Illinois Supreme and Appellate Court Case Summaries

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

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4 Appellate Case Posted 11-4-14

1. Election Law/Referendum: Reversed in part and affirmed in part: In sum: (1) that the board had standing to file a brief as a nominal defendant; (2) that the three members of the board be replaced by public members for consideration of the referendum question since it is not "practicable" for them to rule on a question that is "in relation" to their own candidacy; and (3) that, even though consideration of the referendum question, the objectors' petition and the objections to the objectors' petition cannot be completed in time to place the question on the November 4, 2014, ballot, we may still consider the issue pursuant to the public interest exception to the mootness doctrine. Gordon, J.  

No. 2014 IL App (1st) 142618    Zurek 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.

2. DUI/Implied Consent: Affirmed: Defendant has failed to establish his constitutional rights were violated. Defendant withdrew his consent after his arrest. As a result, there was no warrantless, nonconsensual search. Thus, defendant's fourth-amendment rights could not have been violated. Also, a statute is only facially unconstitutional if the statute can never be constitutionally applied. Because the implied-consent statute allowed defendant to refuse the police officer's request to take the warrantless chemical breath test, we cannot find the statute
facially unconstitutional. Pope, J.  

No. 2014 IL App (4th) 130346    People 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.

3. Illinois Medical Practice Act of 1987: Affirmed: The Director's factual findings are not against the manifest weight of the evidence. Accordingly, the determination regarding the legal effect of the facts, that based on his conduct plaintiff violated the Act, was not clearly erroneous. The purpose of the Act is to “protect the public health and welfare from those not qualified to practice medicine.” The Director in this case found that Parikh abused his position of trust as a physician and took advantage of his patient. In addition, the Director found that Parikh's actions served no  medical purpose. Clearly, this is the type of conduct subject to disciplinary regulation that the statute contemplates. Therefore, a one year mandatory suspension with an indefinite duration thereafter is not an unreasonable or arbitrary penalty, nor is it unrelated to the statute, where Parikh can petition to restore his license one year from the date of the Director's order. Pierce, J.  

No. 2014 IL App (1st) 123319    Parikh v. Division of Professional Regulation of the Department of Financial & Professional Regulation    Filed 11-4-14 (RJC)

Appellant, Mahesh Parikh, M.D., a neurologist, appeals an order of administrative proceeding where the Director of the Division of Professional Regulation (Director) ordered that his medical license be indefinitely suspended for a minimum of one year. Parikh argues: (1) the Director does not have the authority under the Illinois Medical Practice Act of 1987 (225 ILCS 60/1 et seq. (West 2010)) to make factual finding and credibility determinations contrary to those made by the Medical Disciplinary Board of the Department (Board); (2) the Director's findings were against the manifest weight of the evidence; (3) the Director's finding on the legal effect of the facts is clearly erroneous; and (4) the Director abused his discretion by indefinitely suspending Parikh's medical license for a least a year. For the following reasons, we affirm the decision of the Director acting on behalf of the Illinois Department of Financial and Professional Regulation (Department).

4.Releases/Stlmnt. Agrmnts./Appeals: Appeal dismissed: The contested issue raised in this appeal is moot since another identical order is binding on Souad in the probate action requiring the voluntary dismissal of the case at bar, with prejudice. The doctrine of release of errors now estops Souad from attempting to obtain a reversal of the order dismissing her chancery lawsuit, case No. 12-CH-95, since she has accepted the benefits of a similar order enforcing the very same global release and settlement agreement in the probate action.  Accordingly, since the doctrine of mootness and the doctrine of release of errors require a dismissal of this appeal, we find it unnecessary to address whether the additional principles of collateral estoppel, res judicata, and freedom of speech have any application in this matter. Wright, J.  

No. 2014 IL App (3d) 130792    Ghantous v. Ghantous    Filed 11-4-14 (RJC)

The controversy in the case at bar was one of five lawsuits simultaneously pending in the Peoria County circuit court involving disputes between plaintiff Souad Ghantous (Souad) and/or her children. Defendant Leo Ghantous (Leo) is a party in all five cases and Souad is either  named as a party plaintiff or beneficiary in two cases, namely, the instant chancery case, case No. 12-CH-95 and a pending probate case, case No. 10-P-100. Souad appeals the order denying her request to reconsider the entry of the order enforcing the global release and settlement agreement in case No. 12-CH-95, alone. The same order enforcing the global release and settlement agreement has not been challenged in the other four cases and remains binding on all parties to the agreement, including Souad. Consequently, we are unable to effectuate the relief requested by Souad and dismiss the appeal according to the doctrine of mootness and the doctrine of release of errors.

1 Appellate Case Posted 11-3-14

1. Insurance: Reversed in part and affirmed in part: The question is: when injured insureds are not wholly covered by a negligent driver's insurance policy limits, does the rental car company or the insureds' underinsured motorist coverage pay the shortfall? We conclude that it would contravene public policy to construe Safeway's policy to mean that a rental car company's liability pursuant to the financial responsibility statute applies before Safeway's obligations under the underinsured motorist provision.  Safeway's underinsurance motorist coverage is triggered, we need not address the Hadarys' second issue: whether Safeway waived any right to insist upon exhaustion of Hertz's policy.  Also, because Safeway's underinsured motorist provision applies before the financial responsibility liability of Hertz, Safeway is obligated to comply with the process for handling underinsured motorist claims set out in its policy: "the amount thereof, shall be made by agreement between the insured or such representative and the Company or, if they fail to agree, by arbitration."Connors, J.  

No. 2014 IL App (1st) 132554    Safeway Insurance Co. v. Hadary    Filed 11-3-14 (RJC)

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

1 Appellate Case Posted 10-31-14

1. Criminal Law: Reversed and remanded: The officers demonstrated bad faith in failing to preserve and in ordering the destruction of the recordings and that, as a result, Nunn was deprived of her due process right to a fair trial. Her motion to dismiss should have been granted and the trial court erred in denying it. O'Brien, J. with Schmidt, J. dissenting. 

No. 2014 IL App (3d) 120614    People 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.

4 Appellate Case Posted 10-30-14

1. Defamation/Citizen Participation Act: Affirmed: Plaintiff's defamation action against defendant claiming that defendant defamed her in stating that plaintiff. a candidate for alderman in the city of Chicago, did not in fact reside in Chicago by virtue of a homeowner's exemption for property in a Chicago suburb, properly dismissed by the trial court pursuant to the Illinois Citizen Participation Act. Epstein, J.

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.

2. Criminal Law/Vehicle Impoundment: City of Rockford ordinance by its terms permitted only that a vehicle owner would be responsible for reasonable fees stemming from seizure of vehicle in connection with an arrest, and did not permit impoundment of the car. McLaren, J.

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.

3. Criminal Law: Affirmed: Police officer's belief that defendant could have been in the process of seeking to burglarize a car when the officer encountered defendant, and defendant's actions in refusing to take his hand away from his waist area, led the officer to reasonably believe that defendant might have been armed, and thus justified pat-down search leading to recovery of drugs spit out by defendant. McDade, J. (Holdridge, J., sp. concurring).

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.

4. Adoption: Affirmed: Although circumstances of 1973 adoption may have been fraudulent as to putative father, as to whom personal jurisdiction could have been established, but was not, adoptee's claim that adoption was fraudulent could not be made by her pursuant to applicable sections of the Adoption Act, and adoptee's action to vacate adoption was properly dismissed by the trail court. Harris, J.

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.

8 Appellate Cases Posted 10-29-14

1.  Malicious Prosecution: Affirmed: Where a brief has failed to comply with Rule 341(h)(6), we may strike the statement of facts or dismiss the appeal should the circumstances warrant.  A genuine issue of material fact exists when the parties dispute a material fact or, where the material facts are not in dispute, reasonable persons could draw different inferences from the undisputed facts.  In order to establish a claim of malicious prosecution, a plaintiff must demonstrate: (1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause; (4) malice; and (5) damages. Birkett, J.

No. 2014 IL App (2nd) 130636  Szczesniak v. CJC Auto Parts, Inc. Filed 10-29-14 (LJD)

Szczesniak v. CJC Auto Parts, 2014 IL App (2d) 130636

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.

2.  Criminal Law: Affirmed: The fact of flight, when considered in connection with all other evidence in a case, is a circumstance which may be considered by the jury as tending to prove guilt. [Citation.] The inference of guilt which may be drawn from flight depends upon the knowledge of the suspect that the offense has been committed and that he is or may be suspected. While evidence that a defendant was aware that he was a suspect is essential to prove flight, actual knowledge of his possible arrest is not necessary to render such evidence admissible where there is evidence from which such fact may be inferred.  The admissibility of other crimes evidence falls within the sound discretion of the trial court, and we review it under an abuse of discretion standard.  An abuse of discretion occurs when the trial court acts arbitrarily or fancifully, or where no reasonable person would take the view adopted by the trial court.  Hyman, J.

No. 2014 IL App (1st) 100259-B People v. Trzeciak  Filed 10-29-14 (LJD)

People v. Trzeciak, 2014 IL App (1st) 100259-B

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.

3.  Criminal Law: Affirmed:  The scope of voir dire lies within the trial court's discretion. "An abuse of that discretion will be found 'only if, after review of the record, it is determined that the conduct of the court thwarted the selection of an impartial jury.' " The primary responsibility for initiating and conducting voir dire lies with the trial court; the manner and scope of that examination falls within the court's sound discretion.   Under Strickland, a defendant must show that counsel's performance was deficient and that he or she was prejudiced because of it. Strickland, 466 U.S. at 687. To show deficient representation, a defendant must establish that counsel's performance fell below an objective standard of reasonableness.  Hyman, J.

No. 2014 IL App (1st) 121262 People v. Short Filed 10-29-14 (LJD)

People v. Short, 2014 IL App (1st) 121262

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 affirm.

4.  Criminal Law: Affirmed, Sentence modified:  Under the invited error doctrine, "an accused may not request to proceed in one manner and then later contend on appeal that the course of action was in error." For the doctrine to apply, the defendant must affirmatively request or agree to proceed in a certain way. Plain error doctrine elements set out and discussed.  We typically undertake plain error analysis by first determining whether error occurred at all before proceeding to consider whether either prong of the doctrine has been satisfied. Due process prohibits a defendant from being convicted of an uncharged offense unless that offense is a lesser-included offense of a charged offense. A charge of robbery while armed with a dangerous weapon other than a firearm is not a lesser-included offense of armed robbery while armed with a firearm. Hyman, J.

No. 2014 IL App (1st) 130020 People v. Spencer Filed 10-29-14 (LJD)

People v. Spencer, 2014 IL App (1st) 130020

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.

5.  Civil Procedure: Affirmed: A section 2-615 motion to dismiss attacks the legal sufficiency of the complaint based on defects apparent from its face and the relevant inquiry is whether the allegations, considered in the light most favorable to the plaintiff, are sufficient to state a cause of action.  "In ruling on a section 2-615 motion, the court may not consider affidavits, products of discovery, documentary evidence not incorporated into the pleadings as exhibits, or other evidentiary materials." An agency is a fiduciary relationship in which the principal has the right to control the agent's conduct and the agent has the power to act on the principal's behalf.”   An agent's authority may be either actual or apparent, and actual authority may be either express or implied.  Actual express authority exists where "the principal explicitly grants the agent the authority to perform a particular act." Apparent authority, by contrast, arises when the principal holds an agent out as possessing the authority to act on its behalf, and a reasonably prudent person, exercising diligence and discretion, would naturally assume the agent to have this authority in light of the principal's conduct. To establish a claim for promissory estoppel, a plaintiff must prove that (i) defendant made an unambiguous promise to plaintiff, (ii) plaintiff relied on that promise, (iii) plaintiff's reliance was expected and foreseeable by defendants, and (iv) plaintiff relied on the promise to its detriment.  Unjust enrichment does not constitute an independent cause of action.   Rather, “it is a condition that may be brought about by unlawful or improper conduct as defined by law, such as fraud, duress or undue influence”or, alternatively, it may be based on contracts which are implied in law. Hyman, J.

No. 2014 IL App (1st) 132639  Saletech, LLC v. East Balt, Inc.  Filed 10-29-14 (LJD)

Saletech v. East Balt, 2014 IL App (1st) 132639

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.

6.  Administrative Review:Affirmed: The Illinois Municipal Code provides that a firefighter may not be discharged without notice and a hearing, or impartial arbitration if so provided under a collective bargaining agreement.  The law creates a presumption in favor of arbitrating disputes under collective bargaining agreements that contain arbitration clauses and, when in doubt, courts favor arbitration. Where a collective bargaining agreement establishes a grievance and arbitration procedure, those procedures are the exclusive mode of redress for enforcing the employment contract unless the parties expressly agree otherwise. These procedures create a condition precedent to arbitration— the union must refer a grievance to arbitration. A condition precedent is one which must be performed either before a contract becomes effective or which is to be performed by one party to an existing contract before the other party is obligated to perform.  A review of the entire record is required in order to determine whether the manifest weight of the evidence, as a whole, warrants a different conclusion ***."). Generally, if the record contains evidence to support the findings and decision, we will affirm. Hyman, J.

No. 2014 IL App (1st) 133450 Woods v. The City of Berwyn   Filed 10-29-14 (LJD)

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,

7.  Criminal Law:Affrimed:  When reviewing the sufficiency of the evidence, ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ Testimony may be found insufficient under the Jackson standard, but only where the record evidence compels the conclusion that no reasonable person could accept it beyond a reasonable doubt.” A person commits armed violence when he personally discharges a firearm that is a Category I or Category II weapon while committing any felony defined by Illinois law, with certain exceptions that do not apply here. A person commits criminal damage to property when he “knowingly damages any property of another.”  Burke, J.

Woods v. The City of Berwyn, 2014 IL App (1st) 133450 No. 2014 IL App (2nd) 131480 People v. Rodriguez   Filed 10-29-14 (LJD)

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.

8.  Real Estate Disclosure: Reversed and Remanded:  If the language of the statute is clear and unambiguous, it will be given its plain and ordinary meaning without resorting to further aids of statutory construction. A court may not depart from the plain statutory language by reading into it exceptions, limitations, or conditions not expressed by the legislature. The purpose of the Act is to use the disclosure form to provide prospective home buyers with information about material defects in the home that are known to the seller.  These sections establish that the intent of section 15(7) is to preclude liability for an entity that never resided in or had management responsibilities for the home and that has taken title solely to assist with the seller's relocation by immunizing its transfer of title. There is no evidence in the statute of any intent to exempt those persons who have resided in the home and who are in a position to provide prospective buyers with the actual notice of known defects that the statute requires.  McDade, J.

People v. Rodriguez, 2014 IL App (2d) 130148 No. 2014 IL App (3rd) 130406  Bouton v. Bailie  Filed 10-29-14 (LJD)

Brian Bouton appeals from the trial court’s dismissal of his complaint seeking to hold Erin and Robert Bailie liable for an alleged violation of the Residential Real Property Disclosure Act (the Act) (765 ILCS 77/1 et seq. (West 2010)). The Bailies argued that the Act was inapplicable to them because the type of transaction resulting in the sale of the property is exempted by the Act. We reverse the order of the trial court and remand the matter for further proceedings consistent with this decision.
Bouton v. Bailie, 2014 IL App (3d) 130406

3 Appellate Cases Posted 10-28-14

1. Workwrs Compensation: Commission affirmed, Circuit Court reversed, Remanded: In a workers' compensation proceeding, the Commission, an administrative agency, is the ultimate decision-maker" and the appellate court "reviews the decision of the Commission, not the decision of the circuit court."). Therefore, our deference is afforded the Commission's decision, not the circuit court's or the arbitrator's decisions, and our review of the Commission's factual findings is "extremely deferential".  The lack of a complete record requires us to presume that the Commission's decision was in conformity with law and had a sufficient factual basis, not the circuit court's decision. Stewart, J.

No. 2014 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.

2. Defamation/Tortious Interference: Affirmed: Trial court properly granted summary judgment to television company which broadcast video of plaintiff, a competing television reporter, at home of a person who was the subject of controversy in connection with his wife's disappearance, as plaintiff was a "public figure" and no genuine issue of fact related to her claim that defendants had exercised "actual malice" in connection with their reporting, and deriviative claims relating to invasion of privacy and tortious interference with business relationships were also properly dismissed. Hoffman, J.

No. 2014 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.

3.  Paternity: Affirmed: Voluntary acknowledgement by "father" of paternity was not sufficient to establish paternity in the face of DNA evidence showing that the person who had voluntarily acknowledged paternity was not the father, and the "best interests" of the child standard was not to be applied in determining paternity and the trial court decision was correct. Welch, J.

No. 2014 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.

4 Appellate Cases Posted 10-27-14

1. Defamation/Malicious Prosecution: Affirmed in part, reversed in part, and remanded: In plaintiff's suit against defendant parents-in-law claiming malicious prosecution and defamation stemming from defendants' suit claiming that plaintiff had negligently administered sleeping drug to defendants' son leading to his death, trial court improperly dismissed malicious prosecution count, as plaintiff properly alleged facts showing defendants' lack of probable cause in making the lallegations in their suit against plaintiff and plaintiff did not have t plead "special damages," but trial court properly dismissed defamation count, as plaintiff failed to allege that defendants published the claim, or caused it to be published. Harris, J. (Connors, J., dissenting).

No. 2014 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.

2. Criminal Law: Affirmed: Defendant's conviction for possession of controlled substance was affirmed in the face of his claims that the trial court erred in denying his motion to suppress where the police conducted a "free air" "search outside of his vehicle using a police dog and requiring defendant and the driver to turn the car and the car heater on so as to facilitate the search per People v. Bartelt, 214 Ill.2d 217 (2011), but conviction for felony resisting a peace officer reduced to a misdemeanor and remanded for re-sentencing where State's evidence failed to prove injury to the officer. Schmidt, J.

No. 2014 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.

3. Criminal Law/Juvenile Delinquency: Reversed: In case where juvenile arrestee gave false information to police officer after he was arrested, conviction for obstruction of justice was reversed, as that crime required as an element that the obstruction be done with the intent to prevent "apprehension," which, in this case, had already been effectuated when juvenile gave officer a fictitious name, even if alleged lie was for purpose of preventing police from finding out about unrelated outstanding warrant. O'Brien, J. (Holdridge, J., dissenting).

No. 2014 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.

4. Criminal Law: Affirmed: Trial court properly granted defendant's motion to suppress results of blood draw from defendant in connection with arrest for driving under the influence of alcohol where blood draw was done without benefit of a warrant nor any exigent circumstances, as there was no evidence that the nature of the police investigation would have suffered unnecessary delay by seeking a warrant. Cates, J.

No. 2014 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.

1 Appellate Case Posted 10-24-14

1. Arbitration: Affirmed: Trial court ruling that defendant waived both the right to arbitrate discovery matters and waive arbitration upheld, where defendants pursued year and a half course of seeking to fight its obligations as a respondent in discovery, only after then requesting it be considered party defendants and submitting 33,000 heavily redacted pages in response to discovery requests in its capacity as a respondent, in connection with plaintiff's claims that defendant and others had engaged in fraud in connection with plaintiff's brokerage account. Zenoff, J.

No. 2014 IL App (2d) 140682  Rathje v. Horlbeck Capital Management  Filed 10-24-14 (TJJ)

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.

1 Appellate Case Posted 10-23-14

1. Criminal Law: Affirmed: In prosecution for violation of an order of protection, where the order required defendant to turn over firearms "typically kept by him" in a particular location, failure of the defendant to turn weapons over thereafter to investigating officers was sufficient to prove defendant guilty beyond a reasonable doubt; in order for defendant to raise defense of impossibility, he had to raise (or show in State's case) some evidence showing that it was impossible for him to comply, and where he did not, he was properly found guilty of violating the order of protection. O'Brien, J.

No. 2014 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.

4 Supreme Court Cases Posted 10-17-14

1.  Mental Health Code: The supreme court examined the applicable provisions of the Mental Health Code and concluded that the circuit court was not required to consider the voluntary admission request where no oral or written motion therefor had been made by the respondent’s attorney. The circuit court was not required to sua sponte grant a continuance for the filing of such a motion. The supreme court said that courts “rule on motions and matters properly addressed to the court for determination” and that without “a specific request to continue the cause, the court did not act improperly in proceeding to a final disposition.” Although the circuit court could, in its discretion have granted a continuance to file an application for voluntary admission if a motion therefor had been made by counsel, no such motion was made here.  The circuit court was affirmed.  Chief Justice Garman delivered the judgment of the court, with opinion. Justices Freeman, Thomas, Kilbride, Karmeier, and Theis concurred in the judgment and opinion. Justice Burke dissented, with opinion.

2014 IL 114899      In re Lance H.     Filed 10-17-14 (RJC)

In re Lance H., 2014 IL 114899 - Opinion Summary

This 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 admission.
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.

2.  Criminal Law/Statements/Minors/Rape shild Law: Reversed and remanded:  In this appeal, the Illinois Supreme Court addressed the question of whether, in dealing with the minor, the police made a “reasonable” attempt to notify a proper person as required by statute. It held that this was done here and that the statute does not mandate the presence of a concerned adult at the questioning or even that actual notice be provided before the start of questioning. Although recognizing that the taking of a juvenile confession requires great care, the court said that the attempt here by police to provide proper notice was sufficient to comply with the statutory mandate, and that the conduct of the youth officer was not improper.  At the suppression hearing, counsel for the defendant had specifically denied any coercion or duress by police. Based on the totality of the circumstances, the supreme court upheld the denial of the motion to suppress. Although the defendant challenged the suppression-hearing effectiveness of his attorney, the supreme court said that the overwhelming evidence corroborating the victim’s testimony meant that there was no reasonable probability that the jury would have acquitted even in the absence of any reference to the confession. The claim of ineffectiveness was, thus, rejected by the supreme court.  In remanding for a new trial, the appellate court had opined that, under the “constitutional necessity” exception to Illinois’s rape shield statute, the defendant should be allowed to introduce evidence of the victim’s sexual history. The emergency room physician testified as to how he found external bruises on the victim and, internally, some cervical redness, which, however, he was unable to attribute to a sexual assault. The parties stipulated that no DNA of the defendant was found. The rape shield law, which, generally, bars inquiry into a victim’s prior sexual history with persons other than the defendant, was relied on by the trial court in excluding any further inquiry by the defense to explain the redness. In this decision, the supreme court said that the proper standard for evaluating the trial court’s ruling on sexual history is whether discretion was abused, but that, here, the issue is not reviewable because of the inadequacy of the original defense offer of proof. The appellate court, in its remanding order, should not have ordered admission of sexual-history evidence.  In this decision, the supreme court rejected the defendant’s challenge on cross-appeal to the constitutionality of the statute automatically allowing him to be tried as an adult because of the offenses with which he was charged. However, the court urged the General Assembly to review this provision and consider whether the exercise of judicial discretion should be added to it.  The appellate court had not reached the claim of an excessive sentence which the defendant had raised. That question should be addressed by the appellate court on remand to it. The new trial order was improper and was reversed. Justice Kilbride delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Karmeier, and Burke concurred in the judgment and opinion. Justice Theis dissented, with opinion.

2014 IL 115102    People v. Patterson    Filed 10-17-14 (RJC)
People v. Patterson, 2014 IL 115102 - Opinion Summary

In 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.          

3.  Public Construction Bond Act: Reversed and remanded:  The Illinois Supreme Court, in this decision, reversed both of the lower courts. The Bond Act states that the bonds it calls for are “deemed” to cover payments for labor and materials furnished even if this is not specifically provided for. Therefore, the plaintiff could not recover on its theory that the bonds were inadequate and that the Village was, therefore, liable to it. The supreme court agreed with the Village’s assertion that the bonds provided under its agreements with Neumann would have satisfied all of plaintiffs’ claims if plaintiff had presented them within the limitation period provided in the Act. Therefore, the Village cannot be said to have been in breach of its contracts with Neumann so as to have liability to the plaintiff. Summary judgment for the plaintiff was improper, and the appellate court’s affirmance of it was reversed.  On remand, summary judgment for the Village should be entered on this issue in the circuit court. Justice Theis delivered the judgment of the court, with opinion.  Chief Justice Garman and Justices Thomas, Kilbride, and Karmeier concurred in the judgment and opinion.  Justice Freeman dissented, with opinion, joined by Justice Burke.

2014 IL 115805    Lake County Grading Co. v. Village of Antioch   Filed 10-17-14 (RJC)

This 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.  

4.  Department of Professional Regulation Law: Affirmed: In this decision, the Illinois Supreme Court affirmed the results reached below. It noted that the statute, which amended the Department of Professional Regulation Law, clearly was intended to apply to convictions predating its effective date through its use of the language “has been convicted.” The plain language indicates that individuals are subject to the statute regardless of the date of their convictions. Thus, the legislature has clearly prescribed the temporal reach of the enactment.
Plaintiffs argued that what they characterized as “retroactivity” raised constitutional issues, such as denial of due process, but the supreme court rejected this theory. Rather, new per se eligibility requirements are being established with which licensees must comply in order to practice health care professions. There is no reaching back to change criminal penalties and no rendering unlawful of conduct which was lawful at the time it was committed. The challenged statute has no effect on the right to engage in health care professions before its effective date. The supreme court said that this amended statute, which creates new requirements to be imposed in the present or future, and not in the past, does not have a retroactive impact. It only affects present or future ability to engage in health care.  Although the plaintiffs complained of a violation of their fundamental rights, the supreme court said that medical licenses are not vested rights, but are subject to ongoing legislation to set licensing requirements in the public interest. The court said that the statute is a valid exercise of legislative authority as a measure which is rationally related to protecting the public and, therefore, plaintiffs have not alleged a substantive due process violation. In addition, plaintiffs have already received procedural due process in the underlying criminal proceedings, which they had an opportunity to contest. Insofar as discipline was previously imposed for the misconduct at issue, there is no res judicata impact because there is no identity of causes of action. Any prior administrative discipline and reinstatement of licenses did not create a vested right to practice or to be free of legislative changes. Justice Burke delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Theis concurred in the judgment and opinion.

2014 IL 116203    Hayashi v. Illinois Department of Financial & Professional Regulation    Filed 10-17-14 (RJC)

These 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 appealed.           

2 Appellate Cases Posted 10-20-14

1. Criminal Law: Affirmed: Defendant was not denied effective assistance of counsel at trial, or on appeal, where the record rebutted defendant's claims in his post-conviction petition that trial counsel failed to communicate a pre-trial offer to plead guilty to a potentially lesser sentence, defendant's jury waiver was not involuntary where lengthy admonitions showed that defendant's intent was for a stipulated bench trial so as to effectuate an appeal of the trial court's ruling denying his motions to suppress inculpatory statements, and appellate counsel were not ineffective for failing to raise certain issues where those issues lacked merit. Jorgensen, J.

No. 2014 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.

2. Criminal Law: Reversed and remanded: In case where defendant was found guilty the Class 2 offense of failing to register as a sex offender, and the trial court that the prior sex offense (which required him to register) and another Class 2 offense rendered him eligible for sentencing as a Class X offender, sentence was an impermissible example of double enhancement, and defendant was entitled to post-conviction relief. Harris, J.

No. 2014 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.

1 Appellate Case Posted 10-17-14

1. Insurance Coverage/Sanctions: Affirmed: Trial court ruling awarding attorneys' fees to insured, but no sanctions against insurance company attorneys, stemming from insurance company failure to produce correct policy in court in connection with coverage dispute relating to an auto accident, not an abuse of discretion, and trial court ruling that policy limit was $20,000 not improper. Spomer, J.

No. 2014 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.

1 Appellate Case Posted 10-16-14

1. Negligence/Aircraft accident: Affirmed in part, reversed in part, and remanded: Trial court ruling dismissing plaintiffs' claims of negligent entrustment in connection with fatal aircraft accident affirmed as to some defendants who no longer owned the plane at the time of the accident, but reversed as to other defendants where factual allegations, as well as deposition testimony, presented a sufficient scenario alleging that corporate defendants were vicariously liable for negligently entrusting pilot with alleged insufficient experience to pilot the airplane, and where persons on plane may have been sufficiently engaged in business on behalf of corporate defendants so as to render those corporate defendants vicariously liable for flight done at their purported instance. Fitzgerald Smith, J.

No. 2014 IL App (1st) 112615  Garland v. Sybaris Club International, Inc.  Filed 10-16-14 (TJJ)

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.

3 Appellate Cases Posted 10-15-14

1. Criminal Law: Affirmed: Evidence sufficient to prove defendant guilty beyond a reasonable doubt of aggravated battery in connection with incident where defendant spit blood on a corrections officer, despite defendant's claim that evidence was insufficient to show incident was not accidental, and trial court did not deny defendant the right to proceed pro se where defendant made request to do so, but thereafter retained private counsel to represent him. Hyman, J.

No. 2014 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.

2. Criminal Law/Certificate of Innocence: Affirmed: Defendant, whose conviction for first degree murder and aggravated battery in connection with the death of her child was reversed by the Illinois Supreme Court, was properly denied a certificate of innocence where the evidence showed that three and a half year old child had at least 100 injuries, some as old as two weeks before her death and some inflicted at the time of her death, despite defendant's claim that her paramour's confession established her innocence. Schmidt, J. (Lytton, J., sp. concurring) (McDade, J., dissenting).

No. 2014 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.

3. Criminal Law: Affirmed: Trial court ruling sustaining State objection to question asked on direct examination of defendant's expert witness in first degree murder of 18-month-old child was not improper, and in any event doctor testified to defense theory of case, and prosecution closing argument did not warrant reversal of defendant's conviction for first degree murder. Lavin, J.

No. 2014 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.

1 Appellate Case Posted 10-10-14

1.  Juvenile Justice/Abuse and Neglect: Affirmed: The appellant failed to raise this constitutionalargument in the trial court, it has been procedurally defaulted and waived.  We further observe that forfeiture is a limitation on the parties, and not the court, and we may relax the rules of forfeiture where an issue impacts the fundamental fairness of a proceeding and address it under the plain error rubric. Parents have a fundamental due process right to the care, custody and control of their children, but that right is subject to termination."  The procedure to terminate a parent's rights "must comply with the requirement of procedural due process." Id. The overriding concern remains the best interests of the child.  Pursuant to the Juvenile Court Act, the involuntary termination of parental rights involves a two-step process. First, the State must prove by clear and convincing evidence that the parent is "unfit" as defined by section 1(D) of the Adoption Act.  The circuit court must then consider whether it is in the best interests of the children to terminate parental rights.  "A parent's rights may be terminated if even a single alleged ground for unfitness is supported by clear and convincing evidence." This means that, on review, if there is sufficient evidence to satisfy any one statutory ground we need not consider other findings of parental unfitness."  Palmer, J.

2014 IL App (1st) 140773  In re J.B. Filed 10-10-14 (LJD)

Respondent, Natasha B., is the biological mother of minors, J.H., born on November 20, 2003, and J.B., born on November 4, 2009. Respondent appeals the trial court's November 14, 2013, ruling finding the two minors neglected and abused and adjudicating respondent unfit, and the trial court's March 17, 2014, order finding that it was in the best interests of the minors to terminate respondent's parental rights. On appeal, respondent asserts that her due process rights were violated because she was incarcerated, she was refused any services, and she was denied visitation with her children, and these facts were used as evidence to establish unfitness. She also contends that the trial court's findings of unfitness were against the manifest weight of the evidence.1 For the following reasons, we affirm.

1 Appellate Case Posted 10-09-14

1. Insurance Law: Affirmed: Our state supreme court has held that the trial de novo provision of the uninsured motorist provision in the insurance policyif the award exceeding the statutory limits issue did not violate public policy. The Reed court explained that because such provisions were explicitly required by statute to be included in all uninsured motorist coverage policies, it was only logical that they could not, at the same time, be violative of public policy. The arbitrators' determination is binding only with respect to awards below $20,000, however, for the statute permits either party to reject an award that exceeds that amount and to resolve the claim instead through the judicial process."   Fitzgerald Smith, J.

2014 IL App (1st) 131036 Nelson v. Country Mutual Insurance Company Filed 10-09-14 (LJD)

Following 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.

5 Appellate Cases Posted 10-08-14

1.  Election Law: Affirmed: Our supreme court has repeatedly cautioned that "[m]andamus is an extraordinary remedy," which may be used to enforce the performance of  official duties by a public officer, only where the petitioner is entitled to the performance "as a matter of right," and only " 'where no exercise of discretion' "on the part of the officer " 'is involved.' "The Liquor Control Act grants Illinois citizens the right to restrict or prohibit the sale of alcohol in their own precinct, but it grants them this right only under certain conditions. However, the submission of the issue to the electorate is mandatory only "when the petition has been filed in proper form with the clerk."   Gordon, J.

2014 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.

2.  Family Expense Act: Affirmed: The Act requires parents to pay for the "expenses of the family," which, according to judicial interpretation of the statute, includes medical expenses of their minor children.  "The common law in turn gives parents a cause of action against a tortfeasor who, by injuring their child, caused them to incur the medical expenses."  Such a claim is not a claim for damages as a result of the child's personal injury, but is founded on the parents' liability for the child's medical expenses under the Act. Parents may assign to their child their cause of action to recover medical expenses, but the child asserting such a claim as assignee must prove that her parents had a cause of action and any defense that could have been raised against the parents may be asserted against the child.  Because of its derivative nature, the limitations period applicable to a claim under the Act is co-extensive with the limitations period applicable to the claim for the underlying injury.   Mason, J.

2014 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.

3. Domestic Battery: Affirmed: A reviewing court faced with a challenge to the sufficiency of the evidence must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the elements of the crime proven beyond a reasonable doubt.  Thus, the Collins standard of review gives " 'full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'  Self-defense is an affirmative defense—once it has been raised by the defendant, the State bears the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense, in addition to proving the elements of the charged offense.  To establish a claim of self-defense, the defendant must present some evidence as to each of the following six elements: (1) that unlawful force was threatened against him; (2) that he was not the aggressor; (3) that the danger of harm was imminent; (4) that the use of force was necessary; (5) that he actually and subjectively believed a danger existed that required the use of the amount of force applied; and (6) that his beliefs in that regard were objectively reasonable. The decisive question is whether the defendant's belief that it was necessary to use deadly force was reasonable under the circumstances.  A person who is thrust into a life-endangering situation is not required to use infallible judgment in deciding whether or how to act to defend himself.  The right of self-defense, however, may not be used to justify an act of retaliation or revenge. The self-defense concept is to protect person, not pride."  The term "brutal" is defined as cruel and cold-blooded, grossly ruthless, or devoid of mercy or compassion; the term "heinous" is defined as enormously and flagrantly criminal, hatefully or shockingly evil, or grossly bad; and the term "wanton cruelty" is defined as consciously seeking to inflict pain and suffering on the victim of the offense. Carter, J.

2014 IL App (3rd) 120905  People v. Holman  Filed 10-08-14 (LJD)

After 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.

4.  Post Conviction Petition: Reversed and Remanded:  The Act (725 ILCS 5/122-1 to 122-7 (West 2010)) establishes a three-stage process for adjudicating a postconviction petition.  At the first stage, the trial court must review the postconviction petition and determine whether "the petition is frivolous or is patently without merit."  In the first stage of a postconviction proceeding, the allegations of the petition, liberally construed and taken to be true, need only state "the gist of a constitutional claim."  The "gist" means the essence, the main point or part (Merriam-Webster's Collegiate Dictionary 493 (10th ed. 2000)), as opposed to a factually complete statement of the claim  By requiring, in the first stage, only "the gist of a constitutional claim," the supreme court intends to set "a low threshold."  At the first stage of postconviction proceedings, however, a defendant need establish only it is arguable counsel's performance fell below an objective standard of reasonableness and he arguably was prejudiced as a result. Pope, J.

2014 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.

5.  Criminal Law:Reversed and Remanded:  A criminal defendant's right to confront the witness used against him or her is protected by the confrontation clauses contained in both the federal constitution, by the sixth amendment, made applicable to the state through the fourteenth amendment, and the Illinois Constitution.  Although constitutional rights may be waived, "[t]here is a presumption against the waiver of constitutional rights."  For a waiver to be effective " 'it must be clearly established that there was an "intentional relinquishment or abandonment of a known right or privilege.  Prejudice is presumed under the second prong of the plain-error doctrine due to the importance of the right involved.  Our supreme court has described a criminal defendant's right to confront the witness against him or her as "a fundamental right."  Harris, J. Connors, J. dissents

2014 IL App (1st) 113534 People v. Hood Filed 10-08-14 (LJD)

A jury convicted defendant, Terry Hood, of aggravated battery to a senior citizen causing great bodily harm. Prior to trial, the State conducted an evidence deposition of the complaining witness pursuant to Illinois Supreme Court Rule 414 in which the witness identified defendant as his  attacker. Ill. S. Ct. R. 414 (eff. Oct. 1, 1971). Defense counsel attended the deposition, and conducted cross-examination, but defendant did not attend. Over six months after the deposition, the State informed the circuit court that the defense had waived defendant's appearance at the deposition,  but that the waiver did not appear on the record. Defense counsel agreed that she waived defendant's appearance at the deposition.  Defendant asks this court to review, under the second prong of the plain-error doctrine, whether he knowingly and voluntarily waived his right to confront the witness against him at the evidence deposition. We hold defendant has satisfied his burden of proving plain error because he has shown that he did not knowingly or voluntarily waive his confrontation rights and that his claim of error involved a substantial right, i.e., his right to confront the   witness against him as guaranteed by both the federal and state constitutions.  Defendant asks this court to review, under the second prong of the plain-error doctrine, whether he knowingly and voluntarily waived his right to confront the witness against him at the evidence deposition. We hold defendant has satisfied his burden of proving plain error because he has shown that he did not knowingly or voluntarily waive his confrontation rights and that his claim of error involved a substantial right, i.e., his right to confront the witness against him as guaranteed by both the federal and state constitutions.

2 Appellate Cases Posted 10-06-14

1.  Post Conviction Proceedings: Reversed:Mootness discussed.  The right to counsel when a postconviction petition advances to the second stage (as defendant’s petition did here) is statutory, not constitutional.  Under the Act, “defendants are entitled to a reasonable level of  assistance, but are not assured of receiving the same level of assistance constitutionally guaranteed to criminal defendants at trial.”   When a defendant’s appointed postconviction attorney is called upon to assert that the defendant’s appointed trial attorney was ineffective, the distinction between constitutional and statutory rights makes no difference. If postconviction counsel is appointed to mold the defendant’s allegations into legally cognizable shapes [citation], that counsel must be as conflict-free as trial counsel. The right to
reasonable assistance of postconviction counsel includes the correlative right to conflict free representation. Jorgensen, J., dissent by Spence, J.

2014 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.

2.  Animal Control Act: Affirmed: A primary purpose of the Animal Control Act is to encourage tight control of animals in order to protect the public from harm. Section 2.19b defines a vicious dog as "a dog that, without justification, attacks a person and causes serious physical injury or death or any individual dog that has been found to be a 'dangerous dog' upon 3 separate occasions."  Section 15(a) provides that: "[a] dog may not be declared vicious if the court determines the conduct of the dog was justified because *** the dog was ***  protecting itself, its owner, custodian, or member of its household, kennel, or offspring."  Cates, J.

2014 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.

2 Appellate Cases Posted 10-03-14

1. Partnership: Reversed and Remanded: "Res judicata is an equitable principle intended to prevent multiple lawsuits between the same parties involving the same facts and issues." "Res judicata bars any subsequent actions when a final judgment was reached on the merits by a court of competent jurisdiction between their same parties or privies on the same cause of action."  " 'Res judicata is conclusive as to any matter that was offered to sustain or defeat the claim or demand, as well as any other matter that might have been offered for that purpose.' " "Therefore, the moving party must demonstrate (1) an identity of the parties or their privies in the two lawsuits; (2) an identity to the causes of action; and (3) a final judgment on the merits of the first lawsuit." Under a transactional test to setermine identity of litigation, "separate claims will be considered the same cause of action for purposes of res judicata if they arise from a single group of operative facts, regardless of whether they assert different theories of relief."  Liu, J.

2014 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.

2.  EPA: Affirmed: Res judicata is a legal doctrine that serves to bar a subsequent action if an initial court action concluded with a final judgment on the merits involving the same claim and the same parties or their privies. The three required elements to establish res judicata are a final judgment on the merits rendered by a court of competent jurisdiction, identical causes of action, and identical parties or privies.  A final judgment on the merits is one "adjudicating the contested rights in a conclusive and definitive manner." The Illinois legislature enacted section 31 of the Environmental Protection Act to establish a prelitigation process for the alleged violators to meet and work with the EPA to correct violations.  Chapman, J.

2014 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.

1 Supreme Case Posted 10-02-14

1.  Legal Negligence: Appellate Court Affirmed, Cuase remanded for recalculation of Interest: In order to recover damages in a legal malpractice action in Illinois, a plaintiff must establish what the result would have been in the underlying action which was improperly litigated by the plaintiff’s former attorney. The basis of the legal malpractice claim is that the plaintiff would have been compensated for an injury caused by a third party, absent negligence on the part of the plaintiff’s attorney. The injuries resulting from legal malpractice are not personal injuries but, instead, are pecuniary injuries to intangible property interests.  The plaintiff must affirmatively prove that he suffered actual damages as a result of the attorney’s malpractice and a plaintiff who obtains recovery in a malpractice suit can be ‘in no better position by bringing suit against the attorney than if the underlying action against the third-party tortfeasor had been successfully prosecuted’.  Punitive remedies vs. remedial remedies analyzed and discussed.  Kilbride, J.

2014 IL App 116362  Goldfine v. Barack, Ferrazzano, Kirschbaum & PerlmanFiled 10-02-14 (LJD)

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.

1 Appellate Case Posted 10-01-14

1.  Contempt of Court:  Reversed: Criminal contempt arises from “conduct that is calculated to impede, embarrass, or obstruct the court in its administration of justice or derogate from the court’s authority or dignity, or to bring the administration of the law into disrepute.” Direct criminal contempt involves a defiant or disrespectful verbal or nonverbal act which takes place in the courtroom and is witnessed by the judge.  Neither a formal charge nor an evidentiary hearing must precede a hearing on direct criminal contempt because the misconduct was actually observed by the court and the relevant facts lie within the court’s personal knowledge.  (“Direct criminal contempt may be found and punished summarily because all elements are before the court and, therefore, come within its own immediate knowledge.”).  Indirect criminal contempt is based on conduct the court has not personally witnessed.  A charge of indirect criminal contempt gives rise to similar procedural safeguards as those required in criminal proceedings.  For example, a respondent in an indirect criminal contempt proceeding has the right to be advised of the nature of the charge, to be presumed innocent, to require proof beyond a reasonable doubt, and to invoke the privilege against self-incrimination. Wright, J. Holdridge, , J. specially concurred

2014 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.