant was convicted in a Cook County bench trial of aggravated unlawful use of a weapon and was sentenced to 24 months of probation. Chicago police officers gave testimony that, in 2008, a group of male teenagers was screaming, making gestures, and throwing bottles at passing vehicles in the vicinity of 4217 West 25th Place in Chicago. The group retired to the backyard of that address, which was not the place of this defendant’s residence. Previously, while still in the street, he had been observed holding the right side of his waist area. In the backyard, defendant was heard yelling an expletive and was then seen with a gun in his right hand before he dropped it to the ground. The gun, which was recovered, had its serial number scratched off and was loaded with three live rounds of ammunition. The defendant testified that police searched the yard, showed him a gun and accused him of dropping it. He denied having a gun that evening and dropping it to the ground. A friend of his gave testimony corroborating this version of events, but none of the defense testimony was of any benefit to the defendant. In addition to his conviction for aggravated unlawful use of a weapon, he was also found guilty of unlawful possession of a firearm, but no sentence was imposed on the latter offense. The appellate court affirmed.   

5 Appellate Cases Posted 12-20-13

1.  Post Conviction Petitions: Reversed:  A reviewing court does not lack authority to address unbriefed issues and may do so in the appropriate case, i.e., when a clear and obvious error exists in the trial court proceedings, we could reverse the trial court's judgment on the basis of those allegations.   We chose instead to request supplemental briefs to allow the parties to address the issue.   At the first stage of proceedings, we must accept as true all facts alleged in the postconviction petition, unless the record contradicts those allegations. Our supreme court also has held that courts should excuse the absence of affidavits in which attorneys must confess their errors, because the "difficulty or impossibility of obtaining such an affidavit is self-apparent."  Neville, J., specially concurred in by Mason, J. and Hyman, J.

No. 2013 IL App (1st) 112373   People v. Barghouti  Filed 12-20-13 (LJD)

This case involves the proper role of the appellate court on de novo review of the trial court's order dismissing a postconviction petition. The trial court found Jamal Barghouti guilty of aggravated criminal sexual assault and aggravated kidnaping. Jamal filed a postconviction petition in which he alleged that he did not receive effective assistance of counsel. The trial court dismissed the petition as frivolous.  Accordingly, we reverse the dismissal of the postconviction petition and remand to advance the petition to the second stage of postconviction proceedings.

2.  Civil Procedure: Reversed:  Section 2-1401(f) codifies a common law rule allowing litigants to attack a void judgment any time.”  Petitions brought on voidness grounds need not be brought within the two-year time limitation,  and the allegation that the order is void substitutes for and negates the need to allege a meritorious defense and due diligence.  “A void order or judgment is, generally, one entered by a court without jurisdiction of the subject matter or the parties, or by a court that lacks the inherent power to make or enter the order involved.”  Once a court has obtained jurisdiction, an order will not be rendered void nor will the court lose jurisdiction merely because of an error or impropriety in the court’s determination of the facts or law.”  In civil cases, circuit courts enjoy, with limited exception, “original jurisdiction of all justiciable matters.”  A trial court may acquire personal jurisdiction over a defendant by his appearance or it may impose jurisdiction upon him by effective service of summons. Lampkin, J.

No. 2013 IL App (1st) 121688   McCarthy v. Pointer  Filed 12-20-13 (LJD)

In 2012, plaintiff Gerald McCarthy moved the trial court to vacate as void a 2007 order, which had dismissed, with prejudice, defendant Dwight Pointer from the case after a trial. The trial court also had ruled in 2007 that the dismissal order, pursuant to Illinois Supreme Court Rule 304(a) (eff. Jan. 1, 2006), was final and appealable, but plaintiff never appealed the dismissal order.  The trial court granted plaintiff’s motion to vacate the 2007 dismissal order, and defendant Pointer appealed. Pointer argues that the 2007 dismissal order was not subject to vacatur because it was not void where the trial court had  personal and subject-matter jurisdiction and the order was not procured by fraud. We agree, and accordingly vacate the trial court’s 2012 order vacating the 2007 dismissal order.

3. Corporations: Affirmed:  A motion to dismiss, pursuant to section 2-619 of the Code, admits the legal sufficiency of the plaintiffs’ complaint, but asserts an affirmative defense or other matter that avoids or defeats the plaintiffs’ claim.  De novo consideration means we perform the same analysis that a trial judge would perform.  In ruling on a motion to dismiss under section 2-619, the trial court may consider pleadings, depositions, and affidavits.  Section 10-10 of the LLC Act clearly indicates that a member or manager of an LLC is not personally liable for debts the company incurs unless each of the provisions in subsection (d) is met.”  Gordon, J.

No. 2013 IL App (1st) 122520   Dass v. Yale Filed 12-20-13 (LJD)

According to plaintiffs, the instant case provides a case of first impression. They claim that the legislature never intended section 10-10 of the Limited Liability Company Act (the LLC Act) (805 ILCS 180/10-10 (West 2010)) to shield limited liability company members or managers who commit fraud. The trial court found immunity under the LLC Act, which caused the instant appeal arising from the dismissal of plaintiffs’ fifth amended complaint pursuant to sections 2-619(a)(5) and (a)(9) of the Code of Civil Procedure (the Code) (735 ILCS 5/2- 619(a)(5), (a)(9) (West 2010)).

4.  Post Conviction Petition: Reversed and remanded for resentencing.:  At the first stage of a postconviction proceeding, the trial court is concerned merely with determining whether the petition's allegations sufficiently demonstrate a constitutional infirmity that would necessitate relief under the Act. At this stage, the circuit court is not permitted to engage in any fact-finding or credibility determinations, as all well-pleaded facts that are not positively rebutted by the original trial record are to be taken as true.  If the circuit court does not dismiss the postconviction petition as frivolous or patently without merit, then the petition advances to the second stage. Counsel is appointed to represent the defendant, if necessary and the State is allowed to file responsive pleadings. This court has found that under Hauschild, "the 15-year add-on for aggravated criminal sexual assault with a firearm is unconstitutional" and remanded for resentencing. McBride, J.

No. 2013 IL App (1st) 120580  People v. Toy   Filed 12-20-13 (LJD)

Following the summary dismissal of his pro se postconviction petition, defendant Damen Toy argues for the first time on appeal that he has an arguable claim that his sentence violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) and asks this court to remand his petition for second stage proceedings. Specifically, defendant contends that his sentences for aggravated criminal sexual assault with a 15-year firearm enhancement violate the proportionate penalties clause because armed violence based on a sexual assault contains identical elements, but the offenses have different penalties.

5.  Red Light Cameras/Administrative Review: Affirmed: When a party appeals from the circuit court's decision on a complaint for administrative review, our role is to review the administrative decision rather than the decision of the circuit court. The standard of review, 'which determines the degree of deference given to the agency's decision,' turns on whether the issue presented is a question of fact, a question of law, or a mixed question of law and fact."  The subject matter jurisdiction of a court refers to "the power of a court to hear and determine cases of the general class to which the proceeding in question belongs."  Although circuit courts have original jurisdiction over all justiciable matters, the legislature has the power to vest exclusive original jurisdiction in an administrative agency through an explicit and comprehensive statutory scheme.   The term "jurisdiction" does not strictly apply to an administrative body, but may be used to designate the administrative body's authority to act.  On the subject of notice, section 11-208.6(d) also provides that the municipality having jurisdiction over a violation recorded by an automated traffic law enforcement system, "shall issue a written notice of the violation to the registered owner of the vehicle as the alleged violator." Extensive discussion of the City Code and whether it requires the notice to be sworn. Bride, J.

No. 2013 IL App (1st) 130734  Farrar v. The City of Rolling Meadows  Filed 12-20-13 (LJD)

Plaintiff Mark Alan Farrar appeals from a decision of the circuit court affirming the judgment of an administrative hearing officer in the city of Rolling Meadows code hearing unit, which found him liable for a red light violation in the city of Rolling Meadows. On appeal, plaintiff contends that: (1) the code hearing unit lacked subject matter jurisdiction over his case because the city of Rolling Meadows failed to file a valid, bona fide, verified complaint or information; and (2) the code hearing unit lacked personal jurisdiction over his person. We affirm.

6 Appellate Cases Posted 12-19-13

1.  Contract: Reversed: The test for determining whether a liquidated-damages clause is valid as such or is void as a penalty is stated in section 356 of the Restatement (Second) of Contracts: Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty.’ The purpose of damages is to place the nonbreaching party in a position that he or she would have been in had the contract been performed, not to provide the nonbreaching party with a windfall recovery.” The three Jamison factors are set out in paragraph 49.   Howse, J.

No. 2013 IL App (1st) 112802    GK Development, Inc. v. Iowa Malls Financing Corporation   Filed 12-19-13 (LJD)

The issue presented in this case is whether a provision in a contract for the sale of four shopping centers, which required that $4.3 million of the purchase price be held in escrow from the seller's proceeds then be paid to the seller only if certain conditions are timely met, is enforceable as a liquidated damages clause or is unenforceable as a penalty.  Following a three-week bench trial, the trial court found that  the parties intended a “drop-dead deadline” of October 31, 2005 for plan and permit approval, and that Buyer was entitled to the Hy-Vee Holdback as liquidated damages for a breach of contract.

2.  Medical Negligence: Affirmed: After the Supreme Court hreversed the initial dismissal of the cause,  the cause proceeded to trial and this appeal followed.  Any oral or written out-of-court statement by a party to the action *** which tends to establish or disprove any material fact in a case is an admission and is competent evidence against that party in the action.  Judicial  admissions are formal admissions in the pleadings that have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact. For a statement to constitute a judicial admission, it must be clear, unequivocal, and uniquely within the party’s personal knowledge.  The statement must also be an intentional statement which relates to concrete facts and not an inference or unclear summary.  Extensive discussion on whether a thhird party complaint is a judicial admission.  Howse, J.

No. 2013 IL App (1st) 122360   Abruzzo v. The City of Park Ridge   Filed 12-19-13 (LJD)

Plaintiff, Jo Ann Abruzzo, as independent administrator of the estate of Joseph Furio, deceased, filed a complaint and first amended complaint for wrongful death, survival, and family expenses against defendant, the City of Park Ridge (Park Ridge or the City). The complaint arose from the City’s response to a request for emergency services (9-1-1 call) by decedent’s father, Larry Furio, for his son Joseph.   his appeal arises from the trial of the matter following remand by our supreme court. Following trial, the jury returned a verdict in favor of plaintiff and awarded damages totaling $5,187,500. For the reasons set forth below, we affirm the verdict and judgment.

3.  Post Conviction Petition: Affirmed: Cruz instructs that the failure to include a notarized verification affidavit is not a proper ground for dismissal at the first stage of postconviction  proceedings. The Act is not a substitute for an appeal, but rather, is a collateral attack on a final judgment.”   All issues actually decided on direct appeal are res judicata, and all issues that could have been raised on direct appeal, but were not, are considered forfeited.  A ruling on a postconviction petition “has res judicata effect with respect to all claims that were raised or could have been raised in the initial petition.”  Burke, J., Schostok, J. specially concurring.

No. 2013 IL App (2nd) 120600   People v. Love  Filed 12-19-13 (LJD)

Defendant, Abdul M. Love, and codefendant, Michael Nelson, were each indicted on one  count of unlawful possession of a controlled substance with intent to deliver. While incarcerated and awaiting trial on the possession charge, defendant was charged with solicitation of murder for hire of two of the State’s witnesses in his possession case, Nelson and Sergeant Domenic Cappelluti. Defendant was convicted of both offenses and his convictions were affirmed on direct appeal. See People v. Love, 2011 IL App (2d) 091274-U. On July 18, 2011, defendant filed a pro se “Petition for Post Conviction Relief” (initial petition), challenging the solicitation convictions pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)), which the trial court summarily dismissed.1 Defendant did not appeal the summary dismissal of the petition within 30 days. Instead, on February 15, 2012, defendant filed a second pro se postconviction petition and on March 1, 2012, defendant filed an “Amended  econd Post Conviction Petition for Relief” (amended petition). The trial court treated the amended petition as a successive postconviction petition, and it denied defendant leave to file it.  We deem the amended petition successive and affirm the trial court’s denial of leave to file it.

4.  Criminal Law: Reversed:  When a criminal defendant challenges the evidence as insufficient to support his conviction, a reviewing court considers whether, viewing the evidence in the light  most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.   As with common law crimes, in Illinois a criminal offense  requires that the defendant perform a prohibited act (the actus reus) with the prescribed mental state (mens rea), except for certain absolute liability offenses, which require no mental state. A  defendant acts intentionally when his "conscious objective or purpose is to accomplish that result or engage in that conduct" proscribed by the statue.  The State must also prove beyond a  reasonable doubt that the defendant engaged in a voluntary act, for it is a "fundamental principle that a person is not criminally responsible for an involuntary act."  McDade, J.

No. 2013 IL App (3rd) 120191   People v. Nelson Filed 12-19-13 (LJD)

Defendant Robert Nelson, who is diagnosed with Tourette's syndrome and obsessive compulsive tendencies, was charged with four counts of the crime of telephone harassment. 720 ILCS 135/1-1 (West 2010). During his bench trial, defendant presented uncontroverted expert testimony that he made the phone calls as part of a complex "tic" due to his Tourette's, and that he had no ability to control these tics. The trial judge found defendant guilty and sentenced him to serve three concurrent six-year terms in the Department of Corrections.  Defendant appeals arguing that the evidence was insufficient to prove  beyond a reasonable doubt that he performed a voluntary act sufficient to result in criminal liability or to prove that he had the mental state required to commit the offense. We reverse defendant's conviction.

5.  Criminal Law: Affirmed: The question of whether a defendant's stipulated bench trial is tantamount to a guilty plea is a question of law subject to de novo review.  A guilty plea forfeits all nonjurisdictional defenses or defects.  On the other hand, a stipulated bench trial allows a defendant to avoid the forfeiture rule as to an issue the defendant seeks to raise on appeal, while still allowing the defendant to enjoy the advantages of a guilty plea.  A stipulated bench trial is tantamount to a guilty plea if (1) the State presents its entire case by way of stipulation and the defendant fails to preserve a defense, or (2) the defendant concedes, by way of stipulation, that the evidence is sufficient to support a guilty verdict. Lytton, J.

No. 2013 IL App (3rd) 130054   People v. Weaver   Filed 12-19-13 (LJD)

Defendant, Harold Weaver, was arrested after a traffic stop led to the discovery of raw cannabis in the trunk of his car. Following a stipulated bench trial, the trial court found defendant guilty of unlawful cannabis trafficking (720 ILCS 550/5.1(a) (West 2012)) and sentenced him to 12 years in prison. On appeal, defendant argues that the court erred in denying his motion to suppress the evidence against him because the "faint odor" of cannabis emanating from the backseat of his vehicle did not give the officer probable cause to search the trunk.  We affirm.

6.  Criminal Law: Affirmed: It is well settled under the common law that evidence of other crimes is admissible if relevant for any purpose other than to show a defendant's propensity to commit crimes."  Permissible purposes for other-crimes evidence include motive, intent, identity, lack of mistake, and modus operandi. Other-crimes evidence is admissible if it is part of a continuing narrative of the event giving rise to the offense, intertwined with the charged offense, or explains an aspect of the charge which would otherwise be implausible or inexplicable.  Where other-crimes evidence is offered for a permissible purpose, such evidence will not be admitted if its prejudicial impact outweighs its probative value.   Knecht, J.

No. 2013 IL App (4th) 120287     Filed 12-19-13 (LJD)

In November 2008, a Sangamon County grand jury indicted defendant, Duwon L. Patterson, with first degree murder (720 ILCS 5/9-1(a)(1), (2) (West 2008)). In December 2011, a jury found defendant guilty of first degree murder. In March 2012, the trial court sentenced defendant to 55 years' imprisonment.  On appeal, defendant argues he was denied a fair trial because the trial court improperly allowed other-crimes evidence and the jury was allowed to infer he had a propensity to commit crime. Defendant argues the trial court erred in admitting (1) unredacted police interviews from November 13, 2008, and November 14, 2008; (2) statements regarding defendant's use of knives and guns; and (3) testimony of two women who claimed defendant previously assaulted them. We disagree and affirm.

11 Appellate Cases Posted 12-18-13

1. Criminal Law/UUW: Affirmed: The narcotics evidence was relevant to explain the police officers' course of conduct in the investigation leading up to the defendant's arrest. The evidence was also relevant in that it tended to explain why the defendant was armed and fled the vehicle.  Officer Lewis's testimony regarding the vest was properly admitted as his lay opinion. Officer Lewis's opinion was based on his personal observations and was of the type he was generally capable of making. Additionally, his opinion assisted the fact finder in a clear understanding of the issue.Section 24-1.6(a)(1), (a)(3)(C) of the AUUW statute does not violate the right to bear arms guaranteed under the second amendment. Pucinski, J. 

No. 2013 IL App (1st) 110166     People v. Taylor    Filed 12-18-13 (RJC)

Following a jury trial, the defendant, Ramirez D. Taylor, was found guilty of aggravated unlawful use of a weapon (AUUW) under section 24-1.6(a)(1), (a)(3)(C) of the Criminal Code of 1961 (Code) (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2006)) for carrying a firearm without a valid
Firearm Owner's Identification (FOID) card. His offense was elevated to a Class X felony because he wore body armor as described in section 33F-1(a)(2) of the Code (720 ILCS 5/33F-1(a)(2) (West 2006)). 720 ILCS 5/24-1.6(d) (West 2006). The defendant was then sentenced to 16 years'
imprisonment. On appeal, he contends that: (1) the trial court erred in admitting narcotics evidence found on codefendants at the time of his arrest; (2) trial counsel was ineffective for failing to object to the admission of hearsay evidence pertaining to the body armor; (3) without the improper body armor evidence, there was insufficient evidence to prove the aggravating element which made his offense a Class X felony; and (4) the AUUW statute is facially unconstitutional because it violates the second amendment (U.S. Const., amend. II). Affirmed.

2. Criminal Law: Reversed and remanded:  Considering the details of the interrogation, his age, inexperience, degree of maturity, drug usage, police trickery, and promises and inducements and looking at the totality of the circumstances, and its cumulative effect, along with Hughes' character and the circumstances of the interrogation, all indications are that his confession to shooting Coleman was not voluntary.  Consequently, Hughes was susceptible to coercion, and more easily hoodwinked into ignoring or misunderstanding the consequences of his statements. Hyman, J. with Mason, J. dissenting.  

No. 2013 IL App (1st) 110237    People v. Hughes    Filed 12-18-13 (RJC)

Nineteen-year-old Cavinaugh Hughes confessed to two murders while subjected to intensive custodial interrogation. Hughes does not challenge the voluntariness of one of the confessions, but he contends that the other, a later confession, should have been suppressed as a product of coercion given the totality of the circumstances. Reversed and remanded.

3. Criminal Law: Reversed and remanded: Where the State established the permanent disfigurement element of the heinous battery charge through photographs and expert testimony, it was an abuse of discretion to allow the State to show K.T.'s actual injuries to the jury. Using a four-year-old child as an exhibit was extremely prejudicial. Under either other-crimes or general relevancy principles, the trial court erred in admitting evidence of the liver contusion.  When the error of allowing K.T. to be used as an exhibit is considered together with the error of admitting evidence of the liver contusion, it clearly resulted in manifest prejudice to Barnes. Mason, J.   

No. 2013 IL App (1st) 112873    People v. Barnes    Filed 12-18-13 (RJC)

Following a jury trial, defendant Michael Barnes was convicted of aggravated battery of a child and sentenced to 30 years in prison with a 3-year period of mandatory supervised release. On appeal, Barnes contends that the circuit court erred in (1) barring Barnes from questioning the victim's mother about her children being removed from her custody and her arrests for prostitution, (2) allowing the State to introduce evidence of the victim's liver contusion where the State did not show that the injury resulted from a crime in which Barnes participated, and (3) allowing the State to show the jury the victim's actual injuries to establish the element of permanent disfigurement. Reversed and remanded.

4. Personal Injury/Releases: Affirmed: While the phrase "fitness advisory services" may includes a broad range of services offered at the gym, its plain meaning encompasses personal training sessions, which quite literally include advice and instruction to improve physical fitness. It is foreseeable, and thus the release reasonably contemplates, that the a member may fall and be injured during a personal training session due to inadequate or faulty instruction. That is to say, not all advice is good advice, even when professionally given.  The risk of negligent instruction and misused or faulty equipment occurred from the moment Cox started her membership, as it included access to fitness classes and gym equipment. The issue of whether Cox's injury is within the scope of the release language can be decided as a matter of law. Hyman, J.   

No. 2013 IL App (1st) 122442    Cox v. US Fitness, LLC    Filed 12-18-13 (RJC)

Plaintiff Erin Cox filed suit against her gymnasium and personal trainer, defendants US Fitness, LLC, and Zachary Beachler, after she fell and sustained a severe injury to her wrist during a personal training session. She alleged that defendants negligently instructed her to perform a dangerous exercise and used certain equipment in an unsafe manner, among other claims. The trial court granted defendants' motion for summary judgment, and Cox appealed. Cox argues the trial court erred in three ways: (i) holding that the liability release in the parties' membership agreement governed her personal injury claim; (ii) ignoring issues of fact raised by a supplemental personal training agreement, which was not found in discovery; and (iii) failing to void the membership agreement as unconscionable or against public policy. Affirmed.

5. Illinois Educational Labor Relations Act/Student Records Act: Reversed: The overarching issue on appeal is whether student disciplinary records are protected from disclosure under the Student Records Act during grievance proceedings before the IELRB.  The mere redaction of the students' surnames or reference to the students by their initials does not render the records "masked."  The disciplinary records sought by the Union are "school student records" pursuant to section 2(d) of the Student Records Act.  Section 6 of the Student
Records Act bars disclosure of student disciplinary records without a court order.  there is no basis upon which to conclude that the union's need for student records, under any and all circumstances, takes precedence over the right of parents to notice and the opportunity to challenge the release of their child's records. Mason, J.   

No. 2013 IL App (1st) 122447    Board of Education of the City of Chicago v. Illinois Educational Labor Relations Board    Filed 12-18-13 (RJC)

Petitioner Board of Education of the City of Chicago (Board) seeks direct administrative review of the finding of the Illinois Educational Labor Relations Board (IELRB) that it committed an unfair labor practice when it refused to release student records during a grievance proceeding arising out of the Board's termination of a member of the Service Employees International Union, Local 73 (Union). On direct appeal to this court pursuant to Illinois Supreme Court Rule 335 (eff. Feb. 1, 1994) and section 3-115 of the Code of Civil Procedure (735 ILCS 5/3-113 (West 2010)), the Board argues that section 6 of the Illinois School Student Records Act (105 ILCS 10/6 (West 2010)) (Student Records Act), prohibited it from releasing student records without a court order, notwithstanding the Union's willingness to accept redacted version of the records. The Board further contends that its one-time refusal to provide the records did not constitute an unfair labor practice. Reversed.

6 .Illinois Insurance Code: Reversed and remanded: Section 143.24d is unconstitutional because it eliminates the right to trial by jury in actions to which that right has historically attached. Even if it could possibly be said that there is some doubt that a subrogation/negligence action by an insurer carries a right to a jury trial, we must apply the well-known constitutional maxim that "statutes regulating the right to jury trial should be liberally construed in favor of the right and the inclination of the court should be to protect and enforce the right."  The correct remedy is to reverse the dismissal due to the unconstitutionality of section 143.24d and remand. Pucinski, J.   

No. 2013 IL App (1st) 123035    Interstate Bankers Casualty Company v. Hernandez    Filed 12-18-13 (RJC)

The issue presented to us in this case is whether the mandatory binding arbitration of insurance subrogation claims enacted under section 143.24d of the Illinois Insurance Code (215 ILCS 5/143.24d (West 2012)), effective January 1, 2012 (Pub. Act 97-513, § 5 (eff. Jan 1, 2012)), is unconstitutional because it violates the right to trial by jury. The constitutionality of section 143.24d is a matter of first impression. Reversed and remanded.

7. Criminal Law/Search & seizure: Affirmed: An unlawful search of a vehicle cannot subsequently be justified because, unbeknownst to the police, the owner or operator of the vehicle happened to be on parole. Mason, J.   

No. 2013 IL App (1st) 130030    People v. Coleman    Filed 12-18-13 (RJC)

Defendant Craig Coleman was charged with possession of a controlled substance with intent to deliver. The trial court granted Coleman's motion to quash arrest and suppress evidence on the grounds that the search of Coleman's vehicle was unconstitutional because the police officers did not know at the time of the search that Coleman was on parole. On appeal, the State contends that the trial court erred in granting the motion because a person who is on parole has consented to warrantless searches of his person or property at any time and the police officers' knowledge of an individual's parole status is irrelevant. In the alternative, the State contends that the search was lawful because the consensual encounter led to probable cause and the controlled substance would have been inevitably discovered later through an inventory search. Affirmed.

8. Employment: Affirmed: District was entitled to also require Goral to disclose the results of that exam and the Act was not implicated by that disclosure. Also, the results of Goral's fitness-for-duty exam were not covered by the Act. There is no evidence in the record that the parties did not intend to comply with the originally scheduled date nor is there any requirement in the Code that a hearing date be included in the final resolution adopted by the Board.  Determination that there was "substantial compliance" with section 24-12's time requirements for scheduling a hearing is not clearly erroneous. Goral did not timely object to the delay in scheduling the hearing.  Supreme Court has held that a party may waive an objection to the timeliness of a hearing scheduled under section 24-12. Mason, J.   

No. 2013 IL App (1st) 130752    Goral v. Illinois State Board of Education    Filed 12-18-13 (RJC)

Plaintiff-appellant, Bradley Goral, appeals from an order of the circuit court affirming a decision by defendant-appellee Board of Education of New Trier Township School District 203 (Board) terminating his employment as a teacher at New Trier Township High School District 203 (District). Goral contends that in connection with a fitness-for-duty examination, the District violated the Mental Health and Developmental Disabilities Confidentiality Act (740 ILCS 110/1 et seq. (West 2010)) (Act). Goral further argues that the hearing officer violated the Illinois School Code (105 ILCS 5/24-2 (West 2010)) (Code), by failing to timely schedule his dismissal hearing and raising a new charge against him during the administrative hearing and that, the hearing officer's determination on the new charge is contrary to the manifest weight of the evidence. Affirmed.

9. Juvenile/Abuse & Neglect: Affirmed: The court's finding of neglect predicated on lack of proper care is notagainst the manifest weight of the evidence. The record reflects that Samantha had a lengthy history of substance abuse as well as physical and mental illness. As a result of these issues, Samantha was unable to properly care for her daughter or consistently take Tatiana to school. Moreover, Samantha failed to make alternative arrangements to ensure that Tatiana's education was not disrupted. As a result, Tatiana missed an exorbitant number of school days and her grades have suffered. Pucinski, J.   

No. 2013 IL App (1st) 131573    In re Tatiana C.    Filed 12-18-13 (RJC)

Following an adjudication hearing under the Illinois Juvenile Court Act of 1987 (Act or Juvenile Court Act) (705 ILCS 405/1-1 et seq. (West 2010)), the circuit court found that Tatiana C. was a neglected minor. In the disposition hearing that followed, the court made Tatiana a ward of the court and entered an order of protective supervision, allowing Tatiana to remain in the care of her mother, respondent Samantha C. On appeal, Samantha contests the court's adjudication finding that her daughter was neglected, arguing that the finding is against the manifest weight of the evidence. Affirmed.

10. Illinois Income Tax Act: Reversed and remanded: Under the Tax Act, the Autonomy Trust 3 is an Illinois resident and subject to Illinois income tax. For a tax to comply with the due process clause, (1) a minimum connection must exist between the state and the person, property, or transaction it seeks to tax, and (2) "the income attributed to the State for tax purposes must be rationally related to values connected with the taxing State."Here, insufficient contacts exist between Illinois and the Autonomy Trust 3 to satisfy the due process clause, and thus the income tax imposed on the Autonomy Trust 3 for the tax year 2006 was unconstitutional. Summary judgment should have been granted in plaintiff's favor. Turner, J.   

No. 2013 IL App (4th 121055   Linn v. The Deparrtment of Revenue    Filed 12-18-13 (RJC)

In May 2007, plaintiff, Lewis Linn, as trustee of the Autonomy Trust 3, filed a verified complaint for declaratory and injunctive relief against defendants, the Department of Revenue (Department); Brian Hamer, as the Department's director; and Dan Rutherford, as the Illinois Treasurer. Plaintiff's complaint sought the return of an income-tax payment it had made under protest because any income taxation on the Autonomy Trust 3 was unconstitutional as the trust had no connections with Illinois. The parties filed cross-motions for summary judgment. After memoranda and oral arguments, the Sangamon County circuit court granted defendants' motion for summary judgment and denied plaintiff's. Plaintiff appeals, arguing the trial court erred in granting summary judgment in defendants' favor because (1) the Illinois choice-of-law provision in the original trust agreement does not apply to the Autonomy Trust 3, and (2) the imposition of Illinois income taxation on the Autonomy Trust 3 is unconstitutional as it violates both the due process and commerce clauses. Reversed and remanded.

11. Criminal Law/Statements: Reversed and remanded: The trial court erred in suppressing defendant's statements pursuant to section 103-2.1 of the Code (725 ILCS 5/103-2.1 (West 2008)) because the State overcame the presumption of inadmissibility pursuant to subsection (f), establishing by a preponderance of the evidence defendant's statements were both voluntary and reliable. As a result, section 103-2.1 does not bar the State's use of the video recording or statements defendant made during the interview. Pope, J.   

No. 2013 IL App (1st) 130146    People v. Harper    Filed 12-18-13 (RJC)

On remand from this court's opinion in People v. Harper, 2012 IL App (4th) 110880, 969 N.E.2d 573, the trial court issued a written order, suppressing statements defendant made during his custodial interrogation. The State appeals, arguing the court erred in suppressing this evidence pursuant to section 103-2.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/103-2.1 (West 2008)). We reverse the trial court's suppression order and remand for further proceedings, holding the court erred in finding defendant's statements were not reliable.

4 Appellate Cases Posted 12-17-13

1. Criminal Law/UUW: Reversed in part and remanded: The second amendment guarantees not only the right to "keep" arms, but also the right to "bear" them, and that these rights are not the same, and the conclusion in Moore that " '[t]he Supreme Court has decided that the [second] amendment confers a right to bear arms for self-defense, which is as important outside the home as inside.' "  In light of this holding, the State concedes on appeal that defendant's conviction under section 24-1.6(a)(1), (a)(3)(A) cannot stand and it is reversed.  The trial court also found defendant guilty of aggravated UUW as alleged in count V based on his possession of a firearm without a valid FOID card, under section 24-1.6(a)(2), (a)(3)(C). This section was unaffected by Aguilar, and, as noted, the trial court did not impose a sentence on defendant's conviction thereon.  The invalidity of subsection (a)(3)(A) by Aguilar is not fatal to the balance of the statute, particularly the FOID card requirement in subsection (a)(3)(C), which forms the basis for defendant's conviction on count V.  Cause remanded to the trial court for imposition of sentence on that count. Quinn, J. 

No. 2013 IL App (1st) 113294    People v. Henderson    Filed 12-17-13 (RJC)

Following a bench trial, defendant Jaquan Henderson was found guilty of two counts (IV and V) of aggravated unlawful use of a weapon (aggravated UUW) and sentenced to a single term of 18 months' probation. On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt of aggravated UUW where the State failed to present any evidence that he was not an invitee at 1422 North Lotus Avenue, where his father lived. He also contends that the aggravated UUW statute, section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code of 1961 (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010)), which criminalizes the possession of a loaded firearm when outside one's home, violates both federal and state guarantees of the individual right to bear arms for self-defense outside the home, and thus the statute is unconstitutional and renders his conviction void.

2. Sexually Violent Persons Commitment Act/Pleadings: Affirmed: Plaintiff has not, and cannot, state a claim for medical malpractice and the counterclaim against Dr. Buck was properly dismissed. Plaintiff obviously violated the circuit court's requirement for granting leave in this situation. Furthermore, the counterclaim naming Dr. Weitl, Busse, and Liberty Healthcare, brought in new parties to the case and leave was required under section 2-406 of the Code of Civil Procedure.  The trial court's dismissal of the counterclaim, whether or not it had jurisdiction over Dr. Weitl, was proper as leave was not granted and the pleading was a nullity. Simon, J. 

No. 2013 IL App (1st) 111722   In re Detention of Duke    Filed 12-17-13 (RJC)

Plaintiff Terry Duke appeals from the dismissal of two counterclaim/cross-claims (counterclaims) he filed as part of proceedings relating to the Illinois Attorney General's petition to involuntarily commit plaintiff as a sexually violent person pursuant to the Sexually Violent Persons Commitment Act.

3. Sexually Violent Persons Commitment Act: Affirmed: The trial court did not abuse its discretion in barring respondent from calling his lay witnesses in light of the irrelevancy of their proposed testimony.  While there is no question that respondent has a right under the Act to present and cross-examine witnesses at his jury trial (725 ILCS 207/25(c)(3)), the right to present a defense does not include the right to introduce irrelevant evidence.  Respondent was not prejudiced by the State's failure to include all of the diagnoses alleged at trial in the SVP petition. There was no surprise to respondent that the State would seek to commit him based on mental disorders other than just PNOS nonconsent.  The diagnosis of PNOS nonconsent is generally accepted in the psychological community could not be more clear. It is supported by the judicial landscape of this and other states and also by the seventh circuit.  The trial court did not err in allowing the State's experts to testify regarding the diagnosis of PNOS nonconsent. Quinn, J. 

No. 2013 IL App (1st) 123085    In re Detention of Melcher    Filed 12-17-13 (RJC)

Following a jury trial, respondent Mark Melcher was found to be a sexually violent person (SVP) under the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2012)), then committed to the custody of the Illinois Department of Human Services (DHS). On appeal, respondent contends: (1) that he was denied the right to present a defense when the trial court barred him from calling lay witnesses; (2) that the State should not have been allowed to seek commitment for psychological diagnoses not alleged as mental disorders in its petition; (3) that the trial court erred in admitting testimony regarding the diagnosis of paraphilia not otherwise specified (PNOS), nonconsenting females, without a Frye hearing; (4) that the trial court erred by not holding a dispositional hearing; and (5) that the State failed to prove he was a SVP beyond a reasonable doubt. Affirmed.

4. Forcible Entry and Detainer: Affirmed: Under case authority, plaintiff may not recover from North Shore any assessments that came due before April 2012; and, under section 9(g)(3) of the Act, North Shore’s payments of association charges that came due after it obtained title to the property barred plaintiff from recovery based on the alleged lien. Either of these grounds is sufficient to resolve this appeal, so North Shore’s arguments that the condominium declaration also bars recovery and that the foreclosure judgment, by itself, extinguished plaintiff’s lien is not addressed.  Burke, J.  

No. 2013 IL App (2d) 130288   Pembrook Condominium Association-One v. North Shore Trust and Savings    Filed 12-17-13 (RJC)

Plaintiff, Pembrook Condominium Association-One, appeals a judgment granting in part the motion of defendant North Shore Trust & Savings (North Shore) to dismiss plaintiff’s complaint (see 735 ILCS 5/2-619(a)(9) (West 2012)) in forcible entry and detainer (see 735 ILCS 5/9-101 et seq.
(West 2012)). The complaint sought possession of a condominium unit and the collection of overdue condominium association charges that the owner had incurred before North Shore foreclosed its first mortgage and purchased the unit at a sheriff’s sale. Plaintiff argues that the trial  court erred in holding that its lien under section 9 of the Condominium Property Act (Act) (765 ILCS 605/9 (West 2012)) was unenforceable. We affirm.

5 Appellate Cases Posted 12-16-13

1. Criminal Law: Affirmed: Remand for a Batson hearing is unnecessary because the record supports the State’s race-neutral explanation for its peremptory challenge, and defendant did not provide support for his claim either when the trial court requested it or in his post-trial motion. In addition, the evidence of defendant’s guilt as to the murder of Rhonda King was sufficient, where the independent evidence tended to corroborate his video-recorded confession. Third, defendant was not denied a fair trial due to his trial attorneys’ failure to argue regarding a DNA match at only five loci or due to the State’s closing remarks because neither prong under Strickland is met and the absence of the State’s remarks would not have changed the verdict. Finally, defendant was not denied his confrontation rights when the medical examiner who performed the autopsy did not testify but the report he prepared was recounted to the jury by another medical examiner. Delort, J. 

No. 2013 IL App (1st) 100310   People v. Crawford    Filed 12-16-13 (RJC)

Following a jury trial, defendant Andre Crawford was convicted of the first degree murders and aggravated criminal sexual assaults of 11 women, and the attempted first degree murder and aggravated criminal sexual assault of a twelfth victim (720 ILCS 5/8-4, 9-1, 11-1.30 (West 2010)).  A jury found him to be eligible for the death penalty but declined to impose it. He was instead sentenced to life imprisonment. On appeal, defendant contends that: (i) this case must be remanded for a Batson hearing; (ii) the evidence was insufficient to support the jury’s verdict of guilty as to
the murder of Rhonda King; (iii) in 6 of the 12 cases against him, he was denied a fair trial based upon his counsel’s failure to argue the impact of a deoxyribonucleic acid (DNA) match at only five loci, as well as the State’s claim in its opening statement and rebuttal closing argument that the DNA recovered was defendant’s; and (iv) his confrontation rights were violated when the trial court allowed a medical examiner to testify as to an autopsy report that was prepared by a nontestifying medical examiner, where the autopsy report’s findings were used as substantive proof of the manner of Nicole Townsend’s death. We affirm the judgment of the trial court.

2. Criminal Law/Post-conviction petition/Appeallate practice: Affirmed: Under the mailbox rule, Maclin's notice of appeal would be considered to have been filed on January 11, 2011, the date on which he placed the notice of appeal in the mail as long as the notice was properly addressed and mailed to the clerk.  Supreme Court Rule 606 states that appeals must be filed with the clerk of the circuit court. Notably, Maclin addressed the certificate of service regarding his appeal to the State's Attorney, and not the clerk of the circuit court. If a notice of appeal is not mailed to the clerk, then it is not filed with the clerk. Thus, when Maclin placed his notice of appeal in the mail addressed to the State's Attorney, he was not in compliance with Rule 606 because the appeal was not addressed to the clerk of the circuit court. Cunningham, J. 

No. 2013 IL App (1st) 110342   People v. Maclin    Filed 12-16-13 (RJC)

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

3. Criminal Law: Affirmed: The court did not reconsider Williams's disability as an aggravating factor when it referred to his condition. Rather, the court was commenting on proper factors, including the nature and extent of the offense committed by the defendant, his criminal history, and his propensity to prey on vulnerable victims.  The court specifically considered the PSI, which disclosed the defendant's personal circumstances, and considered the defendant's statement and arguments of counsel. The court then determined that the maximum extended-term sentence was appropriate. Cunningham, J. 

No. 2013 IL App (1st) 121623   People v. Andrews    Filed 12-16-13 (RJC)

Following a jury trial in the circuit court of Cook County, defendant Cleo Andrews was found guilty of aggravated battery and sentenced to the maximum extended term of 10 years' imprisonment. On direct appeal, the defendant argues that: (1) the court improperly considered the victim's disability as an aggravating factor in sentencing when that disability was an element of the offense; (2) his sentence is excessive in light of the mitigating factors he presented; and (3) this court should amend his mittimus to properly reflect the crime of which he was convicted. Affirmed.

4. Mortgage Foreclosure/Atty. fees & Sanctions: Fees awarded & sanctions reduced: The circuit court finding as to the fees is reasonable. This is not a case where self-represented litigants were “in over their head” and were helpless to find their way through what seemed to be a dizzying maze of court rules. There were ample legitimate resources available to defendants, and they chose not to use them, but instead to use some still-unrevealed source dedicated to promoting litigation tactics intended only to harass creditors, judges, and court staffs. That being the case, cause has not been shown why we should not impose sanctions. Delort, J. 

No. 2013 IL App (1st) 130380   Parkway Bank and Trust Company v. Korzen - Supplemental Opinion Added     Filed 12-16-13 (RJC)

This supplement resolves the two issues left open in our September 23, 2013 opinion: (1) the attorney fees for the appeal; and (2) the rule to show cause. Parkway Bank filed a petition for attorney fees in the amount of $23,432.05, and defendants have filed no response to it. We agree with the circuit court and find the fees to be reasonable. We grant the petition for attorney fees.

4. Discovery/Contempt: Affirmed & contempt order vacated: Absent the privilege, there is no dispute that the priority review report is discoverable, as it may contain information admissible at trial or lead to such information. Accordingly, the trial court correctly ordered One Hope to provide the plaintiff with the report.  Heeding our supreme court’s admonition that recognizing common law privileges is a matter best left to the legislature, we decline to recognize the privilege ourselves and therefore generally affirm the judgment below.  The record reflects that One Hope showed no disdain for the court but that it refused to comply with its order in good faith to secure appellate interpretation of this rather novel issue. Therefore, we vacate the contempt order. Delort, J. 

No. 2013 IL App (1st) 131152   Harris v. One Hope United, Inc.    Filed 12-16-13 (RJC)

The self-critical analysis privilege protects certain documents from disclosure in litigation.  Some federal courts have recognized the privilege, but Illinois state courts have not. In the court below, the defendant relied on the privilege to justify its refusal to turn over certain documents to the plaintiff. The defendant was held in “friendly contempt” to facilitate an interlocutory appeal regarding its use of the privilege. 

4 Appellate Cases Posted 12-13-13

1. Telephone Consumer Protection Act/Class Actions/Summary Judgment: Affirmed:  The circuit court's conclusion that Ohio law applies is correct. Cincinnati's notice was adequate under Ohio law.  Based on the resolution of the issue regarding notice, coverage under the products-completed operations hazard provision in the renewal policy was not available because of the valid TCPA exclusion, regardless of whether the faxed advertisements constituted Unitherm's "work" or "product."  The faxes at issue in this case were notices dispersed to the public regarding its goods and products "for the purpose of attracting customers." Because the faxed advertisements did not come within the products-completed operations hazard coverage, the $1 million "products-completed" limit is therefore unavailable to Windmill. Palmer, J.

No. 2013 IL App (1st) 122431    Windmill Nursing Pavilion, LTD. v. Cincinnati Insurance Company     Filed 12-13-13 (RJC)

Plaintiff Windmill Nursing Pavilion, Ltd., brought a class action against Unitherm, Inc., for sending unsolicited faxed advertisements to Windmill and the class members on several occasions. Windmill, Unitherm, and Unitherm's insurer, Cincinnati Insurance Company, eventually settled the class action case for $7 million, and Cincinnati agreed to provide an initial $3 million settlement fund from the insurance policies carried by Unitherm. Windmill subsequently brought a declaratory judgment action against Cincinnati, seeking recovery of the remaining amount, and both parties moved for summary judgment. Windmill appeals the circuit court's July 20, 2012, denial of its motion for summary judgment and grant of Cincinnati's crossmotion for summary judgment.

2. Criminal Law: Reverse and remanded: The trial court's failure to recall crucial testimony from the only defense witness was a due process violation. The mistakenly recalled fact concerned the primary issue in the case: was it "certainly" defendant who committed the crime? Second, the mistakenly recalled fact occurred during the trial court's ruling so we know that it was actually a part of its decision-making process.  The trial court found defendant guilty by mistakenly recalling that Dr. Reich agreed with Dr. Staub on the most important question before the court: "certainly it was" defendant.  A mistake concerning the most important question facing the trial court is not harmless beyond a reasonable doubt.  Gordon, J. with Lampkin, J. dissenting.

No. 2013 IL App (1st) 111116    People v. Williams    Filed 12-13-13 (RJC)

Defendant Crandall Williams was convicted, after a bench trial, of (1) first degree murder, (2) home invasion and (3) armed robbery. After hearing factors in aggravation and mitigation, the trial court sentenced him to consecutive terms of 80 years for first degree murder, 20 years for home invasion, and 20 years for armed robbery, for a total of 120 years in the Illinois Department of Corrections (IDOC).  On this direct appeal, defendant raises only one issue for our consideration. He argues that he was denied due process of law when the trial court based its finding of guilt at his bench trial on a mistaken recollection of the testimony of the defense's DNA expert. We reverse and remand for a new trial.

3. Appeals/Jurisdiction: Appeal dismissed: The trial court did not retain jurisdiction to consider defendant's struck postjudgment motion after May 5, 2012. Accordingly, defendant's August 24, 2012 appeal was not timely because it was filed more than 30 days after the entry of  the April 5 strike order, which disposed of the last pending postjudgment motion directed against the judgment. Consequently, the defendant's appeal is dismissed due to lack of jurisdiction.   Lampkin, J. with Rochford, J. specially concurring.  

No. 2013 IL App (1st) 122523    Won v. Grant Park 2    Filed 12-13-13 (RJC)

Defendant, Grant Park 2, L.L.C., appeals the circuit court's order granting summary judgment in favor of plaintiff, Gloria Won, in her breach of contract action and awarding the return of her earnest money and upgrade fees, plus any accrued interest. Defendant contends the circuit court erred in awarding summary judgment in favor of plaintiff where she was in material breach of the parties' contract for the sale of a newly constructed condominium. We consider whether this court has jurisdiction over defendant's appeal where defendant's postjudgment motion was stricken with prejudice for failing to appear at a clerk's status call, defendant did not move the court to vacate the striking order within 30 days of its issuance, and the notice of appeal was filed more than 30 days after the issuance of the striking order. The appeal is dissmissed for lack of jurisdiction.

4. Crimnal Law: Affirmed with certain sentences vacated and remanded: Based on the totality of the circumstances, a rational trier of fact could have found beyond a reasonable doubt that defendant lured C.G. into his car for an unlawful purpose.  Defendant’s sentence for child abduction is void, as under the law it must be served consecutively to the three criminal sexual assault sentences.  Thus, the trial court erred in imposing the sentence for child abduction.  The trial court also erred in imposing a fixed, three-year period of MSR on each of the criminal sexual assault convictions. Under section 5-8-1(d)(4) of the Unified Code of Corrections (730 ILCS 5/5-8-1(d)(4) (West 2008)), the trial court should have ordered an indeterminate MSR term of three years to natural life on each of the criminal sexual assault convictions. Schostok, J.   

No. 2013 IL App (2d) 120363    People v. Trotter    Filed 12-13-13 (RJC)

Following a jury trial, defendant, Donald R. Trotter, was found guilty of three counts of criminal sexual assault (720 ILCS 5/12-13(a)(4) (West 2008)), four counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2008)), one count of child abduction (720 ILCS 5/10-5(b)(10) (West 2008)), and one count of unlawfully sending a travel ticket to a minor (720 ILCS 5/10-8.1(b)(1) (West 2008)). The court imposed consecutive 15-year terms of imprisonment on each of the criminal sexual assault offenses, a concurrent 3-year term of imprisonment on the child
abduction offense, and a concurrent 1-year term of imprisonment on the offense of unlawfully sending a travel ticket to a minor. (The convictions for aggravated criminal sexual abuse were merged into the criminal sexual assault convictions for sentencing purposes.) Defendant contends
on appeal that the State failed to prove that he was guilty of child abduction beyond a reasonable doubt. He also contends that his sentences are excessive. We affirm the convictions but vacate the sentences for criminal sexual assault and child abduction. We remand the cause for the trial court
to impose appropriate consecutive sentences for those offenses and to impose an indeterminate term of mandatory supervised release (MSR) of three years to natural life on each of the criminal sexual assault convictions.

5 Appellate Cases Posted 12-12-13

1. Juvenile/ Post-Conviction Hearing Act: Affirmed:  While it may be true that changes to the Juvenile Court Act as well as court opinions regarding juvenile rights signal a shift in the way the law will treat juvenile offenders in the future, our consideration of this issue requires us to consider the law as it exists today, and today, the Post-Conviction Hearing Act does not apply to juveniles. Fitzgerald Smith, J.

No. 2013 IL App (1st) 112915     In re Vincent K.     Filed 12-12-13 (RJC)

Respondent Vincent K., a juvenile currently confined in the Juvenile Department of Corrections, was adjudicated delinquent based on a petition alleging he committed first degree murder. The case was designated for extended juvenile jurisdiction (EJJ). Respondent appeals from an order of the circuit court granting the State's motion to strike his postconviction petition based on the claim that the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2010)) does not apply to juveniles in proceedings under the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/1-2 et seq. (West 2010)).

2. Property Tax Appeals: Affirmed:  Here, based upon the evidence that was submitted, there is no evidence that there was an error in the calculation of the 2005 assessment. Rather, the record shows that the 2005 assessment was properly calculated based on the market value of the property.  It is essential that the taxpayer meet its burden of proof when requesting tax relief.  In the case at bar, Moroney failed to show a policy of granting reductions based on vacancy alone and failed to offer any evidence as to why its property was vacant in 2005. Howse, J.

No. 2013 IL App (1st) 120493    John J. Moroney and Company v. Illinois Property Tax Appeal Board     Filed 12-12-13 (RJC)

John J. Moroney & Co. (Moroney) appeals the Property Tax Appeal Board's (PTAB) decision affirming the Cook County board of review's (board of review) finding that Moroney's property was not entitled to a property tax assessment reduction in 2005. On appeal, Moroney argues that the board of review has a policy of granting reductions for vacant property without requiring further evidence concerning market value and condition of the property. Moroney also claims that the PTAB abused its discretion by not allowing its witness to give an opinion that the Cook County assessor (assessor) and/or board of review has a policy of issuing assessments based on building vacancy without regard to the property's market value. Affirmed.

3. Mortgage Foreclosure: Affirmed:  Despite the shortcomings of defendant’s brief, the App. crt in its discretion, reviewed this appeal so they could "put it to rest."  Defendant failed to prove plaintiff's lack of standing.  Defendant cannot assert any claim against the propriety of service here because he voluntarily subjected himself to jurisdiction in this matter.  The record clearly shows that the trial court denied plaintiff's motion and the redemption period was never shortened here.  The record fairly and fully presents the materials necessary for a
decision on the questions raised in this cause. From our thorough review, it contains all the legally operative facts of this case–the mortgage note, the assignment, the pleadings and the trial court's decisions–thereby giving us all the evidence needed to evaluate his claims and make a proper decision here. Therefore, there is no reason to reverse the trial court's decision due to defendant's claim of an "insufficient" record. Fitzgerald Smith, J.

No. 2013 IL App (1st) 123422   Rosestone Investments, LLC v. Garner    Filed 12-12-13 (RJC)

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, throughout 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. Affirmed.

4. Nursing Home Care Act/Admin. review: Affirmed:  Bellefontaine did not comply with section 350.620 of the Act when it failed to have a specific written policy for resident transportation.  The Department's finding is not against the manifest weight of the evidence.  While Bellefontaine prefers the ALJ's report, which is more favorable to it, it offers no reason to conclude the Department cannot reject the ALJ's report.  there is no support for Bellefontaine's contention the Director, or Garate as his designee, could not reject the ALJ's findings, make an independent review of the record, and reach different conclusions. Knecht, J.

No. 2013 IL App (4th) 121056    Community Living Options, Inc. v. The Department of Public Health    Filed 12-12-13 (RJC)

In January 2009, defendants, the Illinois Department of Public Health, William Bell, Teresa Garate, and Damon T. Arnold (collectively, the Department), conducted an investigation concerning an automobile accident involving a resident who was under the care of plaintiff, Community Living Options, Inc., d/b/a Bellefontaine Place (Bellefontaine), an intermediate-care facility for the developmentally disabled. In April 2009, the Department sent Bellefontaine a notice of violations pursuant to the Nursing Home Care Act (Act) (210 ILCS 45/1-101 to 3A-101 (West 2008)). An administrative law judge (ALJ) held a hearing on the violations and issued a report which recommended (1) the alleged section 350.620(a) violation be reduced to a Type B violation, (2) the alleged section 350.3240(a) violation be dismissed, and (3) the conditional license and fine be dismissed. In October 2010, the Department issued a final order, rejecting the ALJ's recommendation and affirming the violations and penalties as stated in the notice. In October 2010, Bellefontaine filed a complaint for administrative review, requesting reversal of the Department's decision. In April 2011, Bellefontaine filed a motion to supplement the administrative record requesting documents from the period between the ALJ's report and the Department's final order. The circuit court denied the motion. In October 2012, the circuit court affirmed the Department's decision.

5. FOIA: Reversed:  State's Attorney's office  is a "judicial body,"  and it is exempt from the requirement to produce documents or other materials pursuant to a FOIA request. Steigmann, J. with Turner, J. specially concurring and Appleton, J. dissenting.

No. 2013 IL App (4th) 130422    Uphoff v. Grosskopf    Filed 12-12-13 (RJC)

Plaintiff, Seth P. Uphoff, the Livingston County State's Attorney, appeals from the trial court's order granting summary judgment in favor of defendant, Matthew Grosskopf.  The court ordered Uphoff to produce documents to Grosskopf pursuant to his request under the Freedom of Information Act (hereinafter FOIA) (5 ILCS 140/1 to 11.5 (West 2010)). 

5 Appellate Cases Posted 12-11-13

1. Criminal Law: Reversed and remanded: Trial court erred in denying discovery in post-conviction proceeding wherein defendant alleged that police officers had coerced his confession, and erred in denying defendant evidentiary hearing. Neville, J.

No. 2013 IL App (1st) 113057  People v. Jakes  Filed 12-11-13 (TJJ)

This case involves a postconviction petitioner's right to discovery. A jury found Anthony Jakes guilty of murder, based largely on a confession Jakes signed after questioning by Detectives Michael Kill and Kenneth Boudreau. Jakes testified that he signed  the statement because Kill beat him and threatened him while Boudreau watched. Kill and Boudreau denied that they beat or threatened Jakes. The jury and the trial court that assessed the credibility of Kill, Boudreau and Jakes never heard evidence that  Kill and Boudreau beat and threatened suspects in other cases to obtain signed confessions, and that they committed perjury to convince courts and juries to rely on the coerced confessions. Jakes filed a postconviction petition and he sought discovery  concerning the misconduct of Kill and Boudreau in other cases. The circuit court denied the motion for discovery and then held that the evidence Jakes presented without discovery did not sufficiently establish Kill's pattern and practice of beating and  threatening suspects to get them to sign confessions. The circuit court dismissed the postconviction petition without holding an evidentiary hearing on the allegations of Kill's and Boudreau's misconduct. We hold that the trial court abused its discretion  when it denied Jakes’ motion for discovery concerning the misconduct of Kill and Boudreau in other cases. We reverse and remand for further proceedings on the postconviction petition.

2. Negligence Law: Affirmed: Trial court properly refused plaintiffs' jury instruction that jury had to find at least one of several defendants liable in wrongful death action stemming from traffic accident that took place in snow and icy conditions, as under evidence, jury could still have concluded that each defendant acted reasonably and were not negligent under the circumstances. Hyman, J.

No. 2013 IL App (1st) 122475  Egan v. McCullough  Filed 12-11-13 (TJJ)

The executors of the estates of three women killed when the car they were passengers in collided with a truck in DeKalb, Illinois, filed a wrongful death action against the driver of the car, the driver of the truck, and the truck driver's employer and its  affiliates. Plaintiffs accused the driver of the car and the driver of the truck of traveling too fast for road conditions. Although evidence showed that both drivers were traveling below the posted speed limit, the plaintiffs argued that because it was snowing  and the roads were icy, the drivers should have been driving even slower. The plaintiffs also alleged the truck driver was negligent in veering to the right and driving into a field in an effort to avoid the accident. The jury returned a verdict in favor of all  defendants. The jury also answered a special interrogatory as to the truck driver, finding him free from fault. Plaintiffs appealed arguing that in the absence of negligence on the part of the decedents, the circuit court erred in declining to instruct the jury that  at least one of the defendants was negligent and thus liable to plaintiffs. But there were genuine issues of fact and liability for the jury to decide and the jury could find none of the defendants legally responsible for the deaths. The trial court did not err in  refusing to instruct the jury that at least one defendant must be found liable for the accident that resulted in death of plaintiffs' decedents. We affirm.

3. Paternity/Attorney's Fees: Affirmed: In hearing required on remand from Appellate Court regarding contribution to claim for attorney's fees from attorney's former client, where former client did not appear and attorney did not present evidence of reasonableness of his fees, other than to show trial court "the file," trial court order denying contribution by former client affirmed, where attorney failed to show both reasonableness of his claimed fee and former client's ability to pay. And attorney's supplemental claim for fees for appellate work properly denied where counsel did not represent client on appeal, and Marriage Dissolution Act did not authorize award for fees by attorney seeking to collect fees from former client. Jorgensen, J.

No. 2013 IL App (2d) 121147  In re Parentage of Rocca  Filed 12-11-13 (TJJ)

This case returns to us after our remand in In re Parentage of Rocca, 408 Ill. App. 3d 956 (2011). In this appeal, attorney Eliot Landau, on behalf of Landau & Associates, P.C., appeals the trial court’s decisions on remand to: (1) both hold a contribution  hearing and deny contribution; (2) deny Landau’s petitions for supplemental and appellate attorney fees; and (3) deny Landau’s motion for sanctions. For the following reasons, we affirm.

4. Public Utilities Rate Law: Affirmed: Commerce Commission 1) properly set utility's common equity ratio so as to acknowledge lesser risk for utility than its holding company, 2) properly considered company's adjusted deferred income tax in connection with proposed future plant additions, and 3) properly considered calculations based on accrued but unused vacation pay of utility employees, all resulting in lesser gas and electricity rates than sought by utility. Holder White, J.

No. 2013 IL App (1st) 121008  Ameren Illinois Company v. The Commerce Commission  Filed 12-11-13 (TJJ)

In January 2012, Ameren Illinois Company (Ameren) filed its initial application with the Illinois Commerce Commission (Commission) to establish a performance-based rate tariff under the authority of section 16-108.5 of the Public Utilities Act (Utilities  Act), commonly referred to as the Energy Infrastructure Modernization Act (Modernization Act) (220 ILCS 5/16- 108.5 (West 2012)), enacted by Public Act 97-616 (Pub. Act 97-616, § 10 (eff. Oct. 26, 2011)). On appeal, Ameren asserts the Commission  made three reversible errors in reaching its decision, including (1) considering the capital structure of Ameren's holding company rather than the actual capital structure of Ameren when determining rate base; (2) reducing Ameren's rate base by ADIT for  projected plant additions; and (3) decreasing Ameren's rate base by unused vacation pay accrued by Ameren employees. We affirm.

5. Public Employee Pension Benefits: Affirmed: Trial court decision denying administrative review of plaintiff professors' claim that they were entitled to buy service credits for periods of time when they were employed as adjunct professors not against manifest weight of the evidence.

No. 2013 IL App (4th) 130182  Slocum v. The Board of Trustees of the State Universities Retirement System  Filed 12-11-13 (TJJ)

In July 2012, plaintiffs, Patricia Slocum and Patricia Puccio, filed a complaint for administrative review of a final decision of the executive committee of the Board of Trustees of the State Universities Retirement System (SURS or the Board) denying their  requests to purchase service credit under the Illinois Pension Code (Pension Code) (40 ILCS 5/1-101 through 24-109 (West 2012)). In January 2013, the circuit court found the final administrative decision was not against the manifest weight of the   evidence and denied plaintiffs' request for administrative review. On appeal, plaintiffs argue the decision by SURS to deny their requests for service credit was clearly erroneous and a denial of equal protection. We affirm. Turner, J. (Appleton, J., dissenting).

5 Appellate Cases Posted 12-10-13

1. Probate Law: Affirmed in part and reversed in part: trial court properly denied petitioners' motion for substitution of judge where claims in motion, even if true, did not constitute proper "cause" for SOJ; parol evidence properly admitted regarding issue of mutual mistake as to designation of beneficiary of IRA by decedent; one petitioner's affidavit submitted in connection with summary judgment issues properly deemed by trial court to be inadmissible under Dead Man's Act; but summary judgment for respondent reversed where factual issue existed regarding mutual mistake that necessitated evidentiary hearing. Hoffman, J.

No. 2013 IL App (1st) 123537  Danhauer v. Danhauer  Filed 12-2-13 (TJJ)

The petitioners, Daniel A. Danhauer and Deborah L. Supis, as Executors of the Estate of Daniel J. Danhauer, Deceased, appeal the circuit court order which denied their petition to substitute the judge under section 2-1001(a)(3) of the Code of Civil  Procedure and granted summary judgment under section 2-1005 of the Code in favor of the respondent, Jeanne Newton Danhauer. On appeal, the petitioners argue that the circuit court erred when it: (1) denied their petition for substitution of judge for  cause; (2) determined that the 2008 beneficiary designation form was ambiguous and admitted parol evidence; and (3) refused to allow Daniel A. Danhauer to testify during the hearing on the respondent's motion regarding statements made by the decedent.  For the following reasons, we affirm in part and reverse in part.

2. Negligence Law: Affirmed: Trial court properly granted summary judgment to defendant in case where building's insurance company sought subrogation for damages cause when propane tanks were delivered, as defendant had no contractual duty to stop or report the delivery, and affidavits submitted by plaintiff insurance company properly stricken by trial court for failure to comply with SCR 191, as they contained legal conclusions. Harris, J.

No. 2013 IL App (1st) 120784  St. Paul Mercury Insurance v. Aargus Security Systems, Inc.  Filed 12-10-13 (TJJ)

Plaintiff, St. Paul Mercury Insurance, as subrogee of Mallers Building Limited Partnership, and J. Richman and Spectrum Properties, Inc. (Mallers), brought a complaint against defendant Aargus Security Systems, Inc. (Aargus), alleging that Aargus, as  security provider for the "Mallers Building," owned by subragors, negligently allowed the delivery of a propane tank that subsequently caused an explosion in the building. The complaint contained one count alleging negligence and one count alleging  breach of contract. The circuit court granted Aargus's motion for summary judgment and struck two affidavits Mallers attached to its response to Aargus's summary judgment motion. The circuit court denied Mallers's subsequent motion to reconsider. At  issue is: (1) whether a question of fact existed as to whether Aargus had a contractual duty to stop or report the delivery of propane tanks to the building; (2) whether the circuit court improperly struck two of the affidavits Mallers presented in opposition to  Aargus's motion for summary judgement; and (3) whether the circuit court erred in denying Mallers's motion for reconsideration. We hold that the circuit court properly granted summary judgment in Aargus's favor because Mallers failed to show, either  by the terms of the contract or through evidence of a voluntary undertaking, that Aargus had a duty to stop or report the delivery of propane tanks to the building; that the circuit court properly struck both affidavits as they failed to comply with Illinois  Supreme Court Rule 191; and that the circuit court properly denied Mallers' motion for reconsideration.

3. Criminal Law: Public Defender fee and fees vacated and/or modified and remanded: Trial court ruling in defendant's assessing a public defender fee constituted a "hearing" so that a hearing could be held on remand after trial court's failure to conduct hearing properly; DNA fee vacated, and defendant entitled to $5 per day time credit on drug assessment fee. Spence, J. (Jorgensen, J., conc. in part and dissenting in part).

No. 2013 IL App (2d) 120094  People v. Williams  Filed 12-10-13 (TJJ)

After defendant, Jordan A. Williams, pled guilty to unlawful possession of a controlled substance with intent to deliver, he was sentenced to 15 years’ imprisonment and ordered to pay various fines and fees, including a $750 public defender fee, a $200  DNA indexing fee, a $75 pretrial bond supervision fee, and a $3,000 drug assessment. On appeal, defendant argues that each of these fees must be vacated and that the drug assessment must be offset by credit for his time spent in custody prior to  sentencing. In particular, defendant argues that the public defender fee must be vacated because the trial court imposed it without any notice or inquiry into defendant’s ability to pay. The State agrees; however, the State contends that the cause should be remanded for a hearing to determine defendant’s ability to pay the public defender fee. For the reasons that follow, we: (1) vacate the public defender fee and remand the cause for the trial court to determine defendant’s ability to pay the fee; (2) vacate the  $200 DNA indexing fee; (3) vacate the $75 pretrial bond supervision fee; (4) modify the mittimus to reflect a $1,730 credit toward the drug assessment; and (5) order the trial court to reduce the debt collection fee to reflect these changes.

4. Criminal Law: Affirmed: Trial court hearing on remand for limited purpose of determining whether defendant's post-trial claim of ineffective assistance was "colorable" was proper, even though trial court erred by permitting State to examine defendant's trail counsel under oath, where defendant's claims of ineffective assistance did not lie. Pope, J. (Modified upon denial of rehearing).

No. 2013 IL App (4th) 120981  People v. Jolly  Filed 12-10-13 (TJJ)

On July 19, 2012, this court remanded this case to the trial court " 'for the limited purpose of allowing the trial court to conduct the required preliminary investigation' to determine if a full evidentiary hearing" into defendant John Willie Jolly's pro se claims  of ineffective assistance of counsel should be held. People v. Jolly, 2012 IL App (4th) 110033-U, slip order at ¶ 14 (quoting People v. Moore, 207 Ill. 2d 68, 81, 797 N.E.2d 631, 640 (2003)). On September 26, 2012, the court held a hearing pursuant to this  court's order and ruled it would not appoint new counsel for defendant because "each of the allegations lacks merit and/or pertains to trial strategy." Defendant appeals, arguing the trial court's denial of defendant's request for new counsel must be reversed  where the court "conducted a quasi-evidentiary hearing at which the State presented testimony and argument" instead of a preliminary hearing pursuant to People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984). We affirm.

5. Juvenile Delinquency Law: Affirmed in part, vacated in part, and remanded for re-sentencing: Charging document in Juvenile Court case sufficiently detailed so as not to prejudice respondent and protect against double jeopardy when first complained of on appeal; evidence sufficient to prove respondent guilty beyond a reasonable doubt for aggravated battery to a teacher despite "minor" injuries; but sentence of commitment to IDOC Department of Juvenile Justice vacated and matter remanded for trial court to explore alternative sentences and detail why they may not be appropriate if respondent re-sentenced to DOJJ. Pope, J. (Steigmann, J., dissenting).

No. 2013 IL App (4th) 130585  In re: Raheem M.  Filed 12-10-13 (TJJ)

In April 2013, the trial court found respondent, Raheem M. (born October 19, 1995), guilty of aggravated battery of a teacher and disorderly conduct. In May 2013, the court sentenced respondent to an indeterminate term in the Department of Juvenile  Justice (DOJJ). Respondent appeals, arguing the following: (1) the State's charge of aggravated battery of a teacher was fatally defective because it failed to specify the manner of battery upon which it was predicated, thereby failing to apprise respondent of  the precise offense charged with enough specificity to prepare his defense and, if convicted, avoid a future prosecution for the same conduct; (2) the State failed to prove respondent guilty of aggravated battery of a teacher beyond a reasonable doubt; (3)  respondent's sentence to the DOJJ must be vacated because of several sentencing errors; and (4) the fines assessed against respondent must be vacated because neither the circuit clerk nor the trial court was authorized to assess fines against respondent in  this juvenile proceeding. We affirm respondent's adjudication of delinquency, vacate his sentence and the fines imposed, and remand for a new sentencing hearing.

3 Appellate Cases Posted 12-9-13

1. Negligence: Affirmed in part and reversed in part and remanded: In action by plaintiff for injuries sustained at orthodontics building adjacent to funeral home plaintiff thought she was at, defendant building contractor, who had completed construction of building several years earlier, owed plaintiff a duty of reasonable and ordinary care (rather than contractor's argument that it only owed a duty to refrain from wilful and wanton conduct); plaintiff's injuries were reasonably foreseeable; and evidence was sufficient for jury to find that contractor's negligence was a proximate cause. But verdict against building owner reversed for trial court error in instructing jury that plaintiff was an "implied invitee." Cunningham, J.

No. 2013 IL App (1st) 121845  Garest v. Booth  Filed 12-9-13 (TJJ)

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

2. Public Pension Law: Affirmed: Trial court properly concluded that pension board decision to deny firefighter/paramedic application for a disability pension stemming from a sensitivity/allergy to latex gloves was not against the manifest weight of the evidence, even though the fire protection district had concluded that the allergy rendered her unfit for her duties, and trial court did not err in refusing to consolidate case with firefighter's pending discrimination case. McLaren, J.

No. 2013 IL App (2d) 121262  Edwards v. The Addison Fire Protection District Firefighters' Pension Fund  Filed 12-9-13 (TJJ)

Plaintiff, Kim L. Edwards, appeals from the trial court’s orders: (1) denying her motion to consolidate this case with another pending case, before a single judge; and (2) denying her complaint for administrative review and affirming the decision of  defendant the Board of Trustees of the Addison Fire Protection District Firefighters’ Pension Fund (Board). We affirm.

3. Paternity: Reversed in part, and dismissed in part for lack of jurisdiction: In complicated paternity proceedings, in which one man voluntarily acknowledged paternity but another was thereafter determined by DNA testing to be the biological father and thereafter brought actions to establish paternity and dissolve the former man's voluntarily acknowledgement of paternity, trial court order that biological father pay portion of mother's attorney's fees reversed for trial court failure to hold hearing or determine biological father's ability to pay, but additional issues relating to biological father's claims to have his paternity established to exclusion of acknowledged father dismissed for failure to file timely notice of appeal. Wright, J. (Schmidt, conc. in part and dissenting in part).

No. 2013 IL App (3d) 120342  In re Custody of C.C.  Filed 12-9-13 (TJJ)

Petitioner, Erica L.F., initiated this action in 2008 seeking an order determining custody and support for the minor, C.C. Based on Erica’s petition, the circuit court of Fulton County issued a paternity order in 2008 determining David H.C. to be the father of  C.C. based on Erica and David's voluntary acknowledgment of paternity executed the day after C.C.'s birth. Two years later, the intervenor, Klay B., asked the court to vacate the 2008 order naming David as C.C.’s parent because Klay alleged he was the  child’s actual biological father. The trial court refused to vacate the 2008 order declaring David to be C.C.'s father, but granted Klay's request to receive court-ordered visitation and his request to be ordered to pay the full statutory percentage of his net  income for C.C.'s child support. In 2011, the court further ordered Klay to pay a portion of Erica's attorney fees incurred as a result of Klay's intervention in case No. 08-F-68. Klay appeals the order requiring him to pay one-third of Erica's attorney fees  and refusing to vacate the 2008 order naming David as the legal father of C.C., as requested in Klay's 2009 motion pursuant to section 2-1401 of the Code of Civil Procedure. Alternatively, if this court does not  set aside the 2008 paternity order naming David as C.C.’s legal father, Klay asks this court to revisit the issue of whether Klay’s child support payment should be based on less than 20% of his income since C.C. continues to have another legal father,  namely, David. We reverse the court’s award of attorney fees, but decline to address the other issues regarding Klay’s section 2-1401 motion and the appropriate percentage for Klay's child support, if any, due to lack of jurisdiction.

2 Appellate Cases Posted 12-06-13

1.  Criminal Law: Reversed: The State presented no physical evidence connecting defendant to the gun, no witnesses who had seen defendant holding a gun, and no evidence that defendant lived at the residence.  The officers here never even saw defendant in the same room as
the gun. In light of this evidence,  the State has not met its burden of proving beyond a reasonable doubt that defendant had knowledge of the presence of the firearm or exercised immediate and exclusive control over the area where the firearm was found.
Epstein, J.

No. 2013 IL App (1st) 121431   People v. Sams   Filed 12-06-13 (RJC)

Following a jury trial, defendant Robert Sams was convicted of unlawful use of a weapon by a felon and sentenced to two years' imprisonment. He now appeals his conviction, challenging both the sufficiency of the evidence and the admission of hearsay. We reverse his conviction outright, because the State failed to prove him guilty beyond a reasonable doubt.

2.  Criminal Law:Post-Conviction Hearing Act: Affirmed:  Here, defendant delayed nearly ten years from the entry of his guilty plea to seek to withdraw his plea because the lenient sentence does not comport with statutory guidelines. In essence, defendant is seeking to rescind his guilty plea as though it never existed and proceed with the case. However, the State, as the other party to the plea agreement, who has honored the plea agreement terms, cannot be restored to the same position because of the possibility that witnesses' recollection
may have faded or witnesses may be unable to testify after the passage of time. The parties in the instant case entered into a plea agreement and defendant benefitted from a more lenient sentence for nearly a decade before seeking to rescind the plea agreement. Defendant's unreasonable delay in seeking a remedy should preclude him from what amount to a rescission of the plea agreement.
McBride, J.

No. 2013 IL App (1st) 111733   People v. Young   Filed 12-06-13 (RJC)

Defendant Richard Young appeals from an order of the circuit court of Cook County denying his petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2010)) after an evidentiary hearing. On appeal, defendant has abandoned the allegations in his petition and contends, for the first time, that the sentences he received as a result of his negotiated guilty pleas were void because they did not include the mandatory statutory firearm enhancement compelled by the indictments and factual basis for the offenses. He, therefore, requests that his cause be remanded to the circuit court where he can withdraw his guilty pleas and plead anew, or proceed to trial on the charges. Affirmed.

2 Appellate Cases Posted 12-05-13

1.  Criminal Law: Post-Conviction Hearing Act: Affirmed: Here, defendant’s amended section 2-1401 petition raised an issue inappropriate for relief in this collateral attack, both because defendant invited the alleged error and because defendant raised the issue previously. Whether reviewed de novo or for an abuse of discretion, we find no error in the trial court’s dismissal of defendant’s amended section 2-1401 petition.  The trial court did not err by failing to appoint an attorney to represent him for the hearing on his section 2-1401 petition. There is no statutory basis for the appointment of counsel in a section 2-1401 proceeding. McLaren, J.

No. 2013 IL App (2d) 110594    People v. Kane   Filed 12-05-13 (RJC)

Defendant, Timothy D. Kane, appeals from the trial court’s orders dismissing his amended petition for relief from judgment, which was brought pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)), and his petition for postconviction relief, brought pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). Affirmed.

2.  Criminal Law/Sentencing: Affirmed as modified in part and vacated in part: Nothing in the record of the sentencing hearing itself, or anything preceding the hearing, suggests that the trial judge believed that defendant was eligible for extended term sentencing. Indeed, the indications are to the contrary. In pronouncing sentence, he did not discuss whether defendant might be eligible for, or deserve, an extended-term sentence. Instead, the judge emphasized proper factors, such as defendant’s substantial criminal record and the seriousness of his offense. The sentencing hearing itself does not support defendant’s claim and, indeed, tends to rebut it.  Defendant has not overcome the presumption that the judge knew the law and applied it correctly. Hudson, J.

No. 2013 IL App (2d) 120691    People v. Smith    Filed 12-05-13 (RJC)

After a bench trial, defendant, Raymond C. Smith, was convicted of escape, a Class 2 felony (720 ILCS 5/31-6(c) (West 2010)). The trial court sentenced him to seven years’ imprisonment, the maximum nonextended term (see 730 ILCS 5/5-4.5-35(a) (West 2010)), and ordered him to pay a
$200 DNA analysis fee (730 ILCS 5/5-4-3(j) (West 2010)) and $341 in other assessments. On defendant’s motion, the court reduced his prison sentence to six years. Defendant appeals, arguing that (1) his sentence was tainted because the trial judge erroneously assumed that defendant was
eligible for an extended-term sentence; (2) the DNA analysis fee must be vacated; and (3) he must receive a monetary credit, against various fines, for time spent in custody before sentencing.  Affirmed as modified in part and vacated in part.

2 Appellate Cases Posted 12-04-13

1.  Criminal Law/Post-Conviction Hearing Act: Affirmed: There is no authority in either the Act or case law to support the claim that the State must assure that a defendant obtains from retained counsel reasonable assistance in postconviction proceedings.  The State has no duty to provide counsel, and no duty to provide reasonable assistance of counsel, for any petitioner able to hire his own counsel. Because there is no constitutional provision, no statute, and no rule requiring the State to assure the reasonable assistance of retained counsel in postconviction proceedings, we hold that Csaszar has not stated a cognizable claim for relief from the trial court's judgment. Neville, J.

No. 2013 IL App (1st) 100467    People v. Csaszar   Filed 12-04-13 (RJC)

After a bench trial, the trial court found Martin Csaszar guilty of solicitation of murder for hire (720 ILCS 5/8-1.2 (West 1998)) and sentenced him to 30 years in prison. With the assistance of retained counsel, Csaszar filed a postconviction petition in 2008. The trial court granted the State's motion to dismiss the petition without an evidentiary hearing. On appeal, Csaszar argues only that his retained counsel did not provide reasonable assistance with postconviction proceedings.  Affirmed.

2. Juvenile/Delinquency:Reversed: Clearly, the trial court was not convinced by the State's evidence or the credibility of its witnesses. At most, given the trial court's stated disbelief of the testimony of all of the witness who testified, the State demonstrated that the victim was injured, but not the manner of injury. Further, because respondent introduced evidence that he was threatened by the victim and that he was defending himself at the time of the altercation, it was also the State's burden to disprove this affirmative defense beyond a reasonable doubt. Mason, J.

No. 2013 IL App (1st) 132506   In re VUK R.   Filed 12-04-13 (RJC)

Respondent, Vuk R., was charged in a petition for adjudication of wardship with two counts of aggravated battery stemming from an altercation with another minor on July 14, 2012. Following a trial, respondent was adjudicated delinquent on a finding of guilty on the offense of aggravated battery involving great bodily harm. 720 ILCS 5/12-3.05(a)(1)(West 2010). There was a finding of not guilty on the charge of aggravated battery on a public way. 720 ILCS 5/12-3.05(c)(West 2010).  Respondent appeals contending that the State failed in its burden to prove beyond a
reasonable doubt that he was not acting in self-defense and that the victim suffered great bodily harm. Respondent further argues that because during the sentencing hearing the trial judge stated that he did not believe the testimony of any of the witnesses who testified regarding the
altercation at trial, his adjudication for aggravated battery cannot stand. Reversed.

4 Appellate Cases Posted 12-02-13

1.  Criminal Law/Fitness: Affirmed: There is no constitutional right to a jury determination of a defendant's fitness to stand trial.  Rather, the provision for a jury determination of a defendant's fitness is statutory in origin. It was not until the remand, long "after trial began," that the defendant raised the issue of a jury determination of her retrospective fitness. Because the issue was raised after trial began, the statute provides that the court, not a jury, was to determine the defendant's fitness to stand trial.  In this case, there was ample evidence supporting the trial court's finding that the defendant was fit to stand trial in June 2006. Hoffman, J.

No. 2013 IL App (1st) 120286    People v. Miraglia   Filed 12-02-13 (RJC)

The defendant, Kathy Miraglia, appeals from the circuit court order which both denied her a retrospective jury determination on the question of her fitness to stand trial and which found her fit to stand trial. Affirmed.

2.  Domestic Relations/custody/removal : Reversed in part and remanded in part: Any removal will have an effect on the noncustodial parent's visitation. This does not mean that removal should be denied as long as a reasonable and realistic schedule can be created.  Here, the court ignored the statutory mandate and placed Mother in an impossible situation by creating an "either or" decree that had very little to do with the "best interests" of the child. Under the circumstances presented, we conclude that the court's ruling was arbitrary and against the manifest weight of the evidence.  Given that Mother was ordered to return to Illinois within 30 days in order to retain primary physical custody, an award of, at a minimum, temporary maintenance would have been in order.  Clearly the court's order was unjustified if Mother were forced to return to Illinois. Cates, J.

No. 2013 IL App (5th) 130349    In re Marriage of Smith   Filed 12-02-13 (RJC)

Petitioner, Katherine A. Smith (Mother), appeals the judgment entered by the circuit court of Madison County in connection with a custody and removal dispute arising from the dissolution of her marriage to respondent, Chase W. Smith (Father). We reverse in part and remand in part with directions.

3.  Criminal Law: Affirmed: The trial court's ruling the statements were admissible as dying declarations was not against the manifest weight of the evidence.  The dying declarations were admissible in this case and the admission of those statements did not violate the sixth
amendment, even if those statements were testimonial.  Judicial decisions uniformly conclude toolmark and firearms identification is generally accepted and admissible at trial. The trial court did not err in ruling the testimony in this case was admissible and did not require a Frye hearing,  particularly where the trial judge barred the witnesses from testifying their opinions were "within a reasonable degree of scientific certainty." Reyes, J.

No. 2013 IL App (1st) 102476    People v. Robinson   Filed 12-02-13 (RJC)

Following a jury trial in the circuit court of Cook County, defendant Elliot Robinson was found guilty of first degree murder (720 ILCS 5/9-1(a)(1) (West 2004)) and sentenced to 48 years in prison. On appeal, defendant contends: (1) the admission of the victim's statement made shortly before his death violated defendant's right to confront the witnesses against him; (2) the trial judge should have excluded the toolmark and firearms identification evidence as lacking a scientific basis or conducted a hearing on the admissibility of the evidence; (3) the trial court should have suppressed testimony regarding defendant's statement made in the lockup; (4) the trial court erred in admitting defendant's statement that he sold bullets to the victim; and (5) the jury venire was improperly questioned during voir dire in violation of Illinois Supreme Court Rule 431(b) (eff. May 1, 2007). Affirmed.

4.  Contracts/Retaliatory Discharge: Affirmed: Since (i) defendants never presented any evidence that their valid, nonpretextual basis for discharging plaintiff was due to her inability to work; and (ii) plaintiff’s retaliatory discharge claim was solely predicated upon defendants’ terminating her employment solely due to her worker’s compensation claim, her social security claim that she was unable to work due to a disabling condition was not a “factually inconsistent” position that judicially estops her claim here.  Consequently, the trial court did not err in applying the collateral source rule.  Consequently, the trial court did not err in applying the collateral source rule.  The facts, construed in the light most favorable to plaintiff, established that Oak Tree terminated plaintiff in retaliation for filing a claim under the Act.  The trial court did not err in denying defendants’ combined motion for judgment n.o.v. and motion for a new trial.  Delort, J.

No. 2013 IL App (1st) 123071   Batson v. The Oak Tree, Limited   Filed 12-02-13 (RJC)

Plaintiff Phyllis Batson filed a complaint against defendants The Oak Tree, Limited (Oak Tree), The Oak Tree Restaurant, Limited, and Hale Demar, alleging, inter alia, breach of contract and retaliatory discharge. A jury eventually awarded plaintiff $150,000 in damages on her breach of contract claim, and $50,000 on her retaliatory discharge claim. On appeal, Oak Tree1 contends that the trial court erred in: (1) holding that the collateral source rule prohibited defendants from asserting the affirmative defense of judicial estoppel; (2) denying its motion for a new trial or
 judgment n.o.v. because there was insufficient evidence of a breach of contract; and (3) barring defendant from offering evidence of plaintiff’s failure to mitigate damages when it later instructed the jury that it was defendants’ burden to prove mitigation. Affirmed.

Click on month for For Supreme Court & Appellate Opinions (with Summaries) posted during   November, 2013