Illinois Supreme and
Appellate Court Case Summaries
By Laurence J.
Dunford (LJD), Robert Clifford( RJC)
and Timothy J.
Joyce(TJJ)
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3 Appellate Cases Posted 6-17-13
1. Criminal Law/sentencing: Affirmed: Here, given all of the
facts presented, a 120-year sentence, which is the maximum that
could have been imposed, was not excessive. The evidence reveals
that defendant has been a criminal for more than half of his
life. Because of the abundance of aggravating factors, the trial
court did not abuse its discretion in sentencing defendant.
Although Crt. agreed that an opportunity for rehabilitation
should be granted in most cases, the trial court found that the
circumstances here dictated otherwise. App. Crt. cannot conclude
that the trial court’s assessment constituted an abuse of
discretion. Hutchinson, J.
No. 2013 IL App (2d) 111083 People
v. McGowan Filed 6-17-13 (RJC)
Following a jury trial, defendant was found guilty of two counts
of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2),
(a)(5) (West 2010)), aggravated battery to a senior citizen (720
ILCS 5/12-4.6(a) (West 2010)), and home invasion (720 ILCS
5/12-11(a)(2) (West 2010)). In finding defendant guilty of
aggravated criminal sexual assault and home invasion, the jury
determined that the commission of those offenses was accompanied
by exceptionally brutal or heinous behavior indicative of wanton
cruelty (see 730 ILCS 5/5-5-3.2(b)(2) (West 2010)). Following a
sentencing hearing, the trial court vacated defendant’s conviction
of aggravated battery to a senior citizen, finding it a lesser
included offense of aggravated criminal sexual assault; sentenced
defendant to 60 years’ imprisonment for home invasion; merged the
two convictions of aggravated criminal sexual assault; and
sentenced defendant to a consecutive term of 60 years’
imprisonment for aggravated criminal sexual assault. Defendant
moved the trial court to reconsider his sentence, arguing, among
other things, that his aggregate sentence was excessive. The trial
court denied the motion, and this timely appeal followed. We
affirm.
2. Class Actions: Reversed and remanded: As a result of
applying the improper legal standard, the court erred in its
finding that defendant was liable for all fax advertisements
sent on its behalf by B2B, which exceeded the scope of its
authority to send faxes to small electric motor repair and
service companies. This plaintiff has not stated a valid claim
against this defendant and, therefore, is not an adequate class
representative of the March 2006 fax recipients. We also find
plaintiff is not an appropriate class representative for those
who received unsolicited faxes from defendant in December 2006.
As a result, the circuit court abused its discretion by granting
class certification. Based on this ruling, we conclude the issue
of whether plaintiff’s counsel is adequate to represent the
class is moot. Delort, J.
No. 2013 IL App (1st) 112566 Uesco
Industries, Inc. v. Poolman of Wisconsin, Inc.
Filed 6-17-13 (RJC)
In this lawsuit, brought by a “junk fax” recipient, we are called
upon to determine whether the circuit court properly granted class
certification. Reversed and remanded.
3. Workers' Compensation: Affirmed: Claimant proved that her
injury arose out of her employment. Pursuant to the Act,
the employer must adjust the medical bills to conform to the fee
schedule of section 8.2 of the Act. The Commission's
decision ordering the employer to "pay any unpaid, related
medical expenses according to the fee schedule and *** provide
documentation with regard to said fee schedule payment
calculations to Petitioner" complies with the statutorily
mandated procedures set forth in the Act. Therefore, we need not
remand to the Commission for a determination of a dollar amount
owed to claimant pursuant to the medical fee schedule. Harris,
J.
No. 2013 IL App (4th) 120219WC Springfield
Urban League v. The Illinois Workers' Compensation Commission
Filed 4-23-13 (RJC)
On February 22, 2008, claimant, Cass Kohlrus, filed an application
for adjustment of claim pursuant to the Workers' Compensation Act
(Act) (820 ILCS 305/1 to 30 (West 2006)), seeking benefits from
the employer, Springfield Urban League, for injuries suffered to
her left leg on January 2, 2008. The arbitrator awarded claimant
temporary total disability (TTD) benefits, permanent partial
disability (PPD) benefits and $50,328.90 for medical services. The
employer filed a petition for review of the arbitrator's decision
before the Illinois Workers' Compensation Commission (Commission).
On review, the Commission modified the arbitrator's decision,
finding claimant failed to prove a causal connection between her
work accident on January 2, 2008, and her "knee injury (and
prospective total knee replacement) and aggravation of her
pre-existing degenerative arthritis." The Commission otherwise
affirmed and adopted the arbitrator's decision. Thereafter, the
employer filed a petition seeking judicial review in the circuit
court of Sangamon County and the court confirmed the Commission's
decision.
4 Appellate Cases Posted 6-14-13
1. Criminal Law: Affirmed: No abuse of discretion by the trial
court when weighing the prejudicial impact and the probative
value of the other crime evidence. No abuse of discretion in
allowing the admission of defendant's other crimes evidence or
the cross-examination of defendant regarding that
evidence. No case law with the same fact pattern as this
case, i.e., where a defendant's privilege against
self-incrimination was raised at the trial level and the court
allowed the State to cross-examine the defendant regarding prior
crimes for which the door was not "opened" on
cross-examination. The trial court did not violate
defendant's fifth amendment right in allowing cross-examination
regarding the R.G. offense because it properly discredited
defendant's testimony, was probative of his intent and motive,
and impeached his claim of consent. Lampkin, J.
No. 2013 IL App (1st) 111075 People
v. Stevens Filed 6-14-13 (RJC)
Following a bench trial, defendant, Mark Stevens, was convicted of
three counts of aggravated criminal sexual assault and sentenced
to 60 years' imprisonment. On appeal, defendant contends the trial
court abused its discretion in admitting proof of a prior
aggravated criminal sexual assault. Defendant additionally
contends the trial court erred in allowing the State to question
him on cross-examination regarding evidence of the prior
aggravated criminal sexual assault in violation of his right
against self-incrimination. Based on the following, we affirm.
2. Dept. of Financial and Professional Regulation: Affirmed:
This outcome is unquestionably harsh. Vali Mohammad had a
successful career and unblemished record as a self-employed
mortgage loan originator. Apparently none of the 533 loans he
helped generate since 2003 resulted in any complaint to the
Department. It is unfortunate that his conviction for a single
count of mail fraud, more than a decade ago, in an unrelated
profession, has led to a lifetime prohibition from the mortgage
loan field rather than the statute's seven-year prohibition for
lesser crimes. However, the law, as it is currently written,
dictates this result. " 'Where the words employed in a
legislative enactment are free from ambiguity or doubt, they
must be given effect by the courts even though the consequences
may be harsh, unjust, absurd or unwise. Such consequences can be
avoided only by a change of the law, not by judicial
construction ***.' " McBride, J.
No. 2013 IL App (1st) 122151 Mohammad
v. The Department of Financial and Professional Regulation
Filed 6-14-13 (RJC)
Plaintiff Mohammad Vali Mohammad was a registered mortgage loan
originator with defendant Illinois Department of Financial and
Professional Regulation (Department) when he applied for license
renewal and disclosed that he had been convicted of mail fraud in
2000. The Department disciplined Vali Mohammad by suspending his
license for 120 days, fining him $1,000, and placing him on two
years' probation; however, Vali Mohammad completed the discipline
without incident and the Department renewed his annual license in
2007, 2008, and 2009. At issue here is the Department's denial of
Vali Mohammad's 2010 application for renewal based on a 2009
amendment to the Residential Mortgage License Act of 1987 (205
ILCS 635/7-3 (West 2010)) (Mortgage License Act), which indicates
individuals with felony convictions for crimes involving "fraud"
are ineligible for mortgage loan originator licensing. Vali
Mohammad challenged the Department's denial in an administrative
proceeding, arguing in part that his state and federal
constitutional rights were being violated, but he was unsuccessful
in that proceeding as well as in an administrative review action
in the circuit court of Cook County. He appeals, contending the
2009 law should not be applied retroactively.
3. Illinois Labor Relations Board,: Affirmed: The court was
not left with the definite and firm conviction that the Board
was mistaken in concluding supervising investigators not only
direct their subordinates, but also exercise significant
discretionary authority that affects wages, discipline and other
working conditions likely to fall within the scope of union
representation. Accordingly, the Board's decision was not
clearly erroneous. Given the disposition of this issue, no need
to reach the Union's contention that supervising investigators
are not managerial employees under the Act. Reyes, J.
No. 2013 IL App (1st) 120279 Service
Employees International Union v. Illinois Labor Relations
Board Filed 6-14-13 (RJC)
Petitioner, Service Employees International Union, Local 73
(Union), brings this action for direct review of a decision by the
Illinois Labor Relations Board, Local Panel (Board), denying the
representation-certification petition brought by the Union to
represent supervising investigators employed by the City of
Chicago's (City) Independent Police Review Authority (IPRA). The
Board rejected the administrative law judge's (ALJ)
recommendation, concluding the supervising investigators were
supervisors within the meaning of section 3(r) of the Illinois
Public Labor Relations Act (Act) (5 ILCS 315/3(r) (West 2010)). On
appeal, the Union contends there are no indicia of supervisory
authority in this case, in particular that supervising
investigators do not "direct" employees within the meaning of the
Act. For the following reasons, we conclude the Board's decision
was not clearly erroneous.
4. Criminal Law: Vacated and remanded: The trial court was
left with no sufficient basis to find that anyone other than
defendant personally discharged the firearm that caused
Bethell’s death. It was thus required to sentence defendant with
the 25-years to life enhancement, making 45 years the minimum
possible sentence. Because defendant was sentenced to less than
that amount, and was not admonished of the enhancement, his
sentence and the plea agreement that led to it are void.
Defendant’s sentence and plea agreement are void. Accordingly,
the judgment of the circuit court of Kane County is vacated and
the cause is remanded to the trial court with directions to
allow defendant to withdraw his guilty plea and proceed to trial
if he chooses to do so. Zenoff, J.
No. 2013 IL App (2d) 111089 People
v. Deng Filed 6-14-13 (RJC)
Defendant, Gareng Deng, appeals his sentence of 35 years’
incarceration for first-degree murder (720 ILCS 5/9-1(a)(3) (West
2004)). He contends that his sentence and plea agreement are void
because he did not receive, and was not admonished about, a
mandatory sentencing enhancement. We agree. Accordingly, we vacate
the sentence and remand to allow defendant to withdraw his plea.
6 Appellate Cases Posted 6-13-13
1. Healthcare Liens/Uninsured Motorist Benefits: Affirmed:
Health care service providers were entitled to a lien on the
proceeds of uninsured motorist coverage and under-insured
motorist coverage, and trial court properly granted providers'
claims totaling 40% of available proceeds under under-insured
and uninsured coverage settlement in connection with traffic
accident. Chapman, J.
No. 2013 IL App (5th) 120017 McRoberts
v. Porter Filed 6-13-13 (TJJ)
The only issue presented in this case is whether a health care
services lien attaches to underinsured-motorist benefits.
Affirmed.
2. Sexually Violent Persons Commitment Act: Reversed and
remanded: Trial court erred in refusing to conduct Frye hearing
with respect to State expert's diagnosis of respondent as
suffering from the mental disorder of "paraphilia not otherwise
specified, attracted to early pubescent males," as no evidence
was presented to show that that diagnosis was generally accepted
in the scientific community; matter remanded for trial court to
conduct Frye hearing, and, if necessary thereafter, a
new trial. Hyman, J.
No. 2013 IL App (1st) 111556 In
re The Detention of New Filed 6-12-13 (TJJ)
Involuntary commitment under the Illinois Sexually Violent
Persons Commitment Act is not punishment for the respondent's
past crimes, nor should it be. The proceeding under the SVP Act
is a statutorily created civil action that considers the
respondent's current mental state to determine the
likelihood of respondent engaging in further acts of sexual
violence on his or her release. Essentially, the respondent's
liberty is tied to an assessment of the mental disorder and the
risk of future sexual offenses. These cases turn on expert
testimony. Respondent John New Jr. appeals his commitment
raising four issues: (i) whether the court should have held a
Frye hearing to determine whether the State's expert testimony
regarding his diagnosis was admissible; (ii) whether the
State improperly presented evidence of certain psychological
conditions not asserted in its petition; (iii) whether the SVP
Act is constitutional as applied to New; and (iv) whether the
evidence at trial supported New's commitment as a sexually
violent person. Finding the trial court erred by failing to
conduct the Frye hearing, we reverse and remand.
3. Asset Forfeiture: Affirmed: Fourth amendment exclusionary
rule applies to asset forfeiture proceedings, and trial court
properly granted claimant's motion to suppress evidence from
police search of claimant's suitcase where no probable cause for
search existed and claimant purportedly did not consent to
search; trial court properly ordered return of funds totaling
$280,020 to claimant. Neville, J.
No. 2013 IL App (1st) 111820 People
v. $280,020 in United States Currency Filed 6-12-13
(TJJ)
Police officers found cellophane wrapped bundles of cash in
Shayne Kolody's luggage at Union Station. The officers seized
the luggage and the State filed a complaint under the Drug Asset
Forfeiture Procedure Act, alleging that either someone intended
to use the cash to purchase narcotics, or someone received
the cash in exchange for narcotics. Shayne filed a claim for the
cash. He moved to suppress the evidence discovered in the search
of his luggage. During a trial at which Shayne and police
officers testified, the trial court granted the motion to
suppress, based on its findings that Shayne did not consent to
the search and that the police lacked probable cause to search
the luggage. The trial court found that without the evidence
discovered in the search, the State lacked any basis for
forfeiture of the cash. The court ordered the State to return
the cash to Shayne. On appeal, the State argues: (1) Shayne
lacked standing to claim the cash; (2) the court erred when it
suppressed the evidence; and (3) the State showed probable
cause for forfeiture of the cash. We find: (1) Shayne's
possession of the cash at the time of the seizure gave him
standing to claim the cash; (2) Shayne's testimony adequately
supports the trial court's decision to suppress the evidence;
and (3) without the suppressed evidence, the State cannot
prove its case for forfeiture of the cash. Accordingly, we
affirm the trial court's judgment.
4. Sale of Business/Sales Commissions: Affirmed in part,
reversed in part, and remanded: Trial court properly awarded, in
bench trial, damages to plaintiff who sold business to defendant
and was thereafter entitled to certain sales commissions, but
erred in refusing plaintiff's claim for damages during 34-month
period for which plaintiff produced no documentary evidence,
where plaintiff's failure resulted from defendant's failure to
produce certain of those records; cause remanded to permit
plaintiff to present evidence relating to that part of his
claim. Hyman, J.
No. 2013 IL App (1st) 112455 Kay
v. Prolix Packaging, Inc. Filed 6-12-13 (TJJ)
After defendant Prolix Packaging, Inc. purchased the assets of
plaintiff's business through an assignment for the benefit of
creditors, Prolix employed plaintiff Barry Kay as a salesperson.
Some five years later Prolix sold its business to a third party
and, thereafter, Kay sued Prolix for allegedly failing to
pay certain sales commissions under the employment agreement.
The focal point of this appeal is whether or not Prolix owes Kay
for his commissions, and if so, how much. We hold the trial
court erred by not allowing Kay to introduce evidence of
estimates of his unpaid commissions based on his past sales for
the 34 months in which no summary documents were produced. This
evidence is part of Kay's offer of proof and exhibits and,
therefore, we remand the case to allow plaintiff to
further testify and defendant to defend on the sole issue of the
amount of damages for the 34 months.
5. Criminal Law: Affirmed: In attempt murder prosecution where
defendant was alleged to have stabbed his girlfriend, trial
court properly permitted State to introduce evidence that four
months earlier defendant had crashed his car into the
girlfriend's car and punched her in the face; evidence was
admissible to show motive and intent, and probative value
outweighed prejudicial effect. Hyman, J.
No. 2013 IL App (1st) 113366 People
v. Nash Filed 6-12-13 (TJJ)
After the defendant Keith Nash and his girlfriend Denise Rules
had argued, Denise sought to get away from Nash in a car driven
by her brother when defendant suddenly reached through the open
car window and stabbed her. Nash was charged with
attempted first degree murder and aggravated domestic battery. A
bench trial resulted in a conviction of Nash for attempted first
degree murder. The trial court sentenced Nash to prison for 7 ½
years. On appeal, Nash contends that he was denied a fair
trial when the trial court permitted the State to
introduce other-crimes evidence that took place less than four
months earlier. Nash argued that the prior altercation was not
relevant to the case at bar, and that its prejudicial effect
outweighed any probative value of the evidence. The trial court
admitted the evidence as proof of Nash's state of mind, motive,
and intent, but not for propensity. The trial court also
determined that the probative value of the evidence was not
outweighed by the danger of unfair prejudice to Nash. We
affirm.
6. Workers' Compensation: Affirmed in part, reversed in part,
and remanded: Evidence was sufficient to sustain arbitrator's
decision that subsequent accident while employee worked for a
second and subsequent employer constituted an independent,
intervening cause that broke the connection between employee's
current condition and an earlier injury suffered while working
for a previous employer, but arbitrator conclusion that employee
not entitled to an award of permanency with respect to first
injury reversed. Hudson, J.
No. 2013 IL App (5th) 120043WC National
Freight Industries v. The Illinois Workers' Compensation
Commission Filed 6-12-13 (TJJ)
For the reasons set forth above, we conclude that the Commission
properly determined that the injury claimant sustained on
December 4, 2008, while working for National Freight constituted
an independent, intervening cause breaking the causal
connection between claimant’s current condition of ill-being and
the injury he sustained on November 6, 2006, while working for
Fischer Lumber. However, we vacate the Commission’s finding that
claimant is not entitled to a permanency award from
Fischer Lumber and remand this cause for further proceedings
pursuant to Thomas, 78 Ill. 2d 327. Accordingly, the judgment of
the circuit court of Madison County, which confirmed the
decisions of the Commission, is affirmed in part, vacated in
part, and remanded.
5 Appellate Cases Posted 6-11-13
1. Employment Law: Affirmed: Employee's action against
employer for intentional infliction of emotional distress
stemming from allegations relating to sexual orientation
properly dismissed by trial court, as claim is preempted by
Illinois Human Rights Act, and was subject to the provisions of
the Workers Compensation Act exclusivity provisions, and was
properly dismissed. Harris, J.
No. 2013 IL App (1st) 122483 Schroeder
v. RGIS, Inc. Filed 6-11-13 (TJJ)
Plaintiff, Frederick Schroeder, brought a claim of intentional
infliction of emotional distress against his former employer,
defendant RGIS. Defendant filed a combined motion to dismiss,
brought pursuant to section 2-619.1 of the Illinois Code of
Civil Procedure, arguing, among other reasons, that
plaintiff's complaint must be dismissed pursuant to section
2-619 of the Code because his claim of intentional infliction of
emotional distress was preempted and, thus, barred by the
Illinois Human Rights Act and by the exclusivity provision
of the Illinois Workers' Compensation Act. The circuit court
granted defendant's motion to dismiss. The following issues are
before this court: (1) whether plaintiff is able to establish,
independent of any duties created by the Human Rights Act,
the elements of the tort of intentional infliction of emotional
distress; and (2) whether the exclusivity provision of the
Workers' Compensation Act bars plaintiff's claims. We hold that
the circuit court properly dismissed plaintiff's second
amended complaint because his tort claim of intentional
infliction of emotional distress is inextricably linked to a
civil rights violation. Therefore, plaintiff's claim is
preempted and, thus, barred by the Human Rights Act. We further
hold that plaintiff''s alleged injury is compensable under
the Workers' Compensation Act. Therefore, plaintiff's claim is
also preempted and, thus, barred by the Workers' Compensation
Act. Accordingly, the circuit court properly dismissed
plaintiff's second amended complaint.
2. Criminal Law: Reversed and remanded: Defendant was charged
with possession of controlled substance with intent to deliver,
and armed violence based on the offense of possession of
controlled substance. When trial court found defendant guilty of
possession of controlled substance, and uttered "Not guilty" as
to armed violence charge based upon trial court's mistaken
belief that armed violence charge was based upon underlying
offense of possession of controlled substance with intent to
deliver, rather than actual charge based upon possession only,
trial court's attempt to rectify "mistake" and find defendant
guilty of armed violence as charged was barred by double
jeopardy. Remanded for re-sentencing on possession charge.
Zenoff, J.
No. 2013 IL App (2d) 110191 People
v. Cervantes Filed 6-11-13 (TJJ)
Defendant, Jose L. Cervantes, appeals from an order of the
circuit court of Kane County finding him guilty of the offense
of armed violence (720 ILCS 5/33A-2(a) (West 2008)) following a
trial without a jury. We reverse and remand.
3. Criminal Law: Vacated in part and affirmed in part:
Restitution was properly "re-ordered" in connection with
re-sentencing on revocation of probation for burglary offense,
but part of restitution order as to complainant in previously
dismissed case vacated, and defendant's posted bond money was
improperly ordered to be applied "first" to restitution;
applicable statute required bond to be applied first to court
costs and any fine imposed. Holdridge, J. (Wright, concurring in
part and dissenting in part).
No. 2013 IL App (3d) 110474 People
v. Moore Filed 6-11-13 (TJJ)
Defendant, Jarmarco Moore, pled guilty to two counts of burglary
and was sentenced to probation. Thereafter, his probation was
revoked, and the trial court sentenced him to four years in
prison and ordered that his bond money be applied first to
restitution. Defendant appeals, arguing that the portion of the
sentencing order applying his bond first to restitution is void.
Specifically, defendant contends that: (1) he was not under any
obligation to pay restitution after his probation was revoked;
(2) restitution on one count was not supported by a valid
agreement to pay; and (3) the restitution statute does not
authorize applying bond to restitution before court costs. We
vacate the portion of the sentencing order applying bond first
to restitution, reduce defendant's restitution, and
otherwise affirm defendant's conviction and sentence.
4. Criminal Law: Reversed: In a case of apparent first
impression, trial court ruling denying defendant's motion to
suppress evidence was reversed, where Appellate Court determined
that Section 3-413 of Illinois Vehicle Code relating to
requirement that license plates be "free of any materials that
would obstruct the visibility of the plate," and the purported
justification for the stop of defendant's car, applied only to
materials affixed to the plate, and not to a trailer hitch
allegedly obstructing the officer's view of the plate numbers.
Knecht, J.
No. 2013 IL App (4th) 120217 People
v. Gaytan Filed 5-21-13 (TJJ)
In September 2010, a McLean County grand jury indicted
defendant, Jose Gaytan, for unlawful possession of cannabis with
intent to deliver and unlawful possession of cannabis.
Defendant filed a motion to suppress evidence, arguing the
police officers did not have articulable suspicion a crime had
been committed or was being committed when they stopped
defendant for an obstructed license plate. In October 2011, the
trial court held a stipulated bench trial and found
defendant guilty. The court sentenced defendant to 30 months'
probation, including a condition that he serve 120 days in the
county jail. On appeal, defendant argues the trial court
improperly denied the motion to suppress evidence. Defendant
asserts section 3-413(b) of the Illinois Vehicle Code only
prohibits materials physically attached to the registration
plate itself and not obstructions, such as a trailer hitch, not
attached to the registration plate. We agree and reverse.
5. Criminal Law: Affirmed: Trial court did not abuse its
discretion by refusing a continuance on the day of trial for
defendant to secure substitute counsel; trial court's failure to
comply properly with Supreme Court Rule 431 (b) was not plain
error requiring a new trial; prosecutor's closing argument was
not improper; and trial court response to jury to continue
deliberations in response to jury note was proper. Holder White,
J.
No. 2013 IL App (4th) 120724 People
v. Curry Filed 6-11-13 (TJJ)
Following a January 28, 2012, encounter with police, defendant,
David Curry, was arrested and subsequently prosecuted for (1)
aggravated driving under the influence, (2) driving with an
expired registration, and (3) improper lane usage. On the
scheduled jury trial date, defendant filed a motion to
continue, seeking to obtain new counsel. The trial court denied
defendant's motion as untimely, and defendant's trial commenced
the following day. Following defendant's July 2012 trial, the
jury found defendant guilty of operating a motor vehicle
with an expired registration, improper lane usage, and DUI.
Defendant appeals, arguing (1) the trial court abused its
discretion by denying him his right to counsel of choice, (2)
the court failed to comply with Illinois Supreme Court
Rule 431(b) during voir dire, (3) the State committed reversible
error by making several improper remarks during closing
argument, (4) the court erred by instructing the jury to
continue deliberating after the jury indicated it had reached an
impasse, and (5) defendant received ineffective assistance of
trial counsel. We affirm.
2 Appellate Cases Posted 6-10-13
1. Mortgage Foreclosure: Affirmed: By "filing a motion
seeking relief from the trial court and recognizing its
jurisdiction, defendants waive[s] all objections to the trial
court’s jurisdiction.” An abuse of discretion occurs when
the trial court "acts arbitrarily without the employment of
conscientious judgment or if its decision exceeds the bounds of
reason and ignores principles of law such that substantial
prejudice has resulted." The activity of foreclosing on
[a] property pursuant to a deed of trust is not the collection
of a debt within the meaning of the FDCPA" because foreclosure
by a trustee is not an attempt to collect funds from a debtor.
McBride, J.
No. 2013 IL App (1st) 121700 Aurora
Loan
Services, LLC v. Kmieck Filed 6-07-13 (LJD)
Plaintiff, Aurora Loan Services, LLC (Aurora), filed a mortgage
foreclosure complaint against Jozef Kmiecik (defendant) and
Elzbieta Kmiecik1 in January 2010. Defendant filed an answer to
Aurora's complaint which was untimely and, in October 2010, the
trial court entered an order of default and judgment of
foreclosure against defendant. After the court entered an order
approving the sale and distribution of the property at issue,
defendant filed a combined motion to quash and motion to vacate
all orders pursuant to section 2-1301 of the Code of Civil
Procedure (Code) (735 ILCS 5/2-1301 (West 2010)). The trial court
denied both motions. On appeal, defendant contends that: (1) the
trial court erred in denying the motion to quash because the
affidavit of the special process server showed the
individual served was between the ages of 26 and 30 years while
defendant is 61 years old; and (2) the trial court's judgments are
void because Aurora did not register as a collection agency with
the State as required by the Collection Agency Act (Act) (225 ILCS
425/1 et seq. (West 2010)). We affirm.
2. Criminal Law: Affirmed: Where a private individual,
not “act[ing] as an ‘instrument’ or agent of the state”
delivers evidence to the police, there has been no seizure under
the fourth amendment. If, then, the incriminating nature of the
computer disks had been immediately apparent to the police, no
justification would have been needed for further police action
with respect to them. The fourth amendment does not
prohibit the government from using information discovered by a
private search, because the private search has already
frustrated any expectation that the information will remain
private. Where a private search has already occurred, the
question is whether the police search exceeded the scope of the
private search. When the prosecution seeks to justify a
warrantless search by proof of voluntary consent, it is not
limited to proof that consent was given by the defendant, but
may show that permission to search was obtained from a third
party who possessed common authority over or other sufficient
relationship to the premises or effects sought to be
inspected. Common authority may be actual or
apparent. In assessing whether apparent authority exists,
the court determines “whether the circumstances known to the
police at the time of the entry or opening would warrant a
person of reasonable caution in the belief that the consenting
party had authority over the premises or effects.” Birkett,
J.
No. 2013 IL App (2nd) 120392 People
v.
Lyons Filed 6-10-13 (LJD)
Following a bench trial, defendant, Kevin Lyons, was convicted of
possession of child pornography. He appeals the denial of his
motion to suppress evidence in the form of electronic media that
his wife gathered from their home and delivered to the police. For
the following reasons, we affirm.
3 Appellate Cases Posted 6-7-13
1. Criminal Law: Affirmed: Trial court properly denied
defendant's pre-trial motion to suppress evidence on fourth
amendment grounds, where officer had probable cause to arrest
passenger who sought to leave area after car he was in was
properly stopped, in violation of officer's order, and search of
defendant's person proper as an incident to custodial arrest;
and trial counsel not ineffective for failing to file motion to
suppress defendant's post-arrest, pre Miranda statement
to police, as such a motion would not have altered outcome of
trial. Birkett, J. (Opinion of May 6, 2013, modified upon denial
of rehearing).
No. 2013 IL App (2d) 111084 People
v.
Brannon Filed 6-7-13 (TJJ)
Defendant, Jarriet E. Brannon, appeals from his convictions of
unlawful possession of a controlled substance and unlawful
possession of cannabis. He contends that the trial court erred
in denying his motion to suppress physical evidence. He
further maintains that his trial counsel was ineffective
for failing to move to suppress statements he made to the police
both before and after he was given Miranda warnings. Because the
trial court properly denied defendant’s motion to suppress and
because defendant’s trial counsel was not ineffective for
failing to seek suppression of his statements, we affirm.
2. Domestic Relations Law: Affirmed: Trial court order
requiring husband to pay wife's share of cost of psychologist
appointed by trial court after husband filed motion to modify
child custody upheld as a taxable "cost," even though husband
voluntarily dismissed his motion thereafter. McLaren, J.
(Zenoff, J., dissenting).
No. 2013 IL App (2d) 120523 In
re
Marriage of Tiballi Filed 6-7-13 (TJJ)
In September 2005, the circuit court of Kane County entered a
judgment dissolving the marriage of Robert N. Tiballi and Sheila
J. Ilagan Tiballi. This appeal stems from a child custody
dispute that arose years later. Robert filed a petition to
modify custody, but the petition was voluntarily dismissed
without prejudice. The trial court ordered Robert to pay the
fees of a psychologist appointed by the trial court pursuant to
section 604(b) of the Illinois Marriage and Dissolution of
Marriage Act (Act) (750 ILCS 5/604(b) (West Supp. 2011)).
Robert argues on appeal that the fees were not taxable as costs
upon the voluntary dismissal of his petition. We disagree and
and affirm.
3. Juvenile Abuse and Neglect: Reversed and remanded: Trial
court orders regarding custody of child determined to be an
"enrolled member of the Seminole Indian Tribe" reversed where
record failed to show that trial court complied properly with
federal Indian Child Welfare Act of 1978. Lytton, J.
No. 2013 IL App (3d) 120969 In
re
K.T. Filed 6-7-13 (TJJ)
Respondent is the mother of K.T. K.T. is a member of the
Seminole Indian tribe. The State filed a juvenile petition
alleging that K.T. was neglected because her environment was
injurious to her welfare, in part, as a result of respondent's
behavior. At respondent's combined adjudication and
dispositional hearing, the Illinois Department of Children and
Family Services notified the court that K.T.'s Indian tribe was
interested in becoming a party to the case. Respondent then
moved for a continuance so that the tribe could enter the case.
The trial court denied respondent's motion. We reverse and
remand.
4 Appellate Cases Posted 6-6-13
1. Municipal Employment Law: Affirmed: Decision by City
administrative hearing officer that defendant police officer did
not timely report his divorce to City in order to have former
spouse removed from insurance policy upheld; hearing officer
could properly consider affidavit "testimony"; hearing officer
did not shift burden of proof to officer; and notifications to
all employees regarding necessity to advise City of divorce
within 30 days were not vague or inconsistent. Lavin, J.
No. 2013 IL App (1st) 120987 Aich
v.
City of Chicago Filed 6-6-13 (TJJ)
This appeal arises from a determination of the department of
administrative hearings (DOAH) of the City of Chicago (the City)
that petitioner Abraham Aich, a Chicago police officer, violated
the Municipal Code of Chicago by failing to reimburse the City
for expenses incurred when petitioner failed to timely report to
the City that he had obtained a divorce from Sumaya Aich and
failed to remove her as a beneficiary of his insurance benefits.
On appeal, petitioner asserts that the administrative law
judge (ALJ) improperly considered hearsay evidence and
transferred the City's burden of proof to petitioner. He also
contends that the ALJ's findings were against the manifest
weight of the evidence. We affirm.
2. Federal Employer Liability Act: Affirmed: Trial court
properly refused defendant's requested special interrogatory to
jury in FELA action, where proposed instruction spoke to only
one of three alleged claims of manner in which defendant
breached its duty to plaintiff. Epstein, J.
No. 2013 IL App (1st) 121050 Goranowski
v.
Northeast Illinois Regional Commuter Railroad Corporation
Filed
6-6-13 (TJJ)
Plaintiff Clarence Goranowski was injured while attempting to
install a door, by himself, on a Metra train car. He brought
suit under the Federal Employers’ Liability Act, alleging that
defendant Northeast Illinois Regional Commuter Railroad
Corporation, d/b/a Metra, was negligent in one or more of
the following ways: failing to provide a reasonably safe work
environment, failing to provide sufficient manpower to reinstall
the lavatory door, or failing to act on Goranowski’s requests
for assistance. The jury returned a verdict in favor of
Goranowski for $545,000, later reduced to $272,500 based on the
jury’s finding that he was 50% at fault. Metra now appeals,
arguing that the trial court erred when it declined to tender a
special interrogatory to the jury. For the reasons that
follow, we affirm.
3. Criminal Law: Affirmed: Police officer who noted the strong
odor of cannabis emanating from the interior of a vehicle he had
lawfully stopped had the authority to search passenger's person,
and trial court order denying suppression of 43 grams of
cannabis found in passenger's shoe upheld. Steigmann, J.
No. 2013 IL App (4th) 110857 People
v.
Williams Filed 6-6-13 (TJJ)
In this case, we are asked to decide whether a police officer's
detecting the "strong odor of cannabis" emanating from the
interior of a lawfully stopped vehicle provides the police with
the probable cause and exigent circumstances necessary to
perform a warrantless search of a passenger in that
vehicle. We conclude that it does.
4. Tort Immunity: Reversed and remanded: Trial court grant of
summary judgment to defendant municipality in action where
plaintiff alleged injuries resulting from condition of municipal
street when she attempted to enter her lawfully parked vehicle
reversed, where trial court conclusion that plaintiff was not an
"intended user" of street was erroneous. Steigmann, J.
No. 2013 IL App (4th) 120957 DeMambro
v.
City of Springfield Filed 6-6-13 (TJJ)
This case, which is before us on appeal from the trial court's
decision to grant summary judgment in favor of defendant, the
City of Springfield (City), requires this court to determine
whether, as a matter of law, the plaintiff, Laura DeMambro, was
an "intended" user of the City property on which she was
injured pursuant to section 3-102(a) of the Local Governmental
and Governmental Employees Tort Immunity Act. Plaintiff injured
her ankle when she slipped into a pothole while attempting
to enter her vehicle, which was lawfully parked near the curb on
a city street. Because we conclude that plaintiff was an
"intended" user of the portion of the city street where she was
injured, we reverse and remand for further proceedings.
2 Appellate Cases Posted 6-05-13
1. Medical Negligence: Affirmed: Trial court grant of summary
judgment to defendant hospital in medical malpractice action
upheld where circumstances showed no genuine issue of material
fact existed with respect to whether two treating physicians who
allegedly caused plaintiff's injuries were actual or apparent
agents of hospital. Sterba, J.
No. 2013 IL App (1st) 121835 Frezados
v.
Ingalls Memorial Hospital Filed 6-5-13
Plaintiff-appellant John Frezados filed a complaint alleging
medical negligence against defendant-appellee Ingalls Memorial
Hospital, d/b/a Ingalls Family Care Center, Tinley Park
("defendant" or "Ingalls"), and defendants Sullivan Urgent Aid
Centers, Ltd., and Dr. John Olivieri. Specifically,
plaintiff alleged defendant was vicariously liable for the
negligent acts of Dr. Olivieri and Dr. Hassan Ibrahim, two of
his treating physicians. Defendant moved for summary judgment,
which was granted. On appeal, plaintiff contends that the
circuit court erred in granting summary judgment because genuine
issues of material fact exist concerning: (1) whether defendant
held out Drs. Olivieri and Ibrahim as its employees; and (2)
whether plaintiff's signature on a form that disclaimed
any employer-employee relationship between defendant and Drs.
Olivieri and Ibrahim precluded him from arguing that he
reasonably believed the doctors were employees of the hospital.
For the following reasons, we affirm.
2. Election Law: Affirmed: Electoral board rule setting a
maximum number of signatures on a candidate's nominating
petition, and a rule that all signatures after the set maximum
number would not be applicable toward required number, were not
unconstitutional, and petitions circulated by person who
garnered signatures for candidate both as a Democratic candidate
and as an independent for single office were properly
invalidated. Sterba, J.
No. 2013 IL App (1st) 130957 Wilson
v.
Municipal Officers Electoral Board for the City of Calumet
City Filed 6--5-13 (TJJ)
Plaintiff-appellant Brian Wilson filed nomination papers for the
office of mayor of Calumet City as a member of the Democratic
party for the consolidated primary election scheduled to be held
on February 26, 2013. After objections were filed to
Wilson's candidacy, Wilson withdrew his candidacy. Wilson
subsequently filed nomination papers for the same office as an
independent candidate for the consolidated election to be held
on April 9, 2013. Objections were again filed to Wilson's
candidacy and, following a public hearing, the
Municipal Officers Electoral Board for the City of Calumet City
(Board) found that Wilson's nominating papers were invalid
because he did not have the required minimum number of
signatures and because section 7-43(f) of the Illinois
Election Code (Code) (Pub. Act 97-681 (eff. Mar. 30, 2012)
(amending 10 ILCS 5/7-43(f) (West 2010)) prohibits a candidate
from running as a member of the Democratic party and as an
independent candidate in the same election cycle. The circuit
court affirmed the Board's findings. On appeal, Wilson contends
that the circuit court erred in affirming the Board's findings
because (1) the Board's rule relating to signatures submitted in
excess of the maximum allowed is arbitrary and
unconstitutional, (2) there is no prohibition against a voter
signing a nominating petition for a party in the primary and
then signing a petition for an independent candidate for the
same office in the same election, (3) there is no prohibition
against an individual circulating nominating petitions for
a party candidate in a consolidated primary and then for an
independent candidate in a consolidated election, and (4) the
provisions of section 7-43(f) do not apply to consolidated
primaries and consolidated elections. On April 3, 2013, this
court entered a brief order affirming the judgment of the
circuit court. The order stated that an opinion or order of the
court would follow at a later date. For the reasons that follow,
we affirm the judgment of the circuit court of Cook County.
2 Appellate Cases Posted 6-4-13
1. Criminal Law: Affirmed: In sexual assault prosecution,
defendant's attorney was not ineffective for failing to
investigate defendant's alleged neurological and cognitive
disabilities as a basis to suppress defendant's post-arrest
statements where claim of disabilities was speculative,
defendant's educational accomplishments belied the claim, and
there was "literally" no evidence that defendant's will was
overborne in recorded statements of defendant to police. Quinn,
J.
No. 2013 IL App (1st) 113030 People
v.
Cooper Filed 6-4-13 (TJJ)
Following a jury trial, defendant Christopher Cooper was found
guilty of four counts of criminal sexual assault and four counts
of predatory criminal sexual assault. At sentencing, the court
merged defendant's convictions and sentenced him to
consecutive terms of 8 years' imprisonment on the four
counts of predatory criminal sexual assault, for an aggregate
term of 32 years' imprisonment. On appeal, defendant contends
that: (1) trial counsel was ineffective for failing to
investigate the extent of his neurological and cognitive
impairments and their effect on his ability to knowingly and
competently waive his Miranda rights; (2) trial counsel was
ineffective for failing to present a meaningful pretrial
challenge to the voluntariness of his confession; (3)
trial counsel was ineffective for failing to call
available witnesses; (4) he was denied a fair trial when the
State was allowed to present evidence that the complaining
witness was forced to undergo an abortion; (5) he was denied a
fair trial when the State inferred to the jury that he
sexually abused other adopted siblings; and (6) the trial court
erred in giving a pattern jury instruction in its modified form.
For the following reasons, we affirm.
2. Election Law: Affirmed: Decision of municipal elections
board upheld denying objector's objection to candidate's
nominating petitions where candidate for village trustee resided
in Cook County portion of municipality (Roselle) but wrongly
filed statement of economic interests in Cook County rather than
properly in DuPage County, as candidate substantially complied
with candidacy requirements. McLaren, J.
No. 2013 IL App (2d) 130139 Atkinson
v.
Roddy Filed 6-4-13 (TJJ)
Petitioner, Kory Atkinson, appeals from an order of the trial
court affirming the decision of the Village of Roselle Municipal
Officers’ Electoral Board (Board). The Board overruled
objections to the nomination papers of Robert D. Roddy and
Carrie Dahlstrom (Candidates), candidates for the
office of trustee of the Village of Roselle (Roselle) in the
April 9, 2013, election. This court granted petitioner’s motion
to accelerate the appeal. For the reasons that follow, we
dismiss in part and affirm in part.
4 Appellate Cases Posted 6-3-13
1. Criminal Law: Affirmed: Defendant did not dispute his prior
felony conviction, so the the relevant inquiry to sustain his
conviction is whether the State proved that he knowingly
possessed the handgun. In viewing the evidence in the
light most favorable to the State, the evidence sufficiently
corroborated the defendant's confession. The corpus
delicti of the offense was established through both the
recovered handgun and the defendant's incriminating statement to
Officer. The record supports the trial court's finding
that, in balancing the State's interest in nondisclosure against
the defendant's right to prepare a defense, disclosure was not
warranted. The defendant was in custody for the purposes
of Miranda at the time Officer Dennis posed his question at the
residence regarding the ownership of the handgun. The
defendant's initial incriminating statement to the police at the
apartment was obtained in violation of Miranda. The
error was harmless where the defendant subsequently made a
second incriminating statement regarding his ownership of the
handgun after he was advised of his Miranda rights at the police
station. Cunningham, J.
No. 2013 IL App (1st) 111660 People
v.
Hannah Filed 6-03-13 (RJC)
Following a bench trial in the circuit court of Cook County,
defendant Laroyal Hannah was convicted of unlawful possession of a
weapon by a felon and sentenced to two years of probation. On
direct appeal, the defendant argues that: (1) the State failed to
prove the corpus delicti of the
offense; (2) the trial court erred in denying his pretrial motion
to disclose the identity of the confidential informant; and (3)
the trial court erred in denying his pretrial motion to suppress
his incriminating statement to the police. For the following
reasons, we affirm the judgment of the
circuit court of Cook County.
2. Administrative review: Law: Affirmed in part and reversed
in part and remanded: Whether the Commission had jurisdiction
over Welch's discharge appeal depends on whether Welch was a
"certified" or "probationary" employee at the time of her
discharge. Because Welch was not discharged prior to her
certification date, she "satisfactorily completed" her
probationary period and automatically became a certified
employee on August 12, 2010. the Commission had
jurisdiction. The Commission's determination that Welch's
conduct did not warrant discharge was not against the manifest
weight of the evidence. The Commission's decision to reduce
Welch's suspension from 60 days to 14 days was conclusory and
arbitrary. Harris, J. with Turner, J. dissenting.
No. 2013 IL App (4th) 120114 The
Department
of Corrections v. Welch Filed 4-10-13
(RJC)
Effective August 26, 2010, the Illinois Department of Corrections
(Department) discharged Mariah Welch for cause. Following a March
2011 hearing on the merits of Welch's discharge, the
administrative law judge (ALJ) found that Welch had violated the
Department's rules but proposed a 60-day suspension was
appropriate in lieu of discharge. In May 2011, the Illinois Civil
Service Commission (Commission) adopted the ALJ's proposal but
reduced the suspension period to 14 days. In January 2012, the
circuit court affirmed. ¶ 2 The Department appeals, arguing (1)
the Commission lacked jurisdiction to consider Welch's
administrative appeal because she was not a "certified employee"
when she was discharged; and (2) if the Commission had
jurisdiction, this court should find Welch was properly discharged
for cause and should reverse the Commission's decision on the
merits or, in the alternative, should reinstate the ALJ's 60-day
suspension recommendation because the Commission's decision to
reduce Welch's suspension from 60 to a 14 days was arbitrary,
unreasonable, and unrelated to the requirements of service. We
affirm in part, reverse in part, and remand with directions.
3. Workers' Compensation: Affirmed in part and reversed in
part and remanded: The Commission's finding on the issue of
causation was against the manifest weight of the evidence.
The Commission's finding that the claimant reached MMI as of
February 25, 2008, is contrary to the manifest weight of the
evidence. The claimant's refusal to participate in the RIC
program cannot be a basis for denying him further TTD benefits.
Furthermore, the RIC program is the only multidisciplinary
program that the claimant declined to participate in. The
employer did not suggest or approve any other multidisciplinary
program despite Dr. Koh's recommendation that an alternative
program be considered. The claimant cannot be faulted for his
failure to attend some unnamed, unapproved multidisciplinary
pain management program. Stewart, J. with Turner, J. specially
concurring in part and dissenting in part.
No. 2013 IL App (1st) 120469WC Kawa
v.
Illinois Workers' Compensation Commission
Filed
6-03-13 (RJC)
The claimant, Bryon Kawa, was employed as a launch engineer for
the employer, Ford Motor Co., when he was involved in a
job-related vehicle accident. As a result of the accident, the
claimant underwent treatments for injuries to his right shoulder,
right knee, and low back, and the claimant has experienced
continuous shoulder, back, and knee pain since the date of the
accident. After a hearing pursuant to section 19(b) of the
Workers' Compensation Act (the Act) (820 ILCS 305/19(b) (West
2010)), the arbitrator found that the claimant engaged in an
injurious practice, which both imperiled and retarded his
recovery, by declining to participate in a multidisciplinary pain
management program that included psychological treatments. The
claimant appealed the arbitrator's decision to the Commission. The
Commission affirmed and adopted the arbitrator's decision, except
that the Commission found that the claimant did not engage in an
injurious practice by declining to participate in the
multidisciplinary pain management program. The Commission found,
however, that the claimant had reached MMI because he "chose not
to avail himself of further treatment." The claimant appealed the
Commission's decision to the circuit court, and the circuit court
entered a judgment confirming the Commission's decision. The
claimant now appeals the circuit court's judgment.
4. Workers' Compensation: Reversed: The statute, under its
plain and ordinary language, does not contemplate multiple
figures to be computed and awarded at future dates. Therefore,
the Commission's interpretation of section 8(d)(1), that it
requires the wage differential to be determined as of the date
of the arbitration hearing is correct. The Commission's
decision to award the claimant $277.06 per week, based on
evidence of the wages he had earned as a ramp service worker
before the injury and the wages he was earning as an SOR after
the injury, is not against the manifest weight of the
evidence. The Commission's decision to exclude the
claimant's alleged mandatory overtime hours in his wage
differential award was not against the manifest weight of the
evidence. Hoffman, J.
No. 2013 IL App (1st) 121136
United
Airlines,
Inc. v. Illinois Workers' Compensation Commission
Filed 6-03-13 (RJC)
The claimant, Richard Young, appeals from an order of the Circuit
Court of Cook County which reversed a decision of the Illinois
Workers' Compensation Commission (Commission) awarding him,
amongst other relief, weekly wage differential payments of
$277.06, beginning April
27, 2009, pursuant to section 8(d)(1) of the Workers' Compensation
Act (Act) (820 ILCS 305/8(d)(1) (West 2006)) and continuing for
the duration of the disability he suffered as a consequence of his
employment with United Airlines, Inc. (UAL). In addition, the
circuit court reinstated the decision of the arbitrator which, in
part, had awarded the claimant weekly wage differential payments
which decreased annually over the course of ten years and
terminated on April 13, 2018. For the reasons which follow, we
reverse the judgment of the circuit court and reinstate the
decision of the Commission.
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