Illinois Supreme and Appellate Court Case Summaries
    

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

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

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2015 IL App (5th) 120401



10 Supreme Court Cases Posted 1-22-15

1. Criminal Law: Reversed and remanded:   On remand to the Illinois Supreme Court, it ruled that the circuit court had erred in entering its suppression order because, where a traffic stop is lawfully initiated, concerns for officer safety entitle the officer to know the identity of the driver with whom he is interacting. Such permissible inquiries include warrant and criminal history checks, as well as requests for a driver’s license. Although this officer’s original suspicion that the driver was subject to arrest had vanished after he viewed that individual, the officer could still make the ordinary inquiries which are incident to a stop, such as a license request. The interest in officer safety permits a driver’s license request of a driver who is lawfully stopped. Such an ordinary inquiry is part of the stop’s mission and does not prolong the stop for purposes of the fourth amendment. Thus, a driver’s license request of a lawfully stopped driver is permissible irrespective of whether that request directly relates to the purpose of the stop. This officer’s request here for the defendant’s license did not violate the fourth amendment by prolonging the stop. The lower courts’ original rulings approving of suppression were reversed, and the cause was remanded to the circuit court for further proceedings.  CHIEF JUSTICE GARMAN delivered the judgment of the court, with opinion. Justices Freeman, Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL 115769    People v. Cummings    Filed  1-22-16 (RJC)

 

On January 27, 2011, this defendant was driving a van whose registered owner was a woman named Pearlene Chattic. She was the subject of an outstanding arrest warrant, and, because of this, the defendant was stopped by a Sterling police officer. Upon approaching the van, the officer could see that the driver was not a woman, and, thus, could not have been Chattic. Nevertheless, the defendant’s driver’s license was asked for and he did not have one. He was cited for driving on a suspended license. When brought to trial in the circuit court of Whiteside County, he filed a motion to suppress on fourth amendment grounds and was successful, but the State did not agree and appealed. The appellate court affirmed, as did the Illinois Supreme Court in 2014.  Contesting the suppression, the State sought certiorari to the United States Supreme Court, which remanded the cause for consideration in light of its 2015 decision in Rodriguez v. United States. That decision defined the mission of a stop as both addressing the traffic violation which warrants it and also attending to related traffic concerns. It held that, in view of concerns for officers’ safety, they may be permitted to make ordinary inquiries incident to a traffic stop, such as asking for a driver’s license. However, a bright line was also drawn against using inquiries outside of the mission of a stop to prolong it without the presence of the reasonable suspicion ordinarily required to justify detaining an individual.

2. Criminal Law: Appellate court judgment vacated. Cause remanded: In this decision, the supreme court said that the general principles governing the interpretation of the provision under which the defendant was charged are well-settled. It quoted from case law which states that “where an act is made criminal, with exceptions embraced in the enacting clause creating the offense, so as to be descriptive of it, the People must allege and prove that the defendant is not within the exceptions so as to show that the precise crime has been committed.***[W]here the exception is descriptive of the offense it must be negatived”***but if it “merely withdraws certain acts or certain persons from the operation of the statute it need not be negatived” and is merely a matter of defense. The supreme court said that this language makes clear that, in determining whether an exception is an element to be proved, it must be determined generally whether the legislature intended the exception to be descriptive of the offense or only to withdraw, or exempt, certain acts or persons from the operation of the statute.  Section 24-2 of the Criminal Code of 2012, entitled “Exemptions,” is a clear statement from the General Assembly indicating its intent to withdraw, or exempt, invitees from the reach of the provision under which the defendant was charged. The supreme court said that the plain language of section 24-2 establishes that the status of invitee was intended by the General Assembly to be an exemption to the offense of aggravated unlawful use of a weapon, with it being incumbent on the defendant to prove his entitlement to the exemption, and the State having no obligation to prove that he was not an invitee. The appellate court had erred in holding otherwise. It had relied on case law which did not involve section 24-2, whose language the supreme court did not feel free to ignore. The appellate court’s judgment was vacated, but, because it had not addressed all of the issues raised in the defendant’s appeal, the cause was remanded to it so that it could do so. JUSTICE BURKE delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Theis concurred in the judgment and opinion.

No. 2015 IL 117846    People v. Tolbert    Filed  1-22-16 (RJC)

  

This defendant was arrested on April 7, 2012, after Chicago police were called to a disturbance at a home on South Seeley Avenue, which was not where he resided. He was 17 years old at the time. A loaded, black Ruger .9-millimeter pistol was found on the front porch, and Tolbert admitted that he owned it and had placed it there.  Tolbert was charged under the Criminal Code of 2012 with aggravated unlawful use of a weapon based on possessing a handgun while under 21 years of age. Criminal liability can be avoided under this provision if the firearm was carried while “on the land or in the legal dwelling of another person as an invitee with that person’s permission,” as provided in the statute. A conviction was entered in a Cook County bench trial.

At issue in this appeal is whether not being an invitee is an element of the offense, which the State must plead and prove, or whether being an invitee is an exemption, which must be pled and proved in defense. The Illinois Supreme Court held here that it is an exemption. The State’s information had not alleged that the defendant was not an invitee. The appellate court, ruling that this was an offense element, found the charging instrument fatally defective and reversed the conviction. The State appealed.

3. Criminal Law: Appellate court judgment affirmed. Circuit court judgment reversed: At issue in this appeal is whether not being an invitee is an element of the offense, which the State must plead and prove, or whether being an invitee is an exemption, which must be pled and proved in defense. The Illinois Supreme Court held here that it is an exemption. The State’s information had not alleged that the defendant was not an invitee. The appellate court, ruling that this was an offense element, found the charging instrument fatally defective and reversed the conviction. The State appealed.. JUSTICE BURKE delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Theis concurred in the judgment and opinion.

No. 2015 IL 117911   People v. Chambers    Filed  1-22-16 (RJC)

  

This defendant was arrested on April 7, 2012, after Chicago police were called to a disturbance at a home on South Seeley Avenue, which was not where he resided. He was 17 years old at the time. A loaded, black Ruger .9-millimeter pistol was found on the front porch, and Tolbert admitted that he owned it and had placed it there.  Tolbert was charged under the Criminal Code of 2012 with aggravated unlawful use of a weapon based on possessing a handgun while under 21 years of age. Criminal liability can be avoided under this provision if the firearm was carried while “on the land or in the legal dwelling of another person as an invitee with that person’s permission,” as provided in the statute. A conviction was entered in a Cook County bench trial.   

4. Wrongful Death/"Public Duty"/Immunity: Reversed and remanded: The common law public duty rule provides that local governmental entities owe no duty of care to individual members of the general public to provide adequate government services, such as police and fire protection. Sovereign immunity has been abolished in Illinois, but statutory tort immunities have been enacted. Some statutes allow recovery against a public entity in certain cases involving willful and wanton misconduct. Up until now, the supreme court has held that the public duty rule survived the abolition of sovereign immunity and the passage of the Tort Immunity Act. However, pointing out that duty and immunity are separate issues, the supreme court said here that the time has come to depart from stare decisis and address the continued viability of the public duty rule in Illinois. The court abolished the rule, as well as its special duty exception, finding that application of the rule is incompatible with the legislature’s grant of limited immunity in cases of willful and wanton misconduct and that the rule has caused jurisprudence to become muddled and inconsistent. The underlying purposes of the public duty rule are better served by application of conventional tort principles and the immunity afforded by statutes than by a rule that precludes a finding of duty on the basis of the defendant’s status as a public entity. If the legislature determines that public policy so requires, it may codify the public duty rule, but the supreme court deferred to the legislature in determining public policy. JUSTICE KILBRIDE delivered the judgment of the court, with opinion. Justice Burke concurred in the judgment and opinion. Justice Freeman specially concurred, with opinion, joined by Justice Theis. Justice Thomas dissented, with opinion, joined by Chief Justice Garman and Justice Karmeier.

No. 2015 IL 117952    Coleman v. East Joliet Fire Protection District    Filed  1-22-16 (RJC)

  
On June 7, 2008, the decedent here, a 58-year-old woman who lived in the unincorporated Sugar Creek area of Will County, placed a 911 call for medical help, giving her address and saying that she could not breathe and needed an ambulance. This was the last telephone communication with her, so that no further details as to her medical condition were ever obtained. Return calls to her telephone number yielded only a busy signal. There was initial confusion as to the decedent’s correct address, and the crews which did arrive found the house locked, with no response from inside. Neighbors were calling 911, saying that first responders had left the scene without doing anything. No one forced their way in. Finally, 41 minutes after the initial 911 call, the decedent’s husband arrived and opened the home, where his wife was discovered, unresponsive. She was transported to a hospital, where she was pronounced dead of cardiac arrest.  A wrongful death and survival action was filed in the circuit court of Will County, alleging both negligence and willful and wanton conduct. Numerous defendants were joined, including first responders, communications systems, ambulance services, and the East Joliet Fire Protection District, the first named defendant here. It was alleged that the defendants had deprived the decedent of a chance to survive and had caused her pain and suffering. A motion to dismiss was granted in part, the plaintiff having conceded that the negligence counts could be dismissed on the basis of immunity. Matters proceeded through discovery, after which the circuit court granted summary judgment, under the “public duty” rule, in favor of all defendants on the willful and wanton counts, holding that no “special duty” was owed. It did not reach the issue of immunity. The appellate court affirmed. Both the circuit and appellate courts were reversed, and the cause was remanded to the circuit court for its determination as to whether defendants may be held liable for willful and wanton conduct as alleged in the complaint.

5. Criminal Law/Postconviction petition: Appellate court judgment affirmed. Circuit court judgment affirmed.:  Reasoning differently than the appellate court, the supreme court nevertheless affirmed it. Although no request for leave to file the instant petition had initially been made, the supreme court said that the trial court still had the authority to consider whether the petition should be docketed for second-stage proceedings, as was done here. The second stage is not the point at which credibility determinations are involved (this is for the third stage), and, in any event, the trial judge’s opinion as to Bingham’s credibility at May’s 2007 evidentiary hearing should not be considered on review of this matter. Nevertheless, the result is the same. At the second stage, Sanders had the burden of making a substantial showing of a claim of actual innocence, and he failed to carry this burden. The last postconviction petition was properly dismissed at the second stage.   CHIEF JUSTICE GARMAN delivered the judgment of the court, with opinion. Justices Freeman, Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL 118123    People v. Sanders    Filed  1-22-16 (RJC)

 

In April 1992, Jonas Cooks was dragged away from a Chicago home where there had been a party and shot to death in an abandoned building. A Cook County jury convicted McClain Sanders, the petitioner here, of murder and aggravated kidnapping, and he received concurrent terms of 60 and 15 years. Three other individuals were tried separately and also convicted.  At Sanders’ trial, Gary Bingham testified that he was in partnership selling cocaine with Sanders and another man named Aaron May, and that the three of them had gone to the home, seeking a refund from the victim for selling underweight cocaine. Bingham testified that the three took the victim to an abandoned building, where Sanders shot him twice. When he gave this testimony, Bingham had already been convicted in connection with the murder. Sanders testified in his own defense, presenting an alibi involving his girlfriend. After his conviction, he took a direct appeal, and the appellate court affirmed. He began filing postconviction petitions in 1997, and the first was summarily dismissed, with the appellate court affirming. He filed another postconviction petition in 1999, complaining of the use of allegedly perjured testimony from Bingham. Meanwhile, May, who had been convicted separately, had initiated proceedings making similar allegations, and a joint evidentiary hearing was held in 2007, with Bingham testifying in recantation of his earlier implication of both Sanders and May, and stating that he acted alone. The trial judge at that joint evidentiary hearing was the same judge who presided over the successive postconviction proceedings in this case. He found Bingham’s testimony at that hearing to be “very incredible.”

In 2010, Sanders filed the successive postconviction petition which is at issue here, alleging newly discovered evidence of actual innocence. He presented affidavits of individuals who said they had heard Bingham take full responsibility for the offense, and he attached transcripts of the 2007 evidentiary hearing. Despite the absence of any motion for leave to file a successive petition as required by statute, the circuit court judge allowed the petition to be filed, and he advanced it to the second stage before dismissing it. The appellate court affirmed, and Sanders appealed to the supreme court.

6. Discovery/Privilege: Appellate court judgment affirmed. Cause remanded:  In this decision, the supreme court said that the use of the language of confidentiality does not equate with the granting of a statutory privilege by the legislature. When the General Assembly has wanted to create a statutory privilege, it has done so expressly. The supreme court said that these items were highly relevant, and that the court could not see how a cause of action for negligent credentialing could proceed without this information. The fact that these same items must be reported under a federal statute which contains confidentiality language does not call for a different result.  The appellate court was affirmed, and the defendant hospitals must comply with the circuit court’s discovery order to produce Group Exhibit F, as modified by the appellate court. The cause was remanded to the circuit court for further proceedings. JUSTICE BURKE delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Theis concurred in the judgment and opinion.

No. 2015 IL 118217    Klaine v. Southern Illinois Hospital Services    Filed  1-22-16 (RJC)

 

The appeals in this Williamson County case concern a discovery order in a medical malpractice action for the alleged negligent credentialing of a doctor. No trial has yet occurred. The plaintiffs served discovery requests on the defendant hospitals. Some production took place, but other documents were listed in a privilege log as protected by statute from discovery in Illinois. Only one group of documents is at issue in this appeal. It is designated as “Group Exhibit F,” and it consists of the involved doctor’s three applications, from 2009, 2010 and 2011, for staff privileges at the defendant hospitals. The defense relied on Illinois’ statutory language in the Credentials Act, which refers to such materials as “confidential,” but the trial judge in the circuit court ruled that there was no protection from discovery. When the matter reached the appellate court, that reviewing body said that some redactions should be made, but it otherwise affirmed the results below. The defense continued its challenge to the discovery of these items, and it appealed to the supreme court.

7. Criminal Law/Sentencing: Appellate court judgment affirmed:  In this decision, the supreme court did not agree with the appellate court’s reasoning, but did agree with the action it had taken, and its judgment was affirmed. The dispute in this case involves the construction of the interaction of sections of both the Illinois Controlled Substances Act and the Unified Code of Corrections. The provision from the drug statute which is at issue here was enacted earlier. The supreme court said here that the competing constructions given to these statutes by both sides in this case are both reasonable, and that the earlier-enacted drug statute is now ambiguous as to what it implies about sentencing. Because it cannot be determined with certainty what the legislature intended as to the question at issue here, it is appropriate to invoke the rule of lenity, which favors the accused. The court said that the drug statute cannot be applied to double the defendant’s enhanced Class X potential maximum sentence of 30 years to reach a total of 60 years.  The motion to withdraw the guilty plea should have been granted. The legislature is encouraged to revisit this drug provision to clarify the extent of its application.  JUSTICE FREEMAN delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL 118375    People v. Williams    Filed  1-22-16 (RJC)

 

This Tazewell County defendant was brought to trial in 2012 on a Class 2 felony charge of unlawful delivery of less than one gram of cocaine. The circuit court admonished him that, in view of his criminal record, the maximum sentence he could receive was 60 years. He negotiated with the State and pled guilty in return for a sentencing cap of 25 years, which was what he was sentenced to. Later, he moved to withdraw his guilty plea, arguing that the admonishment as to 60 years was what had induced him to agree to 25 years, and that the admonition as to 60 years was incorrect. His motion to withdraw his plea was denied by the trial court, but the appellate court reversed and remanded, saying that the motion to withdraw the guilty plea should have been granted.

8. Criminal Law/Identification: Appellate court judgment affirmed:  In his appeal, Lerma raised issues concerning the exclusion of expert testimony which the supreme court, as the appellate court had done, found called for a new trial. Both before trial and during the trial, defense counsel had offered expert testimony on eyewitness identification. The last time the Illinois Supreme Court addressed the admission of such testimony was in a 1990 decision, when the relevant research was in its infancy. Even in that case, the supreme court recognized that, in the prior decade, a number of courts had held that expert testimony concerning eyewitness identification should be admissible in certain circumstances. Nevertheless, the supreme court in 1990 had also expressed skepticism and caution against overuse of such testimony, and the court noted here that the exclusion of such testimony remains the common practice in Illinois to this day. The 25 years since 1990, however, have seen a dramatic shift in the legal landscape, as expert testimony concerning the reliability of eyewitness testimony has moved from novel and uncertain to settled and widely accepted. Findings in this area are now widely accepted by scientists, although they are largely unfamiliar to the average person and are often counterintuitive. The supreme court said here that advances in DNA testing have confirmed that eyewitness misidentification is now the single greatest source of wrongful convictions and is responsible for more wrongful convictions than all other causes combined. The court said such research, in appropriate cases, is a perfectly proper subject for expert testimony.  JUSTICE THOMAS delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL 118496    People v. Lerma    Filed  1-22-16 (RJC)

 

On a late May evening in 2008, Jason Gill, who was sitting with a female companion on the front steps of his Chicago home, was fatally shot by a man who approached the porch and opened fire. Dragged into the house, the dying victim made a statement which was later determined to qualify as an “excited utterance” exception to the hearsay rule and to be admissible at trial, namely, that it was this defendant, Eduardo Lerma, who was the shooter. The victim’s father testified to the making of this statement, as did the female witness, who also made her own separate identification of the defendant and testified that she had seen him across the street. The victim’s mother also testified that this was where the defendant lived. There was no physical evidence linking the defendant to the crime, and only one testifying eyewitness, the woman. The only other evidence of the defendant’s guilt was not based on testimony, but on an “excited utterance” exception to the hearsay rule. The supreme court said in this decision that the evidence, although not overwhelming, was sufficient to convict, which was what the Cook County jury did. Lerma was sentenced to a 45-year term.  In this case, the judge initially denied pretrial defense motions to allow an attorney and licensed psychologist to testify on memory and eyewitness identification, and factors affecting those topics. The judge said “pretty much everyone knows *** it is a fact that *** persons are less likely to misidentify someone they have met or know or seen before than a stranger *** it is not beyond the ken of an ordinary juror.” He emphasized that the identification of the defendant was based on knowing him.  Midway through the trial, defense counsel made a second motion to reconsider. The first expert had since passed away, and the testimony of a second expert was offered, tracking the views of the first, but adding the new subject of misidentification of acquaintances, along the lines of the research discussed above. The judge then made a final ruling rejecting the expert testimony, stating that he was doing so for the same reasons he had previously done. Thus, he not only reinforced his previously stated personal view that it was a fact that identifications of acquaintances are more reliable, but ignored the new material indicating otherwise presented by the second expert. This, both the appellate and supreme courts agreed, was an abuse of discretion which called for a new trial because, in this instance, it was not harmless.

9. Criminal Law/Identification: Appellate court judgment reversed.  Circuit court judgment affirmed:   Identification was the issue on appeal. The appellate court found evidentiary error in that the jury had been allowed to hear opinion testimony from laypersons (nonexperts) that the person shown in the visual materials was this defendant. Concluding that the function of the jury had been encroached upon, the appellate court reversed. In this decision, the supreme court found that some of the challenged testimony was admissible and some was not. Some of the opinion testimony was given by members of law enforcement, and this type of opinion testimony carries the potential for unduly influencing the jury if certain precautionary procedures are not followed. Rules have been established for attempting to avoid this prejudicial impact, but they were not utilized here. The supreme court said that this was error, but, under the circumstances, it was harmless. The appellate court was reversed and the convictions were reinstated.   JUSTICE BURKE delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Theis concurred in the judgment and opinion.

No. 2015 IL 118667    People v. Thompson    Filed  1-22-16 (RJC)

 

A Hamilton County jury convicted this defendant of two counts of violating the Methamphetamine Control and Community Protection Act. The charges were procurement of anhydrous ammonia with intent to use it in the manufacture of methamphetamine and tampering with anhydrous ammonia equipment. The scene of these offenses was a farm supply company in Dahlgren where there had been thefts before. On the morning of July 21, 2011, three tanks were discovered to have had their caps removed. Surveillance camera footage of the area showed a man walking around the tanks and climbing on them. He was carrying a bucket, hose and bottle. Both a video and still images were produced from this surveillance footage, and they were distributed among various law enforcement agencies in the area in an effort to apprehend the perpetrator. After Thompson’s arrest and receipt of Miranda warnings, the chief deputy of the Hamilton County sheriff’s department confronted Thompson with the still image and he said (according to the deputy’s testimony) “I wish I could say this wasn’t me, but it is.” According to the deputy, the defendant then admitted that he had been manufacturing methamphetamine and that he had stolen from the same location before. At trial, counsel for both sides and the judge all told the jurors that the determination of guilt was theirs alone to make. The jury viewed the visual materials and convicted in less than one hour. Thompson was convicted as an habitual criminal and received an 18-year term.

10. Criminal Appeal/Reinstatement: Appellate court judgment vacated. Appeal reinstated: In this decision the supreme court issued a supervisory order reinstating the appeal, based on the unique facts of this case, which show that the defendant, through no fault of his own, was not afforded adequate relief through the normal appellate process. A criminal defendant has no federal constitutional right to direct appeal, but, under the Illinois Constitution, the right to appeal a criminal conviction is fundamental.  In seeking a supervisory order, the defendant had highlighted the apparent confusion of trial counsel and the court regarding the time to file a motion for a new trial. After the deadlines for filing such a motion (for purposes of appeal) had expired, counsel and the courts discussed scheduling a time to file and hear a new trial motion, and counsel unsuccessfully sought jury information for motion preparation. Neither the State’s Attorney nor the trial court took issue with the timeliness of defendant’s motions for a new trial, and the parties were preoccupied with a discussion of the “revestment doctrine,” which the supreme court said did not apply here. Neither was there any applicability of the procedure for filing a late appeal, with which the defendant had not attempted to comply. In the exercise of its supervisory authority, the supreme court reinstated the appeal, directing the appellate court to vacate its judgment and to consider the appeal on the merits. CHIEF JUSTICE GARMAN delivered the judgment of the court, with opinion. Justices Freeman, Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL 118667    People v. Salem    Filed  1-22-16 (RJC)

 

In two separate 2012 jury trials, this defendant was convicted of unlawful possession of vehicle titles and possession of a stolen vehicle, both based on evidence found at his Will County home. He had unsuccessfully challenged four pieces of evidence of other crimes in the form of federal convictions which were more than 10 years old and which were used to impeach his credibility. In each case, he made an unsuccessful motion for a new trial, but each motion was made substantially more than 30 days after each jury verdict. The Code of Criminal Procedure states that a “written motion for a new trial shall be filed by the defendant within 30 days following the entry of a finding or the return of a verdict.” Supreme Court Rule 606(b) requires an appeal to be filed within 30 days of an entry of final judgment or, if a timely motion is filed attacking a judgment, within 30 days of the order disposing of that motion. The defendant’s motion for a new trial in each case was an attack on the judgment, but was not timely for purposes of extending the time for filing a valid notice of appeal, although he argued otherwise. The appellate court held that it lacked jurisdiction, a conclusion with which the supreme court, in this decision, agreed. It also said that, although a circuit court may have jurisdiction to consider a motion which is untimely, that fact cannot extend the time for filing an appeal.      


 

3 Appellate Cases Posted 1-22-15

1. Mortgage Foreclosure: Judgment affirmed in part and reversed in part; order affirmed in part and vacated in part; cause remanded: None of the provisions demonstrate any ambiguity in the Second Lehman Mortgage, and the construction of that instrument is an issue of law, not one of fact.  Here, the “affirmative matter” was the fact that the title to the property was held by both Anthony and Karyn by the entirety (shown by the deed attached as an exhibit to the complaint); the fact that only Karyn had signed the Second Lehman Mortgage as a mortgagor (shown by the face of that instrument, which was also attached to the complaint); and section 1c of the Joint Tenancy Act, which provides that “[n]o deed, contract for deed, mortgage, or lease of homestead property held in tenancy by the entirety shall be effective unless signed by both tenants.” Under these circumstances, no affidavit was necessary. The trial court did not err in dismissing count I of the complaint. Authorities hold that, in appropriate circumstances, equity may allow the reformation of a contract even when the mistake is one of law. As such circumstances require the presentation of proof, the dismissal of CitiMortgage’s reformation claim at the pleading stage was not warranted. Accordingly, the trial court erred in dismissing count II with prejudice pursuant to section 2-615 of the Code. Also, CitiMortgage has not sufficiently pled a claim for equitable subrogation, it has not established a basis for the imposition of a debt or duty upon Anthony.  Additionally, CitiMortgage’s attempt to invoke the discovery rule to preserve its claim of unjust enrichment is rejected.  The trial court properly dismissed count IV as untimely. Schostok, J.

No. 2015 IL App (2d) 150286   CitiMortgage, Inc v. Parille   Filed  1-22-16 (RJC)


This appeal involves the attempt of the plaintiff, CitiMortgage, Inc., to foreclose upon the home of the defendants, Karyn and Anthony Parille, on the basis of a mortgage that turned out to be ineffective as a matter of law. After the Parilles raised this defense, CitiMortgage asserted other claims against the Parilles, including equitable lien, unjust enrichment, and fraud. The circuit court of Du Page County dismissed the third amended complaint with prejudice and denied leave to file a fourth amended complaint. CitiMortgage appeals. The circuit court also denied the Parilles’ motions to order the release of the mortgage from their title and for attorney fees; the Parilles have filed a cross-appeal from that denial. We affirm in part and reverse in part, and remand.

2. Criminal Law: Affirmed in part and vacated in part: A defendant convicted of felony murder may not also be convicted on the underlying predicate offense. Defendant's conviction and sentence for attempted burglary is vacated. The jury's verdicts were not legally inconsistent and that the trial court did not err in finding no statutory mitigating factors applicable to defendant. Carter, J.

No. 2015 IL App (3d) 140293    People v. Lefler   Filed  1-22-16 (RJC)


A jury found defendant, Kai A. Lefler, guilty of second degree murder (720 ILCS 5/9-2(a) (West 2012)) and felony murder (720 ILCS 5/9-1(a)(3) (West 2012)). In addition, the jury found defendant guilty of unlawful possession of a weapon by a felon (UPWF) (720 ILCS 5/24-
1.1(a) (West 2012)) and attempted burglary (720 ILCS 5/8-4(a), 19-1(a) (West 2012)). The trial court entered a conviction and sentence for felony murder, UPWF, and attempted burglary. On appeal, defendant argues that a new trial is warranted because the guilty verdicts for second degree murder and felony murder were legally inconsistent, and that the trial court consequently usurped the jury's function in choosing to enter a conviction and sentence for felony murder. Alternatively, defendant argues that the jury's finding of second degree murder necessarily indicates the presence of some mitigating factor, and that the trial court thus erred at sentencing when it found no mitigating factors applicable. Finally, defendant contends that his conviction for attempted burglary was improper because that offense also served as the predicate offense for his felony murder conviction.

2. Arbitration: Reversed and remanded:  Cates, J.

No. 2015 IL App (5th) 140380    Sturgill v. Santander Consumer USA, Inc.   Filed  1-22-16 (RJC)


The defendant, Santander Consumer USA, Inc. (Santander), appeals from the order denying its renewed motion to compel individual arbitration and to dismiss or stay the proceedings in the circuit court.

1 Appellate Case Posted 1-20-15

1. Juvenile/Neglect and Abuse: Affirmed: It has been said that it takes a village to raise a child. Unfortunately, the village respondent has chosen to help her raise Jordyn is one dominated by serious potential violence and meriting great concern. In addition, she has made this choice knowingly, having herself experienced this exact same violence in her own past and in spite of all the redemptive chances and services repeatedly offered to her via UCAN and DCFS. She has elected not to trust them with the safety of her child and, inexplicably, to instead trust those who the record shows have certifiably neglected and abused children in the past. This poor decision making, coupled with her consistent failure to participate in services as assigned to her, sufficiently support the trial court's decision that Jordyn is neglected due to an injurious environment and abused due to a substantial risk of physical injury. Fitzgerald Smith, J.

No. 2015 IL App (1st) 150956    In re Jordyn L.  Filed  1-20-16 (RJC)


Mother/respondent-appellant Paris L. (respondent) appeals from an order entered by the trial court finding that her daughter, Jordyn L., was neglected and abused. She contends that the trial court erred in its determination because the evidence presented was insufficient to support its finding. She asks that we reverse the trial court's determination of neglect and abuse and dismiss the remainder of the cause. The State and the minor's public guardian have filed appellees' briefs.

4 Appellate Cases Posted 1-19-16

1. Insurance Coverage/Atty. Fees:  Reversed in part and affirmed in part: The position advanced by Safeway—that Hertz’s liability under the financial responsibility statute is triggered before the underinsured motorist coverage—would result in a similar absurdity. Safeway's position would result in a situation where a policyholder would receive more benefits in the fortuitous event of being injured by a car owned by a rental car company rather than one not owned by a rental car company. Such a fortuitous event could not have been intended by the legislature. The differences between the Safeway and Hertz policies as a whole and the coverage each provides reinforce the reasons to apply Safeway's policy first. We acknowledge that there are factors indicating Hertz's priority, including that the statutorily mandated minimum for a motor vehicle's insurance policy is less than the statutorily mandated financial responsibility liability for a rental car company.  Because of this and  the paucity of case law addressing this issue, we do not find that Safeway's conduct was vexatious and unreasonable. Safeway's interpretation of its policy was a viable one, but with the facts of this case, that interpretation contravened public policy. The trial court did not abuse its discretion in finding that there was no violation of section 155 of the Illinois Insurance Code. Connors, J.

No. 2016 IL App (1st) 132554-B      Safeway Insurance Co. v. Hadary     Filed 1-19-16 (RJC)

Defendants Jeffrey Hadary and Stephanie Hadary (the Hadarys) appeal the granting of partial summary judgment in favor of plaintiff, Safeway Insurance Company (Safeway). Hertz Corporation (Hertz) is not a party to the appeal.hings, the propriety of the denial of his motion to suppress.

2. Negligence/Duty/Open & Obvious conditions: Reversed in part and affirmed in part: The circuit court did not err in granting summary judgment in favor of the defendant boat owners. Because the alleged danger posed by the condition of the swim platform on the defendants’ boat was open and obvious, there was no genuine issue of material fact concerning whether the defendants violated either a general duty of care by unreasonably creating a dangerous condition or a duty to warn.  Lampkin, J. with Gordon, J. dissenting.

 

No. 2016 IL App (1st) 143162    Schade v. Clausius     Filed 1-19-16 (RJC)

Plaintiff Lana Schade sued defendants, Mark and Paulette Clausius, for negligence concerning injuries plaintiff allegedly sustained when she was a guest onboard their boat. Defendants moved for summary judgment, and the circuit court granted that motion. Plaintiff appealed, contending summary judgment was precluded by the existence of genuine issues of material fact as to whether defendants were negligent for creating a dangerous condition that proximately caused plaintiff’s injury and failing to warn her that the crowded swim platform she walked on could become dangerously slippery if water collected on it.

3. Class Actions: Reversed and remanded: Plaintiff has not met its burden of showing that it can fairly and adequately protect the interest of the class. The transcript of plaintiff's deposition unveiled a plaintiff with no grasp of the duties of a class representative; negligible knowledge of the facts giving rise to the lawsuit; no knowledge of the name of the individual defendant or the claims asserted; no knowledge as to how plaintiff became the named plaintiff; no knowledge of when the lawsuit was filed or its status; virtually no concept of the case or interest in it; and no knowledge of the attorney fee arrangement.  Class actions remain an essential tool to remedy wrongs committed against multiple people and businesses. Yet, the process can be susceptible to abuse, especially when the named plaintiffs openly cede or abandon their role as vigilant monitors of the litigation. Direct and meaningful participation by the plaintiffs is not simply a causal or abstract notion, but vital to protecting the interest of absent class members.  Hyman, J. with  Simon, J. concurring in part and dissenting in part, with opinion. 

No. 2016 IL App (1st) 143733   Byer Clinic & Chiropractic, Ltd. v. Kapraun     Filed 1-19-16 (RJC)

The trial court, despite reservations as to plaintiff's adequacy, certified a class with plaintiff as its representative. Defendant appealed, which we granted. In light  of the inadequacy of the plaintiff’s representations, we reverse the circuit court and remand for further proceedings.

4. PI Settlement/Liens/Child Support: Affirmed: Section 10-25.5 of the Public Aid Code is one of a number of tools for collection of past-due child support. The prioritization of child support obligations is consistent with the fundamental purpose of the section 12-1001 exemptions: allowing a debtor like Thomas to support himself and his dependents. Hyman, J. with  Simon, J. concurring in part and dissenting in part, with opinion. 

No. 2016 IL App (1st) 143933   Thomas v. Illinois Department of Healthcare & Family Services    Filed 1-19-16 (RJC)

Larry Thomas (Thomas) received $12,000 as his share of the settlement of a personal injury lawsuit. The Illinois Department of Healthcare and Family Services (Department) sent Thomas a notice of lien against these settlement proceeds, based on his past-due child support obligation. Thomas objected, claiming a personal injury payment exemption of up to $15,000 pursuant to section 12-1001(h)(4) of the Illinois Code of Civil Procedure (735 ILCS 5/12-1001(h)(4) (West 2012)). The Department adopted the findings of the administrative law judge (ALJ) and upheld the Department's administrative lien; the circuit court of Cook County affirmed. On appeal, Thomas continues to contend that his personal injury settlement was exempt based on section 12-1001(h)(4). The Department and its Director (Director)1 respond that the lien was valid pursuant to section 10-25.5(a) of the Illinois Public Aid Code, which provides, in part, for an administrative lien on personal property for past-due child support "[n]otwithstanding any other State or local law to the contrary." 305 ILCS 5/10-25.5(a) (West 2012). For the reasons that follow, we conclude that the lien was valid and enforceable and thus affirm the judgment of the circuit court.

1 Appellate Cases Posted 1-15-16

1. Criminal Law/Miranda/Suppression Hearing: Reversed and remanded: Trial court erred in denying motion to suppress statements because officer did not provide Miranda  warnings to defendant prior to engaging in an interrogation likely to elicit an incriminating response. Goldenhersh, J. with Welch, J., dissenting.

No. 2016 IL App (5th) 120310   People v. Wright    Filed 1-15-16 (JMC)


Defendant was convicted of two counts of armed robbery and one count of unlawful possession of a controlled substance (less than 15 grams of cocaine). Defendant appealed raising question regarding, among other things, the propriety of the denial of his motion to suppress. HELD: The evidence clearly showed that the police officer subjected defendant to an interrogation likely to elicit an incriminating response without providing him the warnings demanded by Miranda.

 

1 Appellate Case Posted 1-14-16

1. Civil Law/Breach of Implied Warranty of Habitability: Affirmed in part, reversed in part and remanded: Trial court correctly dismissed claims that (1) architect had an obligation to perform tasks in workmanlike manner and (2) developer was not liable due to waiver of implied warranty of habitability, but erred in ruling that same waiver applied to the original and successor general contractors and various subcontractors. McBride P.J.

No. 2015 IL App (1st) 123452 Board of Managers of Park Point at Wheeling Condominium Association. v. Park Point at Wheeling, LLC Filed 12-31-15 (JMC)

This interlocutory appeal concerns the dismissal of claims that various parties involved in the design, construction, and sale of a condominium complex that was completed in 2004 breached the implied warranty of habitability by incorporating latent defects into the units and common elements. HELD: The court declined to recognize the condominium association's claim that the architectural firm had an implied obligation to perform their tasks in a "workmanlike" manner (implied warranty of habitability of construction.) The court further concluded that the condominium had waived the implied warranty with respect to the developer, but the waiver did not cover the original and successor general contractors, the masonry subcontractor, and the carpentry subcontractor.  

 

 

1 Appellate Case Posted 1-13-16

1. Civil Law/Condominium Act/Liability for Past Assessment Due: Reversed: Decision of trial court reversed because under statutory definition, a wholly owned subsidiary of a mortgagee the purchases the property is considered a mortgagee so that any third party who later purchases the unit becomes liable for payment of delinquent assessments.  Mason, P.J.

No. 2016 IL App (1st) 142563 Wing Street of Arlington Heights Condominium Asssociation v. Kiss the Chef Holdings, LLC  Filed 1-13-16 (JMC)

This appeal involves an issue of first impression regarding a condominium purchaser's liability pursuant to section 9(g)(4) of the Illinois Condominium Property Act (Act) for the payment of six months of past due assessments incurred by the previous owner, whose interest in the property was foreclosed. The issue presented is whether a wholly owned subsidiary of a mortgagee that purchases the property at the foreclosure sale is considered a "mortgagee" under the Act so that a third party who later purchases the condominium from the subsidiary becomes liable for the payment of six months delinquent assessments under section 9(g)(4). HELD:  The trial court erred as a matter of law in concluding that a third party was not liable under section 9(g)(4) for past due assessments accruing during the six months preceding commencement of the association's action against the wholly owned subsidiary of a mortgagee that purchases the property. The case was controlled by the plain language of the Illinois Mortgage Foreclosure Law, which defines a "mortgagee" as "(i) the holder of an indebtedness or obligee on a non–monetary obligation secured by a mortgage or any person designated or authorized to act on behalf of such holder and (ii) any person claiming through a mortgagee as successor."

3 Appellate Cases Posted 1-13-16

1. Civil Law/FELA/Motion for New Trial: Reversed and remanded: Trial court erred in denying plaintiff’s motion for a new trial because under FELA defendant had no right to introduce evidence and argue that a nonrailroad third party was solely responsible for the accident. Goldenhersh, J., with Moore, J., dissenting.

No. 2016 IL App (5th) 140461  Wardwell v. Union Pacific Railroad Comnpany  Filed 1-13-16 (JMC)


This appeal follows the trial court's denial of plaintiff's posttrial motions following a jury verdict in favor of defendant. The trial court permitted defendant to present evidence that a nonrailroad third party was the sole cause of injuries plaintiff sustained in a motor vehicle accident while riding as a passenger in a vehicle owned and operated by defendant. Plaintiff was an employee of defendant at the time of the accident, and brought an action against defendant under the Federal Employers' Liability Act (FELA). HELD: The trial court abused its discretion in denying plaintiff’s motion for a new trial because defendant did not have the right to introduce evidence and argue that a nonrailroad third-party driver was the sole cause of the accident in question.

 

2. Criminal Law:Being Present in a School Zone as a Child Sex Offender/Sufficiency of the Evidence/Constitutionality as applied to Defendant: Affirmed: State presented sufficient evidence to establish beyond a reasonable doubt that defendant, a child sex offender, was in a school zone; further the statute was not unconstitutionally vague as applied to defendant. Wright, J., with McDade, J., dissenting.

No. 2016 IL App (3d) 130959  People v. Howard   Filed 1-13-16 (JMC)

A police officer discovered defendant, a registered sex offender, sitting in a vehicle parked within 15 feet of school property while children were present and playing on the school playground. He was charged and convicted of the felony offense of being present in a school zone as a child sex offender. Defendant appealed, challenging the trial court’s decision finding him guilty of the charged offense and the constitutional vagueness of the statute. HELD: (1) The evidence presented to the court was sufficient to prove defendant loitered by remaining in the restricted zone for several minutes and the State’s evidence proved defendant guilty of a violation of section 11- 9.3(b), based on the definition of loitering in section 11-9.3(d)(11)(i), beyond a reasonable doubt,as charged; (2) the statute is not unconstitutionally vague as it applies to defendant and his conduct.

 

3. Criminal Law/Section 2-1401/Dismissal Sua Sponte: Reversed and Remanded: Trial court’s sua sponte  dismissal of defendant’s section 2-1401 petition was erroneous because the State was not properly given notice in contravention of Supreme Court Rules. Jorgensen, J.

No. 2016 IL App (2d) 130350  People v. Zimmerman  Filed 1-13-16 (JMC)

Defendant the trial court’s sua sponte dismissal on the merits of his petition for relief from judgment filed under section 2-1401 of the Code of Civil Procedure (Code).  HELD: The dismissal was premature because the record affirmatively shows that the State was not served by certified or registered mail as required under Supreme Court Rules.

 

 

2 Appellate Cases Posted 1-11-16

1. Civil Law: Declaratory Judgment: Constitutionality of Recall Ordinance:Home Rule: Reversed and remanded:  Decision of trial court reversed where Village ordinance establishing recall of elected was passed without voter referendum in contravention of home rule provisions of the Illinois Constitution. Mason, J.

No. 2016 IL App (1st) 153374 Henyard v. Village of Dolton  Filed 1-11-16 (JMC)

The Village of Dolton, by a majority vote of its board of trustees, passed an ordinance providing for the recall of elected officials. Plaintiffs-appellants, Tiffany Henyard, Stanley H. Brown and Robert G. Hunt, Jr., are duly elected village trustees who voted against the ordinance. Defendant-appellee Riley H. Rogers, the village mayor, approved the ordinance, which was attested to by defendant-appellee Mary Kay Duggan, the village clerk. Plaintiffs sought a declaration that the ordinance was unconstitutional on a number of grounds, including that, as a home rule unit, the village was required to submit the issue to a voter referendum prior to enactment of the ordinance. The trial court disagreed and granted defendants' motion for judgment on the pleadings and denied plaintiffs' motion for summary judgment. HELD: The inquiry involves whether Dolton's ordinance alters plaintiffs' terms of office or the manner of selecting the officer to serve in that office; if the ordinance affects either or both, then its enactment without a prior referendum cannot stand. The ordinance directly impacts the terms of office of elected officials. The ordinance establishes a mechanism by which the terms of office of elected officials are necessarily shortened upon a successful recall. Further, the ordinance changes the manner of selecting elected officials. Therefore, the ordinance is invalid as violative of section 6(f)'s limitation on a home rule unit's authority. The court remanded for the trial court with directions to enter summary judgment in plaintiffs' favor as there is no genuine issue as to any material fact and plaintiffs are entitled to judgment as a matter of law.

 

2. Sexually Dangerous Persons Act/Sufficiency of the Evidence/Vindictive Commitment/Statute of Limitations/Collateral Estoppel/Speedy Trial/Frye Hearing: Affirmed: Defendant’s adjudication as a sexually dangerous person was upheld despite defendant’s numerous claims of error. Connors, J.

No. 2016 IL App (1st) 132357 People v. Holmes  Filed 1-11-16 (JMC)

In 2010, the State filed a petition to determine whether defendant was a Sexually dangerous person pursuant to the Sexually Dangerous Persons Act. After a 2013 trial, defendant was found to be a sexually dangerous person and committed to the custody of the Department of Corrections. Defendant appealed, raising numerous issues concerning the propriety of the trial court’s judgment.  HELD: (1) Defendant was not deprived of due process because he failed to establish that the  State vindictively and belatedly sought his commitment as a sexually dangerous person; (2) the petition was timely filed in accordance with the applicable statute of limitations; (3) the petition was not barred by collateral estoppel because the third element of collateral estoppel is not met—the issue decided in the criminal proceeding was different from the issue presented by the petition; (4) defendant was denied his constitutional right to a speedy trial because the overall length of the proceedings appears to have resulted from the State's reevaluation of its case, rather than from the State's desire to intentionally delay the proceedings.; (5) the court properly admitted and relied on a diagnosis that was not subject to a Frye hearing because the diagnosis was neither novel nor new; (6) although an expert witness testified outside the scope of her written report in that she gave a different diagnosis at trial, the error does not rise to the level of plain error under either prong of the plain error rule such that a new trial is required; (7) defense counsel intentionally elicited a witness’s prior consistent statement in service of the theory that experts' diagnoses were unreliable because they kept changing, as a result, counsel's performance was not deficient and defendant’s claim of ineffective assistance of counsel must be rejected; (8) the court did not improperly restricted cross-examination about a complaining witness's false allegations of rape; (9) the court made the requisite finding that defendant had serious difficulty controlling his criminal sexual behavior; and (10) the evidence established beyond a reasonable doubt that defendant had a mental disorder distinct from a typical recidivist rapist.

2 Appellate Cases Posted 1-8-16

1. Workers' Compensation: Reversed and remanded:  Decisions of both trial court and Commission reversed where Commission failed to permit employee to introduce admissible evidence as to the proper wage differential in connection with determining partial permanent disability. Stewart, J.

No. 2016 IL App (1st) 142431WC  Jackson Park Hospital v. Illinois Workers' Compensation Comm'n  Filed 1-8-16 (TJJ)


The claimant, Kathy Jenkins, worked as a stationary engineer for the employer, Jackson Park Hospital. She sustained injuries to her neck, low back, and left knee in a work-related accident and can no longer perform the job duties required of a stationary engineer. She filed a claim pursuant to the Illinois Workers' Compensation Act. During the course of litigating the claimant's compensation claim, numerous contested issues arose between the parties. At this point in the proceeding, however, it is  undisputed that the claimant is permanently and partially disabled because of her workplace accident and can no longer pursue the duties of her usual and customary line of employment. What remains in dispute is what benefits she is entitled to receive  because of her permanent partial disability. Circuit Court and Commission vacated and remanded.

2. Mandamus/Civil Rights: Affirmed: Plaintiff in civil rights action had no right to mandamus relief requiring Attorney General and State of Illinois to pay consent judgment essentially constituting a settlement of claims of civil rights violation by inmate against State's Attorney where Attorney General did not approve settlement initially. Hoffman, J.

No. 2016 IL App (1st) 150040  Steidl v. Madigan  Filed 1-8-16 (TJJ)


The plaintiff, Gordon Randy Steidl, appeals from an order of the circuit court of Cook County dismissing his complaint for mandamus against Lisa Madigan, the Attorney General of Illinois (Attorney General). For the reasons which follow, we affirm.

3 Appellate Cases Posted 1-7-16

1. Mortgage Foreclosure: Reversed and remanded: Trial court erred in striking affirmative defense that defendant was entitled to notice of her right to rescind the mortgage under federal Truth-in-Lending Act; defendant, who signed mortgage for her property for benefit of family member to secure a loan, was an "obligor" and entitled to the notice. Ellis, J.

No. 2015 IL App (1st) 143114  Lakeview Loan Servicing, LLC v. Pendleton  Filed 12-24-15 (TJJ)


The question in this appeal is whether an individual who provides a mortgage on her home as security for a loan, but who is not a party to the loan itself, is entitled to a notice of a right to rescind the mortgage under the federal Truth in Lending Act (TILA)  (15 U.S.C. § 1601 et seq. (2006)). We hold that she is so entitled.

2. Domestic Relations: Reversed and remanded: Trial court erred in its valuation of marital property and amount of maintenance, and in denying wife's request for attorney's fees, where the trial court decision to deny fees was based upon the court's disapproval of the attorney's conduct and not on the applicable statutory factors. Stewart, J.

No. 2016 IL App (5th) 140579  In re Marriage of Johnson  Filed 1-7-16 (TJJ)


The respondent, Julie Johnson, appeals the final judgment in this dissolution of marriage action brought by the petitioner, Bernard Johnson, arguing that (1) the valuation of marital assets was against the manifest weight of the evidence and/or the allocation  of marital property was an abuse of discretion; (2) the maintenance award was an abuse of discretion; (3) the failure to award her her attorney fees was an abuse of discretion; and (4) she is entitled to a new trial based on the cumulative effect of the errors.  For the reasons that follow, we reverse and remand for a new trial on the issues of the valuation of marital assets, the distribution of marital property, the amount of permanent maintenance to be awarded to Julie, and whether she should be awarded attorney  fees.

3. Criminal Law: Reversed: Conviction for aggravated criminal sexual assault reversed where State's evidence failed to prove force and failed to disprove defense of consent. Birkett, J. (Burke, J., sp. concurring).

No. 2016 IL App (2d) 130703  People v. Mpulamasaka  Filed 1-6-16 (TJJ)


Following a jury trial, defendant, Nsoni Mpulamasaka, was convicted of aggravated criminal sexual assault in violation of section 12-14(a)(2) of the Criminal Code of 1961. The trial court denied defendant’s motion for judgment notwithstanding the verdict  or a new trial. Subsequently, defendant was sentenced to 12 years in the Illinois Department of Corrections. On appeal, defendant argues that: (1) he was not proven guilty beyond a reasonable doubt, because the State failed to prove force and failed  to disprove his defense of consent by the victim; (2) the State committed prosecutorial misconduct during closing argument; and (3) his 12-year sentence was excessive. For the following reasons, we reverse.

2 Appellate Cases Posted 1-6-16

1 Criminal Law: Affirmed: Defendant properly proved guilty of first degree murder where claim of self-defense was refuted by the State's evidence beyond a reasonable doubt; commission of a simple battery on a public way, cognizable as a felony, is not a forcible felony justifying a response of deadly force; evidence did not lead to a conclusion that defendant was guilty only of second degree murder; and sentence of 65 years IDOC not excessive. Pucinski, J. (Mason, J., sp. concurring).

No. 2015 IL App (1st) 122345  People v. Harmon  Filed 12-30-15 (TJJ)


In this case, we review a first-degree murder conviction and sentence where the defendant shot the victim in alleged self-defense or defense of others after the victim punched one of his friends while on a public way. Affirmed.

2. Real Estate Property Taxes: Reversed: Purported charitable exemptions relating to real estate operated by a hospital were unconstitutional and violated State constitutional provision requiring that any such exemption be used "exclusively" for charitable purposes; where, as here, the statute at issue applied generally to "all" hospital applicants, it was unconstitutional. Appleton, J.

No. 2016 IL App (4th) 140795  The Carle Foundation v. Cunningham Township  Filed 1-5-16 (TJJ)


Plaintiff, The Carle Foundation, brought this action to establish that four of its properties were exempt from real estate taxation. The trial court granted a partial summary judgment that section 15-86 of the Property Tax Code (Code) (35 ILCS 200/15-86  (West 2014)) governed that question. Defendants, the state and local taxing authorities, appeal pursuant to Illinois Supreme Court Rule 304(a). We conclude that because section 15-86 is unconstitutional, it is inapplicable to the question of whether the four  parcels are exempt from taxation. Therefore, we reverse the trial court's judgment, and we remand this case for further proceedings.

6 Appellate Cases Posted 12-31-15 

1. Criminal Law: Affirmed: Where defendant was initially successful in having evidence suppressed at pre-trial hearing, trial court ruling at that time placing defendant on an "I-bond" pending State interlocutory appeal had to have been appealed by defendant within 30 days of order placing him "on bail." As defendant did not appeal that order then, he could not do so now, and plea of guilty to charge of aggravated robbery was not involuntary. (N.B. Issue arises because commission of residential burglary offense while "on bail" led to consecutive sentence in that case after sentencing here, and propriety of consecutive sentence pending in separate appeal). Gordon, J.

No. 2015 IL App (1st) 140036  People v. Maxey  Filed 12-31-15 (TJJ)


Defendant Lamarr Maxey pled guilty to attempted aggravated robbery and was sentenced to 11 years with the Illinois Department of Corrections (IDOC). On this direct appeal, defendant asks us to vacate as void a prior bond order. Specifically, defendant  argues that the trial court erroneously placed him on bond during a prior appeal by the State, although Illinois Supreme Court Rule 604(a)(3) provides that "[a] defendant shall not be held in jail or to bail during the pendency of an appeal by the State."  As a result of this order, defendant received consecutive sentences in another case. Section 5-8-4(d)(8) of the Unified Code of Corrections (Code) provides that, "[i]f a person charged with a felony commits a  separate felony while on pretrial release *** then the sentences imposed upon conviction of these felonies shall be served consecutively regardless of the order in which the judgments of conviction are entered." Defendant asks us to declare the prior bond order void and to vacate the consecutive sentences  entered in the other case, which is not before us on this appeal. For the following reasons, we do not find defendant's arguments on this issue persuasive.

2. Domestic Relations: Affirmed: Trial court properly determined distribution of property in divorce proceeding, including claims relating to pension valuation and contributions, and non-marital property status of company founded by wife for real estate ventures. In case of seeming first impression in Illinois, trial court properly refused to order "dog visitation." Gordon, J.

No. 2015 IL App (1st) 142435  In re Marriage of Enders  Filed 12-31-15 (TJJ)


This appeal arises from the dissolution of the marriage of Kimberly K. Enders (Kimberly), a lawyer, and Michael A. Baker (Michael), a CPA. Michael appeals the trial court’s division of property based on the parties’ premarital agreement. He argues that  the trial court erred in ruling: (1) that there was a right of reimbursement to Kim for marital funds that were paid into the two defined benefit pension plans of Michael; (2) that Michael’s 2002 contribution to his 401(k) plan was partially made after the  marriage and that Kimberly had a right to reimbursement for the marital contribution portion of the 401(k) plan; (3) that a note payable was nonmarital property; (4) that a bank account for Michael’s son should remain in Kimberly’s custody; (5) that  payments made by Kimberly to her children, from a previous marriage, and on her mortgage were permissible under the parties’ premarital agreement; and (6) that he would have no visitation rights to the two dogs that were jointly owned by the parties. We  affirm.

3. Criminal Law: Affirmed: Trial court dismissal of defendant's 2-1401 petition proper over claim by defendant that he had not served State properly and that sua sponte dismissal was therefore improper. Gordon, J.

No. 2015 IL App (1st) 133123  People v. Jones  Filed 12-31-15 (TJJ)


In a subsequent section 2-1401 petition, defendant sought relief from his judgment of conviction, alleging both ineffective assistance of counsel and the failure of the trial court to admonish him about the collateral consequences of his plea. See 735 ILCS  5/2-1401 (West 2012). It is this petition which is at issue on this appeal. More than 30 days after the 2-1401 petition was filed in court, the trial court dismissed it sua sponte, on the grounds that it was untimely and that defendant's claims also failed on the  merits. On this appeal, defendant raises no issues concerning the substance of the trial court's order. Instead, defendant argues that the trial court erred by dismissing his section 2-1401 petition, because it was not properly served on the State and because the  State had not waived proper notice. Defendant asks this court either to remand for further proceedings or, in the alternative, to modify the trial court's judgment so that its dismissal is without prejudice. Affirmed.

4. Medical Malpractice: Affirmed: Judgment in favor of decedent's estate upheld over claim that hospital was not liable for actions of "independent contractor" doctor; where evidence showed that decedent presented herself at hospital in respiratory distress, jury could properly conclude under circumstances that doctor was acting as hospital's agent; and certain claims of evidentiary errors did not warrant award of new trial. Simon, J.

No. 2015 IL App (1st) 142706  Fragogiannis v. Sisters of St. Francis Health Services, Inc.  Filed 12-31-15 (TJJ)


This is a medical malpractice and wrongful death case. The appeal is taken following a jury verdict in plaintiff's favor. The hospital appeals arguing that the judgment against it should be reversed outright because it cannot be liable, and the doctor appeals  arguing that he is entitled to a new trial. We affirm.

5. Class Actions/Airline Baggage: Affirmed: Trial court properly dismissed plaintiff's class action relating to alleged failure to transport her baggage on same flight that she travelled on, as claim for breach of implied covenant of good faith  was preempted by federal law and airline did not breach its duties under "Contract of Carriage." Liu, J. (Harris, J., dissenting).

No. 2015 IL App (1st) 150458  Spadoni v. United Airlines, Inc.  Filed 12-31-15 (TJJ)


Plaintiff, Gina Spadoni, appeals from the dismissal of her complaint against defendant, United Airlines, Inc. Plaintiff alleges that on September 21, 2013 she was a ticketed airline passenger on a United flight from Chicago, Illinois, to Los Angeles,  California. She checked one piece of baggage, paid the applicable fee for checked baggage, and received a baggage claim tag before boarding the plane. Upon arrival in Los Angeles, plaintiff discovered that her checked baggage did not arrive at the same  time as her flight. She later learned that her baggage was not transported on the same flight as the one on which she traveled, but, instead, was transported on a subsequent passenger flight. On July 3, 2014, plaintiff filed a class action lawsuit against United  for breach of contract. Subsequently, on January 15, 2015, the circuit court granted United's motion to dismiss the complaint, with prejudice. Because we find that Illinois courts impose the implied covenant of good faith and fair dealing on all contracts, we  hold, consistent with recent United States Supreme Court authority, that the claim for breach of the implied covenant is preempted by the Act. We therefore affirm the circuit court's dismissal.

6. Labor Relations: Affirmed: Illinois Labor Relations Board properly granted labor union's petition adding ten recruiting positions at Stroger Hospital to existing bargaining unit over employer claim that those persons were "confidential employees." Gordon, J.

No. 2015 IL App (1st) 150794  The Health and Hospital Systems of the County of Cook v. Illinois Labor Relations Board  Filed 12-31-15 (TJJ)


The Health and Hospital System (HHS) of the County of Cook (the County), petitioner, appeals from a final order of the Illinois Labor Relations Board (the Board), granting Local 200, Chicago Joint Board, Retail, Wholesale and Department Store Union,  AFL-CIO’s (the Union’s) petition to add ten recruiting positions to the existing bargaining unit. We affirm.

5 Appellate Cases Posted 12-30-15 

1. Consumer Fraud and Deceptive Business Practices Act: Affirmed in part, award of attorneys' fees vacated, and remanded: Judgment of $3.10 upheld in case allegeing that retail merchant improperly based collection of entire amount of sales tax for TV converter without making provision for federal government rebate paid to retailer, but award of attorney's fees vacated where attorney presented only computer-generated record showing compiled time and expenses but had "discarded" originally generated records made at time of alleged time spent on case, thus depriving defendant of opportunity to test reliability of claimed time; matter remanded for hearing to show amount of reasonable fees. Hoffman, J.

No. 2015 IL App (1st) 143367 Aliano v. Sears, Roebuck & Co.  Filed 12-30-15 (TJJ)


Sears, Roebuck and Co. (Sears) appeals from a $3.10 judgment entered by the circuit court in favor of the plaintiff, Mario Aliano, on his claim brought pursuant to the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815  ILCS 505/1 et seq. (West 2008)) and the circuit court's subsequent award of $157,813.53 in attorney fees pursuant to section 10a(c) of the Consumer Fraud Act (815 ILCS 505/10a(c) (West 2008)). For the reasons which follow, we affirm the $3.10  judgment entered in favor of the plaintiff, reverse the award of $157,813.53 in attorney fees, and remand the matter for further proceedings.

2. Mortgage Foreclosure: Affirmed: Trial court properly granted summary judgment to lender in mortgage foreclosure action where affirmative defense relating to bank's failure to give "grace period" notice was properly stricken, where defendants had filed for bankruptcy five months prior to inititiation of foreclosure proceedings, and other affirmative defenses relating to fraud in inducement of the mortgage were not properly pled. Spence, J.

No. 2015 IL App (2d) 140331  Bayview Loan Servicing, LLC v. Szpara  Filed 12-30-15 (TJJ)


Plaintiff, JPMorgan Chase Bank, NA,1 filed a complaint to foreclose the mortgage on the property of defendants, Dominik Szpara and Linda Szarek, at 122 East Lincoln Avenue, Glendale Heights, Illinois (the Property). Defendants answered the complaint  and raised four affirmative defenses and one counterclaim. Plaintiff moved to strike three of the affirmative defenses and the counterclaim; one affirmative defense and the counterclaim were struck with prejudice, and two affirmative defenses were struck  without prejudice. Defendants amended those two affirmative defenses. The two amended affirmative defenses were subsequently struck with prejudice. Plaintiff moved for summary judgment, and defendants responded by attacking the sufficiency of  plaintiff’s prove-up affidavit for the amounts due. The court granted summary judgment for plaintiffs. Defendants now appeal the entry of summary judgment, the order approving the sale, and the order striking their amended affirmative defenses. For the  reasons stated herein, we affirm.

3. Civil Procedure/Statute of Limitations: The limitations period for a claim of spoliation of evidence in connection with alleged sppoliation of evidence in a negligence action is the same period as that for the negligence action itself- -  in this case, two year- - and plaintiff's spoliation claim was properly dismissed as time-barred. McLaren, J.

No. 2015 IL App (2d) 141168  Skridla v. General Motors Co.  Filed 12-30-15 (TJJ)


On February 19, 2014, plaintiff, Nicholas A. Skridla, filed a 42-count fourth amended complaint for damages arising from an automobile accident involving his wife and son, Margaret E. Skridla and Maxamillian J.A. Skridla, on December 3, 2009. Only  plaintiff’s claims of spoliation of evidence against defendant Auto Owners Insurance Company (Auto Owners) (counts XXXVII through XLII) are the subject of this appeal. The claims against Auto Owners were added in the fourth amended complaint,  when Auto Owners was joined as a defendant. The other counts of this product-liability and personal-injury action remain pending in the trial court. We agree with Auto Owners that the spoliation counts were statutorily time-barred. Because we affirm the  dismissal of counts XXXVII through XLII on this basis, we do not reach the merits of plaintiff’s section 2-615 arguments.

4. Constructive Trusts: Affirmed in part and reversed in part: Where unmarried cohabitants of home lived in it after plaintiff contributed to down payment of home held only in defendant's name, and thereafter both contributed to payment of household expenses (including mortgage payments on house), plaintiff's subsequent contributions were properly deemed to be a gift, and trial court should have ruled that a constructive trust existed in favor of plaintiff only for amount of down payment he contributed to house purchase, and not for other payments. Appleton, J.

No. 2015 IL App (4th) 150151  Tummelson v. White  Filed 12-30-15 (TJJ)


Plaintiff, Anthony P. Tummelson, and defendant, Elizabeth Ann Beauregard, lived together, unmarried, for years. Plaintiff claims that defendant has been unjustly enriched by funds he contributed to the purchase of a house titled solely in her name and  which he cohabited until she made him move out. The trial court agreed with plaintiff and imposed a constructive trust on $17,015.75 of the equity in the house, with him as the beneficiary. Defendant appeals. We hold the trial court was within its discretion  to impose a constructive trust to the extent of $7,000, the amount of the down payment plaintiff's parents made on the house, presumably as a gift to him. But a trust in any greater amount was an abuse of discretion, considering that the mortgage  payments were made out of a joint account and that any amounts plaintiff had deposited into that account were gifts from him to defendant. Therefore, we affirm the trial court's judgment in part and reverse it in part.

5. Utility Regulation: Affirmed: Commerce Commission had authority to dismiss on its own action a complaint filed by Citizens Utility Board complaining of electric utility's progress report regarding its compliance with mandated "SmartGrid" program. Turner, J.

No. 2015 IL App (4th) 150562  Citizens Utility Board v. Illinois Commerce Comm'n  Filed 12-30-15 (TJJ)


In April 2015, the Citizens Utility Board (CUB) filed a complaint with the Illinois Commerce Commission (Commission) in regard to a required annual progress report filed by the Ameren Illinois Company, d/b/a Ameren Illinois (Ameren). The  Commission dismissed the complaint on its own motion. On appeal, CUB argues (1) the Commission erred in dismissing its complaint without notice or an opportunity to respond and (2) the Commission's order was legally insufficient. We affirm.

3 Appellate Cases Posted 12-29-15

1. Criminal Law: Reversed: Particular provision of theft statute used by State to charge defendant, and additional charge of online sale of stolen property, required State to prove that property at issue was actually stolen, rather than used by law enforcement in a sting-type operation; as property was not actually "stolen," defendant's convictions reversed. Simon, J.

No. 2015 IL App (1st) 133520  People v. Netisingha  Filed 12-29-15 (TJJ)


After a bench trial, defendant was found guilty of theft and other financial crimes for allegedly buying merchandise he was led to believe was stolen and then selling it online. He appeals his convictions. We reverse.

2. Criminal Law: Affirmed: Defendant's refusal to consent to give a DNA sample during course of a police investigation into a murder was improperly admitted in State's case, as defendant had to right to assert his rights and could not be penalized for such, but error harmless in light of overwhelming evidence of guilt, and prosecuto's closing argument not improper. Burke, J.

No. 2015 IL App (2d) 131106  People v. Ealy  Filed 12-29-15 (TJJ)


A jury found defendant, James Ealy, guilty of first-degree murder, and the trial court sentenced him to a term of natural life imprisonment. On appeal, defendant argues that he is entitled to a new trial due to the cumulative prejudice of three trial errors: (1)  the admission of evidence that, unlike several other people whom the police interviewed, defendant refused to consent to DNA testing, and the State’s argument to the jury that his refusal showed consciousness of guilt; (2) the exclusion of evidence that,  like defendant, other residents of his apartment complex paid rent in installments each month; and (3) the State’s closing argument that an acquittal based on the absence of fingerprints or DNA evidence would improperly “reward” defendant. Defendant also argues that a new trial is necessary because the jury returned inconsistent verdicts in finding him guilty of intentional murder and not guilty of knowing murder. We affirm.

3. Criminal Law/Summary Suspension: Vacated and remanded: In refusing to sanction State for failing to provide defendant with DUI booking room video requested by counsel pursuant to Supreme Court Rule 237 (govenrning civil discovery), trial court abused its discretion: as rescission proceeding was civil in nature, civil discovery rules applied and not People v. Schmidt regarding criminal discovery in misdemeanor cases, and trial court's statement that People v. Kladis did not apply to "booking room videos" was wrong and an abuse of discretion. Hutchinson, J.

No. 2015 IL App (2d) 140859  People v. Tsiamas  Filed 12-29-15 (TJJ)


Following a traffic stop and arrest for driving under the influence (DUI), defendant, John Tsiamas, had his driver’s license summarily suspended. He filed a petition to rescind the suspension and requested a video in connection with his arrest for his  rescission hearing. (Although defendant is technically the petitioner, for convenience’s sake we refer to him as defendant.) When the State failed to produce the video, defendant moved for sanctions. The trial court denied defendant’s sanctions motion based  on its belief that the video was not discoverable. We vacate and remand.

4 Appellate Cases Posted 12-28-15

1. Criminal Law/Post-Conviction/Pleadings: Reversed and Remanded: Post-conviction counsel cannot file a motion to dismiss, only the State can do. Accordingly, the trial court’s grant of post-conviction counsel’s motion was improper. Lytton, J., with Schmidt, J., dissenting.  

No. 2015 IL App (3d) 130575 People v. Jackson  Filed 12-28-15 (JMC)

Defendant pled guilty to two counts of first degree murder in exchange for a sentence of natural life in prison. Five years later, he filed a postconviction petition, which the trial court dismissed. Three years after that, defendant filed a motion for leave to file a successive postconviction petition, which the trial court granted. Defendant’s postconviction counsel filed a motion to withdraw and dismiss defendant’s successive postconviction petition, and the trial court granted the motion. On appeal, defendant contends the court erred in dismissing his successive postconviction petition.  HELD: Postconviction counsel’s “Motion to Dismiss” was improper and because the State failed to properly “move to dismiss” defendant’s postconviction petition, therefore, the trial court’s order dismissing defendant’s postconviction petition must be reversed. The matter was remanded to the trial court to allow defendant to proceed pro se.

2. Civil Law/Spoliation of Evidence/Statute of Limitations: Affirmed: Trial court properly concluded that spoliation of evidence claims were time-barred and dismissal was upheld. McClaren, J.  

 

No. 2015 IL App (2d) 141168 Skridla v. General Motors Company 12-28-15 (JMC)


Plaintiff filed a 42-count fourth amended complaint for damages arising from an automobile accident involving his wife and son.  Only plaintiff’s claims of spoliation of evidence against defendant Auto Owners Insurance Company (Auto Owners) are the subject of this appeal. The claims against Auto Owners were added in the fourth amended complaint, when Auto Owners was joined as a defendant. The trial court dismissed the claims against Auto Owners. The other counts of this product-liability and personal-injury action remain pending in the trial court. On appeal, plaintiff contends that the trial court erred in dismissing the spoliation counts with prejudice pursuant to section 2-615 of the Code of Civil Procedure on the ground that plaintiff did not plead sufficient facts to establish that Auto Owners owed plaintiff a duty to preserve the evidence at issue.  HELD: Plaintiff’s spoliation-of-evidence counts, with the exception of his wrongfuldeath spoliation count, all arise from underlying actions for personal injuries to another—survival, personal injury to his son, loss of consortium, and family expenses due to injuries to his wife and son.  Because these claims are actions “deriving from injury to the

person of another,” they are subject to commencement “within the same period of time as actions for damages for injury to such other person.” 735 ILCS 5/13-203 (West 2010). Thus, the two year limitations period of section 13-202 applies to these personal injury actions. The trial court properly dismissed the claims as time-barred.


3. Civil Law/Negligence/Pharmacy Duty to Warn: Affirmed: Pharmacy did not have a duty to warn customer regarding prescription. Trial court properly granted summary judgment in favor of defendant pharmacies. Cunningham, J.  

No. 2015 IL App (1st) 142990  Hernandez v. Walgreen Company   Filed 12-28-15 (JMC)

The plaintiff Anthony Hernandez, individually and as special administrator of the Estate of Gilbert C. Hernandez, filed an  amended complaint contained wrongful death counts against defendants Walgreen Company (Walgreen) and ADSI Delaware, LLC d/b/a Osco Drug (Osco) alleging they had breached their duty of care by dispensing methadone prescriptions to the decedent "in quantities and time frames that were not appropriate." The trial court granting summary judge to the defendants, based upon the lack of a recognized duty owed by the pharmacies. Plaintiff appeals, challenging the propriety of the summary judgment.  HELD: Determining which medication is to be utilized in any given case requires an individualized medical judgment, which *** only the patient's physician can provide. That physician *** presumably knows the patient's current condition, as well as the patient's complete medical history. To impose a duty to warn on the pharmacist would be to place the pharmacist in the middle of the doctor – patient relationship, without the physician's knowledge of the patient.

.

4. Criminal Law/Post-Conviction: Affirmed: Trial court’s dismissal of postoconviction petition at the third stage was proper; defendant failed to ameks a substantial showing of constitutional error. Cunningham, J.

No. 2015 IL App (1st) 130127 People v. Hatchett   Filed 12-28-15 (JMC)

 This appeal arises from the trial court’s dismissal of defendant’s postconviction petition after an evidentiary hearing at the third stage of the proceedings. Defendant maintains that  the court erred in denying his requested relief for a new trial by dismissing his postconviction petition after a third-stage evidentiary hearing, where he made a substantial showing that he was denied his constitutional right to effective assistance of counsel. HELD: Defendant made no substantial showing of a constitutional violation, so as to warrant a new trial, and the postconviction court's decision to dismiss the petition at the third stage of the proceedings was not manifestly erroneous.

 

7 Appellate Cases Posted 12-24-15

1. Criminal Law/Post-Conviction/Void Judgment: Affirmed: In a post-conviction proceeding, defendant maintained that his conviction under Section 5-16(A)(1) of the Boat Act was void because the statute was repealed.  The appellate court concluded that the statute was not repealed and that the trial court had jurisdiction. Hudson, J.  

No. 2015 IL App (2d) 1131266  People v. McGuire  Filed 12-24-15 (JMC)

Defendant appealed from the dismissal of his pro se petition under the Post-Conviction Hearing, arguing that his conviction is void and must be reversed because the section of the Boat Act under which he was convicted was repealed.

HELD: Section 5-16(A)(1) of the Boat Act was not repealed, the trial court had subject matter jurisdiction and its judgment is not void.

2. Civil Law/Condominium Law/Breach of Contract: Affirmed: The bylaws of the condominium association limited the duration of management contracts to 24 months. The Board of the Directors entered into a managing contract for 36 months in contravention of the bylaws. A breach of contract action followed. The circuit court properly ruled that the contract was void because the Board did not have the authority to enter into a 36-month contract when the bylaws limited such contracts to 24 months. Cobbs, J.  

 

No. 2015 IL App (1st) 150169  Alliance Property Management, Ltd. v. Forest Villa of Countryside Condominium Ass'n  12-24-15 (JMC)


After a bench trial, plaintiff Alliance Property Management (Alliance) appeals from an order entered by the circuit court, which denied Alliance’s breach of contract claim. The trial court found that defendant Forest Villa of Countryside Condominium Association (Forest Villa) lacked authority to enter into the contract and therefore it was void. On appeal, Alliance argues that (1) the trial court erred in "rescinding" the contract as a void agreement because the error in its formation was a mutual mistake of fact, which rendered it voidable, not void, (2) the contract is enforceable because defendant ratified the contract, and (3) defendant waived compliance of its governing documents; liquidated damages are not unjust enrichment; and defendant improperly terminated the agreement. HELD: the Board did not have the authority to waive the bylaws, thus, the explicit language in the bylaws indicates that the Board lacked authority to execute the 36-month Agreement.  Without authority, the contact is void and Alliance cannot recover under its terms. Because the court held that the contract was void ab initio, it did not reach Alliance’s arguments that liquidated damages are not unjust enrichment and that Forest Villa improperly terminated the Agreement.

 

 3. Criminal Law/Aggravated Robbery/Lesser Included Offenses: Reversed and Remanded: The trial court violated defendant’s due process rights by convicting him of an uncharged offense, aggravated robbery that was not a lesser-included offense of the charged offense of armed robbery. Gordon, J.  

 

No. 2015 IL App (1st) 141216 People v. Johnson  Filed 12-23-15 (JMC)

After a bench trial, defendant was convicted of: (1) kidnapping, as a lesser-included offense of aggravated kidnapping; (2) aggravated robbery, as a lesser included offense of armed robbery; (3) unlawful vehicular invasion; and (4) unlawful restraint, as a lesser-included offense of aggravated unlawful restraint of Lavert Jones. He was sentenced to one 11-year term each for aggravated robbery and unlawful vehicular invasion and to a 6-year term for kidnapping, with all sentences to run concurrently. On appeal, defendant challenged only the conviction for aggravated robbery, claiming that the trial court violated his right to due process when it convicted him of aggravated robbery because it was not a lesser-included offense of the charged offense, which was armed robbery. HELD: Aggravated robbery was not a lesser-included offense of armed robbery. Convicting  a defendant of the uncharged offense of aggravated robbery that is not a lesser-included offense of the charged offense of armed robbery violates defendant’s “fundamental due process right” and affects the fairness of defendant’s trial and challenges the integrity of the judicial process. The court thus reduced defendant’s conviction to simple robbery and remanded to the trial court for resentencing.

 4. Criminal Law/Sex Offender Regsistration & Notification/Constitutional Law:  Affirmed: Defendant challenged the constitutionality of various sex offender registration and notification statutes. The appellate court rejected the challenge and upheld the statutory scheme. Ellis, J.

No. 2015 IL App (1st) 132221  People v. Avila-Briones    Filed 12-24-15 (JMC)

Defendant was convicted of aggravated criminal sexual abuse for having sex with a 16-year-old girl when he was 23 years old. On appeal, he questioned the constitutionality of the Sex Offender Registration Act (SORA), the Sex Offender Community Notification Law (Notification Law), and other statutes applicable to sex offenders (collectively, the "Statutory Scheme"), maintaining that while previous versions of these laws have been upheld, the current versions of these laws are very different than the versions at issue in prior case law. The crux of his argument is that the Statutory Scheme has become so onerous that it has crossed the threshold from a civil regulatory scheme to a system of punishment, thus violating the constitutional prohibitions on cruel and unusual punishment, as well as his rights to procedural and substantive due process. HELD: There was no need to revisit whether the Statutory Scheme constitutes punishment or not because, even assuming that it did, it would not violate the eighth amendment or proportionate penalties clause. A lifetime of restrictions similar to parole or probation is not a grossly disproportionate sentence for defendant's offense, and the Statutory Scheme serves legitimate penological goals. The Statutory Scheme does not violate substantive due process because it does not affect fundamental rights enshrined in the substantive due process clause and is rationally related to the goal of protecting the public from the possibility that sex offenders will commit new crimes. The court also rejected defendant's procedural due process claim because defendant is not entitled to additional procedures to evaluate his risk of reoffending where his risk of reoffending is irrelevant to his status as a sex offender under Illinois law.

 

5. Criminal Law/Search and Seizure/Warrantless Search of Cell Phone: Reversed and Remanded: Whether pretrial suppression motion was improperly denied when police searched defendant’s cell phone without first obtaining a search warrant. Cobbs, J.

No. 2015 IL App (1st) 131870 People v. Butler    Filed 12-24-15 (JMC)

After a bench trial, defendant was convicted of second degree murder was sentenced to 13 years in prison. On appeal, he argued that the trial court erred in denying his pretrial motion to suppress a text message found during a warrantless search of his cell phone. HELD: Pursuant to Riley v.California, 573 U.S. __, 134 S. Ct. 2473 (2014), law enforcement officers must generally secure a warrant before conducting a search of data on cellular phones; however, depending on the circumstances,certain other exceptions to the warrant requirement may apply to a given situation. Community caretaking constitutes an exception to the warrant requirement and is invoked to validate a search or a seizure as reasonable under the fourth amendment; it is not relevant to determining whether police conduct amounts to a seizure in the first place. The officer’s actions in conducting a warrantless search of that phone in order to contact defendant's family do not fall under the community caretaking exception where he had less intrusive means at his disposal of accomplishing the same task. The State failed to establish that the officer’s warrantless search of defendant's cell phone was justified by exigent

circumstances, nor did it establish inevitable discovery. The error was not harmless and defendant’s conviction was reversed. The matter was remanded for a new trial, which is to be held after an attenuation hearing is held to determine whether defendant's statement should also be suppressed.

 

6. Criminal Law/Post-Conviction Hearing Act/Constitutionality of Mandatory Life Sentence: Affirmed, Sentence Vacated and Cause Remanded: The trial court properly denied defendant’s post-conviction claims regarding his murder conviction. However, the appellate court vacated the mandatory life sentence, holding that it was unconstitutional as applied to defendant and shocks the conscience. McBride, P. J. with Gordon, J., dissenting

No. 2015 IL App (1st) 110580  People v. House   Filed 12-24-15 (JMC)

Defendant appealed the trial court's second stage dismissal of his petition for postconviction relief, arguing that error occurred because (1) he made a substantial showing of actual innocence based on newly discovered evidence of the recantation of a prosecution witness's trial testimony; (2) he made a substantial showing that his constitutional rights were violated based on (a) newly discovered evidence of a pattern of abuse by a police detective, (b) newly discovered evidence corroborating his allegation that police used a rival gang leader to intimidate defendant during an interrogation, and (c) defendant's consistent claim that his confession was coerced; (3) the trial court erred in denying postconviction counsel's request to obtain the Office of Professional Standards (OPS) files on the detectives involved in his interrogation; (4) defendant made a substantial showing that (a) his appellate counsel was ineffective for failing to argue on direct appeal that the trial court erred in denying his motion to quash arrest, and (b) his trial and appellate counsel were ineffective for failing to ensure all OPS files were reviewed; and (5) the statute mandating a sentence of natural life for offenders who kill more than one victim without considering mitigating factors, such as the offender's age and level of culpability, violates the eighth amendment of the United States Constitution (and the proportionate penalties clause of the Illinois constitution HELD:  (1) Defendant did make a substantial showing of actual innocence based on the recantation of the prosecution witness’s trial testimony, (2) Defendant’s alleged newly discovered evidence was not new and could have been discovered earlier; moreover, even if  accepted as new, the evidence was not of such a conclusive nature that the result of the proceeding would likely be different, (3) the OPS files at issue were not included in the record on appeal and, therefore, the court could not consider any claims related to the

substance of the OPS files. Defendant bears the of  providing a sufficiently complete record to support his claim of error. Defendant failed to meet that burden, (4) Defendant failed to establish any ineffective assistance of either trial and appellate counsel, and (5) The mandatory natural life sentencing statute is unconstitutional as applied to defendant and shocks the moral sense of the community given defendant’s  age, his family background, his actions as a lookout as opposed to being the actual shooter, and lack of any prior violent convictions, we find that defendant's mandatory sentence of natural life. 

 

7. Civil Law: Summary Judgment/Special Interrogatories/Leave to Amend Complaint/Admissibility of Evidence: Affirmed:  Trial court’s summary judgment affirmed where no disputed material facts existed. Trial court’s submission of various special interrogatories was proper as was its denial of plaintiff’s request to file a third amended complaint. Trial court did not err in admitting a call log into evidence. McLaren, J.

2015 IL App (2d) 141114  Lacey v. Perrin   Filed 12-24-15 (JMC)

Plaintiff, Mary Lacey, filed a complaint against defendants, James Perrin and the City of North Chicago (City), after Perrin, a police officer for the City, struck a vehicle in which plaintiff was a passenger. The jury returned a general verdict in favor of plaintiff and awarded her $125,016.50. However, the jury also answered in the affirmative two special interrogatories, which asked whether Perrin was in execution and enforcement of the law at the time of the accident and whether Perrin was en route to assist another officer at the time of the accident. The trial court entered judgment in favor of defendants, based on the answers to the special interrogatories. Lacey appeals, arguing that: (1) the trial court erred by granting defendants

summary judgment on the issue of willful and wanton conduct; (2) the answers to the special interrogatories should be set aside and she should receive a judgment on the general verdict (judgment notwithstanding the verdict) or, in the alternative, a new trial on the issue of liability or an entirely new trial because the special interrogatories were improperly submitted and the answers are against the manifest weight of the evidence; (3) the trial court erred by denying her leave to file a third amended complaint to add a spoliation-of-evidence count; and (4) the trial court abused its discretion by allowing defendants to introduce evidence of the police department’s call log, resulting in an unfair trial HELD: (1) There was no question of material fact regarding the issue of willful and wanton conduct; therefore summary judgment was correctly entered, (2) the trial court properly submitted the special interrogatories to the jury, and the responses were not against the manifest weight of the evidence, (3) plaintiff failed to establish any of the factors needed for leave to file an amended complaint, therefore, the trial court did not abuse its discretion in denying the request, and (4) the trial court did not abuse its discretion in admitting the call log.


15 Appellate Cases Posted 12-23-15

1. Criminal Law/Sentencing: Sentence vacated and remanded: The statute is ambiguous regarding at what point the defendant's age should be considered–commission, charging or conviction–and this requires an interpretation in favor of the defendant in accordance with the rule of lenity. Interpreting section 5-4.5-95(b) to favor Brown, we hold that because he was under the age of 21 on the date he was charged, he was ineligible for Class X sentencing. Therefore, we find it unnecessary to consider Brown's arguments regarding the constitutionality of section 5-4.5-95(b), and remand for resentencing on Brown's Class 1 felony.  Mason, J.  with Lavin, J. dissenting.


No. 2015 IL App (1st) 140508    People v. Brown   Filed 12-23-15 (RJC)


Following a bench trial, defendant Joseph Brown was convicted of possession of heroin with intent to deliver and sentenced as a Class X offender pursuant to section 5-4.5-95(b) of theUnified Code of Corrections (the Code) due to his prior felony convictions. 730 ILCS 5/5-4.5-95(b) (West 2014). Brown appeals, arguing that he was ineligible for Class X sentencing because he was under the age of 21 when he committed and was charged with the instantoffense, and section 5-4.5-95(b) contemplates that an offender be over 21 years old on the datehe either commits or is charged with the crime (as opposed to the date he is convicted) before he can be sentenced to a Class X term. Alternatively, he contends that insofar as the section does not so contemplate, it is unconstitutional. Finally, he maintains that the mittimus incorrectly reflects the name of the offense for which he was convicted. For the reasons that follow, we vacate Brown's sentence and remand for resentencing.

2. Illinois antitrust law: Affirmed: The circuit court properly dismissed the Boffa Group’s claim that defendants violated Illinois antitrust law because, without something more, a staffing pattern dispute at one hospital does not cause an unreasonable restraint of trade within the ambit of the antitrust laws. The circuit court also properly dismissed the Boffa Group’s claim of tortious interference with prospective economic advantage because they failed to allege defendants engaged in conduct directed at a specific third party. Lampkin, J.  


No. 2015 IL App (1st) 142984   Boffa Surgical Group LLC v. Managed Healthcare Associates Ltd.   Filed 12-23-15 (RJC)


Plaintiffs Boffa Surgical Group LLC, Dr. James Boffa, and Dr. Andrew Agos (collectively, the Boffa Group) were not asked to participate in managed care groups at a hospital where they had staff privileges. The Boffa Group sued defendants Managed Healthcare Associates Ltd. (MHCA) and Swedish Covenant Managed Care Alliance (SCMCA), alleging antitrust violations and tortious interference with prospective economic advantage. The circuit court dismissed the Boffa Group’s amended complaint for failure to state a cause of action, and the Boffa Group appealed. We affirm the judgment of the circuit court.

3. Settlement Agreements/Sanctions: Affirmed in part, reversed in part, and remanded: The circuit court did not err, as a matter of law, in finding that the parties reached an enforceable settlement agreement. If the opposing party wants to challenge the hourly rate (of attorneys,) it must file a counter-affidavit, not because the response must be “verified,” but because without an affidavit contradicting the affidavit of petitioning counsel that the rates are reasonable, the court has no basis for rejecting the rates.  In reviewing the petition, it is impossible to discern, out of the total hours spent (44.25), how many were related to County Line’s failure to serve the Park District with a copy of its appearance. Mason, J.  


No. 2015 IL App (1st) 143766    County Line Nurseries & Landscaping, Inc. v. Glencoe Park District    Filed 12-23-15 (RJC)


County Line Nurseries & Landscaping, Inc., sued the Glencoe Park District for breach of a landscaping services contract, and the Park District countersued for County Line’s alleged failure to perform under the same contract. After several months of litigation, the Park District alleged that the parties orally agreed to settle and when County Line refused to proceed with the settlement, the Park District moved to enforce the oral agreement. The trial court granted the Park District’s motion, finding that County Line’s denial that it had agreed to settle was not credible and it was apparent that County Line’s president “changed his mind after entering into the settlement agreement.” The trial court also sanctioned County Line for violating its orders to appear through substitute counsel and ordered it to pay the attorney fees incurred by the Park District as a result of that violation. County Line appeals, arguing that the trial court erred (i) in finding that County Line agreed to the settlement, and (ii) in imposing sanctions. We affirm the trial court’s order enforcing the settlement agreement, but reverse the sanction award and remand for further proceedings.

4. §2-1401 Petition/Criminal: Affirmed: Defendant did not cite section 2-1401 in the motion, and he did not argue that a judgment was void. However, motions is construed as a 2-1401 motion.  Defendant filed a certificate stating that he placed his pleading in institutional mail for transmittal via the United States Postal Service. He did not file a postjudgment motion or otherwise raise the sufficiency of service. Thus, defendant never affirmatively demonstrated deficient service. Accordingly, we presume that the trial court’s order was in conformance with the law. Also, the trial court did not improperly recharacterize the pleading as a successive postconviction petition without providing notice. Jorgensen, J.

No. 2015 IL App (2d) 130473   People v. Needham   Filed 12-23-15 (RJC)

Defendant, Michael E. Needham, appeals the trial court’s sua sponte denial of his pro se “motion,” effectively a petition for relief from judgment filed under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)). Affirmed.

5. Criminal Law/MTSS/Habeas: Affirmed: No need not delve into whether the State’s actions constituted intentional deception or mere ineptitude, because, even if a judge was tricked into issuing a writ pursuant to the Act, the defendant still would not be entitled to any relief. The IDOC has been granted sole discretion in placing, handling, and transferring inmates within its control.  Any purported violation of the Act did not implicate any of the defendant’s constitutional rights. Therefore, the defendant was not entitled to a suppression of his statements, based on the violation of the Act. The trial court therefore did not err in denying the defendant’s motion to suppress his statements. Shostock, J.

No. 2015 IL App (2d) 130790    People v. Vanderark   Filed 12-23-15 (RJC)

Following a jury trial, the defendant, Gordon L. VanderArk, was convicted of three counts of solicitation of murder for hire (720 ILCS 5/8-1.2 (West 2010)) and was sentenced to a total of 40 years’ imprisonment. On appeal, the defendant argues that the trial court erred in denying his motions to (1) suppress evidence and (2) appoint a special prosecutor.  Affirmed.

6. Criminal Law/Post-Conviction Hearing Act: Vacated and remanded: defendant’s fitness to stand trial was a constitutional issue that was strongly considered, should have been fully explored, and possibly should have been raised in the amended petition. Yet, for whatever reason, it was never fully explored, let alone raised. Defendant’s fitness at the time of trial needed to be reviewed in order for Delbert to properly prepare the amended petition. The failure to do so, so clearly evident in the record, leads us to conclude that Delbert did not make “amendments to the petitions filed pro se that are necessary for an adequate presentation of [defendant’s] contentions.” McLaren, J.

No. 2015 IL App (2d) 130994  People v. Rodriguez  Filed 12-23-15 (RJC)

Defendant, Jose R. Rodriguez, appeals a judgment granting the State’s motion to dismiss his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). We vacate and remand.

7. Mortgage foreclosure/137 sanctions: Reversed:  Here, the trial court did not seek to correct an omission from its April 17, 2014, order. Rather, the trial court sought to change its order by granting a motion that it had previously denied. That was improper. Thus the trial court’s nunc pro tunc order was not valid. Here, in its motion to vacate the sale, the plaintiff essentially alleged that it had made a mistake. The plaintiff also pointed out that under the controlling law it was the master of its cause of action and therefore had the right to vacate the sale. Based on those allegations, the trial court properly granted the motion to vacate the sale. The trial court therefore abused its discretion in sanctioning Nevel for filing the motion. To hold otherwise would frustrate the purpose of Rule 137, which provides that only those who file. McLaren, J.

No. 2015 IL App (2d) 140970    Deutsche Bank National Trust Co. v. Ivicic  Filed 12-23-15 (RJC)

This case arises from a mortgage foreclosure action. After the property was sold at a sheriff’s sale, the plaintiff, Deutsche Bank National Trust Company, filed a motion in the circuit court of Du Page County to vacate the sale. The trial court granted the motion. Steve Dweydari, the high bidder at the sheriff’s sale, then filed motions (1) to intervene; (2) to reconsider the order vacating the sale; and (3) for sanctions against the plaintiff’s attorneys, the Law Offices of Ira T. Nevel (Nevel), for filing a false pleading. The trial court denied Dweydari’s motions to intervene and to reconsider its prior order. However, the trial court granted Dweydari’s motion for sanctions. Nevel appeals from that order. Reversed.

8. Insurance/Duty to defend/fax-blast: Affirmed: The plain language of the policy excludes coverage for property damage as alleged in Wellington’s complaint. Accordingly, the trial court properly granted summary judgment in ICC’s favor and against Wellington. McLaren, J.

No. 2015 IL App (2d) 150016    Illinois Casualty Co. v. West Dundee China Palace Restaurant, Inc.  Filed 12-23-15 (RJC)

This is a declaratory judgment action involving a dispute over insurance coverage for a fax-blast case. The issue is whether plaintiff Illinois Casualty Company’s (ICC) policy exclusion (hereinafter Laws exclusion) applies to the allegations in the complaint in the underlying  litigation. If the Laws exclusion applies, then ICC’s duty to defend defendant, West Dundee China Palace Restaurant, Inc. (West Dundee), was never triggered. On cross-motions for summary judgment, the trial court initially ruled that ICC had a duty to defend. On a motion to reconsider, the trial court ruled that ICC had no duty to defend or indemnify. We affirm.

9. Insurance/Settlements/set off: Affirmed: Under the UIM provision, any workers’ compensation payments result in a set off. To read the policy as Acuity argues would render the workers’ compensation set off utterly meaningless. If all elements of loss covered by workers’ compensation were excluded from coverage, there would never be anything to set off. This holding comports with the public policy underlying UIM coverage. Decker should be allowed to present all elements of loss in the UIM arbitration, including those elements paid through workers’ compensation. However, those elements will be subject to the set off for the amount Decker actually recovered on his workers’ compensation claim and on his claim against Hunter. That
set off will total $363,874.52. Accordingly, the judgment of the circuit court of Lake County denying Acuity’s motion for summary judgment and granting Decker’s motion is affirmed.  Burke,
J.

No. 2015 IL App (2d) 150192    Acuity v. Decker   Filed 12-23-15 (RJC)

Defendant Donald Decker suffered personal injuries from an automobile accident while working for his employer, defendant Groot Industries, Inc. (Groot).1 Decker received workers’ compensation benefits from plaintiff, Acuity, which was Groot’s insurance carrier. Decker settled his claim against USAA, the insurer for Carol Hunter, the third-party tortfeasor, for the full policy limit, and Decker paid Acuity the portion of that settlement required for satisfaction of the workers’ compensation lien. Decker filed an underinsured motorist (UIM) claim with Acuity, which was Groot’s automobile insurance carrier. Acuity filed a declaratory judgment action against Decker and Groot, contending that it was entitled to a set off for the entire amount it paid to Decker on the workers’ compensation claim, plus the entire amount that Decker received from USAA, and that certain elements of loss for which Decker had been compensated through workers’ compensation were precluded under Groot’s automobile insurance policy. The parties filed cross-motions for summary judgment. Acuity’s motion was denied, but Decker’s was granted.

10. Pension/Line of duty diability: Affirmed:  Because the bench-press test did not involve “special risk, not ordinarily assumed by a citizen in the ordinary walks of life” (40 ILCS 5/5-113 (West 2012)), even if we were to resolve those questions in plaintiff’s favor, his attempt to perform the test would not constitute an “act of duty.” If a particular risk is one that is ordinarily assumed by such citizens, it is not a “special risk.” Citizens in ordinary walks of life engage in weightlifting. Whether they do so occupationally or recreationally is of no moment. The risk of sustaining a weightlifting injury is not a “special risk.” Zenoff, J.

No. 2015 IL App (2d) 150265    Swoboda v. Board of Trustees of the Village of Sugar Grove Police Pension Fund   Filed 12-23-15 (RJC)

Plaintiff, Thomas Swoboda, appeals from an order of the circuit court of Kane County affirming the decision of the Board of Trustees of the Village of Sugar Grove Police Pension Fund (Board) denying plaintiff’s application for line-of-duty disability benefits and instead awarding him nonduty benefits.

11. Criminal law/DUI/MTSE&QA: Reversed and remanded: Officer Buckle’s observation justified an investigatory traffic stop. “In judging a police officer’s conduct, we apply an objective standard, considering whether the facts available to the officer at the moment of the seizure justify the action taken.” The trial court was mistaken in believing that the State was required to show some “other indication” of issues with defendant’s driving ability in addition to following too closely in violation of section 11-710 of the Code. Birkett, J.

No. 2015 IL App (2d) 150341   People v. Maberry   Filed 12-23-15 (RJC)

Defendant, Brittany Maberry, was arrested and charged with driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2014)), possession of drug paraphernalia (720 ILCS 600/3.5(a) (West 2014)), and following too closely (625 ILCS 5/11-710(a) (West 2014)). She moved to suppress evidence, contending that the arresting officer lacked reasonable grounds to stop her car on the basis of following too closely. The trial court granted the motion. The State appeals. Reversed and remanded.

12. Ordinances/Enactment/Interpretation: Reversed: The trial court erred in granting summary judgment for the plaintiffs and instead should have granted summary judgment in favor of the City.  A court may not, in the guise of interpreting a statute, ignore its plain language and read into it exceptions, limitations or conditions that conflict with the express legislative intent. Subsection 18-6(B), to the extent that it can be read as incorporating the voting procedures of section 3.1-40-40 of the Municipal Code, clearly does so only for ordinances involving the expenditure of money, not those involving the levying of taxes. Accordingly, any requirement of four affirmative votes cannot be read as applying to the Ordinance. Schostok, J.

No. 2015 IL App (2d) 150544    WKS Crystal Lake, LLC v. LeFew   Filed 12-23-15 (RJC)

The plaintiffs, who pay property taxes that fund the intervenors’ expenditures, challenged the propriety of the 2013 tax levy ordinance enacted by one of the intervenors, the City of Crystal Lake (City). The circuit court of McHenry County granted summary judgment in favor of the plaintiffs, holding that the tax levy had not been validly enacted and ordering the City to refund the plaintiffs’ tax payments for that year. The City appeals. We reverse.

13. Injunctive relief/Restrictive covenant: Affirmed: Capstone must have alleged more than has been alleged thus far—in order to be entitled to a TRO. Absent a concrete factual assertion that Plywaczynski used confidential information, engaged in client solicitation, or rendered or is rendering financial advice to a former Capstone client, Capstone cannot make out a prima facie case for any of the four elements to warrant injunctive relief. Schostok, J.

No. 2015 IL App (2d) 150957    Capstone Financial Advisors, Inc. v. Plywaczynski  Filed 12-23-15 (RJC)

Keith Plywaczynski is a certified financial planner (CFP) who provides investment advice to businesses and high-net-worth individuals. He was formerly employed by Capstone Financial Advisors (Capstone), an investment advisory firm. He resigned from Capstone and went to work for a competitor, Mariner Wealth Advisors LLC and Mariner Wealth Advisors LLC—Chicago (collectively, Mariner). Afterward, Capstone quickly filed suit alleging that defendants—Plywaczynski, with Mariner’s “active assistance”—jointly breached a restrictive covenant agreement Plywaczynski had with Capstone. The suit is currently pending in the trial  court and, as an adjunct to the suit, Capstone moved for a temporary restraining order (TRO) against Plywaczynski and Mariner. The trial court denied the TRO motion, finding that Capstone was unlikely to succeed on the merits of its breach-of-contract claims. Capstone then appealed to this court. We have jurisdiction under Illinois Supreme Court Rule 307(d) (eff. Feb. 26, 2010) to provide a “quick review” of the grant or denial of injunctive relief, nothing more.  After conducting our review, we affirm.

14. Criminal law/Sentencing/Fees & fines: Vacated and remanded with directions: The only issue raised on appeal involves a challenge to the monetary component of defendant's sentence.  Fines may only be imposed by an order of the trial court.  The clerk of the court is a nonjudicial member of the court, and it has no power to levy fines.  A fine imposed by the circuit clerk is void. Wright, J.

No. 2015 IL App (3d) 150957   People v. Johnson  Filed 12-23-15 (RJC)

Defendant, Tracy Eugene Johnson, appeals from his burglary conviction, 30-year prison sentence, and judgment that ordered defendant to the "pay the costs of prosecution herein." On appeal, defendant argues that the matter should be remanded with directions for the trial court to review and correct the recorded judgment for "costs" and enter the correct amount of all financial charges in a written order supported by statutory authority. We vacate the order for the "costs of prosecution" and remand with directions.

15. FOID/Petition to Intervene/§2-1401: Reversed and remanded: To the extent that the circuit court premised its denial of the Department’s petition to intervene on a determination that the section 2-1401 petition was deficient, that ruling was  erroneous.  Under these circumstances, and construing the attempt to intervene liberally, we hold that the circuit court abused its discretion when it found the Department’s petition to intervene to be untimely.McDade, J.

No. 2015 IL App (3d) 140798   Winders v. People    Filed 12-23-15 (RJC)

The petitioner, Donald L. Winders, applied to the appellant, the Department of Illinois State Police, for a Firearm Owners Identification (FOID) card and was denied based on his criminal history. Winders petitioned the circuit court for relief from the Department’s decision, which the court granted. The Department, which was not a party to the circuit court case, filed a petition to intervene pursuant to section 2-408(a) of the Code of Civil Procedure (Code) (735 ILCS 5/2-408(a) (West 2012)) and a petition for relief from judgment pursuant to section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2012)), both of which the court denied. On appeal, the Department argues that the circuit court erred when it denied the petitions to intervene and for relief from judgment. We reverse and remand with directions.

9 Appellate Cases Posted 12-22-15

1. Criminal Law/Sufficiency of Evidence/Ineffective Assistance of Counsel/Krankel: Affirmed. Evidence was sufficient to convict defendant of solicitation of murder for hire as the jury could infer from the evidence that defendant made an agreement with another to have a codefendant killed in exchange for money. Defendant’s post-trial claims of ineffective assistance of counsel were merely bald allegations that did not warrant a Krankel  hearing. Steigmann,  J. 

No. 2015 IL App (4th) 140226 People v. Hadden Filed 12-22-15 (JMC)

Defendant was found guilty of solicitation of murder for hire after a jury trial, at which the State introduced into evidence two audio-recordings of surreptitiously recorded conversations between defendant and two other people in which defendant spoke about killing his codefendant in another case. Defendant appealed, arguing that  the (1) evidence was insufficient to prove him guilty beyond a reasonable doubt of solicitation of murder for hire and (2) trial court failed to inquire into defendant's posttrial claims of ineffective assistance of counsel. HELD: 1) The evidence presented was sufficient for the jury to find beyond a reasonable doubt that an agreement existed between defendant and his colleague to kill defendant’s codefendant.  A rational juror could have found that defendant agreed to have his colleague kill the codefendant in exchange for $1,000 from defendant. Although defendant never spoke the word "kill," the jury could infer that defendant intended for his colleague to kill the codefendant based on defendant's statements that he wanted him "gone completely" and that he never be seen or heard from again. 2) Defendant’s post-trial, generalized, and conclusory allegations of ineffective assistance of counsel, made without any factual support, were insufficient to require a Krankel inquiry.

2. Criminal Law: Fitness to Stand Trial/Ineffective Assistance of Counsel/Necessity of Post-trial Krankel Hearing: Affirmed.  Trial court properly considered stipulations in determing defendant’s fitness to stand trial. Defendant’s counsel did not provide ineffective assistance of counsel with respect to fitness and no Krankel hearing was required.  Harris, J. 

No. 2015 IL App (4th) 140106   People v. Shaw   Filed 12-22-15 (JMC)

Defendant was convicted of attempt (criminal sexual assault). On appeal, defendant maintained that (1) the court erred by failing to conduct an independent inquiry into his fitness prior to trial and to sua sponte raise the issue of fitness at trial or sentencing, (2) defense counsel provided ineffective assistance by failing to request a fitness examination at trial or prior to sentencing, and (3) the court improperly failed to investigate defendant's ineffective-assistance-of-counsel claims pursuant to People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d

HELD: 1) The stipulations made by the parties and accepted by the court were proper as the record reflects they were based on the expert opinion testimony the doctor would have given if called to testify rather than solely his ultimate conclusion that defendant was fit to stand trial. The court was free to rely on the parties'proper stipulations—the only evidence presented as to defendant's fitness—when exercising its discretion and determining whether defendant was fit to stand trial. 2) The manner of speech defendant exhibited at trial and at sentencing was consistent with the observations of both Dr. Lo and Dr. Jeckel at the time of their respective fitness evaluations. As a result, the record fails to reflect defendant's mental health changed in any significant way from the time his fitness for trial was evaluated and the time of his trial or sentencing and for the same reasons, defendant failed to establish his counsel's ineffectiveness in this regard. 3) Both defendant's request for new counsel at trial and the statements made in his postsentencing pro se correspondence were insufficient to warrant a Krankel inquiry. The trial court committed no error.


3. Criminal Law: Suffiency of the Evidence/Murder: Affirmed: .The evidence presented in the case, both DNA and circumstantial were sufficient to support the verdict of guilt. Hyman, J. 

No. 2015 IL App (1st) 142597  People v. Jones Filed 12-22-15 (JMC)

A jury convicted defendant of first-degree murder based on a fatal traffic accident that occurred when he and his codefendant fled from a residential burglary. On appeal, defendant maintains that the State did not prove him guilty beyond a reasonable doubt based on (i) the  insufficiency of the DNA evidence linking him to the burglary and traffic accident and (ii) the lack of evidence suggesting he participated in or was accountable for the burglary.

HELD: The DNA evidence, combined with other circumstantial evidence linking Jones to the car used in the burglary, support the verdict.


4. Civil/Insurance Law/Duty to Defend: Reversed and Remanded: Allegations in the complaint, alleges an injury not arising out of the use of a controlled substance. Aas a result the duty to defend was triggered. Hyman, J. 

No. 2015 IL App (1st) 142438 Skolnik v. Allied Property & Casualty Insurance Co.   Filed 12-22-15 (JMC)

Haley Johnson died of methadone intoxication in the bedroom of defendant Joshua Skolnik, who lived at his parents’ home. Plaintiff Allied Property and Casualty Insurance Company insured the home under homeowners’ and an umbrella personal liability policy. Both policies exclude liability for bodily injury “arising out of the use” of controlled substances; however, both policies also contain an exception clause that carves out "the legitimate use of prescription drugs by a person following the orders of a licensed physician.” Skolnik’s prescribed methadone was found in the bedroom where Johnson died. Allied brought suit for a declaratory judgment regarding whether it had a duty to defend the Skolniks in a wrongful death lawsuit filed by Johnson’s father. The crux of this case involves whether the complaint alleges an independent injury. If the complaint alleges an injury not “arising out of” the “use of” a controlled substance, Allied has a duty to defend. HELD: The underlying complaint contains allegations within, or potentially within, the coverage of both the homeowners’ and umbrella policies. Specifically, the complaint alleges Skolnik failed to request emergency medical assistance for Johnson within a reasonable period of time after knowing that she was physically incapacitated,unresponsive, or unconscious; and knowing or discovering she ingested or unknowingly consumed methadone or other illegal substances in the Skolnik home. Further, count I alleges that Skolnik refused to allow Johnson’s two friends to check on, talk to, see, or render aid to Johnson on their request. These allegations of negligence, if proven, potentially could be covered under the insurance policies and, therefore, Allied has a duty to defend Skolnik in the underlying lawsuit.

 

5. Civil/Forcible Entry and Detainer/Attorney Fees: Affirmed: The record supported trial court’s determination  that attorney fees constitute additional rent under the specific language of the contract. Pierce, P.J., with Hyman, J., dissenting. 

No. 2015 IL App (1st) 142437 Battaglia v. 736 N. Clark Corp. Filed 12-22-15 (JMC)

Plaintiffs, landlords Gino and Bernadette Battaglia filed a forcible entry and detainer action claiming breach of commercial lease by their tenant, defendant 736 N. Clark Corp. d/b/a 25 Degrees. After a bench trial, the court entered a "split decision" awarding plaintiffs $4,021 in damages for defendant's breach of the lease and denied an order of possession requested by plaintiffs. On appeal, defendant argues that the trial court erred in finding: (1) the attorney fees incurred by the tax appeal constitute additional rent under the Lease; and (2) plaintiffs' claim is not barred by their failure to comply with the Lease's proration and notice requirements. HELD: 1) The record supports the trial court's finding that the attorney fees at issue constitute "additional rent." 2) The trial court’s properly found the procedural defects were not a "major factor" and that the money is still owed under the Lease. The trial court entered a "split decision," finding in favor of plaintiffs for the money owed, but in favor of defendant on the issue of possession, essentially, recognizing both parties' breach of the Lease and a judgment was properly entered in favor of each party on an issue.

6. Criminal Law: Armed Robbery/Sufficiency of the Evidence: Reversed and Remanded. The State failed to present evidence that defendant was armed with a gun that had the weight or composition of a dangerous weapon. Neville, J. 

No. 2015 IL App (1st) 133892  People v. Harris Filed 12-22-15 (JMC)

After a bench trial, defendant, was convicted of armed robbery.  On appeal, he argues that the conviction for armed robbery should be vacated or reduced to robbery because the evidence was insufficient to establish that he was armed with a dangerous weapon that could be used as a bludgeon. HELD: The State failed to present evidence that the defendant was armed with a gun that had the weight or composition (metallic nature) of a dangerous weapon. Therefore, the evidence presented by the State failed to prove, beyond a reasonable doubt, that the gun was a dangerous weapon because it could be used as a bludgeon. The armed robbery conviction was reversed and the cause remanded for the trial court to enter a judgment of conviction for robbery.

7. Criminal Law: Theft/Suffiency of the Evidence/Sentencing: Affirmed: The 12 year sentence was not improper or excessive, and the evidence supported the finding of the theft of over $1,8 million from the complaining victim. Hyman, J. 

No. 2015 IL App (1st) 133746 People v. Abrams  Filed 12-22-15 (JMC)

Defendant was convicted of theft of over $1.8 million from the complaining witness, Fred Lev, and sentenced to 12 years in the Illinois Department of Corrections, and ordered to pay $1.8 million in restitution. On appeal, defendant argues that (i) his sentence of 12-years’ imprisonment is excessive and disproportionate; (ii) the trial court should not have quashed his subpoena of bank records he would have introduced as substantive evidence contradicting the State’s case and for impeachment of the complaining witness; (3) the trial court made improper comments before the jury that were a material factor in his conviction; and (4) the State failed to prove the charge of theft of over $500,000 beyond a reasonable doubt. HELD: (1) The trial court properly considered factors in aggravation and mitigation when it imposed a 12-year sentence of incarceration which was well within the range for a Class 1 felony; (2) The bank records were both irrelevant and cumulative evidence; (3) The trial court's conduct was a proper exercise of discretion; and (4) The State proved beyond a reasonable doubt that Abrams stole over $500,000 from Lev. 

8. Criminal Law: Armed Robbery/Sufficiency of the Evidence: Reversed and Remanded. The State failed to present evidence that defendant was armed with a gun that had the weight or composition of a dangerous weapon. Neville, J. 

No. 2015 IL App (1st) 133303  People v. Dixon Filed 12-22-15 (JMC)

After a bench trial, defendant, was convicted of armed robbery and sentenced to 10 years' imprisonment. On appeal, he argues that his conviction for armed robbery should be reduced to robbery because the evidence was insufficient to establish that he was armed with a dangerous weapon that could be used as a bludgeon. HELD: The State failed to present evidence that the defendant was armed with a gun that had the weight or composition (metallic nature) of a dangerous weapon. The evidence presented by the State failed to prove, beyond a reasonable doubt, that the defendant was armed with a gun that was a dangerous weapon because it could be used as a bludgeon. Defendant’s conviction for armed robbery was reversed and the cause remanded for the trial court to enter a judgment of conviction for robbery and to impose an appropriate sentence.


9. Constitutionality of City of Chicago Ordinance: Reversed and Remanded: Constitutionality of city ordinance was successfully challenged in the trial court by Occupy Chicago protesters who were arrested after hours in Grant Park. Pierce, P.J. 

No. 2015 IL App (1st) 122858-B  City of Chicago v. Alexander    Filed 12-22-15 (JMC)

The circuit court found chapter VII, section B.2, of the City of Chicago Code to be unconstitutional on its face and as applied to defendants. The court held that the ordinance violated the first amendment to the United States Constitution and related provisions of the Illinois Constitution. The court further held that the ordinance had been discriminatorily enforced in violation of the equal protection clauses of the United States and Illinois Constitution. HELD: The ordinance is clearly a constitutionally appropriate application of a permissible government regulation. To the extent the ordinance may restrict expressive conduct or assembly, there is simply no evidence in this record that warrant a conclusion that there are a substantial number of instances in which the ordinance cannot be applied constitutionally in relation to its "plainly legitimate sweep." The park ordinance in question here “responds precisely to the substantive problems which legitimately concern the [Government].” Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 810 (1984).  The appellate court also rejected defendants' arguments that the selective enforcement of the ordinance violated the equal protection clause of the fourteenth amendment. The ordinance does not violate the article I, section 5 of the Illinois Constitution.  

4 Appellate Cases Posted 12-21-15

1. Criminal Law/Post-Conviction Hearing Act: Reversed and remanded: The defendant's postconviction petition was improperly dismissed at the first stage of postconviction proceedings. The defendant has presented an "arguable" claim that her trial counsel was ineffective in not calling a witness, and thus her postconviction petition was sufficient to avoid first-stage summary dismissal. On remand, the trial court should conduct second-stage postconviction proceedings. Accordingly, we vacate our May 2014 order, reverse the trial court's summary dismissal of the defendant's petition, and remand the matter for second-stage postconviction proceedings. Cunningham, J. 

No. 2015 IL App (1st) 121928    People v. Burns    Filed 12-21-16 (RJC)

On May 12, 2014, this court entered an order affirming the trial court's summary dismissal of defendant-appellant Latrice Burns' pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). On September 30, 2015, the Illinois Supreme Court entered a supervisory order directing us to vacate our May 2014 order and reconsider the matter in light of our supreme court's subsequent decision in People v. Allen, 2015 IL 113135.

2. Medical Malpractice/Standard of Care/Lost chance doctrine/Medical Bills: Affirmed: Plaintiff did not have to show that Dr. Berk's failure to take any of the four precautionary steps actually deprived the decedent of a better outcome or a completely successful recovery. The circuit court correctly viewed defendants' efforts to hold Dr. Finks to a standard of absolute certainty as being akin to requiring plaintiff to prove that, but for the claimed negligence, a better result would have been obtained. This is contrary to established precedent.  Also, conflicting expert testimony, as well as the credibility of both sides' experts, was a matter for the jury to weight and resolve. The circuit court did not err in denying defendants' motion for judgment n.o.v. Dr. Finks' testimony was sufficient to put defendants on notice that a partial gallbladder removal was the final step and last resort in the standard of care protocol that plaintiff intended to present at trial.  Because the jury awarded the full amount of expenses sought by plaintiff, there is no indication that it engaged in any arbitrary or speculative apportioning of the expenses as might have been the case if it gave some discount off of the full amount not supported by the evidence. Under these circumstances, the circuit court did not abuse its discretion either in submitting the full amount of requested medical expenses to the jury or in denying defendants' motion for entry of remittitur. Liu, J. 

No. 2015 IL App (1st) 132927    Vanderhoof v. Berk    Filed 12-21-16 (RJC)

On December 22, 2010, Vanderhoof's wife, Doris, brought a wrongful death and survival action against the surgeon, Dr. Richard Berk, and NorthShore University HealthSystem, d/b/a Glenbrook Hospital. NorthShore University HealthSystem Faculty Practice Associates (NorthShore) was subsequently added as a defendant. After Doris passed away, her daughter, Carol Vanderhoof, became the special administrator of Vanderhoof's estate. Carol filed an amended complaint, alleging that during her father's cholecystectomy, Dr. Berk "[n]egligently and carelessly surgically transected" the common bile duct, "[f]ailed to perform the necessary precautionary methods to ensure a safe gallbladder removal," and "[f]ailed to call for assistance from a specialist with expertise in biliary surgery" before cutting the common bile duct. Plaintiff further alleged that her father died "[a]s a direct and proximate result of one or more of the foregoing negligent acts and/or omissions." A six-day jury trial commenced on January 25, 2013, during which the parties presented testimony from their respective fact and expert witnesses. At the close of the evidence, defendants presented a motion for a directed verdict, which the circuit court denied. Following deliberations, on February 1, 2013, the jury returned a verdict in favor of plaintiff and against defendants Berk and NorthShore. The jury awarded damages in the amount of $910,742.79. The circuit court entered judgment on the verdict and award. Defendants filed a posttrial motion for a judgment notwithstanding the verdict (judgment n.o.v.), or, alternatively, for a new trial.

3. Negligence/Snow and Ice Removal Act: Reversed: The only issue presented is whether the immunity provided by the Act only applies to those who create a danger by negligent efforts to remove natural accumulations of ice and snow or instead applies to anyone whose defective property, whether because of factors such as negligent landscaping design or maintenance, creates an unnatural accumulation of ice or snow which causes injury. As a matter of law, the Act does not apply to plaintiff's negligence suit. Connors, J. 

No. 2015 IL App (1st) 142804    Murphy-Hylton v. Lieberman Management Services, Inc.    Filed 12-21-16 (RJC)

On the morning of February 18, 2011, plaintiff fell while walking on the sidewalk outside her condominium in Carol Stream. She brought suit against defendants, Lieberman Management Services, Inc. (Lieberman) and Klein Creek Condominium (Klein) (collectively, defendants) alleging that their negligent maintenance of the property created an unnatural accumulation of ice, which caused her fall. The trial court granted defendants' motion for summary judgment, finding that the Snow and Ice Removal Act (Act) (745 ILCS 75/1 et seq. (West 2010)) provided immunity for defendants. Plaintiff filed this appeal.

4. Domestic Relations/Custody: Affirmed: The trial court likewise expressed concern that Carmalita would continue to engage in conduct contrary to Z.Y.'s best interest in having Burtrann actively involved in his life. This factor, and the majority of the best interest factors, favor Burtrann as the custodial parent. No abuse of discretion in the trial court’s determination to award residential custody to Burtrann.  O'Brien, J. 

No. 2015 IL App (3d) 150553   In re Marriage of Young    Filed 12-21-16 (RJC)

Petitioner Carmalita Young and respondent Burtrann Young both sought custody of their son, Zachariah, who was seven years old when the parties separated. The trial court awarded joint custody to Carmalita and Burtrann, ordered Burtrann have residential custody and Carmalita have visitation. Carmalita appealed the custody decision. We affirm.

5 Supreme Court Cases Posted 12-17-15

1. Criminal Law/MTS/Appeals: Appellate court judgment affirmed in part and reversed in part. Circuit court judgment affirmed. Cause remanded.:  In this decision, the Illinois Supreme Court reversed this, stating that the appellate court had been wrong on the suppression issue. While the defendant had adequately preserved the broad issue of voluntariness, his arguments on appeal were almost entirely distinct from his arguments before the trial court. The motion to suppress made at trial had been very broadly worded, a fact which defense counsel had conceded at the time. The State contended on appeal that the defendant was making arguments which had not been presented to the trial court and which thus should not be made on review. The State urged that the appellate court should have declined to answer questions for which no adequate record had been established. In this decision, the supreme court agreed, stating that this drastic shift in factual theories had deprived the State of an opportunity to present evidence at trial, and that a court of review could not be confident in the adequacy of the record in this case to address these arguments. The new trial order was reversed. Chief Justice delivered the judgment of the court, with opinion. Justices Freeman, Karmeier, and Theis concurred in the judgment and opinion. Justice Burke specially concurred, with opinion, joined by Justices Thomas and Kilbride.

No. 2015 IL 117242    People v. Hughes    Filed 12-17-15 (RJC)


Bench trial proceedings in the circuit court of Cook County resulted in this defendant’s conviction for the 2005 shooting deaths of two persons—Elijah Coleman, who was gunned down when he opened the door of his Chicago home, and this defendant’s alleged accomplice, Joshua Stanley, who was with the defendant at the time and who was shot in an alley the next evening. Apparently this botched robbery attempt was based on a plan embarked on by Stanley pursuant to a rumor that Coleman was a lottery winner. Hughes fled to Michigan and was arrested there nearly a year later. He was brought back to Chicago by car and interviewed in a room in which his statements were recorded. He admitted to shooting both men, but subsequently filed an unsuccessful motion to suppress both confessions as involuntary. The motion was denied and the statements were admitted into evidence. As a matter of law, even where a confession has been determined to be voluntary, it may still be attacked at trial as unreliable, and this is what defense counsel did here. Subsequently, Hughes was convicted, and a term of natural life imprisonment was imposed.

When the cause reached the appellate court, it determined that the mittimus should be corrected to give the defendant credit for time served. That is the only part of the appellate court’s action with which the supreme court agreed. In seeking review in the appellate court, the defendant argued that his statements had been involuntary and the appellate court agreed, ordering a new trial.

2. Criminal Law/AUUW: Appellate court judgment reversed: In this decision, the Illinois Supreme Court noted that the legislature may constitutionally prohibit felons from carrying readily accessible weapons in select circumstances, and, in fact, has done so by specific statute, but it did not do so in the enactment challenged here. At the trial, the State was not required to prove a prior felony conviction as an offense element and it did not do so. The matter of being previously convicted of a felony was addressed at sentencing. The challenged statute, as written, is a flat ban on carrying ready-to-use guns outside the home, without being limited to a subset of persons, such as felons. It is, thus, facially unconstitutional as written. In this decision, the supreme court followed Aguilar, noting, however, that some of the language used in the modified opinion had inappropriately referred to the Class 2 and Class 4 forms of the offense at issue. No such offenses exist. This language, however, cannot be viewed as limiting the Aguilar holding of facial unconstitutionality.  The challenged statute is unconstitutional on its face and is not enforceable against anyone, including this defendant. His conviction and sentence were vacated. The appellate court was reversed. Justice Burke delivered the judgment of the court, with opinion. Justices Freeman, Kilbride, Karmeier, and Theis concurred in the judgment and opinion. Chief Justice Garman specially concurred, with opinion, joined by Justice Thomas.

No. 2015 IL 117387    People v. Burns   Filed 12-17-15 (RJC)

 

In 2009, Chicago police who were responding to reports of gunfire near 73rd and Blackstone saw this defendant, with a gun in his hand, exit the car in which he was sitting. He threw the handgun back into the vehicle and fled on foot, throwing another object to the ground as he ran. That object was discovered to be a magazine or “clip,” loaded with 9-millimeter rounds. The gun recovered from the car had no clip, but had one live 9-millimeter round in the chamber, and the clip retrieved during the chase fit the gun recovered from the car. The defendant was arrested.

Burns’ Cook County bench trial began in late 2011, and, in early 2012, he was convicted of aggravated unlawful use of a weapon based on the statute outlawing possession of an uncased, loaded and readily accessible firearm in a vehicle. Because he had a prior felony conviction for possession of a controlled substance, at sentencing a 10-year term as a Class X offender was imposed. Burns sought direct review in the appellate court, and, on September 12, 2013, while his appeal was pending, the Illinois Supreme Court decided People v. Aguilar, which reversed a conviction under the same statute that had just been used to convict Burns. In Aguilar, the supreme court held that a statute which operates as a flat ban on carrying ready-to-use guns outside the home is facially unconstitutional as in violation of the right to bear arms guaranteed by the second amendment.

Burns had raised the Aguilar decision in the appellate court, but his conviction was affirmed in 2013. The appellate court said that, despite Aguilar, the challenged statute remained enforceable because felons (like this defendant) lack  second amendment rights. The defendant appealed again.

3. Illinois Educational Labor Relations Board/Board of Education of the City of Chicago: Affirmed and remanded:  In this decision, the Illinois Supreme Court affirmed the appellate court, noting that probationary teachers have no specific right to be retained by a school board, but may be dismissed in a school board’s discretion. Such a teacher is simply not asked to enter into continued contractual service. The supreme court said that the instant “Do Not Hire” grievances are an attempt to force the school board to hire probationary teachers, in conflict with the school board’s statutory authority to refuse to do so. What the school board did here was within its authority based on its exclusive right to determine its hiring guidelines. The school board was not obligated to arbitrate the grievances, and the labor board erred in finding otherwise. Justice Freeman delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion. Justice Kilbride dissented, with opinion

No. 2015 IL 118043    Board of Education of the City of Chicago v. Illinois Educational Labor Relations Board   Filed 12-17-15 (RJC)

            .

At the end of the 2009-2010 school year, the Chicago Board of Education began a policy of designating as ineligible for rehire nonrenewed probationary appointed teachers (PATs) who had been nonrenewed twice, or who had been given an unsatisfactory performance rating. “Do Not Hire” designations were placed in such teachers’ personnel files. The Chicago Teachers Union filed four grievances and demanded arbitration, but the school board refused. Characterizing the refusal to arbitrate as an unfair labor practice in violation of the Illinois Educational Labor Relations Act, the union sought relief from the Illinois Educational Labor Relations Board and was granted an order to arbitrate. On direct administrative review, however, the appellate court found no obligation to arbitrate, either pursuant to statute or the 2007-2012 collective bargaining agreement.

4. Voluntary Dismissal/SOJ: Affirmed and remanded:  In this decision, the Illinois Supreme Court rejected the plaintiff’s argument that a new case had been filed in 2013 when the refiled matter was assigned a different docket number, a new filing fee was paid, and process was served again. The court said that the plaintiff had only a single cause of action against the defendant doctor, based on his allegedly negligent treatment, and the proceedings begun in 2009 cannot be disregarded. The applicable statutes cannot be construed to permit judge shopping or delaying tactics. The court noted that statute does not prevent the seeking of a substitution of a judge for cause, which carries a heavy burden and which is a route which the plaintiff did not choose to take.  In response to the certified question, the supreme court held that, when a case has previously been dismissed and refiled, a trial court has discretion to deny an immediately filed motion for substitution of judge based on the fact that the same judge to whom the motion is presented made substantive rulings in the previously dismissed case. The appellate court was affirmed and the cause was remanded to the circuit court. Earlier rulings on the “testing the waters doctrine,” argued about by the parties, are not explicitly implicated in the certified question, are inapplicable here, and are not addressed in this decision.  Justice Freeman delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion. Justice Kilbride dissented, with opinion.

No. 2015 IL 119000   Bowman v. Ottney   Filed 12-17-15 (RJC) 


On behalf of a woman who died in 2007 in Jefferson County, a medical malpractice action alleging negligence was filed by her estate in 2009, naming the doctor who is the defendant here and the medical facility at which he had treated the decedent. The judge to whom the case was assigned spent four years presiding over extensive pretrial proceedings. During that time, substantive rulings were issued, covering issues such as disclosure of certain matters in discovery. After those four years, but prior to trial, the complaint was voluntarily dismissed. Four months later, in 2013, the complaint was refiled, asserting the same claim but naming only the doctor as defendant. A statutory motion for substitution of judge as of right was immediately filed, but was objected to by the defense as “judge shopping.”  The circuit court denied the motion for substitution but certified the question to the appellate court, which ruled that he had discretion to act as he did on the basis of his earlier substantive rulings. The plaintiff appealed.

5. Juvenile Court/Supervision/Interlocutory Order/Appeals: Affirmed: In this decision, the Illinois Supreme Court affirmed the appellate court, saying that the Illinois Constitution gives the appellate court jurisdiction to review final judgments, and that reviewability of nonfinal judgments may be provided for by supreme court rule. Thus, post-guilt supervision orders are appealable in juvenile delinquency cases either if they are final or if the supreme court has provided for them by rule. Neither circumstance is present here. The supreme court said that it might be possible to address this question by way of a new rule, but it would be better for this to take place through the usual rulemaking process, with public input. Justice Thomas delivered the judgment of the court, with opinion.  Chief Justice Garman and Justices Kilbride, Karmeier, and Theis concurred in the judgment and opinion. Justice Burke dissented, with opinion, joined by Justice Freeman.

No. 2015 IL 119178    In re Michael D.   Filed 12-17-15 (RJC) 


The Glenview Police Department provided a photo array for viewing by a cell phone purchaser who, from the array, identified this 16-year-old juvenile respondent as the individual from whom he purchased a cell phone on September 27, 2013, based on representations by that seller that the cell phone belonged to him. It did not, but had been reported stolen.  In the circuit court of Cook County, a petition for adjudication of wardship was filed against this respondent under the Juvenile Court Act. In the bench proceedings which followed, he was ultimately found guilty of one misdemeanor count of theft by deception. The trial court entered an order continuing the case under supervision for one year, with monetary restitution to the victim and referral of the respondent for TASC evaluation. The respondent appealed, but the appellate court dismissed the appeal for lack of jurisdiction, holding that, although recent legislative changes embodied in the 2014 statutes allow supervision orders to be entered in juvenile cases after (as opposed to before) a finding of guilt, nevertheless, this change did not make such orders appealable under any supreme court rule. The appellate court stated that it had jurisdiction to review final judgments in juvenile cases, but that a supervision order is not a final judgment. The appellate court also noted that it has jurisdiction to review certain interlocutory orders in juvenile cases, but that supervision orders are not so named. The jurisdiction given over adult supervision orders in criminal cases, the appellate court noted, does not apply to juveniles. 

          

7 Appellate Cases Posted 12-18-15

1. Criminal Law/Domestic ViolenceHearsay: Affirmed:  The trial court's decision to admit the girlfriend's testimonial hearsay statement into evidence pursuant to the domestic violence exception (725 ILCS 5/115-10.2a (West 2010)) is affirmed.  This statutory exception, as applied to defendant, did not violate his sixth amendment right to confrontation. Gordon, J. with McBride, J. specially concurring

No. 2015 IL App (1st) 133610    People v. Burnett    Filed 12-18-16 (RJC)

Defendant Jamaal Burnett was found guilty, after a bench trial, of one count of violating an order of protection (720 ILCS 5/12-3.4(a) (West 2012)) obtained by his girlfriend, Shanan Krefft. He was sentenced to three years with the Illinois Department of Corrections (IDOC). On appeal, defendant raises only one claim: that his sixth amendment right to confront the witnesses against him was violated by the admission of a prior statement by his girlfriend.

2. Discovery/Confidentiality Act: Reversed and remanded. Contempt order vacated:  The record reflects that Renaissance established below that the documents the circuit court required it to disclose were confidential and not generally subject to disclosure under the Confidentially Act, plaintiff failed to make any attempt to demonstrate that any exception to the Confidentiality Act authorized disclosure below, and as a result the circuit court conducted no specific analysis and made no specific findings with respect to any possible
exception to the protection offered by the Confidentiality Act. Rochford, J.

No. 2015 IL App (1st) 143111    Stuckey v. The Renaissance at Midway    Filed 12-18-16 (RJC)

Plaintiff-appellee, Johnnie Stuckey, as attorney-in-fact for Robert Holman, filed the instant personal injury action against defendants-appellants, The Renaissance at Midway, Inc., an Illinois corporation; Nucare Services Corporation, an Illinois corporation; Clinical Consulting Solutions, L.L.C, f/k/a Clinical Consulting Services, L.L.C., an Illinois limited liability company; and Quest Services Corporation, an Illinois corporation. Plaintiff sought to recover for damages allegedly incurred by Mr. Holman when, while he was a resident at a long-term care facility owned, operated, and/or managed by defendants, he was physically assaulted by another resident. This appeal was filed after the circuit court granted, in part, plaintiff's motion to compel regarding plaintiff's discovery requests, conducted an in camera review, ordered defendants to produce certain partially-redacted records regarding the resident who assaulted Mr. Holman, and found defense counsel in "friendly contempt" for counsel's refusal to produce those records.

3. Insurance/Duty to Defend: Affirmed: Based on the claims alleged in the underlying lawsuits, Selective has no duty to defend Phusion. Each underlying lawsuit alleges Phusion is liable for causing or contributing to the intoxication of any person resulting in bodily injury. Phusion admits it is a manufacturer of alcoholic beverages. Accordingly, the underlying lawsuits fall squarely within the liquor liability exclusion and Selective has no duty to defend. The circuit court, therefore, properly granted Selective's motion to dismiss. Reyes, J.

No. 2015 IL App (1st) 150172    Phusion Projects, Inc. v. Selective Insurance Compary of South Carolina    Filed 12-18-16 (RJC)

Plaintiffs Phusion Projects, Inc. and Phusion Projects, LLC (collectively Phusion) brought an action for declaratory judgment against its commercial liability insurer, Selective Insurance Company of South Carolina (Selective). Phusion sought a declaration in the circuit court of Cook County that its insurance policy required Selective to defend and indemnify Phusion in six underlying lawsuits (underlying lawsuits). The underlying lawsuits generally alleged that the consumption of "Four Loko," an alcoholic beverage manufactured by Phusion, by certain individuals caused or contributed to the injuries they sustained. In a motion to dismiss pursuant to section 2-615 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2014)), Selective claimed that it was not required to defend Phusion because the insurance policy contained a liquor liability exclusion. According to that exclusion, Selective was not required to defend or indemnify Phusion against any causes of action wherein it was alleged Phusion may be held liable for bodily injury by reason of causing or contributing to the intoxication of any person. The circuit court dismissed Phusion's complaint, finding Selective had no duty to defend or indemnify Phusion based on the unambiguous language of the exclusion. Phusion now appeals arguing Selective has a duty to defend because the six underlying lawsuits do not fall within the liquor liability exclusion. For the reasons that follow, we affirm.

4. Trusts/Estates/Claims/Standing: Vacated and remanded: There are material issues regarding standing that are not resolved by the current record and which preclude dismissal. In deciding the merits of a section 2-619 motion, a trial court cannot determine disputed factual issues solely upon affidavits and counter-affidavits. If affidavits present disputed facts, the parties must be afforded the opportunity to have an evidentiary hearing. McBride, J.

No. 2015 IL App (1st) 150172    In re Estate of Zivin    Filed 12-18-16 (RJC)

Hebrew University of Jerusalem appeals from an order dismissing its claim against a decedent's estate for lack of standing. The school sued in its capacity as a "beneficial legatee" of a trust created by a will which the decedent, Alma M. Zivin, executed with her husband, Israel Zivin, just prior to his death. To avoid confusion, we will refer to the Zivins, respectfully, by their first names. The coexecutors of Alma's estate persuasively argued in the trial court that the school's claim about a trust created by the couples' bequest should be dismissed pursuant to section 2-619(a)(9) of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2012)), because only the testamentary trustee, not the trust's beneficiary, has authority to bring a claim. The school argues on appeal that it does have standing, or alternatively that the judge should have appointed a trustee ad litem to continue the proceeding on the school's behalf. The coexecutors respond the school failed to refute the motion to dismiss with any factual, admissible evidence of standing.

5. Abuse and Neglect: Affirmed: The State failed to prove neglect in this case.  It follows that the public guardian and the State's argument with respect to an abuse finding must also fail. There is nothing in the record to suggest that Neatre abused or neglected Zion, and evidence that Neatre has not done everything social services requires of her to regain custody of her other children is not determinative of the issues before us. Just as prior abuse or neglect of a sibling does not per se establish neglect of another sibling, "a prior finding of
unfitness does not prove per se neglect." Howse, J.

No. 2015 IL App (1st) 151119   In re Zion M.    Filed 12-18-16 (RJC)

Zion is the youngest child of five children born to respondent, Neatre S. Prior to his birth, one of Zion's siblings found a gun in the home and shot another sibling in the head. The gun belonged to Neatre's former live-in paramour, who was subsequently convicted and sentenced to a six-year prison term for unlawful felony possession of a gun. Following the incident, the State filed petitions for adjudication for all four of Neatre's children who were in the home at the time of the shooting. Two months later, when Zion was born, the State also filed a petition for adjudication for Zion alleging he was neglected or abused. The hearing on all petitions proceeded simultaneously by stipulation. The trial court found that Neatre's paramour, not Neatre, was the perpetrator of the neglect and abuse of Zion's siblings and adjudicated Zion's siblings wards of the State. With respect to Zion, though, the trial court held that the State had failed to prove by a preponderance of the evidence that Zion was neglected or abused under a theory of anticipatory neglect. The public guardian appealed that decision, and the State filed a brief in support of the public guardian's appeal. For the reasons that follow, we affirm the trial court's ruling.

6. Dissolution of Marriage/Custody and Visitation: Affirmed: Given all the testimony elicited in this case, we cannot say no reasonable judge would enter the trial court's February 9, 2015 order, which increased John's visitation from one hour to three hours every other week while keeping all the other visitation rights as laid out in the October 29, 2013 custody judgment. Therefore, there was no abuse of discretion. Nor can we say that an examination of the evidence shows an opposite result clearly evident. Therefore, we do not find the judgment was against the manifest weight of the evidence such that it resulted in manifest injustice to either parent. Howse, J.

No. 2015 IL App (1st) 151358    In re Marriage of Betsy M.    Filed 12-18-16 (RJC)

On October 29, 2013, during the pendency of the Petition for Dissolution of Marriage filed by petitioner Betsy M. against respondent John M., the parties entered into a stipulated custody judgment. The custody judgment gave Betsy sole custody of the parties' three minor children and provided restricted visitation for John. On June 2, 2014, John filed a Motion to Increase And/Or Modify Parenting Time, and on February 9, 2015, the trial court granted the motion in part by increasing John's hours of visitation from one hour to three hours every other week, and denied the motion in part by ordering that all other parenting agreements as laid out in the October 29, 2013 order remain the same. John filed a motion to reconsider the February 9, 2015 order, and the trial court denied that motion on April 17, 2015. John filed a notice of appeal on May 14, 2015 from the February 9, 2015 and April 17, 2015 orders. On May 22, 2015, John filed an amended notice of appeal from those two orders, adding a reference to Illinois Supreme Court Rule 311, which governs expedited appeals in custody and visitation matters.

7. Workers' Compensation Act: Affirmed: The claimant's notice after six days clearly fulfilled the purpose of the Act's notice requirement and was not a legitimate basis for withholding benefits. The circuit court astutely described the employer's unreasonable conduct in this case.  To reach its conclusions in this case, the Commission had to ignore the letter of the law in finding that reporting an accident six days after it occurred is a reasonable basis for disputing a workers' compensation claim. The record is clear that the employer denied this claim, without any investigation, solely because the claimant did not report the accident on the day it occurred. The Commission's determination that the employer's refusal to pay benefits was reasonable is against the manifest weight of the evidence. Under section 19(l), when the employer's refusal to pay benefits is without good and just cause, penalties are mandatory. Howse, J.

No. 2015 IL App (1st) 143836WC    Oliver v. Illinois Workers' Compensation Comm'n.    Filed 12-18-16 (RJC)
 

On July 28, 2011, the claimant, Tommy Oliver, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) seeking benefits for injuries he allegedly sustained on July 19, 2011, while working for the employer, Rausch Construction. On February 21, 2013, the claim proceeded to an arbitration hearing. On March 9, 2012, the arbitrator filed a decision, awarding the claimant TTD benefits of $1,087.20 per week for 12.429 weeks, from August 1 through October 25, 2011; $20,510.37 in medical expenses; and permanent partial disability (PPD) benefits of $695.78 per week for 50.6 weeks, representing a 20% loss of use of the right arm. The arbitrator also awarded the claimant $4,230 in section 19(l) penalties, $17,011.50 in section 19(k) penalties, and $6,804.64 in section 16 attorney fees, finding that the employer's refusal to pay him TTD

benefits and medical expenses was unreasonable and vexatious. We affirm the judgment of the circuit court, which reversed the Commission's decision and reinstated the arbitrator's decision with respect to penalties and attorney fees.

2 Appellate Cases Posted 12-17-15

1. Insurance Coverage/Anticoncurrent-causation clauses: Affirmed:  The Appellat Crt. chose to publish this decision, because there are no other reported cases in Illinois addressing anticoncurrent-causation clauses. The trial court reached the correct result, given the underlying facts, it focused on the wrong portion of the clause. In this fact pattern, the two causes at issue, the failed valve and the hydrostatic pressure, “contributed concurrently” to the loss. The failed valve and the hydrostatic pressure did not “contribute[] *** in sequence” to the loss, as put forth by the Bozeks. We do not look to the point in time that each cause came into existence. We look to the point in time that it contributed to the loss. The term “concurrently” contains no ambiguity, and, as each cause contributed concurrently, the anticoncurrent-causation clause precludes coverage for the loss. Jorgensen, J.

No. 2015 IL App (2d) 150155    Bozek v. Erie Insurance Group    Filed 12-17-16 (RJC)

Following cross-motions for summary judgment concerning coverage for damage to an in-ground swimming pool, the trial court granted judgment to defendant, Erie Insurance Group. The court found that, as a matter of law, the insurance policy’s anticoncurrent-causation clause operated to preclude coverage because two events, one covered under the policy (a failed pressure-relief valve) and one excluded under the policy (hydrostatic pressure), contributed to a single loss (the lifting of the pool out of the ground).

2. Marriage and Dissolution of Marriage/Fees/Contribution: Reversed and remanded: The issues on appeal are whether the trial court erred when it granted Gregory’s motion for a directed verdict, when it failed to require Mary to file a financial disclosure, and when it
refused to allow evidence of the parties’ financial circumstances at the time of the contribution hearing.  The proper timeframe for disclosure of the parties’ financial circumstances to determine a contribution petition is the time of the hearing on the petition, not the date of dissolution as established by the trial court. The availability of current financial information is the appropriate means for a trial court to reach an informed decision on the parties’ ability or inability to contribute to the other parties’ attorney fees. The trial court’s denial of Canulli’s petition for contribution was against the manifest weight of the evidence.  The trial court reached its conclusion based on an incorrect timeframe to consider the parties’ financial circumstance and without Gregory’s current financial information. Because the trial court found that Canulli did not demonstrate Mary’s inability to pay, it did not consider whether Gregory had the ability to pay. O'Brien, J. with McDade, J. dissenting.

No. 2015 IL App (3d) 140257    In re Marriage of Anderson    Filed 12-17-16 (RJC)

Appellant Michael Canulli filed a motion for contribution against petitioner Gregory Anderson to recover attorney fees incurred by Gregory’s now-former wife, Mary Anderson, who Canulli represented for a two-year period during Gregory and Mary’s dissolution proceedings. A hearing took place on the petition, and after Canulli presented his case, Gregory moved for a directed verdict. The trial court granted Gregory’s motion and dismissed Canulli’s petition for contribution. We reverse and remand.

5 Appellate Cases Posted 12-16-15

1. Criminal Law: Affirmed in part; vacated in part; cause remanded:  The trial court was entitled to find that Officer McDevitt observed an object which proved to be a firearm. In addition, defendant's prior domestic battery conviction does not constitute a forcible offense necessary to satisfy the armed habitual criminal offense. Furthermore, the armed violence statute does not clearly authorize the imposition of multiple convictions where two underlying felonies occurred simultaneously. We vacate defendant's armed habitual criminal conviction, vacate one armed violence conviction and remand for sentencing. Lavin, J.

No. 2015 IL App (1st) 131111    People v. White    Filed 12-16-16 (RJC)

Following a bench trial, defendant Samuel White was found guilty of being an armed habitual criminal as well as two counts of armed violence, unlawful possession of a weapon by a felon, and two counts of possession of a controlled substance. After determining that several counts merged, the trial court imposed three concurrent 18-year prison terms for the armed habitual criminal offense and the two counts of armed violence. On appeal, defendant asserts that the evidence was insufficient to sustain all three convictions because each of those offenses required the State to prove defendant had a handgun and the police officer's testimony that he saw defendant with a handgun was contrary to human experience. Defendant also asserts that the evidence was insufficient to sustain his armed habitual criminal conviction because his underlying conviction for domestic battery did not constitute a necessary predicate offense. Defendant further asserts that one or both of his armed violence convictions should be vacated and that his sentence was excessive.

2. Criminal Law/Constructive Possession: Reversed: The State did not establish that defendant had immediate and exclusive control over the area where the contraband was recovered. Even when viewed in the light most favorable to the prosecution, the evidence presented to the trial court does not support a finding that defendant committed the essential elements of the crime beyond a reasonable doubt. Although defendant was seeing fleeing from the 239 West 105th Street when police arrived, the State did not prove that defendant exercised immediate control over the area where the illegal items were found. Pucinski, J.

No. 2015 IL App (1st) 140051   People v. Moore    Filed 12-16-16 (RJC)

Following a bench trial, defendant Darryl Moore was convicted of two counts of unlawful possession of ammunition by a felon and one count of possession of a controlled substance (cocaine). Defendant was subject to Class X sentencing due to his criminal background, and the trial court sentenced defendant to six years in prison on each count, with those terms to be served concurrently. On appeal, defendant contends the State failed to prove his constructive possession of the contraband beyond a reasonable doubt.

3. Criminal Law/Postconviction petition: Affirmed: The defendant has failed to establish a lack of culpable negligence for the late filing of his postconviction petition. Schostok, J.

No. 2015 IL App (2d) 131029   People v. Johnson    Filed 12-16-16 (RJC)

The defendant, Allen Johnson, appeals from the second-stage dismissal of his postconviction petition. The defendant argues that the trial court erred in finding that his petition was untimely and that it failed to make a substantial showing of a constitutional violation. The defendant also argues that further second-stage proceedings are necessary because postconviction counsel did not satisfy the requirements of Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013). We affirm.

4. Criminal Law/Postconviction petition: Affirmed: It is beyond reasonable dispute that defendant made a substantial showing of a constitutional violation pursuant to Brady v. Maryland, 373 U.S. 83 (1963). The State failed to disclose the field notes of an investigating officer, as required by law. If the defense had been given access to the field notes prior to trial, it would have been able to impeach the officer on the central issue in this case: defendant’s foreknowledge of the gun used in the offense. Defendant’s knowledge of the gun was critical to the State’s shared-intent theory of accountability. Looking at this discovery violation in the context of the entire case, including: (1) the high relevance of the suppressed evidence; (2) additional errors stemming from and surrounding the discovery violation, such as the introduction of hearsay and improper closing argument; and (3) a significant dispute over the reliability of other key evidence against defendant, i.e., defendant’s inculpatory statement, we do not have confidence in the integrity of the verdict. It is reasonably probable that, if the defense had been given access to the field notes prior to trial, the outcome of the trial would have been different. Separately, we note that, though not reversible in itself, the trial court’s improper exclusion of testimony contributes to our lack of confidence that defendant received due process of law. Jorgensen, J.

No. 2015 IL App (2d) 140760    People v. Carballido    Filed 12-16-16 (RJC)

The trial court’s third-stage denial of defendant’s postconviction petition is reversed.

5. Marriage and Dissolution of Marriage/Retainers/Fees: Affirmed in part and vacated in part; cause remanded.: The trial court did not err in ordering Stogsdill to disgorge a portion of its retainer. Stogsdill contends that the trial court could not require it to disgorge fees that it had already earned, i.e., billed against. Resolution of this issue requires an interpretation of  section 501(c-1)(3) of the Act.  It is clear that “available” as used in the statute simply means that the funds exist somewhere. The order requiring Stogsdill to pay petitioner’s counsel $60,000 is affirmed.  The "friendly contempt" finding is vacated. Burke, J.

No. 2015 IL App (2d) 150271    In re Marriage of Squire    Filed 12-16-16 (RJC)

In this marriage-dissolution action, The Stogsdill Law Firm (Stogsdill), which represents respondent Catherine D. Squire, appeals the trial court’s order requiring it to pay $60,000 to the attorneys for petitioner Michael Squire pursuant to the “leveling of the playing field” provisions of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/501(c-1) (West 2014)). Stogsdill contends that (1) this provision does not apply to an earned retainer, (2) the trial court’s order finding that the payment was necessary to level the playing field is against the manifest weight of the evidence, and (3) we should vacate the contempt finding. We vacate the contempt finding but otherwise affirm.

3 Appellate Cases Posted 12-15-15

1. SCR 224 Petition: Affirmed:  Rule 224 is not intended to permit a party to engage in a wideranging, vague, and speculative quest to determine whether a cause of action actually exists. Low Cost's petition served its purpose—to identify a party that may be responsible— not to establish actual liability. After Low Cost discovered the identity of Craigslist, the trial court did not abuse its discretion in dismissing the Rule 224 petition because the purpose of Rule 224 had been met. Hyman, J.

No. 2015 IL App (1st) 143955    Low Cost Movers, Inc. v. Craigslist, Inc.    Filed 12-15-15 (RJC)

Low Cost Movers, Inc., which advertised its services on Craigslist, Inc., and other internet sites, came to believe that one of its competitors “flagged” its Craigslist ads to get the ads removed from the website. Low Cost filed a petition under Illinois Supreme Court Rule 224 asking that Craigslist reveal the identity of anyone who had flagged its ads for removal since 2011, so that it could sue them. Craigslist informed the trial court that in 2014, it removed Low Cost's ads from its website for having violated Craigslist's terms of use. Craigslist agreed to Low Cost's request to search for improper flagging that occurred before 2014, but asked that Low Cost provide a limited date range for a possible search so it could assess the cost and feasibility of a narrower search. After Low Cost failed to provide Craigslist with a narrower date range, the trial court sua sponte dismissed the petition. Low Cost appeals, arguing the trial court erred in dismissing its petition to obtain the identity of a potential defendant for its lawsuit. We affirm.

2. Criminal Law: Affirmed:  The defendant's convictions are affirmed in that (1) he forfeited review of the errors he claimed had deprived him of a fair trial; (2) his ineffective-assistance-of-counsel claims should be raised in postconviction proceedings where a better record can be made; (3) the court conducted an adequate Krankel inquiry into his pro se posttrial allegations of ineffective assistance of counsel; and (4) his sentence was not excessive. Appleton, J.

No. 2015 IL App (4th) 140060    People v. Taylor    Filed 12-15-15 (RJC)

A jury found defendant, Staten D. Taylor, guilty of aggravated domestic battery (720 ILCS 5/12-3.3(a) (West 2012)) for beating his brother-in-law. The trial court sentenced defendant to 15 years in prison. Defendant appeals, claiming (1) he was denied a fair trial on several grounds, (2) his trial attorney rendered ineffective assistance, (3) the court failed to give adequate consideration to his pro se allegations of ineffective assistance of counsel, and (4) his sentence was excessive. Affirmed.

3. Open Meetings Act: Affirmed:  The Board appropriately considered Milton's dismissal at the February 4, 2013, closed session as permitted by section 2(c)(1) of the Act. Accordingly, the signing of the Agreement during the February 4, 2013, closed Board session did not  constitute  an impermissible final action in violation of section 2(e) of the Act. Additionally, as to the issue as to whether the public was adequately informed about the Agreement prior to the Board's March 5, 2013, on this record, the public was so informed. Section 2(e) of the Act requires that the public entity advise the public about the general nature of the final action to be taken and does not, as the AG claims, require that the public body provide a detailed explanation about the significance or impact of the proposed final action. Steigmann, J.

No. 2015 IL App (4th) 140941    Board of Education of Springfield School District No. 186 v. Attorney General of Illinois    Filed 12-15-15 (RJC)

During a March 2013 public meeting, plaintiff, the Board of Education of Springfield School District No. 186 (Board), voted to terminate the employment of its superintendant, Dr. Walter Milton, Jr. In May 2013 and April 2014, defendant, the Attorney General of Illinois (AG)—acting on allegations raised by defendant, Molly Beck—issued two binding opinions in which the AG ultimately concluded that the Board failed to comply with the Open Meetings Act (Act) (5 ILCS 120/1 to 7.5 (West 2012)) when it terminated Milton's employment. In June 2013, the Board sought administrative review of the AG's conclusions that the Board (1) terminated Milton's employment by impermissibly taking final action during a closed Board session and (2) failed to adequately inform the public of Milton's proposed termination prior to a subsequent public meeting. In November 2013 and September 2014, respectively, the trial court reversed both of the AG's conclusions, finding that the Board's termination action complied with the Act. The AG appeals, arguing that she properly concluded that the Board failed to comply with the Act. Affirmed.

2 Appellate Cases Posted 12-14-15

1. Real Estate/Landmark status/Encumbrances: Affirmed:  The circuit court did not abuse its discretion when it denied the plaintiffs' untimely oral motion for leave to file an amended complaint.  Also, the circuit court was correct to deny plaintiffs' Motion to Reconsider the dismissal of the complaint against the Chicago Title defendants. Since the motion was not brought within 30 days, the motion was not timely, and the circuit court did not abuse its discretion in denying an untimely motion.  Plaintiffs also must be deemed to have constructive notice of the landmark designation. Harris, J.

No. 2015 IL App (1st) 143188    Hachem v. Chicago Title Insurance Company    Filed 12-14-15 (RJC)

On May 21, 2012, plaintiff Hachem entered into a real estate contract for the purchase of a residence located at 10353 S. Seeley Ave. in Chicago. After completing the purchase, plaintiff Hachem searched the Cook County Recorder of Deeds and discovered that the property was part of the Longwood Drive historical district. The ordinance designating the property as a landmark was recorded in January 1982. Subsequently, plaintiffs made a claim with defendant Chicago Title Insurance Company on the belief that the ordinance represented an encumbrance on the title. Chicago Title denied the claim, and plaintiffs brought suit against Chicago Title, the agent who issued the policy, and the sellers of the house. Both sets of defendants filed motions to dismiss pursuant to Section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2012)), which, after briefing, the circuit court granted. Plaintiff brought motions to reconsider the dismissal of all defendants and additionally sought leave to file an amended complaint. The circuit court denied those motions. Plaintiffs timely appealed.

2. Tort/SOL/Gov't. Tort Immunity: Affirmed:  The comprehensive protection afforded by section 8-101 necessarily controls over other statutes of limitation or repose. It applies with equal force where an action that would otherwise be governed solely by section 13-211 is commenced against a local public entity or an employee of a local public entity. In such cases, although section 13-211 tolls the limitations period until the plaintiff attains the age of 18, section 8-101 requires the action to be commenced within one year thereafter.  Plaintiff’s lawsuit, which was not filed until one day before her twentieth birthday, was untimely. Harris, J.

No. 2015 IL App (2d) 150143   Lee v. Naperville Community Unit School District 203   Filed 12-14-15 (RJC)

Plaintiff, Jennifer Lee, appeals from an order of the circuit court of Du Page County granting the motion of defendants, Naperville Community Unit School District 203 and the Naperville Illinois Board of Education, pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2014)), to dismiss her personal-injury lawsuit. In their motion, defendants successfully argued that the lawsuit was barred because it was not commenced within the one-year limitations period set forth in section 8-101(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/8-101(a) (West 2014)). Defendants argue on appeal that, because she was under the age of 18 when her cause of action accrued, section 13-211 of the Code (735 ILCS 5/13-211 (West 2014)) afforded her two years to bring suit after reaching the age of 18. Plaintiff maintains that she timely commenced this action within the applicable two-year period. We affirm.

9 Appellate Cases Posted 12-11-15

1. Criminal Law: Reversed and remanded; Appeal dismissed.  The judgment of the trial court in the direct appeal is reversed and remand this case for further proceedings. The trial court’s failure to instruct the jury on the State’s burden to disprove defendant’s justification for his use of force in self-defense was plain error. Also the trial court did not abuse its discretion in concluding after an in camera inspection that confidential records of complaints against the arresting police officers were not admissible at trial or subject to disclosure. We dismiss as moot defendant’s appeal of the summary dismissal of his postconviction petition. Lampkin, J.

No. 2015 IL App (1st) 130135    People v. Cacini   Filed 12-11-15 (RJC)


Following a jury trial, defendant Michael Cacini was convicted of attempted first degree murder of Chicago police officer Kristopher Rigan and aggravated battery of Officer Thomas O’Shaughnessy. He was sentenced to 20 years’ imprisonment for attempted first degree murder consecutive to 3 years’ imprisonment for aggravated battery. Defendant filed a direct appeal challenging his convictions and, while this direct appeal was pending, a postconviction petition challenging his conviction for a substantial deprivation of his constitutional rights. This court consolidated defendant’s direct appeal with his appeal from the denial of his postconviction petition. In this consolidated appeal, defendant contends: (1) a new trial is necessary due to critical omissions from the jury instructions and because the State knowingly adduced false evidence; (2) he was not proven guilty beyond a reasonable doubt; (3) the trial court erred by failing to consider information concerning complaints against the police officers; (4) defendant was prejudiced by the trial court’s denial of his continuance request; and (5) the trial court erred by summarily dismissing defendant’s postconviction petition at the first stage of those proceedings.

2. Demolition/Negligence: Affirmed: The fifth factor of section 520 of the Restatement (Second) of Torts weighed against a finding of strict liability. The evidence presented to the jury was sufficient for it to conclude the Estate was more than 50% negligent, thereby barring recovery. Because the jury's verdict was not against the manifest weight of the evidence, we conclude the circuit court did not abuse its discretion in refusing to grant a new trial. Lampkin, J. with Gordon, J. specially concurring.

No. 2015 IL App (1st) 133376    Great American Insurance Co. v. Heneghan Wrecking & Excavating Co.   Filed 12-11-15 (RJC)


Plaintiffs, Great American Insurance Company of New York, as subrogee of 600 Wabash L.P. and 600 S. Wabash Commercial, LLC, American Economy Insurance Company, as subrogee of Moonstone Foods Enterprises, LLC, Society Insurance, a mutual company, as subrogee of Charming Food Network, Inc. d/b/a Tamarind, and First National Insurance Company of America, as subrogee of Wabash KPX, Inc. (collectively insurance plaintiffs), and counter-plaintiff, the Estate of Lorraine Phillips (Estate), appeal the circuit court's order granting partial summary judgment in favor of defendants, Heneghan Wrecking and Excavating Co., Inc. (Heneghan), Concord Construction and Management (Concord), and the City of Chicago (City), finding defendants, and specifically Heneghan with regard to the Estate, were not strictly liable for the damages caused by the demolition of the building located at 630 S. Wabash Avenue in Chicago, Illinois, commonly known as the Wirt Dexter building. The Estate additionally contends the circuit erred in denying its motion for a judgment notwithstanding the jury's verdict or, in the alternative, its motion for a new trial where the jury's verdict in favor of Heneghan on the Estate's negligence counterclaim was not supported by the evidence. Based on the following, we affirm.

3. Breach of Contract/Indemnification: Affirmed: Allowing CHA to seek indemnification from defendant effectively would insulate it from liability. Such an outcome is contrary to the goal of the ADA of preventing and remedying discrimination against disabled individuals. Because allowing the state-law claim would interfere with Congress' goal, CHA's breach of contract claim is preempted under the obstacle preemption doctrine. Lampkin, J. 

No. 2015 IL App (1st) 142870    Chicago Housing Authority v. DeStefano & Partners, Ltd.   Filed 12-11-15 (RJC)


Plaintiff, the Chicago Housing Authority (CHA), appeals the circuit court's order dismissing one of its breach of contract claims against defendant, DeStefano and Partners, Ltd. (DeStefano). CHA contends the circuit court erred in dismissing its state-law breach of contract claim where it incurred substantial costs to bring a rehabilitation project within compliance of federal fair housing and accessibility laws as a result of defendant's failure to perform under the terms of the parties' contract. Affirmed.

4. Home Rule/Taxes: Affirmed: The trial court did not err in dismissing plaintiff’s amended complaint. Count III of the amended complaint was properly dismissed because the Village had the home rule authority to enact its Ordinance regulating video gaming within its
boundaries. Counts I, II, and IV were properly dismissed because, even if the license fee was a tax and not a fee, the tax was not (1) an impermissible occupation tax, (2) preempted by section 21 of the Riverboat Gambling Act, or (3) an impermissible license for revenue. Gordon, J. 

No. 2015 IL App (1st) 143822    Accel Entertainment Gaming, LLC v. Village of Elmwood Park   Filed 12-11-15 (RJC)


The instant appeal arises from the trial court’s dismissal of the complaint of plaintiff Accel Entertainment Gaming, LLC, pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)). Plaintiff’s complaint challenged the validity of defendant Village of Elmwood Park’s (Village) Video Gaming Ordinance (Ordinance) (Village of Elmwood Park Ordinance No. 2013-20 (adopted Sept. 16, 2013)) under the Illinois Constitution, alleging that (1) the Ordinance imposed an unconstitutional occupation tax, (2) the Village’s power to tax under the Ordinance had been preempted by the Illinois legislature, (3) the Ordinance went beyond the scope of the Village’s home rule powers because it attempted to regulate an area of State concern, and (4) the Ordinance imposed an unconstitutional license for revenue. The trial court dismissed plaintiff’s claims with prejudice under section 2-615 of the Code and plaintiff appeals. Affirmed.

5. Automated Speed Enforcement (ASE): Affirmed: This case presents two distinct issues: whether the schooling of special needs children qualifies as a school day for purposes of the ASE law; and whether recovery classes qualify as a school day for purposes of the ASE law. The schooling of special needs children qualifies as a school day for purposes of the ASE law. Since special needs children were in school on June 26, 2014, at Lane Tech, no need to consider whether recovery classes also qualify as school days. Gordon, J. 

No. 2015 IL App (1st) 150520    Maschek v. City of Chicago   Filed 12-11-15 (RJC)

In this appeal, plaintiff Kenneth Maschek appeals the trial court's grant of defendant City of Chicago's (City's) motion to dismiss. In this case, plaintiff challenged a traffic ticket, on the ground that the ticket was the result of an automated speed enforcement (ASE) camera operating near Lane Tech College Prep High School (Lane Tech) and that the law governing ASE cameras prohibited the City from operating an ASE camera near a school on that day. 625 ILCS 5/11-208.8(a-5) (West 2012) (ASE law). Plaintiff argues that ASE cameras are allowed to operate only on school days, that summer school days are not school days, and thus the City was not allowed to issue an ASE-based ticket on June 26, 2014, the day he was speeding. Plaintiff does not contest that this day was a scheduled class day for special needs children at Lane Tech. (ASE) camera operating near Lane Tech College Prep High School (Lane Tech) and that the law governing ASE cameras prohibited the City from operating an ASE camera near a school on that day. Plaintiff argues that ASE cameras are allowed to operate only on school days, that summer school days are not school days, and thus the City was not allowed to issue an ASE-based ticket on June 26, 2014, the day he was speeding. Plaintiff does not contest that this day was a scheduled class day for special needs children at Lane Tech.

6. Cook County Gambling Machine Tax Ordinance: Affirmed: The trial court properly granted defendants’ motion for summary judgment on all counts of plaintiffs’ complaint. First, the tax imposed by the Tax Ordinance was not preempted by section 21 of the Riverboat Gambling Act as incorporated by the Video Gaming Act. Second, the County had the home rule authority to enact the Tax Ordinance since it pertained to its local government and affairs. Third, the tax was not an impermissible occupation tax since, even if it was an occupation tax, it was authorized by the legislature through section 5-1009 of the Counties Code. Fourth, the tax was not an impermissible license for revenue. Gordon, J. 

No. 2015 IL App (1st) 150547    Illinois Coin Machine Operators Ass'n v. County of Cook   Filed 12-11-15 (RJC)

The instant appeal arises from a lawsuit challenging the Cook County Gambling Machine Tax Ordinance (Tax Ordinance) (Cook County Ordinance No. 12-O-62 (approved Nov. 9, 2012)), filed by plaintiffs, the Illinois Coin Machine Operators Association, Gaming and Entertainment Management—Illinois, LLC, and Accel Entertainment Gaming, LLC. The trial court granted summary judgment in favor of defendants the County of Cook (County), the Cook County Department of Revenue, and the Director of the Cook County Department of Revenue, finding that the Tax Ordinance (1) was not preempted by the Riverboat Gambling Act (230 ILCS 10/1 et seq. (West 2012)), (2) pertained to the County’s government and affairs such that it fell within the County’s home rule authority, (3) was not an impermissible occupation tax, and (4) was not an impermissible license for revenue.

7. IL Dept. of Fin. and Pro. Regulation/License revocation: Reversed: The Department did not abuse its discretion when it revoked the plaintiff’s reporter’s license as a sanction for his conviction of possession of child pornography. There is no question that possession of child pornography is a serious offense. At the time of his conviction, it was a Class 3 felony (720 ILCS 5/11-20.1(a)(6), (c) (West 2006)), and the plaintiff is required to stay on the sex offender registry for life (730 ILCS 150/2(E), (West 2006)). Further, the Reporters Act provides that revocation of a reporter’s license is an available sanction for a felony conviction. 225 ILCS 415/23(a)(3) (West 2014). The mere fact that a reviewing court would consider a different sanction to be more appropriate does not render a decision arbitrary. Schostok, J. 

No. 2015 IL App (2d) 140445  Sonntag v. Stewart   Filed 12-11-15 (RJC)

The Director of the Division of Professional Regulation of the Illinois Department of Financial and Professional Regulation (Department) appeals from the judgments of the circuit court of Kane County reversing the Department’s decisions to revoke and subsequently, on remand, to indefinitely suspend the certified shorthand reporter’s license of the plaintiff, Glenn Sonntag. On appeal, the Department contends that its original determination, revoking the plaintiff’s license, was not an abuse of discretion. We reverse the trial court’s judgment and reinstate the Department’s original determination.

8. Uniform Child-Custody Jurisdiction and Enforcement Act: Affirmed; vacated and remanded:  The circuit court properly exercised temporary emergency jurisdiction and affirm in part on that basis. However, the circuit court failed to follow the statutory criteria for temporary emergency modification and failed to properly exercise its authority in ordering permanent modification. Schwarm, J. 

No. 2015 IL App (5th) 150078    Gorup v. Brady   Filed 12-11-15 (RJC)

Quinique J. Brady appeals from the circuit court's decision awarding custody of her child, A.G., to A.G.'s father, Anthony Gorup. Quinique argues that the circuit court lacked subject-matter jurisdiction over this case, that the circuit court failed to follow the procedures necessary to obtain temporary emergency jurisdiction over the matter, and that the circuit court's custody determination was against the manifest weight of the evidence.

9. Workers’ Compensation: Affirmed:  Even if the purported discrepancy identified by respondent existed, countervailing evidence would leave us unable to say that the Commission’s decision is contrary to the manifest weight of the evidence. The mere fact that two doctors interpreted the MRI as not showing a herniation while one did is not, in itself, enough for us to say that an opposite conclusion to the Commission’s is clearly apparent. None of respondent’s attacks upon the Commission’s decision on causation is persuasive. As this finding by the Commission is upheld, respondent’s attacks upon the Commission’s awards of prospective medical treatment and TTD necessarily fail, as they are wholly derivative of respondent’s first argument. Schwarm, J. 

No. 2015 IL App (1st) 141306WC    ABF Freight System v. Illinois Workers' Compensation Comm'n   Filed 12-11-15 (RJC)

Respondent, ABF Freight System, appeals an order of the circuit court of Cook County that confirmed a decision of the Illinois Workers’ Compensation Commission (Commission) granting benefits to claimant, John Rodriguez, in accordance with the Illinois Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2010)). Respondent raises a number of arguments as to why the Commission’s decision should not stand.

9 Appellate Cases Posted 12-10-15

1. Housing Law: Affirmed in part, reversed in part, and remanded: Hearing officer determination at administrative level that petitioner had failed to timely report change in income reversed, and matter remanded to administrative agency for hearing to determine whether purported failure by petitioner to report that children had moved out of the apartment justified housing authority decision to terminate her housing voucher. Howse, J.

No. 2015 IL App (1st) 142793  Lipscomb v. The Housing Authority of the County of Cook  Filed 12-10-15 (TJJ)


Respondent Housing Authority of the County of Cook (HACC) sent a notice of ermination of housing choice voucher (HCV) benefits to petitioner Brenda Lipscomb based on Brenda's alleged failure to timely report changes in family composition and  income to the HACC. Brenda requested an informal hearing on her termination of benefits, and the hearing officer affirmed the termination of her benefits. Brenda filed a petition for certiorari requesting that the circuit court of Cook County review the  hearing officer's approval of the termination of her HCV benefits, and the circuit court judge determined that the hearing officer's decision was clearly erroneous and reversed its decision. The HACC now appeals this ruling arguing that termination of  Brenda's HCV benefits was appropriate. Affirmed in part and reversed in part and remanded.

2. Negligence: Affirmed: Trial court properly granted sumary judgment to defendants in "slip and fall" case where no genuine issue of material fact existed in light of fact that owners of property where accident had taken place had contractually ceded all control over operations at the premises to plaintiff's employer, and circumstances of accident showed that it occurred during employer's activity, at whose direction plaintiff was acting when injured. Cobbs, J.

No. 2015 IL App (1st) 143492  Richard v. Nederlander Palace Acquisition LLC  Filed 12-10-15 (TJJ)


Plaintiff Thomas Richard appeals from an order of the trial court granting summary judgment in favor of defendants Laurence Chicago Ventures, LLC and Laurence Chicago, LLC, in his negligence action for injuries sustained in a fall while performing his  duties at work. On appeal, plaintiff claims that genuine issues of material fact exist which preclude entry of summary judgment in defendants' favor. We affirm.

3. Real Estate Development/Performance Bonds: Affirmed in part and reversed in part and remanded: In action by City against successor developer and bond company to enforce contract provision requiring original contractor to provide "public improvements" in connection with real estate development, trial court erred in dismissing bond company's counterclaim against successor developer who took over from bankrupt original developer. Schostok, J.

No. 2015 IL App (2d) 150013  City of Elgin v. Arch Insurance Company  Filed 12-10-15 (TJJ)


This case grows out of the real estate crash of 2008. In 2003, the plaintiff, the City of Elgin (City), entered into an agreement with a developer, Kimball Hill, Inc., whereby Kimball Hill agreed to develop certain property as a residential planned  evelopment  and to make various improvements to the property (including sewers, water lines, and streets) at its own expense, and the City approved the development and agreed that it would annex the property into the City (Annexation Agreement).  Kimball Hill obtained bonds guaranteeing its performance under the Annexation Agreement from two of the defendants, Arch Insurance Company (Arch) and Fidelity and Deposit Company of Maryland (Fidelity). After selling some homes as improved
parcels, Kimball Hill went bankrupt. The remaining property was sold in bankruptcy to the defendant TRG Venture Two, LLC (TRG). After TRG refused the City’s demands that it complete the improvements required by the Annexation Agreement, the  City sued TRG, Arch, and Fidelity. Fidelity filed a counterclaim against TRG essentially alleging that TRG should be held primarily liable for the improvements and that Fidelity was entitled to indemnification or reimbursement to the extent that Fidelity  was held liable to the City. The trial court dismissed the counterclaim for failure to state a claim upon which relief could be granted. After all of the other claims were settled or resolved, Fidelity appealed this dismissal. We affirm in part and reverse in part,  and remand.

4. Criminal Law: Reversed and remanded: Trial court erred in granting motion to suppress evidence in DUI prosecution where evidence showed that although police may have communicated to defendant that he was under arrest, regardless of whether he was under arrest, at hospital defendant was taken to voluntarily and at his request following accident, results of urine test secured by nurse not acting as a State agent did not implicat the fourth amendment. Burke, J.

No. 2015 IL App (2d) 150058  People v. Wuckert  Filed 12-10-15 (TJJ)


Defendant, Karl Wuckert, was charged with driving under the influence of intoxicating compounds (DUI). He moved to suppress evidence that was allegedly the product of an illegal arrest. The trial court granted the motion but, on reconsideration, allowed  the results of a urine test that hospital personnel administered to defendant shortly after his arrest. On defendant’s subsequent motion, the court ultimately suppressed the test results. The State appeals. We reverse and remand.

5. Citation to Discover Assets: Affirmed in part, reversed in part, and remanded: Trial court erred in entering judgment against bank which held judgment debtor lawyer's IOLTA acount for amount not frozen by bank when it received citation order "freezing" account, as order required bank to freeze account regardless of whether funds in account belonged to attorney or others, but certain funds in account were thereafter determined not to belong to attorney and other funds that were were exempt as disability payments to the debtor, thus requiring total award against bank in favor of judgment creditor to be vacated. Spence, J.

No. 2015 IL App (2d) 150285  Kauffman v. Wrenn  Filed 12-10-15 (TJJ)


Third-party respondent, Wells Fargo Bank, N.A. (Wells Fargo), appeals from the trial court’s ruling requiring it to pay $70,457.94 to plaintiffs, James B. Kauffman and Nancy Kauffman, for violating a citation and order to freeze assets of a judgment debtor.  The assets in question were in an Interest on Lawyers Trust Account (IOLTA). On appeal, Wells Fargo argues that the trial court erred in its ruling because: (1) the citation could require it only to freeze an account belonging to the judgment debtor,  whereas the IOLTA account presumptively contained solely client funds; and (2) it was not responsible for repaying the funds transferred from the account, because only some of the funds were shown to belong to Wrenn, and even those were ultimately  exempt. We affirm the portion of the trial court’s ruling determining that Wells Fargo should have frozen the account in question. However, we reverse the portion of the trial court’s ruling holding Wells Fargo liable for the funds transferred, and we vacate  the monetary judgment against Wells Fargo, because (1) there was no proof that $42,898.95 of the funds belonged to the judgment debtor, and (2) the remaining funds were disability funds that were exempt from judgment under section 12-1001(g) of the  Code of Civil Procedure (Code).

6. Criminal Law: Affirmed: In prosecution for aggravated battery to a police officer arising out of defendant's actions while he was in a police station after arrest, playing of in-station video to jury in open court during deliberations not improper in absence of any claim of prejudice suffered by defendant. Lytton, J. (McDade, J., dissenting).

No. 2015 IL App (3d) 130610  People v. Johnson  Filed 12-10-15 (TJJ)


Defendant, Daniel L.G. Johnson, appeals from his convictions of aggravated battery of a peace officer and resisting a peace officer resulting in injury. He argues that (1) the trial court erred in allowing a video of the incident to be played in the courtroom  during deliberations, (2) the evidence was insufficient to support convictions for aggravated battery of a peace officer and resisting a peace officer resulting in injury, and (3) he was denied effective assistance of counsel. We affirm.

7. Domestic Relations: Affirmed in part and reversed in part and remanded: Trial court properly ruled that wife was responsible 100% of children's medical expenses, but erred in denying wife's request to modify child support, where change in employment of husband justified treating vested long-term stock compensation now due to husband when he left that company to be included in income for purpose of calculating child support. O'Brien, J. (Holdridge, J., dissenting in part and concurring in part).

No. 2015 IL App (3d) 140592  In re Marriage of Schlei  Filed 12-10-15 (TJJ)


The petitioner wife, Tammy Schlei, appeals from a trial court judgment making modifications to the child support obligations of respondent husband, Mark Schlei. Affirmed in part and reversed in part and remanded.

8. Freedom of Information Act: Affirmed: Trial court properly dismissed inmate claim for IDOC records under Freedom of Information Act where records requested were part of plaintiff inmate's "master record" file, statutorily exempt under the FOIA. Knecht, J.

No. 2015 IL App (4th) 150037  Howard v. Weitekamp  Filed 12-10-15 (TJJ)


In April 2014, plaintiff, Mark Howard, an inmate in the custody of the Illinois Department of Corrections, filed a complaint for declaratory judgment and injunctive relief against defendant, Lisa Weitekamp, the then Illinois Freedom of Information Act  officer for the Department, requesting the trial court declare defendant to be in violation of FOIA and order her to release documents responsive to his FOIA request. In June 2014, defendant, through the Illinois Attorney General, filed a motion to dismiss  under section 2-615 of the Code of Civil Procedure, alleging the requested documents were exempt from disclosure under FOIA. In December 2014, the trial court granted defendant's motion. Plaintiff appeals, asserting the trial court's dismissal was in  error. We affirm.

9. Workers' Compensation: Affirmed: Industrial Commission properly concluded that decedent water meter reader was an employee, and not an independent contractor under facts relating to "hiring" of decedent, and that seizure suffered by decedent causing her to fall in an eight-inch pool of water and drown arose during the course of her employment, thus upholding the Commission award to decedent's husband. Stewart, J. (Holdridge, J., sp. concurring).

No. 2015 IL App (5th) 140532WC  The City of Bridgeport v. Illinois Workers' Compensation Comm'n  Filed 12-10-15 (TJJ)


The claimant, Stephen Harvey, filed an application for adjustment of claim against the City of Bridgeport, seeking workers' compensation benefits for the death of his wife, Jacqueline Harvey, in an alleged work accident on May 19, 2011. The claim  proceeded to an arbitration hearing under the Workers' Compensation Act. The arbitrator found that an employee-employer relationship did not exist between the decedent and the City and that the decedent did not sustain an accident that arose out of and in the course of her employment. The claimant appealed to the Illinois Workers' Compensation Commission. The Commission reversed the arbitrator's decision, finding that an employee-employer relationship did exist between the decedent and the City and that the decedent's accident arose out of and in the course of her employment. It ordered the employer to pay $2,069.25 for medical expenses, $8,000 for burial expenses, and $466.13 per week for 25 years or $500,000. The City filed a  timely petition for review in the circuit court of Crawford County, which confirmed the Commission's decision. The City appeals.


2 Appellate Cases Posted 12-9-15

1. Title Companies/Attorneys/Agents: Affirmed: The title companies' payments to attorney agents were not prohibited under section 2607 where attorney agents provided settlement services in return for the payment, and the reasonableness of the monetary amount of those payments is irrelevant. Plaintiffs failed establish a violation of the Title Act (215 ILCS 155/1 (West 2002)) and Consumer Fraud Act (815 ILCS 505/1 (West 2002)), claims which are both premised on a violation of section 2607. Mason, J. with Pucinski, J. dissenting. 

No. 2015 IL App (1st) 140808   Chultem v. Ticor Title Insurance Company   Filed 1298-15 (RJC)


In this consolidated class action appeal, plaintiffs Doljin Chultem and Paul Collella, individually and on behalf of all others similarly situated, appeal the trial court's ruling that defendants Ticor Title Insurance Company (Ticor), Chicago Title Insurance Company (Chicago Title), Chicago Title and Trust Company (CT&T) and Fidelity National Financial, Inc. (Fidelity) Nos. 1-14-0808 and 1-14-0820 (consolidated) (collectively, the "title companies") did not make illegal kickback payments by splitting a fee with attorneys for their referral of business to the title companies in violation of the Illinois Title Insurance Act (215 ILCS 155/1 (West 2002)) (Title Act) 1 and the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2002)) (Consumer Fraud Act). Plaintiffs assert that payments made by the title companies to attorneys who also served as title agents (attorney agents) were unlawful because the title companies provided those attorneys with a pro forma title commitment that determined the insurability of a property's title—a function they assert must be performed by the attorney agents to earn the fee paid by the title companies. Plaintiffs claim that because the attorney agents received the pro forma commitment, they did not perform "core title services" and the title company's payment was unearned and, in reality, an illegal kickback. Affirmed.

2. Criminal Law/SOJ: Affirmed: Although the trial court erred in granting the State's noncompliant motion to substitute judge, the error was harmless because defendant has made no showing that he suffered prejudice as a result of the trial court's error.  The jury instruction required by section 115-10 of the Code should have been given by the trial court because K.R.L.'s out-of-court statements concerning the incident were admitted pursuant to that statute. Review is not warranted under the second prong of plain error analysis.  Supreme court has equated the second prong of plain error review with structural error.  A structural error is " 'a systemic error which serves to "erode the integrity of the judicial process and undermine the fairness of the defendant's trial." ' "The failure to give the cautioning instruction required by section 115-10(c) does not rise to the level of structural error.  Carter, J. with Holdridge, J. specially concurring.  

No. 2015 IL App (3d) 140300    People v. Jackson   Filed 1298-15 (RJC)


Defendant, Lateef M. Jackson, appeals his conviction of aggravated battery (720 ILCS 5/12-3.05(b)(2) (West 2012)), arguing that the trial court erred in: (1) granting the State's motion to substitute judge; (2) finding K.R.L. competent to testify; and (3) failing to tender a cautioning instruction to the jury after admitting hearsay statements pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 2012)). We affirm.

2 Appellate Cases Posted 12-8-15

1. Office of the Independent Inspector General/Subpoena: Affirmed: The ordinances are constitutional. The Board validly exercised its home rule powers when it created the OIIG and gave it the power to issue subpoenas to aid in its investigation of allegations that county officers, including the assessor, have acted corruptly. Neville, J.

No. 2015 IL App (1st) 142857   Blanchard v. Berrios    Filed 12-8-15 (RJC)


Cook County's independent inspector general filed a complaint to enforce a subpoena that the Office of the Independent Inspector General (OIIG) directed to the assessor of Cook County. The circuit court entered an order requiring the Assessor to produce the subpoenaed documents. In this appeal, the assessor argues that the Cook County board of commissioners (Board) exceeded its constitutional authority when it enacted ordinances purportedly empowering the OIIG to issue subpoenas directed to elected county officials and requiring the officials to cooperate with the OIIG.

2. Criminal Law/Search & Seizure: Affirmed: Based on the Supreme Court's decision in Arizona v. Gant, the search of Jones's vehicle was not a valid search incident to arrest. Jones was taken into custody and his car searched because of the investigative alert. Jones sat inside the police car with the doors closed when the officer removed the cocaine from Jones's car. The police had no reason to secure his car if Jones was not in custody while in the backseat of Truhlar's car, especially given that the traffic stop involved a routine traffic violation. Hyman, J. 

No. 2015 IL App (1st) 142997    People v. Jones   Filed 12-8-15 (RJC)


In a prosecution for possession of a controlled substance with intent to deliver, the trial court granted defendant Keenan Jones's motion to suppress the drug evidence found inside his car after a traffic violation stop. The State appeals, contending the police had probable cause to stop Jones and that they discovered the brick of cocaine in plain view.  Accordingly, we affirm the trial court's order granting Jones's motion to suppress.

2 Appellate Cases Posted 12-7-15

1. Domestic Relations: Affirmed: Where parties had agreed that husband would pay 35% of husband's gross income as maintenance, but made no precise effort to speak to whether amount would be prorated to reflect date of order in its first year of application, where husband sought return of purported overpayment for non-prorated amount tendered to wife, trial court had jursdiction to compel wife to refund overpayment, as request by husband was for "enforcement" not "modification," and trial court maintained jurisdiction for that purpose. Harris, J.

No. 2015 IL App (1st) 140290  In re Marriage of Figliulo  Filed 12-7-15 (TJJ)


Respondent, Mary Anne Figliulo, appeals the order of the circuit court finding in favor of petitioner, James R. Figliulo, on his claim that he overpaid his maintenance obligation to respondent in 2011. On appeal, respondent contends that the trial court  lacked jurisdiction to consider petitioner's claim and therefore its order is void ab initio and should be vacated. For the following reasons, we affirm.

2. Workers' Compensation: Affirmed: Commission decision to award workers' compensation benefits to police officer who claimed that loading 40 pounds of necessary personal police equipment from his home into his car, thus causing resulting back problems requiring surgery, was not against the manifest weight of the evidence, as need to use equipment and safeguard it at home or in the station was deemed to be "in the course of employment," and award upheld despite conflicting medical testimony. Stewart, J. (Hudson, J., dissenting).

No. 2015 IL App (3d) 130869WC  Bolingbrook Police Department v. Illinois Workers' Compensation Comm'n  Filed 12-7-15 (TJJ)


The claimant, Michael Toles, worked as a police officer for the employer, Bolingbrook Police Department. He injured his back while loading his duty bag into his personal vehicle in preparation for reporting to the police station for work. He filed a claim  for benefits pursuant to the Illinois Workers' Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 2012)). The Commission found that the claimant sustained an accidental injury arising out of and in the course of his employment. The Commission further found that the claimant established a causal relationship between the accident and the condition of ill-being in his low back requiring surgery. In light of these findings, the Commission awarded the claimant reasonable and necessary medical  expenses, 5-2/7 weeks of temporary total disability (TTD) benefits, and 100 weeks of permanent partial disability (PPD) benefits. The employer appeals the Commission's finding that the claimant's injury arose out of and in the course of his employment.  The employer also takes issue with the Commission's finding that the claimant's conditions of ill-being in his low back are causally related to the accident. We affirm.

5 Appellate Cases Posted 12-4-15

1. Mortgage Foreclosure: Affirmed: Successor mortgagee bank, who took over at behest of FDIC from failed original mortgagee, was entitled under D'Oench Dohme doctrine to prohibit mortgagors from claiming that "secret" agreements among mortgagors, bank officers, and a general contractor essentially amended loan terms, where any documentation extablishing such terms was not in failed bank's records, and successor bank affidavits regarding non-payment of funds sufficient despite claim of lack of personal knowledge. McBride, J.

No. 2015 IL App (1st) 133426  Northbrook Bank & Trust Company v. 2120 Division LLC  Filed 12-3-15 (TJJ)


This is an appeal from the foreclosure of separate mortgage loans taken in 2007 and 2008 by three limited liability companies and personally guaranteed by Alex Boltin. After judicial sales netted less than the mortgage debts, the trial judge confirmed the  sales and entered joint and several deficiency judgments against the companies and Boltin for $359,193, $262,702, and $2,279,954, or a total of nearly $3 million. We will refer to these appellants collectively as the borrowers or the Boltin defendants. The  party we refer to as the lender is Northbrook Bank & Trust Company, or Northbrook Bank, which was not the original lender. The original lender was Ravenswood Bank, a Chicago entity that failed in 2010 and was taken over by the Federal Deposit  Insurance Corporation. The FDIC sold the Boltin mortgage notes and other assets to Northbrook Bank. The Boltin defendants contend the trial judge erred by striking their affirmative defenses as factually deficient and barred by a principle of banking law that when the FDIC or its assignees attempt to collect on a failed bank's promissory note, the borrower or guarantor is estopped from relying on an unrecorded agreement with the failed bank. See D'Oench, Duhme & Co. v. Federal Deposit Insurance Corp.,  315 U.S. 447 (1942). The second claim on appeal is that granting the lender's motion for summary judgment was in error because the decision was based on an affidavit from a Northbrook Bank vice president who, according to the borrowers, had no  personal knowledge of loan records created and maintained by Ravenswood Bank. Affirmed.

2. Civil Procedure/Statute of Limitations: Affirmed: Trial court properly dismissed personal injury action against railroad, as one-year statute of limitations in Regional Transportation Authority Act applied, despite plaintiff's claim that that period should not apply where Regional Transportation Authority was not a party, where defendant's railroad business was a division created by the Authority. Rochford, J.

No. 2015 IL App (1st) 150432  Copes v. Northeast Illinois Regional Commuter Railroad Corporation  Filed 12-4-15 (TJJ)


The instant personal injury suit, filed by plaintiff-appellant, Charletha Copes, against defendant-appellee, the Northeast Illinois Regional Commuter Railroad Corporation, d/b/a Metra (NIRCRC), was dismissed for having been untimely filed beyond the  one-year statute of limitations period contained in section 5.03 of the Regional Transportation Authority Act (Act) (70 ILCS 3615/5.03 (West 2012)). Plaintiff has appealed, contending that the limitations period contained in section 5.03 applies only to  actions brought against the Regional Transportation Authority (Authority) itself, and it therefore does not bar plaintiff's instant suit against NIRCRC. For the following reasons, we affirm.

3. Guardianship/Domestic Relations: Affirmed: In case of first impression, Appellate Court affirmed trial court decision that wife of 91-year-old man did not have standing to contest appointment of guardian for purpose of seeking to secure divorce on behalf of husband after trial court properly concluded after hearing and concluding that it was in husband's best interest for such. Delort, J.

No. 2015 IL App (1st) 151182  Warga v. Warga  Filed 12-4-15 (TJJ)


In Karbin v. Karbin, 2012 IL 112815, our supreme court held that a guardian may seek court permission to bring a marriage dissolution action on behalf of a ward, and overruled the contrary rule previously established in In re Marriage of Drews, 115 Ill. 2d  201 (1986). The General Assembly codified Karbin shortly thereafter, through a 2014 amendment to the Probate Act. The Karbin court’s opinion, and  the Act, set forth certain procedural and substantive safeguards to protect the ward. Among those safeguards is the requirement that a circuit court considering a petition to file for dissolution of marriage hold a hearing to determine whether dissolution is in the ward’s best interests. In this case, we consider an issue of first impression: whether, under  Karbin and the Act, a ward’s nonguardian spouse has standing to participate at the best interests hearing.

4. Criminal Law: Affirmed in part,vacated in part, and remanded for resentencing: State did not present evidence sufficient to prove that defendant knew that victim was 60 years of age or over, thus requring that conviction for aggravated battery be vacated, and changed to misdemeanor battery, and remanded for resentencing. Holder White, J.

No. 2015 IL App (4th) 131020  People v. Smith  Filed 12-4-15 (TJJ)


In August 2013, a jury convicted defendant, Lorenzo C. Smith, of aggravated battery to a person over the age of 60 and intimidation. The trial court thereafter sentenced defendant to concurrent prison sentences of five years on the aggravated-battery charge  and six years on the intimidation charge. Defendant appeals, asserting (1) the jury instructions regarding aggravated battery inaccurately conveyed the law, (2) the State failed to prove him guilty of aggravated battery beyond a reasonable doubt, and  (3) the trial court improperly responded to the jury's request for a definition of "reasonable doubt." For the following reasons, we affirm defendant's intimidation conviction, reduce his aggravated-battery conviction to battery and affirm as modified, and
remand for sentencing on the battery conviction.

5. Traffic Law: Reversed and remanded: Trial court erred in dismissing traffic offenses against defendant in instance where State did not appear within 15 minutes of scheduled court time, as such is not an enumerated ground in Section 114-4 of the Code of Criminal Procedure permitting dismissal. Steigmann, J.

No. 2015 IL App (4th) 150217  People v. Lopez  Filed 12-4-15 (TJJ)


In October 2014, the State charged defendant, Alberto Lopez, with two traffic offenses. Specifically, in Livingston County case No. 14-TR-3671, defendant was charged with speeding (driving 91 miles per hour in a 70 mile per hour speed zone), and in  Livingston County case No. 14-TR-3672, he was charged with driving while license revoked. (On this court's own motion, we have consolidated these cases on appeal.) Five months later, when these cases were set for a pretrial conference, the State failed  to appear. The trial court's docket entry notes that the court waited 15 minutes and then dismissed each of these charges "for failure to prosecute." The State appeals, arguing that the trial court erred by dismissing defendant's charges for "failure to  prosecute." We agree and reverse and remand for further proceedings.

6 Supreme Court Cases Posted 12-3-15

1. 2-1401 Petition/Service/Criminal: Appellate court judgment reversed and Circuit court judgment affirmed:  In this decision, the Illinois Supreme Court reversed the appellate court, stating that the record is insufficient to demonstrate the service deficiency which this offender must establish in order to advance his argument. To support a claim of error, an appellant has the burden to present a sufficiently complete record such that a court of review may determine whether there was the error claimed by the appellant. Without an adequate record preserving a claimed error, a court of review must presume that the circuit court’s order conforms to the law. In his proof of service, all that was established was where Carter mailed his petition—the institutional mail at the facility in which he was confined—and the medium through which it was to be transmitted—the U .S. Postal Service. The appellate court’s assumption that the language of the proof of service affirmatively established transmittal by regular mail, and thus deficient service, is unwarranted on this record. The supreme court said that any section 2-1401 petitioner who seeks to use, on appeal, his own error, by way of allegedly defective service, in an effort to gain reversal of a circuit court’s sua sponte dismissal of the petition on the merits, must affirmatively demonstrate the error via proceedings of record in the circuit court. Justice Karmeier  delivered the judgment of the court, with opinion.  Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL 117709    People v. Carter    Filed 12-3-15 (RJC)


Bench trial proceedings in the circuit court of Cook County resulted in a finding that this defendant was guilty of a 2002 shooting death. Initially a 30-year term was imposed, but, after the trial judge realized that mandatory enhanced sentencing for use of a firearm was applicable, he gave the defendant a 20-year term with a 25-year enhancement. The defendant had complaints about this sentencing upgrade and also made allegations of ineffective assistance of counsel and prosecutorial misconduct, but he was unsuccessful on direct appeal and on his postconviction petition.
In 2012, the defendant again challenged his conviction and sentence, this time under the Code of Civil Procedure, which, at section 2-1401, provides that relief from a judgment may be requested by petitioning to have it vacated. At a hearing at which an assistant State’s Attorney was present, the circuit judge dismissed the petition on the merits. Issues of sufficiency of service and notice to the State were not addressed. A written order was prepared and filed, outlining the circuit court‘s reasoning for the dismissal. However, on direct review, Carter argued, and the appellate court held, that the cause should be remanded “because the circuit judge’s sua sponte dismissal *** on the merits was premature given that the petition was not properly served on the State.” The prosecution appealed.

2. Criminal Law/ AUUW/Constitutionality: Circuit court order reversed. Cause remanded:  In this decision, the supreme court reversed the circuit court’s declaration of unconstitutional disproportionality of penalty and its dismissal of the charge. The court here applied the identical elements test. The penalties are not identical if more would need to be proved to establish aggravated unlawful use of a weapon under count I than would have to be proved to establish simple failure to have a FOID card. To prove the latter, the State need only prove possession of a firearm without the card. Such a violation can occur in the home without being a violation of the statute on aggravated unlawful use of a weapon. The additional location element means that these two offenses are not identical, and there can be no proportionate penalties violation.  The supreme court also noted that, when a defendant’s conduct violates more than one statute, each of which requires a different proof, he is not denied equal protection if he is prosecuted under the statute providing the greater penalty.
The circuit court was reversed, and the cause was remanded to it for further proceedings. Justice Theis  delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Burke concurred in the judgment and opinion.

No. 2015 IL 117789    People v. Schweihs    Filed 12-3-15 (RJC)


This defendant was charged in Kane County in 2012 with several offenses, including domestic battery and weapons violations, only one of which is at issue here. Count I of the indictment was brought under the statute on aggravated unlawful use of a weapon. It alleged that the defendant knowingly carried or concealed in a motor vehicle a .45-caliber handgun at a time when he had not been issued a currently valid card under the Firearm Owners Identification Card (FOID) Act. This is a Class 4 felony. The circuit court took note of the fact that simple possession of a firearm without that card (with which the defendant was not charged) is merely a Class A misdemeanor under the FOID Card Act. Viewing this as an invalid disproportionality of penalties under the Illinois Constitution, the circuit court dismissed the charge under count I. The State appealed, bringing the matter directly before the Illinois Supreme Court.

3. Criminal Law/Post-Conviction Hearing Act: Affirmed: In this decision, the Illinois Supreme Court held that this offender may not raise his as-applied constitutional challenge to his mandatory natural life sentence for the first time on appeal from the circuit court’s dismissal of his petition seeking relief from a final judgment under section 2-1401. However, Thompson is not necessarily foreclosed from renewing his as-applied constitutional challenge in the circuit court. The Post-Conviction Hearing Act is expressly designed to resolve constitutional issues, including those raised in a successive petition, and section 2-1401 permits a challenge to a final judgment if certain procedural and statutory requirements are satisfied. The decision rendered today expresses no opinion as to the merits of any future claim in a new proceeding. Justice Kilbride delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL 118151    People v. Thompson    Filed 12-3-15 (RJC)


In 1994, when this Cook County offender was 19 years old, he went to his father’s home and shot him to death, along with a woman he did not know who happened to be there. The woman survived long enough to identify Thompson, and he confessed and directed police to the murder weapon. In bench proceedings, a mandatory sentence of natural life imprisonment was imposed for the murder of two persons despite the defendant’s allegations of physical and mental abuse by his father.  Claiming that he had received ineffective assistance of counsel, Thompson was unsuccessful on direct appeal and in postconviction and habeas corpus proceedings. Then, in 2011, he filed a petition under section 2-1401 of the Code of Civil Procedure, which allows for vacation of final judgments under certain circumstances. That petition was dismissed by the circuit court. Not too long thereafter, in 2012, the United States Supreme Court held that, where an offender was a juvenile, it was unconstitutional to subject him to a mandatory life sentence without parole. Thompson relied exclusively on this then-recent decision to argue for the first time in his appeal from the dismissal of his petition that his mandatory life sentence was facially void and could be challenged at any time as unconstitutional. (He would later concede that this was only an as-applied challenge.) The appellate court affirmed the circuit court and dismissed the appeal, finding the matter to be procedurally barred. Thompson had filed his petition 17 years after his conviction, rather than within the two years prescribed by section 2-1401. It has been held that there is an exception to this two-year rule where a statute is challenged as unconstitutional on its face and thus invalid at its inception. The offender here argued that his as-applied challenge should be viewed in the same way, but there is no authority for such a result. The concepts of facial and as-applied invalidity are not interchangeable.  In this case, Thompson’s arguments about the mentality of persons in the age group to which he belonged when he committed these offenses are matters appropriate for development in a trial court, with the creation of a record, rather than for appraisal by a reviewing court which is being presented with such issues for the first time, as this one was here.

4. Criminal Law/Charging Instruments/: Affirmed: Consistent with the statute, case law in Illinois has held for more than 170 years that the identity of a person who is alleged to be a victim of a criminal offense is an essential element of a charging instrument. Although the State argued that the traditional rule is an antiquated formality and that modern discovery procedures allow for the disclosure of much more information than was once available, the supreme court declined to depart from stare decisis in this instance, noting that this established precedent guards an accused’s fundamental constitutional right to be protected from being placed in double jeopardy. A recent legislative amendment providing that, in specific instances of sex offenses, there is an option of identifying the victim by initials, does not call for a different result. Justice Thomas delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL 118218    People v. Espinoza    Filed 12-3-15 (RJC)


In these consolidated cases from Will County, the Illinois Supreme Court held that criminal charges which identified the victim only as a “minor” were properly dismissed before trial. Statute requires that a charging instrument alleging injury to a person must give his name, if known.  In 2013, Sandro Espinoza was charged by information with domestic battery of a minor. Although the victim was known to be the defendant’s son, and, when the trial court granted the defendant’s bond, it identified the minor victim by his initials D.E. in ordering the defendant to have no contact with him, the State denied that the charging instrument was defective and refused to amend it, arguing that there was no prejudice. The trial court dismissed the charge.  Angela Disera was charged by criminal complaint in 2012 with child endangerment by leaving a minor unattended without adult supervision at a Joliet address. Although the police report named five different minors, and the bill of particulars furnished by the State gave the full name of the alleged victim, the trial court granted the defendant’s motion to dismiss based on the State’s failure to amend the charging instrument by identifying the victim.  The appellate court affirmed in each case. The appellate court was affirmed.

5. Condominiums/Mortgage Foreclosure/Assessments: Affirmed: In this decision the supreme court affirmed the appellate court, noting that the defendant’s theories based on the Illinois Mortgage Foreclosure Law do not call for a different result because the two enactments can be  construed harmoniously. This statutory scheme provides an additional step to confirm extinguishment of the prior lien by requiring payment of postforeclosure sale assessments, which the defendant here did not do. The summary judgment in favor of plaintiff condominium association was proper.  Justice Kilbride delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.        
         

No. 2015 IL 118372    1010 Lake Shore Association v. Deutsche Bank National Trust Company    Filed 12-3-15 (RJC)


The owner of a condominium unit stopped making payments for common expense assessments, creating a lien in favor of plaintiff condominium association, and defendant Deutsche Bank purchased the unit at a judicial foreclosure sale held on June 17, 2010. The Act requires a purchaser to pay assessments from the first day of the month following the sale, but there have been no assessment payments since July 1, 2010. In 2012, plaintiff filed suit in the circuit court of Cook County, seeking possession and an award of all unpaid assessments, attorney fees and costs. Ultimately, it was granted a summary judgment in its favor for possession, along with a monetary award of $70,018.90. The appellate court affirmed, stating that, under the plain language of the Condominium Property Act, a lien created for unpaid assessments by a previous owner is not fully extinguished following a judicial foreclosure and sale until the purchaser makes a payment for assessments incurred after the sale. The appellate court said that the lien created here for the prior owner’s unpaid assessments was not extinguished because the defendant failed to pay any assessments following the judicial sale.

6. Property Tax Code/Tax deeds: Judgments reversed: The principal issues presented in this case are (1) whether an order issuing a tax deed is void and subject to collateral attack because of the failure to include the address and phone number of the county clerk in the publication and certified mail take notices that were required to be sent to the delinquent owner prior to the issuance of the tax deed, and (2) whether due process standards were violated where certified mail notices to the owner were return unclaimed. Both questions are answered in the negative. The Illinois Supreme Court, in this decision, reversed what the circuit court had done. The supreme court also reversed the appellate court, which had affirmed the circuit court’s decision to vacate its order for issuance of the tax deed.  The property in question is located at 716 Henderson Avenue in Joliet. The owner of record was never served with the required statutory notices despite numerous attempts by the tax purchaser to do so and its attempts to comply with all statutory requirements, including newspaper publication. Multiple certified mailings were returned unclaimed and process servers repeatedly found the house locked up, with no one answering the door. Counsel for the tax delinquent owner successfully argued in the circuit court that there was a fatal defect, rendering the tax deed void and subject to collateral attack, because the required publication and certified mail take notices did not include the address and phone number of the county clerk. Although this information is statutorily required to be stated elsewhere, the supreme court refused to adopt an interpretation that it was required to be included where the tax delinquent owner proposed. Thus, this argument could not support a claim that collateral attack was appropriate here. Neither was the owner’s resort to collateral attack justified by the claim of lack of diligence on the part of the tax purchaser, which grounds the legislature did not provide for in enacting its statutory scheme. The owner continued its lack-of-diligence argument by claiming a denial of due process, a possibility which has been discussed in recent case law, including a 2006 decision of the United States Supreme Court. The issue in these earlier decisions has been whether one who is sincerely trying to give notice should be required to do more. However, the Illinois Supreme Court refused to interpret these other cases as requiring the tax purchaser here to do more, especially since the legislature did not require it to do so. Although this decision is in favor of the tax purchaser, the supreme court noted that there is an indemnity fund which is available to tax delinquent owners as a remedy in equity. Justice  Thomas delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.             

No. 2015 IL 118975    DG Enterprises v. Cornelius    Filed 12-3-15 (RJC)


On November 17, 2011, the circuit court of Will County ordered issuance of a tax deed to the petitioner which was then before it, DG Enterprises, the appellant here. That deed never issued, however, because on March 14, 2012, counsel for respondent owner of record, Lorrayne M. Cornelius, filed a combined motion to dismiss under both the Property Tax Code and section 2-1401 of the Code of Civil Procedure. Ms. Cornelius is now deceased, and the administrator of her estate, who has been substituted as party respondent, is the appellee here. On October 12, 2012, the circuit court vacated its previous order for issuance of the tax deed. That ruling is the subject of this appeal.   
       

4 Appellate Cases Posted 12-3-15

1. Illinois Domestic Violence Act: Reversed and remanded with directions: Much of the evidence was undisputed, as respondent put on none. Essentially no evidence contradicted or undermined the facts. To the extent that the court required “physical manifestations of abuse on the person of the victim,” the court erred. The court further erred to the extent that it based its denial of the petition on the bond condition in the criminal prosecution of respondent. Beyond the fact that the bond condition was not “part of the record,” it is perfectly proper for a plenary order of protection to exist alongside conditions imposed during the pendency of criminal proceedings. The trial court’s judgment is against the manifest weight of the evidence. Schostok, J.

No. 2015 IL App (1st) 150409    Carolyn Anne H. v. Robert H.    Filed 12-3-15 (RJC)


Petitioner, Carolyn Anne H., appeals a judgment denying her petition under the Illinois Domestic Violence Act of 1986 (Act) (750 ILCS 60/1 et seq. (West 2014)) for an order of protection against respondent, Robert H., her husband. Petitioner argues that (1) the judgment is against the manifest weight of the evidence; and (2) the trial court erred in allowing respondent to question petitioner about her mental state as it existed after the incidents on which her petition was based.

2. Criminal Law: Affirmed: The trial court properly instructed the jury on (1) the propositions the State must prove beyond a reasonable doubt to sustain a charge of involuntary manslaughter under IPI Criminal 4th No. 7.08 and (2) IPI Criminal 4th No. 5.01, which provided a definition of "Recklessness." Thus, the court was under no obligation to provide IPI Criminal 4th No. 7.15.   As to the defendant's stataments, the context of the defendant's interview—which occurred the day after the victim disappeared— is indicative of defendant's guilty conscience. The record does not show that the challenged statements were used to argue defendant's propensity to commit crimes. Therefore, the defendant's claim that the challenged statements were a material factor in his conviction, such that, without this evidence, the jury would have returned a not guilty verdict is rejected.  Steigmann, J.

No. 2015 IL App (1st) 130471   People v. Mefford    Filed 12-3-15 (RJC)


Following a trial that ended in May 2013, a jury found defendant, Joshua J. Mefford, guilty of (1) first degree murder (720 ILCS 5/9-1(a)(2) (West 2010)) and (2) robbery (720 ILCS 5/18-1(a) (West 2010)). Specifically, the jury determined that the State proved beyond a reasonable doubt that defendant struck another person, Robert Montague, knowing that such an act created a strong probability of death or great bodily harm and, thereafter, robbed Montague of cash. In June 2013, the trial court sentenced defendant to consecutive prison terms of (1) 36 years for first degree murder and (2) 5 years for robbery. Defendant appeals, arguing that (1) the State failed to prove him guilty beyond a reasonable doubt of first degree murder, (2) the trial court erred by failing to (a) ensure the jury was properly instructed and (b) prevent the jury from considering impermissible other crimes evidence, and (3) he was deprived of the effective assistance of trial counsel.

3. Criminal Law/Sentencing/Juvenile offender: Affirmed in part, reversed in part, and remanded for resentencing: Prosecutor's statements during closing argumetns were not improper. The trial court decided the probative value of the other-crimes evidence outweighed its prejudicial effect. That conclusion was not unreasonable. The court also instructed the jury such evidence would be admitted and the jury should consider it only for the limited purpose of identification, presence, design, or motive.  In this case, defendant's sentence of natural life was imposed according to section 12-14.1(b)(1.2) of the Criminal Code (720 ILCS 5/12-14.1(b)(1.2) (West 2010)). This section leaves the trial court with no discretion and mandates sentences of life without parole for individuals convicted of predatory criminal sexual assault of a child committed against two or more persons. The sentences were imposed on all counts, even on those counts committed when defendant was a juvenile. The mandatory natural-life sentences imposed on counts IV and V violate the prohibition against cruel and unusual punishment.  It is impermissible to permit the conduct for which a defendant could not receive a life sentence to trigger a life sentence for a second offense, committed after defendant's eighteenth birthday. Knecht, J.

No. 2015 IL App (4th) 130512    People v. Wilson    Filed 12-3-15 (RJC)


In January 2013, defendant, Brett M. Wilson (born April 14, 1993), was convicted of five counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2010)) and five counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2010)). He was sentenced to five terms of natural life. Defendant appeals his conviction and sentence. On appeal, he argues (1) the prosecutor improperly acted as a "human lie detector" when he, during closing argument, commented on the defendant's and other witnesses' mannerisms during video-recorded interviews; (2) the trial court erred by allowing the State to elicit testimony regarding other crimes allegedly committed by defendant when no foundation or specificity was provided to show those crimes occurred before the charged offenses and to permit defendant to mount an effective defense; (3) the trial court erred when it did not allow defendant to play a video-recorded interview of a prior consistent statement to rebut the State's inference the witness had a motive to lie or made a recent fabrication; and (4) his natural-life sentences violate the eighth amendment's prohibition against cruel and unusual punishment (U.S. Const., amend. VIII), his right to due process (Ill. Const. 1970, art. I, § 2), and the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § II).

4. Illinois School Code/Admin. Hearings: Affirmed in part, reversed in part, and remanded for resentencing: Due to the unique procedures set forth in the Code regarding downstate teacher dismissals after 2011,  App.Crt. was presented with an issue of first impression in applying the standard of review.  The Board did not have sufficient evidence to dismiss the plaintiff.  Crystal's factual findings were not unreasonable based on the evidence presented, and as such, the Board's decision to reject his determination was not sufficiently supported by the Board's amended and supplemental facts. With no evidence supporting either an unexcused tardiness or the detrimental effect of the plaintiff's late arrival, Hearing Officer's  factual findings were not unreasonable, and as such, the Board's decision to reject his determination was insufficiently supported by the evidence.  Hearing Officer found that the Board did not prove, by a preponderance of the evidence, that dismissal was warranted. The Board's contrary findings were not supported by the evidence at the hearing, and therefore none of the stated violations found by the Board can pass muster under the required standard for a teacher dismissal case; that is, the above referred-to findings used to dismiss the plaintiff from her position were arbitrary, unreasonable, and unrelated to service, because no logical nexus exists between the plaintiff's fitness to perform as a teacher and the misconduct in question which led to her dismissal. Welch, J.

No. 2015 IL App (5th) 150018    Beggs v. The Board of Education of Murphysboro Community Unit School District No. 186    Filed 12-3-15 (RJC)


The plaintiff, Lynne Beggs, a tenured teacher, was dismissed for cause from employment on April 30, 2012, following a resolution by the Board of Education of the Murphysboro Community Unit School District No. 186 (the Board) pursuant to section 24-12 of the Illinois School Code (the Code). After the Board passed its resolution, the plaintiff requested a hearing before a hearing officer. The mutually selected hearing officer listened to four days of testimony and thereafter issued a "Findings of Fact, Analysis and Recommendation" (recommendation) on June 12, 2013, recommending that the Board's decision to dismiss the plaintiff be reversed. On July 30, 2013, the Board entered its decision to dismiss the plaintiff notwithstanding the hearing officer's recommendation, and on September 3, 2013, the plaintiff filed a complaint for administrative review in the circuit court of Jackson County pursuant to the Illinois Administrative Review Law (the Act) (735 ILCS 5/3-101 et seq. (West 2012)). The issue was appealed to the circuit court.

2 Appellate Cases Posted 12-2-15

1. Criminal Law/Sentencing: Affirmed: Decatur's sentence is well within statutory guidelines and was not the product of any error committed by the trial court. Mason, J.

No. 2015 IL App (1st) 130231   People v. Decatur    Filed 12-2-15 (RJC)


Following a 2012 bench trial, defendant Taurean Decatur was convicted of one count of first-degree murder (though the mittimus reflects conviction on two counts) and two counts of attempted murder, for which he was sentenced to a total of 105 years' imprisonment. His sole argument on appeal is that his sentence was excessive.  We affirm the judgment and correct the mittimus to reflect one conviction of first-degree murder.

2. Traffic Offenses/Illinois Vehicle Code: Reversed:  The defendant was not operating a motor vehicle, as defined by the Code.  In the present case, the State presented no evidence from which a reasonable trier of fact could conclude beyond a reasonable doubt that defendant's gas-powered bicycle met the statutory definition of a "motor vehicle." Accordingly, defendant's conviction on count II, operating an uninsured motor vehicle, is reversed.   Also, tThe State failed to prove beyond a reasonable doubt that defendant's vehicle was required to be registered under the Code. O'Brien, J.

No. 2015 IL App (3d) 150111  People v. Grandadam    Filed 12-2-15 (RJC)


Defendant, Nathan Grandadam, was convicted of four violations of the Illinois Vehicle Code (Code) (625 ILCS 5/1-100 et seq. (West 2014)). Defendant appeals that judgment, contending that the State failed to prove beyond a reasonable doubt that he was operating a motor vehicle, a necessary element of the charged offense. We agree, and reverse three of defendant's four convictions outright.

6 Appellate Cases Posted 12-1-15

1. Criminal Law: Remanded for Krankel hearing: Trial court finding of guilty of armed robbery, including allegations that defendant fired a gun and proximately caused great bodily harm to victim, required that additional convictions for aggravated battery and aggravated discharge of a firearm could not stand under "one act, one crime" rule, and matter remanded for Krankel hearing where trial court erred by conducting hearing with input from State without appointing counsel, in violation of People v. Jolly. Hyman, J.

No. 2015 IL App (1st) 133180  People v. Scott  Filed 12-1-15 (TJJ)


Defendant Lemar Scott was convicted in a bench trial of two counts of armed robbery, two counts of aggravated discharge of a firearm, and one count of aggravated battery with a firearm, and sentenced to an aggregate term of 43 years' imprisonment. On  appeal, Scott contends that several of his convictions should be vacated under the one-act, one-crime rule. We agree, and vacate three of Scott's five convictions under the one-act, one-crime rule. Scott also contends, and the State rightly agrees, that we  remand for a new Krankel hearing (People v. Krankel, 102 Ill. 2d 181 (1984)) before a different judge. The trial court had invited the State to take an adversarial role in the preliminary inquiry stage of Scott's claim of ineffective assistance of trial counsel, a manner of proceeding that the Illinois Supreme Court rebuffed in People v. Jolly, 2014 IL 117142.

2. Criminal Law: Affirmed in part, reversed in part: Trial court finding of guilty of residential burglary reversed, where evidence showed that defendant had lived in apratment with victim girlfriend in apartment previously, but extended term sentence for Class 4 felony domestic battery affirmed, as once residential burglary conviction was reversed, domestic battery offense was most serious felony, and defendant's background permitted extended term. Hyman, J.

No. 2015 IL App (1st) 133664  People v. Larry  Filed 12-1-15 (TJJ)


This case involves the application of Illinois’ residential burglary statute to a defendant who was convicted of burglarizing his girlfriend’s apartment which he claims was his residence too. Larry raises three issues: (1) he could not enter "the dwelling place  of another" as he actually resided with Harris and therefore the State failed to prove an essential element of the criminal charge; (2) the trial court failed to recall Harris’s testimony that Larry lived with her on the day he broke into her home and this  prejudiced his case; and (3) his five-year extended-term sentence violates Illinois law because it attached to his domestic battery conviction, which was not the most serious offense of which he was convicted. Regarding the first and second arguments, we find that at the time of the alleged offense Larry resided in the apartment and thus the evidence did not establish he entered "the dwelling of another." As a result of our decision, we affirm Larry’s extended-term sentence.

3. Juvenile Delinquency: Reversed: Respondent minor's adjudications of guilty for reckless discharge of a firearm and unlawful use of a weapon reversed where evidence was insufficient to prove that juvenile possessed a gun, or that wound to respondent's foot, purportedly caused by a gunshot, was in fact so caused. Hyman, J.

No. 2015 IL App (1st) 151678  In re Nasie M.  Filed 12-1-15 (TJJ)


The State contends Nasie M., a minor, accidently shot himself twice in the foot, for which it charged him with reckless discharge of a firearm, two counts of aggravated unlawful use of a weapon, and unlawful possession of a firearm. The State's case rests  on a police officer who testified that Nasie told him he was holding a gun and shot himself while running away from two men he thought were going to rob him. Nasie, however, denies admitting he shot himself and maintains that one or both of the men  shot him. The trial court found the State's theory more believable and convicted Nasie on three of the four charges. The trial court committed Nasie to the Department of Juvenile Justice (DJJ) for an indeterminate term. We conclude that the State failed to prove beyond a reasonable doubt that Nasie possessed a firearm and, thus, could not prove he committed the offenses of reckless discharge of a firearm, aggravated unlawful use of a weapon, or unlawful possession of a firearm. Because we reverse, we  need not address Nasie's sentencing arguments.

4. Criminal Law: Affirmed: Trial court dismissal of post-conviction petition at first stage affirmed where defendant's claim that trial counsel's "failure" to impeach a witness at trial in fact occurred, and was in any event of little value in light of the nature of the profferred impeachment, and defendant had no right to complain on post-conviction appeal that retained counsel at the trial level did not provide "reasonable assistance of counsel" to defendant at post-conviction proceedings. McLaren, J.

No. 2015 IL App (2d) 131309  People v. Shipp  Filed 12-1-15 (TJJ)


Defendant, Dwayne Shipp, appeals the trial court’s first-stage dismissal of his postconviction petition. Petitioner contends that: (1) trial counsel was ineffective for failing to impeach a witness, Detective Guillermo Trujillo of the Aurora police department,  and enter Trujillo’s prior inconsistent statement into evidence; and (2) defendant has a “freestanding right to reasonable assistance of counsel” at the first stage of postconviction proceedings such that he should be allowed to raise issues of unreasonable  assistance of retained postconviction counsel. We affirm.

5. Criminal Law: Affirmed in part, and remanded: Trial court action in "suspending" prison sentence while defendant received drug treatment following plea of guilty did not prohibit trial court from revoking defendant's bond and sending him to prison in connection with initial sentence, where passage of time (five and one half months) did not deprive the trial court of jurisdiction, but matter remanded for strict compliance with Supreme Court Rule 604(d). Lytton, J. (Wright, J., sp. concurring).

No. 2015 IL App (3d) 140204  People v. Strickland  Filed 12-1-15 (TJJ)


Defendant, Tony Strickland, appeals from his sentence of six years' imprisonment, arguing that: (1) the trial court's indefinite suspension of defendant's sentence left the court without jurisdiction to execute the sentence; and (2) the case must be remanded  for strict compliance with Illinois Supreme Court Rule 604(d) (eff. Dec. 11, 2014). We affirm in part, reverse in part, and remand for: (1) the filing of a compliant Rule 604(d) certificate; (2) the filing of a new postplea motion, if counsel concludes that a  new motion is necessary; and (3) a new motion hearing.

6. Sexually Violent Persons Commitment Act: Affirmed: Request by previously adjudicated sexually violent person in petitioning for discharge and seeking appointment of an expert 14 days after trial court ruling that no probable cause existed to determine that respondent was not sexually violent, was properly denied by trial court, as by statute respondent's motions had to be filed before the trial court ruling on State motion for finding of no probable cause, since that was legislature's intent by virtue of the manner in which the Act was written (and amended). Welch, J.

No. 2015 IL App (5th) 140566  In re Commitment of Simons  Filed 12-1-15 (TJJ)


The respondent, Stephen Simons, a sexually violent person (SVP) committed to the Department of Human Services (DHS), appeals the decision of the circuit court of Madison County dismissing his petition for discharge and motion to appoint an expert. For the following reasons, we affirm.