No. 2014 IL App (1st)
v. Franklin Park Officers Electoral Board
Filed 11-4-14 (RJC)
Petitioner Ken Zurek and others collected over
700 signatures for the purpose of placing on the ballot the
question of whether there should be term limits for Franklin
Park village officials. Respondents Randall Petersen and
Robert Godlewski filed objections, and the Franklin Park
Electoral Board sustained their objections and refused to
place the question on the ballot. The circuit court
affirmed. Reversed and remanded.
No. 2014 IL App (4th)
v. Gaede Filed 11-4-14 (RJC)
In January 2013, a jury found defendant,
Christopher M. Gaede, guilty of driving under the
influence (625 ILCS 5/11-501(a)(2) (West 2012)). In March
2013, the trial court sentenced defendant to 24 months'
court supervision. Defendant appeals, arguing he is
entitled to a new trial because the implied-consent
statute (625 ILCS 5/11-501.1(a) (West 2012)) is facially
unconstitutional and also unconstitutionally punishes
individuals who assert their fourthamendment (U.S. Const.,
amend. IV) right to refuse to consent to chemical
analysis. We affirm.
No. 2014 IL App (1st) 123319
v. Division of Professional Regulation of the Department
of Financial & Professional Regulation
Filed 11-4-14 (RJC)
No. 2014 IL App (3d)
v. Ghantous Filed 11-4-14 (RJC)
No. 2014 IL App (1st)
Insurance Co. v. Hadary Filed 11-3-14
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.
No. 2014 IL App (3d)
v. Nunn Filed 10-31-14 (RJC)
Defendant Michala Nunn was convicted by a jury
of aggravated battery of a peace officer and resisting
arrest and sentenced on the battery charge to 2 years’
probation and 14 days in the county jail. She appealed her
conviction, arguing that she was denied a fair trial before
an impartial jury and was denied due process when the police
ordered the destruction of cell phone videos recording her
arrest. We reverse and remand.
No. 2014 IL App (1st) 133236 Goral
v. Kulys Filed 10-31-14 (TJJ)
This appeal addresses whether the Illinois Citizen Participation Act (the Act) (735 ILCS 110/1 et seq. (West 2010)) bars a defamation suit filed by a former candidate for public office against a blogger who wrote an article questioning whether the candidate was qualified to run for office. Plaintiff Anna Goral, the former candidate, appeals from the trial court's order granting defendant Joseph Kulys's motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure. We affirm the trial court's dismissal, as defendant's speech was protected by the Act and plaintiff's suit was designed to chill defendant's exercise of that protected activity.
No. 2014 IL App (2d) 131261 Hayenga
v. The City of Rockford Filed 10-30-14 (TJJ)
After defendant, the City of Rockford (City), a non-home-rule unit of government, impounded a vehicle owned by plaintiff, Theresa Hayenga, she brought an administrative action. The administrative hearing officer ruled in favor of the City. On administrative review, the trial court reversed the administrative hearing officer’s decision and ruled that the City did not have the authority to impound Hayenga’s vehicle. The City appeals the trial court’s decision, arguing that: (1) the City was authorized to impound Hayenga’s vehicle under a municipal ordinance; (2) the City had authority under state law to impound Hayenga’s vehicle; and (3) the trial court erred by denying the City’s motion to reconsider. We affirm the trial court’s decision.
No. 2014 IL App (3d) 120468 People
v. Claypool Filed 10-30-14 (TJJ)
Defendant, Terrance D. Claypool, appeals from the circuit court's order denying his motion to suppress. Defendant argues his motion to suppress should have been granted because the police officer "lacked reasonable suspicion to seize him and order him to submit to a pat down search." We affirm.
No. 2014 IL App (4th) 130732 Elston
v. Oglesby Filed 10-30-14 (TJJ)
Petitioner, Kimberly Dawn Campbell, f/k/a Kimberly Dawn Detmers, filed a motion to reopen an adoption in which she was the adoptee and vacate the decree of adoption entered on June 20, 1973. The trial court granted a request by Richard Oglesby V (hereinafter, Richard V), Kimberly's paternal half-brother, to intervene in the matter and he filed a motion to dismiss Kimberly's adoption challenge pursuant to section 2-619 of the Code of Civil Procedure. Ultimately, the court granted Richard V's motion to dismiss. Kimberly appeals, arguing the trial court erred in finding her adoption challenge was barred by a one-year statute of limitations contained in section 20b of the Adoption Act (750 ILCS 50/20b (West 2012)) when her challenge was based upon allegations of fraud on the court and a lack of personal jurisdiction over her biological father. We affirm.
This case arose after
plaintiff, Donald Szczesniak, was tried for
knowingly passing to defendant CJC Auto Parts, Inc.
(CJC), checks for which there were insufficient
funds (720 ILCS 5/17-1(B)(d) (West 2008)). At a
bench trial, plaintiff was acquitted. Plaintiff then
filed against CJC and its owner/operator, defendant
Gregory Verzal, a malicious-prosecution action,
which resulted in the entry of summary judgment in
favor of defendants and against plaintiff. Plaintiff
appeals, contending that the trial court erred in
granting summary judgment, because Verzal knowingly
filed a false police report. We affirm.
2014 IL App (1st) 100259-B People
v. Trzeciak Filed 10-29-14 (LJD)
In the earlier appeal, the sole issue before the supreme court was whether the marital privilege applied to the April 2004 conversation between Trzeciak and his wife. The supreme court held the threat did not constitute a confidential communication, reversed the judgment, and remanded the case for us to address the other issues raised by Trzeciak’s appeal. On remand, we have carefully considered all of Trzeciak's challenges and find no reversible error. The evidence at trial proved Trzeciak guilty beyond a reasonable doubt. The trial court properly admitted evidence of his flight to show consciousness of guilt and proof of his spousal abuse on the issue of his motive. While we disapprove of the manner of the exchange between the trial court and the prospective juror who claimed bias during voir dire, we reject Trzeciak's contention that the trial court's conduct affected his right to a fair trial. Accordingly, we uphold the judgment of the trial court and correct the mittimus to reflect only one murder conviction.
No. 2014 IL App (1st) 121262 People
v. Short Filed 10-29-14 (LJD)
Defendant James Short was charged
with attempted first degree murder and
three other offenses stemming from his
shooting of Eric Felters. After jury
selection, but before trial, Short pled
guilty in an open plea to two charges:
unlawful possession of a firearm by a
gang member and aggravated unlawful use
of a weapon. The jury acquitted Short of
attempted first degree murder, but found
him guilty of aggravated battery with a
firearm. Short claims the jury became
tainted by the trial judge's
admonishment to the venire about Short's
alleged gang membership and about the
two counts to which he pled guilty. We
find no error. Short received a fair
trial before an impartial jury with
effective assistance of counsel. We
No. 2014 IL App (1st)
v. Spencer Filed 10-29-14 (LJD)
Defendant, Krystal Spencer,
fraudulently acquired cellular
telephones from T-Mobile and then
sold them. During a sale of phones
to Jesus Ruiz, he was robbed. The
State accused Spencer of setting
up the sale with Ruiz and then
working with three individuals to
stage Ruiz's robbery. The defense
claimed Spencer's roommate, who
was with her at the time of the
robbery, set up the robbery
without her knowledge. After a
bench trial, Spencer was convicted
of armed robbery with a dangerous
weapon other than a firearm and
aggravated unlawful restraint
based on accountability. Spencer
contends the trial court violated
her right to due process by
convicting her of the uncharged
offense of armed robbery with "a
dangerous weapon other than a
firearm" (720 ILCS 5/18-2(a)(1)
(West 2010)), because the offense
was not a lesser-included offense
of the charged offense of armed
robbery with a firearm (720 ILCS
5/18-2(a)(2) (West 2010)). We
agree. The elements of the two
offenses markedly differ. We
vacate her conviction, enter
judgment on the appropriate
lesser-included offense of
robbery, and remand for sentencing
on that conviction. Additionally,
Spencer claims, and the State
concedes, that her conviction for
aggravated unlawful restraint must
be vacated because it was based on
the same physical act used to
obtain her armed robbery
conviction. We vacate Spencer's
conviction and sentence for
aggravated unlawful restraint, the
lesser offense, as a violation of
the one-act, one-crime rule.
No. 2014 IL App (1st)
LLC v. East Balt, Inc.
Filed 10-29-14 (LJD)
After an agreement governed by Ukrainian law to distribute bakery products made by a Ukrainian company went sour, plaintiff, also a Ukrainian company, sued for breach of contract but never served the complaint on the Ukrainian company. Instead, plaintiff pursued three American companies that were not signatories to the contract asserting theories of agency, contract ratification, alter ego, promissory estoppel and unjust enrichment. The trial court granted defendants’ motion to dismiss the third amended complaint under section 2-615 of the Illinois Code of Civil Procedure (Code) with prejudice. 735 ILCS 5/2-615 (West 2012). Plaintiff now asks us to reverse the order of dismissal and permit the case to proceed to discovery. We affirm, finding that the third amended complaint failed to state a cause of action for breach of contract under theories of agency, ratification, and alter ego, and also failed to state a claim for promissory estoppel and unjust enrichment.
Plaintiff John Woods appeals the decision of defendant Board of Fire and Police Commissioners of the City of Berwyn discharging him as a fire lieutenant. Woods' discharge stems from certain threats he allegedly made against superiors. He argues that: (i) his due process rights were denied when he was not allowed to arbitrate his grievance; and (ii) the decision to terminate was against the manifest weight of the evidence. We disagree and affirm,
Defendant, Alejandro Rodriguez, was charged with eight crimes in connection with two shootings in Aurora on September 3, 2011. The State’s theory at trial was that defendant, riding as a passenger in a car driven by Fernando Arroyo, fired several shots at two rival gang members, Marcos Gonzalez and Ignacio Perez, intending to kill them. Neither Gonzalez nor Perez was struck, but two houses and two vehicles were damaged.
IL App (4th) 130767WC Farris
v. Illiois Workers' Compensation Commission
Filed 10-28-14 (LJD)
After an appeal, on July 14, 2010, the arbitrator reconsidered the record in light of the new CT myelogram report and consistent with the circuit court's directions concerning the impeachment evidence. The arbitrator again denied the claimant benefits, finding that the claimant was not credible and failed to prove that a workplace accident occurred. The claimant again appealed the arbitrator's decision to the Commission. On June 27, 2011, the Commission reversed the arbitrator's decision, finding that the claimant was credible and proved that he sustained a workplace accident. The Commission stated that the claimant "met his burden of proving he sustained accidental injuries arising out of and in the course of his employment with [the employer] on April 26, 2005." The Commission's decision was based on its assessment of the claimant's testimony as well as his medical records and reports, including the newly admitted CT myelogram report. One commissioner dissented because she agreed with the arbitrator's decision. The employer appealed the Commission's decision to the circuit court. On August 13, 2013, the circuit court found that the Commission's decision was against the manifest weight of the evidence and entered a judgment reversing the Commission's decision. Specifically, the circuit court stated that it reviewed the record and the Commission's decision and agreed with the dissenting commissioner. The court, therefore, concluded that the ruling of the arbitrator "is to stand." This appeal ensued.
IL App (1st) 132480 Jacobson
v. CBS Broadcasting, Inc. Filed 9-30-14 (TJJ)
The plaintiff, news reporter Amy Jacobson, filed suit against the defendant, CBS Broadcasting, Inc. (CBS), for damages arising from a videotape made of her and her two young children while they were swimming in the backyard pool of a high-profile source in a story upon which the plaintiff was reporting. The seven-count, fifth-amended complaint (complaint) asserted claims for intrusion upon seclusion, false light, intentional infliction of emotional distress, defamation of character, and tortious interference with a business relationship and business expectation. After two separate proceedings, the circuit court granted summary judgment for CBS under section 2-1005 of the Code of Civil Procedure, as to all seven counts, and the plaintiff now appeals, raising the following issues: (1) the court erred in finding her to be a public figure, and thus required to prove actual malice in her claims for defamation; (2) even assuming she is a public figure, she raised a triable issue of fact as to the existence of actual malice; (3) summary dismissal of her false light claim similarly was error because a triable issue of fact exists as to actual malice; (4) the court erred in summarily dismissing her claim for intrusion upon seclusion because she sufficiently demonstrated that CBS recorded private facts at a time when she had a reasonable expectation of privacy; and (5) the court erred in summarily dismissing her emotional distress and tortious interference claims as being merely derivative of her defamation claims. For the reasons that follow, we affirm the judgment of the circuit court.
IL App (5th) 140252 In
re A.A. Filed 10-28-14 (TJJ)
Matthew A. signed a voluntary acknowledgement of paternity with regard to the minor, A.A. (d.o.b. April 26, 2013). DNA testing later revealed that Matthew A. is not the biological father of A.A., but that Cort H., who is now deceased, is A.A.'s biological father. A guardian ad litem appointed to represent the interests of A.A. filed a petition to declare the nonexistence of a parent-child relationship between Matthew A. and A.A., which the trial court granted. Matthew A. now appeals from the order of the circuit court of Jefferson County declaring the nonexistence of a parent-child relationship between him and A.A. The issue raised in this appeal is whether the trial court applied the correct standard in evaluating the petition filed by the guardian ad litem and erred in granting the petition to vacate Matthew A.'s parental relationship with A.A. We affirm.
IL App (1st) 131276 Grundhoefer
v. Sorin Filed 10-27-14 (TJJ)
Plaintiff, Dava Grundhoefer, appeals the order of the circuit court granting the motions of defendants, John Sorin and Bette Sorin (Sorins), and James J. Roche and James J. Roche Associates (collectively "Roche"), to dismiss with prejudice Grundhoefer's second amended complaint alleging malicious prosecution and defamation per se pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)). On appeal, Grundhoefer contends the trial court erred in dismissing her complaint where (1) regarding her malicious prosecution claim, she alleged sufficient facts showing the Sorins lacked probable cause to bring the underlying wrongful death suit against her; and (2) regarding her defamation per se claim, she sufficiently pled the publication element against all defendants. For the following reasons, we affirm the trial court's dismissal of the defamation per se counts, but reverse the dismissal of the count pertaining to malicious prosecution and remand for further proceedings.
IL App (3d) 120676 People
v. Thomas Filed 10-27-14 (TJJ)
After a stipulated bench trial, defendant, Norman E. Thomas, was convicted of possession of a controlled substance and resisting a peace officer. The trial court sentenced defendant to 30 months' conditional discharge. Defendant appealed, and this court remanded for further proceedings. People v. Thomas, 2011 IL App (3d) 090886-U. Following remand, defendant filed motions for a new trial and to reconsider his amended motion to suppress evidence. Both motions were denied. On appeal, defendant argues that: (1) he could only be found guilty of misdemeanor resisting a peace officer; (2) the State failed to prove actual or constructive possession of cocaine; (3) he received ineffective assistance of trial counsel; (4) he was unlawfully seized as a result of the officer's request to roll up the car windows and turn the heat on; and (5) the officer's request regarding the windows and heat constituted an unlawful search. We affirm in part, modify in part, and remand for further proceedings.
IL App (3d) 140346 In
re Q.P. Filed 10-27-14 (TJJ)
The minor, Q.P., was charged in a delinquency petition with obstruction of justice. The petition alleged that on March 31, 2014, Q.P. knowingly furnished false information to a police officer with the intent to prevent his own apprehension. Following a bench trial, Q.P. was found guilty of the charged offense and sentenced to a term in the Department of Juvenile Justice not to exceed three years or the minor's twenty-first birthday, whichever shall come first. Q.P. appeals, arguing that the evidence was insufficient to prove he had the intent to prevent his own apprehension, because the evidence showed that he had already been apprehended at the time he gave false statements to the police. We reverse.
IL App (5th) 130432 People
v. Armer Filed 10-27-14 (TJJ)
The defendant, Jake P. Armer, was charged with driving while under the influence of alcohol in violation of sections 11-501(a)(1) and (2) of the Illinois Vehicle Code. He filed a motion to suppress the results of a blood-alcohol analysis on grounds that his blood was drawn without his consent, without a warrant, and in the absence of exigent circumstances which would excuse the arresting officer from obtaining a search warrant. Following an evidentiary hearing, the trial court found that the arresting officer was not faced with exigent circumstances that would justify acting without a warrant, and it granted the defendant's motion to suppress. The State filed a certificate of impairment and appealed. On appeal, the State claims that the trial court erred in finding that there was no exigency and in granting the defendant's motion to suppress, where the arresting officer could have reasonably believed that the time delay attendant to processing the motor vehicle accident and transporting the defendant to a hospital would lead to the destruction of evidence, namely the dissipation of alcohol from the defendant's blood. We affirm.
IL App (2d) 140682 Rathje
v. Horlbeck Capital Management Filed 10-24-14
Defendant, Cantella & Co., Inc. (Cantella), appeals the trial court’s order of June 12, 2014, asserting that the court improperly conditioned Cantella’s right to arbitrate upon compliance with an outstanding discovery order. We affirm.
IL App (3d) 121001 People
v. Costello Filed 10-23-14 (TJJ)
The defendant, Thomas F. Costello, was found guilty of violation of an order of protection (720 ILCS 5/12-3.4(a)(1)(i) (West 2010)). The defendant appeals, arguing that the evidence was insufficient to prove him guilty beyond a reasonable doubt. We affirm.
IL 114899 In
re Lance H. Filed 10-17-14 (RJC)
Randolph County case concerns the procedure for how, at a
hearing on a petition for involuntary admission to a mental
health facility, a circuit court must deal with the subject
individual’s oral request in his testimony for voluntary
The 53-year-old respondent in this case has spent much of his adult life either incarcerated or institutionalized, having been admitted to mental health facilities fifteen times since the 2008 conclusion of his sentence for parole violations. In that year, he was involuntarily admitted to Chester Mental Health Center. On April 28, 2011, a petition for his involuntary admission was filed in the circuit court, certified by a psychiatrist at the center and supported, at the subsequent hearing, by the testimony of a center social worker. The respondent, who was represented by counsel, testified on his own behalf, expressing his desire for voluntary, rather than involuntary, admission. No oral or written motion as to this was filed by his attorney. The circuit court committed him involuntarily to the center and he appealed.
In 2012, after the term of commitment at issue here had ended and its issues might be considered moot, the appellate court reversed, finding the public interest exception to the mootness doctrine to be applicable. The supreme court did not disagree that a mootness exception was applicable in the appeal which followed. However, the appellate court had reversed the circuit court’s involuntary commitment order, holding that the circuit court should have considered and ruled on the respondent’s request for voluntary admission. On this point, the Illinois Supreme Court did not agree with the appellate court and reversed it.
IL 115102 People
v. Patterson Filed 10-17-14 (RJC)
2008, this defendant was 15 years old and residing at the
John Costigan Center in Schaumburg, a residential treatment
facility for adolescents, which was run by Streamwood Health
Systems. A ward of the State, he was arrested on a Sunday
evening in the lobby of the facility, charged with three
counts of aggravated criminal sexual assault of a social
worker, and transferred from juvenile court to criminal
court pursuant to the Illinois automatic transfer statute.
He was found fit for trial and, after a Cook County jury
convicted him, he was sentenced to 36 years in prison based
on 12 consecutive terms for each count. The appellate court,
however, had ordered a new trial, and the State appealed.
The victim was a woman who was a 25-year-old staff member at the facility and who had just given the defendant a ride to it from a weekend family visit. She alleged that he forced her to drive off the main road to a location where he sexually assaulted her. She sustained bruises and there was evidence of damage to the vehicle which indicated a struggle, but no DNA evidence was found providing a link to the defendant.
At his trial in the circuit court, the defendant was unsuccessful on his motion to suppress his police station confession, and the Rape Shield statute was applied to overcome his efforts to have the victim’s sexual history admitted into evidence.
The appellate court took the opposite view on both of these issues and ordered a new trial, opining that the confession should have been suppressed and that the victim’s sexual history should have been admitted. Statute requires that, when a minor is arrested, a “reasonable attempt” must be made to notify the parent or legally responsible person. The defendant argued that this statute was not complied with and that this called for suppression of his inculpatory statement.
A Schaumburg police officer who was the youth officer assigned to the defendant’s case testified at the suppression hearing that both the defendant’s caseworker from the Department of Children and Family Services and the director of the residential facility were that night notified by telephone of the defendant’s arrest, but that the caseworker did not return the phone call for two days. He also testified that the director gave permission that night to speak with the defendant and search the vehicle. At the suppression hearing, the director was unable to recall giving permission, but never denied giving it. The youth officer testified that he read Miranda rights to the defendant, and that he was present at the questioning, but that the interrogation was conducted by another officer. The defendant did not claim at the suppression hearing that he was threatened, mistreated or coerced by the police, that he failed to understand the interrogation process, that he asked to speak to another adult, or that he told the officers that he was a special education student with trouble reading and writing. The circuit court, however, had viewed the defendant as “astute.” It found that the youth officer had done his duty and that the confession was voluntary.
IL 115805 Lake
County Grading Co. v. Village of Antioch
Filed 10-17-14 (RJC)
is a public construction bond case. In the Village of
Antioch in Lake County, two residential subdivisions were
built by a developer, Neumann Homes, Inc., which is not a
party to this appeal and which declared bankruptcy in 2007.
Neumann had entered into an agreement with defendant Village
to provide certain public improvements and, for this
purpose, subcontracted with plaintiff Lake County Grading,
Inc., to furnish labor and materials. Plaintiff did so, but
was not fully paid by Neumann. Subcontractors have no
right to a mechanics’ lien against public bodies in
Illinois. Therefore, the Public Construction Bond Act was
enacted by the legislature to protect such subcontractors by
requiring surety bonds for public construction that
guarantee payment for labor and materials furnished over
certain amounts, which were involved here. The bonds
provided by Neumann to the Village did not contain specific
provisions for such payment. Neumann defaulted on its
contractual obligations to the Village and, although
plaintiff Lake County Grading was not fully paid, plaintiff
could not seek to recover under the bonds themselves because
its claims for payment were filed too late, beyond the
180-day limitations period called for in the Bond Act.
Plaintiff claimed in this suit that it was a third-party
beneficiary of the contracts between Neumann and the Village
and that the Village, in not including a specific provision
referring to payment of subcontractors, had breached its
contractual obligations by not complying with the Bond Act.
Therefore, plaintiff theorized, the Village was liable to
compensate it for the unpaid claims. The circuit court of
Lake County awarded summary judgment to the plaintiff and
the appellate court affirmed.
IL 116203 Hayashi
v. Illinois Department of Financial & Professional
Regulation Filed 10-17-14 (RJC)
consolidated appeals involving revocation of health care
licenses come from Cook County. The plaintiffs in these
cases are one chiropractor and two physicians. Their
licenses to practice were revoked under a statute which
became effective on August 20, 2011, and which calls for
permanent revocation of health care licenses for certain
criminal convictions involving patients or for being
required to register as a sex offender. All of the
plaintiffs qualified for revocation under this statute, but
their convictions had been entered before its effective
date. Contending that the 2011 enactment was improperly
retroactive, the plaintiffs challenged its application to
them on a number of theories and sought declaratory and
injunctive relief from the circuit court which, however,
dismissed the actions. The appellate court consolidated the
appeals and affirmed the dismissals. Plaintiffs
IL App (2d) 131082 People
v. Hernandez Filed 10-20-14 (TJJ)
Following a stipulated bench trial, defendant was convicted of first-degree murder after he and his brother, Edwin Hernandez, set fire to a home, killing a 12-year-old boy and seriously injuring the boy’s family members (including the boy’s mother, who was apparently paralyzed after she jumped from a second-story window to escape the fire). The crime was gang-related, and the intended target of the crime was not home. During the investigation, defendant, in a videotaped statement, confessed to the crime. The court denied his motion to suppress the confession. Because the denial of his motion to suppress could not be appealed if he entered a guilty plea, defendant proceeded with a stipulated bench trial to preserve his appellate rights regarding the confession’s admissibility. After finding defendant guilty and denying defendant’s posttrial motion (which attacked the suppression ruling), the court sentenced defendant to 84 years’ imprisonment, followed by years of mandatory supervised release (MSR). Defendant appealed, arguing that the confession should have been suppressed (and challenging his eligibility for extended-term sentencing and a public defender fee), and this court affirmed the denial of the motion to suppress. People v. Hernandez, 2012 IL App (2d) 110817-U. On June 4, 2013, defendant filed a pro se postconviction petition pursuant to section 122- 1 of the Post-Conviction Hearing Act, arguing: (1) that the application of MSR was unconstitutional; and (2) that he was denied effective assistance of trial and appellate counsel. The petition is signed by defendant and notarized. One notarized affidavit, from Edwin, is attached to the petition. In his affidavit, Edwin attests that, on the night of the crime, defendant was asleep and did not leave his house. Further, Edwin attests that he wanted to testify at defendant’s trial, that he told this to defendant and defendant informed his attorney, but that defendant told him that his attorney did not respond to the information and no one contacted Edwin about testifying. Finally, in a handwritten note included with his petition, defendant writes that he was waiting for an affidavit from Nidia Hernandez (his sister), but that, due to mail delays, he had not yet received it. On September 19, 2013, in a lengthy written decision, the court denied the postconviction petition as frivolous and patently without merit. Defendant appeals. Because defendant’s allegations are directly contradicted by the record and he cannot establish prejudice, we affirm.
IL App (1st) 122868 People
v. Hall Filed 10-20-14 (TJJ)
Defendant Thomas Hall appeals from the summary dismissal of his pro se petition for relief under the Post-Conviction Hearing Act. On appeal, defendant contends that he was subject to an improper double enhancement at sentencing because a prior conviction was used both as an element of the instant offense and to find him eligible for a Class X sentence. Defendant acknowledges that he did not include this issue in his pro se postconviction petition, but argues that his sentence is void, thus, this issue may be raised at any time. We agree with defendant, and remand for a new sentencing hearing.
IL App (5th) 130582 American
Service Insurance v. Miller Filed 10-17-14 (TJJ)
Defendant David Miller appeals the orders of the circuit court of St. Clair County that awarded Miller sanctions. The plaintiff, American Service Insurance, cross-appeals. For the following reasons, we affirm.
IL App (1st) 112615 Garland
v. Sybaris Club International, Inc. Filed
The instant cause arises from the death of Scott Garland. Garland's surviving spouse, plaintiff Jennifer Garland, filed a complaint against numerous persons and entities following Garland's death. By her complaint, plaintiff sought recovery for Garland's death on a number of grounds. As to the Levinson defendants, plaintiff alleged that Levinson had been negligent in entrusting the aircraft to Turek, whom, she alleged, was not qualified to fly that particular kind of airplane. As to Knudson, plaintiff alleged negligent entrustment of the aircraft as well as negligent supervision, alleging that Knudson, who was onboard the doomed flight, failed to properly supervise Turek during the flight itself. As to HK, owner of the aircraft, plaintiff alleged it was vicariously liable for its agents, Levinson and Knudson. Plaintiff also sued Sybaris, a group of hotels whose president and founder was Knudson, who conducted the doomed flight in the course of Sybaris business and was, allegedly, a de facto owner of the aircraft. Plaintiff appeals the dismissal of her ninth amended complaint pursuant to section 2- 619 of the Code of Civil Procedure against the named parties herein. Affirmed in part, reversed in part, and remanded.
IL App (1st) 120586 People
v. Pena Filed 10-15-14 (TJJ)
After a bench trial, defendant Daniel Pena appeals his conviction for aggravated battery of a peace officer, contending that the State failed to prove him guilty beyond a reasonable doubt because the officer's testimony was not credible and was disputed by a videotape of the incident. Pena also contends that he was denied his constitutional right to self-representation, and that the trial court failed to conduct a proper inquiry into his pro se posttrial claim of ineffective assistance of counsel. The trial court sentenced Pena to six years' imprisonment as a Class X offender based on his criminal history. We affirm.
IL App (3d) 120773 People
v. Pollock Filed 10-15-14 (TJJ)
A Henry County jury convicted defendant, Tabitha Pollock, of aggravated battery and felony murder of her 3½-year-old daughter. This court affirmed. People v. Pollock, 309 Ill. App. 3d 400 (1999). A divided panel of our supreme court found “insufficient evidence to support the inference that, prior to [the daughter’s] death, [defendant] knew [her paramour] was abusing her children.” People v. Pollock, 202 Ill. 2d 189, 220 (2002). As such, the court reversed Pollock’s conviction without remand. Id. at 224. Following the reversal, Pollock filed a petition for a certificate of innocence pursuant to section 2-702 of the Illinois Code of Civil Procedure. The matter proceeded to a hearing, after which the circuit court denied Pollock’s petition. She appeals. We affirm.
IL App (1st) 121740 People
v. Alvidrez Filed 10-15-14 (TJJ)
Defendant Jose Alvidrez was tried and found guilty by a jury of the first degree murder of his 18-month-old son, Joshua Alvidrez, who died as a result of a severe head injury suffered at home while under defendant's care. Defendant was sentenced to 25 years' imprisonment and now appeals contending the trial court erred when it precluded his expert from testifying about the amount of force required to cause Joshua's brain injuries. Defendant also contends that the State engaged in prosecutorial misconduct during its closing and rebuttal arguments by disparaging his character and that of his expert, thereby prejudicing the jury. Lastly, Defendant contends that he is entitled to additional days of presentence credit and that the trial court improperly levied various fines, fees and costs against him. We affirm.
IL App (1st) 131036 Nelson
v. Country Mutual Insurance Company Filed
a bench trial, judgment was entered in favor of
defendant-appellee Country Mutual Insurance Company (Country
Mutual) and against plaintiff-appellant Forest Lee Nelson
(Nelson).1 Nelson appeals, attacking not this final judgment
but, rather, a prior order We note for the record that the
party designations in this cause are somewhat confused,
perhaps due to the fact that the cause began in the chancery
division of the trial court and later was entered by the
trial court vacating an arbitration award, granting summary
judgment in favor of Country Mutual and allowing trial in
the first place. He contends that the underinsured
endorsement provision to the insurance policy at issue did
not provide the option for a trial to take place, and that
the provision, which was the basis for the arbitration
award's rejection, was ambiguous. He asks that we reverse
the judgment of the trial court, that we reinstate the
arbitration award, and that we remand the cause for
determination of the proper setoffs to the award. For the
following reasons, we affirm.
IL App (1st) 142771 Mabwa
v. Mendoza Filed 10-08-14 (LJD)
On July 22, 2014, plaintiffs filed a petition with the Office of the City Clerk of the City of Chicago which requested that the voters of the 18th precinct in the 27th ward be able to vote in the upcoming November 4, 2014, election on the question of whether: "the sale at retail of alcoholic liquor be prohibited in this 18th precinct of the 27th ward of the City of Chicago (as such precinct existed as of the last general election)?" Defendant Susana A. Mendoza, the Clerk of the City of Chicago, did not certify the petition as valid, and plaintiffs then sought a writ of mandamus from the trial ourt to order the clerk to certify the petition. For the following reasons, we affirm the trial court.
IL App (1st) 133964 Pirrello
v. Maryville Academy, Inc.Filed 10-08-14 (LJD)
Plaintiff, Brandy Pirrello, appeals from partial summary judgment entered in favor of defendant, Maryville Academy, Inc., finding that Pirrello was not entitled to recover medical expenses incurred prior to her eighteenth birthday under a section of the Rights of Married Persons Act commonly referred to as the Family Expense Act (750 ILCS 65/15(a)(1) (West 2008)). The trial court found that the claim under the Act did not relate back to the filing of Pirrello's original complaint on July 16, 2009, and was thus barred by the applicable two-year statute of limitations. The court further denied Pirrello leave to file a third amended complaint adding her father as a party. We agree that the claim under the Act is time-barred and affirm.
IL App (3rd) 120905 People
v. Holman Filed 10-08-14 (LJD)
a jury trial, defendant, Exulam Holman, was convicted of
aggravated domestic battery (720 ILCS 5/12-3.2(a)(1),
12-3.3(a) (West 2010)) and was sentenced to 14 years in
prison. Defendant appeals, challenging both his conviction
and his sentence. We affirm the trial court's judgment.
IL App 4th) 120887 People
v. Brown Filed 10-08-14 (LJD)
Defendant, Michael B. Brown, appeals the trial court's first-stage dismissal of his postconviction petition, arguing the court erred in finding the petition frivolous and patently without merit where he raised the gist of a meritorious claim of ineffective assistance of trial counsel. We reverse and remand for second-stage proceedings.
IL App (1st) 113534 People
v. Hood Filed 10-08-14 (LJD)
IL App (2nd) 130327 People
v. Yaworski Filed 10-06-14 (LJD)
Following a jury trial in the circuit court of De Kalb County, defendant, Glenn A. Yaworski, was found guilty of driving under the influence of alcohol (DUI) in violation of section 11-501(a)(2) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501(a)(2) (West 2004)) and driving while his icense was revoked (DWLR) (625 ILCS 5/6-303(a) (West 2004)). Defendant received a Class 2 felony sentence of 3½ years’ imprisonment for DUI pursuant to section 11-501(c-1)(3) of the Code (625 ILCS 5/11-501(c-1)(3) (West 2004)). The trial court vacated the DWLR conviction. In an arlier appeal, we affirmed defendant’s DUI conviction and his sentence for that offense. Thereafter, on February 29, 2012, defendant, while on mandatory supervised release (MSR), filed a pro se petition under the Post- Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)), challenging the enhancement of the offense of DUI to a Class 2 felony. The trial court appointed the office of the De Kalb County public defender to represent defendant in the postconviction proceedings. Assistant Public Defender Charles Criswell appeared on defendant’s behalf. Criswell had represented defendant at trial. The State successfully moved to dismiss defendant’s petition and this appeal followed. Defendant argues that, because the petition claimed that he had not received the effective assistance of counsel at trial, Criswell labored under a conflict of interest in the ostconviction proceedings. We agree, and we therefore vacate and remand for further proceedings.
IL App (5th) 130325 People
v. Helm Filed 10-06-14 (LJD)
The State filed a complaint under section 15 of the Illinois Animal Control Act (Act) (510 ILCS 5/15 (West 2012)) and sought an order declaring Roscoe, a dog owned by the defendant, William P. Helm, to be a vicious dog within the meaning of section 2.19b of the Act (510 ILCS 5/2.19b West 2012)). After a bench trial, the circuit court declared Roscoe to be a vicious dog and ordered that he be humanely euthanized. The court also ordered the defendant to pay a $100 public safety fine. On appeal, the defendant contends that the circuit court erred in declaring Roscoe to be a icious dog where the evidence established that his conduct was justified under section 15(a)(3) of the Act (510 ILCS 5/15(a)(3) (West 2012)), because he was protecting a member of his household. We affirm.
IL App (1st) 140342 Andrews
v. Gonzalez Filed 10-03-14 (LJD)
Plaintiff, William T. Andrews, filed suit against defendant, Dagoberto Gonzalez (Dagoberto), to recover an outstanding judgment awarded in a personal injury lawsuit against G & G Cement Contractors (G&G), a partnership of which Dagoberto was the sole surviving partner. The circuit court ranted Dagoberto's motion to dismiss pursuant to section 2-619(a)(4) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(4) (West 2012)), finding that plaintiff's claim was barred by res judicata because Dagoberto was a named defendant in the prior underlying action and was found ot liable for negligence. On appeal, plaintiff contends that the circuit court erred in dismissing his claim against Dagoberto because various provisions of the Uniform Partnership Act (1997) (Act) (805 ILCS 206/100 et seq. (West 2012)) and sections 2-410 and 2-411 of the Code (735 ILCS /2-410, 2-411 (West 2012)) demonstrate that res judicata does not bar a judgment creditor of a partnership from enforcing an outstanding judgment against a partner who was named individually in the underlying lawsuit. For the reasons that follow, we reverse the judgment of the circuit court of Cook County and remand the cause for further proceedings.
IL App (5th) 130244 Illini
Environmental, Inc. v. The Environmental Protection Agency
Filed 10-03-14 (LJD)
llini Environmental, Inc. (Illini), appeals from the trial court's May 6, 2013, order denying its motion for summary judgment. On appeal, Illini argues that dismissal of an enforcement action filed by the Illinois Environmental Protection Agency (EPA or Agency) against Illini was res judicata on certain issues of fact in Illini's declaratory judgment action. Illini claims that the EPA accepted its proffered "Compliance Commitment Agreement" and therefore cannot pursue enforcement on one of the two violation notices. Illini also argues that the trial court erred in finding that Illini was responsible for determining whether waste was hazardous. Illini further argues that the trial court erred in concluding that Illini violated Illinois law in listing itself as a generator of waste that it transported from another company to an Illinois landfill. Finally, Illini argues that the trial court was incorrect in concluding that the Illinois EPA complied with applicable law when it posted information on its website about Illini's violations. We affirm.
IL App 116362 Goldfine
v. Barack, Ferrazzano, Kirschbaum & PerlmanFiled
This legal malpractice action comes from Cook County. The plaintiffs are Morton and Adrienne Goldfine. In the years 1987 through 1990, they worked with broker Michael Steinberg, of the Peoria office of investment firm Shearson Lehman Brothers, to purchase $4.5 million worth of stock in First Capital Holdings. That stock became worthless in 1991 after First Capital’s bankruptcy. Plaintiff had a number of claims against Steinberg and Shearson arising from their stock purchases. Their claims for common law fraud and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act were ultimately settled in 2007 for $3.2 million in what is referred to here as the “underlying” lawsuit. However, their claim for violation of the Illinois Securities Law of 1953 was held to be time-barred for failure of plaintiffs’ attorneys to timely file the required notice called for by that securities statute. Those attorneys are the firm of Barack, Ferrazzano, Kirschbaum & Perlman, the defendants here, who are accused of malpractice in the plaintiffs’ loss of their statutory claim. That is the case which is at issue here.
IL App (3rd) 120978 People
v. Perez Filed 10-01-14 (LJD)
Respondent, Valerie Perez, was in traffic court waiting to appear on a speeding ticket. When the court took a recess, respondent exited the courtroom and was overheard by a bailiff saying, “I waited all fucking morning and now she takes a break.” After the bailiff relayed the comment to the court, the trial judge returned to the bench and instructed the State to prepare and file a petition for contempt. The court denied the defense request for a short continuance to prepare for trial and presided over a hearing on the same date as the alleged misconduct. After finding respondent guilty of indirect criminal contempt, the court sentenced respondent to serve eight days in custody. Respondent appeals. We reverse.